Guest Post: A Video Project about Austrian Law and Landscape

David Schorr recently invited me to share a few words about my latest video project with the readers of this blog. The video will be called “Wood, Water, Stone, Sky, Milk: Law and Landscape in Austria.” It will run about ninety minutes once it’s complete, but in the meantime I’ve been releasing short draft segments, one of which was cross-posted here a few weeks back.

The latest segment is called “Alexander and Iris Talk About Stone (without meeting),” and it explores an Austrian legal method beguilingly named after one of the most prominent elements of the Austrian landscape:

Both Alexander and Iris were great sports, and their enthusiasm for video as a medium enabled this segment to address a serious subject with a light touch and to reach viewers well outside university circles. That’s a tone and openness I’d like to achieve throughout the film.

The project grows out seven months I spent as a Fulbright Scholar at the University of Salzburg in 2015, but its roots lie a bit further back. In 2012, I began an extended, unpaid leave of absence from Rutgers-Newark School of Law, where I had taught constitutional law and legal history for ten years. The reasons for the change were personal: my wife is a professor of English at Wesleyan University, and the burdens of my commute from New Haven came to outweigh the benefits of an academic career. We value our lives together.

The decision came with some significant material costs, but it has given me the time and freedom to strike out in new directions, and that’s been ever-inspiring. I had already published three books, and I wanted to jump well outside my comfort zone and explore modes of historical expression that were entirely new to me. I wanted to engage with radically different forms and styles of telling stories about the legal past. As it happened, two of the forms that came to interest me—two new directions I took—were visual.

The first new direction led me into the world of museum exhibitions. Most important, I began collaborating with my friend Mike Widener, Rare Book Librarian at Yale Law School, on an exhibition for the Grolier Club in New York about illustrated law books. Called “Law’s Picture Books,” the exhibition will feature a number of works that are sure to interest readers of this blog, like this eighteenth-century book about Dutch water law, or this great edition of Bartolus. Do come join us when the exhibition opens in February 2018—it’s going to be exciting.

The second new direction led me into the world of video production and editing, which has become one of the most profound humanistic experiences of my life—it forced me to wrestle with basic questions about our knowledge of the world. I’ll find another occasion to reflect on the challenges involved when a university scholar tries to learn digital video from scratch. But I can say here that, to my relief, it struck me immediately that the storytelling foundations of documentary work and my own academic writing were basically the same. And, happily, after a couple of years of trial-and-error learning, I’ve become familiar enough with Adobe’s suite of post-production products—storytelling tools of jaw-dropping power for historians—to create work that’s significantly better than the first film I made on my Flip Video camera. Plus, the great thing about being a beginner again is there’s so much opportunity to learn so much more.

“Wood, Water, Stone, Sky, Milk”—or, when I’m feeling less ambitious, “Stone, Water, and Wood”—began as a very different video project. When I put together my Fulbright proposal, I intended to make a film about the Austrian legal philosopher Hans Kelsen and his pure theory of law. This seemed like a project just quixotic enough to be interesting to me. But after spending a series of afternoons meditating on Kelsen along the banks of the beautiful Salzach river, it became clear that any filmic treatment of Kelsen would after all have to be a film.  That is, it would require exploring his highly abstract thought in a way that would be grounded in—indeed, that would proceed from—worldly, visual metaphors. It also became clear that the project was too narrowly conceived.

And so as I sat holding my dog-eared copy of the General Theory of Law and State and thinking about concrete things in the world around me that, like Kelsen’s theory, were “pure,” I looked out on the crystal river in front of me … and a structure for a much larger film fell quickly into place. My wife and I had spent many weeks hiking and biking through the mountains and countryside around Salzburg. The landscape we experienced consisted of some basic elements, again and again—features that seemed fundamental to the Austrian environment: the wood of its forests; the water of its rivers and lakes and melting snow; the stone of its mountains and rocks, pushed up by the meeting of the African and European tectonic plates; the bright sky spanning its valleys; and the lush agriculture and animal husbandry of the milk production we saw emerge as winter turned to spring.

How was this Austrian landscape, I wondered, the product of legal regulation—and years of legal development—that was characteristically Austrian? How was it a landscape of law and legal history? At the same time, in what way could the basic features of this landscape serve as useful metaphors for characteristic doctrines of the country’s legal system?

I suspected that exploring how Austria has regulated its landscape through law would reveal a pattern in which a robust, relatively distant administrative state forcefully protected public goods through a resistance to market liberalization—a pattern that could be understood in part as an inheritance of the legal principles of monarchy and as an expression of the desire for “security” that Stefan Zweig explores in Die Welt von Gestern. This pattern, I also suspected, was sure to be under pressure through the forces of EU enlargement and centralization and economic globalization.

The landscape metaphors also came easily: “wood” for the tradition of careful statutory construction that partly was an inheritance of Enlightenment absolutism; “water” for Kelsen’s pure theory of law or, perhaps, for Austrian state neutrality after 1955; “stone” for the Versteinerungstheorie, the “en-stoning” principle of federalist jurisprudence; “sky” for Austria’s special treatment of religion, and for its conservatism; and “milk” as a metaphor for the post-war welfare state—again, each principle sounding in Zweig’s meditations on Austrian Sicherheit.

My hope was to interview a wide variety of Austrians who could speak meaningfully about the legal regulation and history of one of the five basic landscape elements I had chosen, and to conduct those interviews within the same natural environment on which they would be meditating for the camera.

For the past few weeks, I’ve been gathering together the footage I shot for the “Stone” section of the film, and so far, I’m intrigued by the way the segments work together. The originalist method of interpretation Somek and Murer discuss in “Alexander and Iris Talk About Stone” has interesting echoes in the legal traditionalism explored in “Anna in the Mine” (which is about the regulation of salt mining). Both touch upon themes addressed in another video segment, “Marc of Lucky Town,” in which an Austrian law student who is the son and grandson of coal miners shows me where he grew up (I’m awaiting copyright permission for an music track, so I can’t yet share the segment). And all three segments play in interesting ways off the ideals and apprehensions about the Austrian landscape of law raised in this interview with the archivist of the Salzburg folk song society:

Likewise, these segments on stone speak to some of the themes raised in the following footage about the history of Austrian forest law and administration, which I’ll be incorporating into the section on “Wood.” Note that the footage hasn’t been edited for color or sound correction (later I’ll be removing the sound of those screaming aristocratic peacocks at the end of the clip):

Next up, I’m turning to the “Water” section of the film, beginning with an interview with a scholar of Austrian water law conducted on the banks of the Wolfgangsee. We’ll see where it all goes. I’m certainly enjoying the process and learning a lot about Austria and its legal tradition of environmental regulation.  And I’m learning a lot, too, about how to tell stories about legal history in the digital age. It turns out, wonderfully, that the natural world is not only a vital subject for that project. It’s also a invaluable aesthetic resource.