Tuesday, March 1, 2016

A River Runs Through It

[A new post from Mark Weiner. His previous post on this blog about Austrian law and landscape is here.]

My new video is about water, water law, Austrian identity, legal philosophy, concepts of the state, ideas of the public, approaches to time and tradition, metaphor, and some great old books. Plus, there’s a cameo appearance by a sweet Alpine cow:

The film is divided into two parts, held together within a single narrative frame: a day spent driving around beautiful Salzburg with a charismatic young legal scholar, Florian Lehne, who was eager to show off his country’s watery environment.

The first part of the film considers some of the ways Austrian law regulates water in a characteristically Austrian way—which is to say by vindicating the public interest and resisting market liberalization through strong assertions of state administrative authority. This part is centered around my trip with Florian.

The second part of the film meditates on Hans Kelsen’s pure theory of law, which in its strict formalism seeks to divorce conceptions of law and the state from politics. This part includes footage of Florian and a group of both young and well-established legal scholars from the University of Salzburg, the University of Vienna, and the University of Graz.

The division of the film into two parts serves a conceptual and methodological purpose, as well as a substantive one. Conceptually, it’s meant to underscore that different and sometimes divergent aspects of the same legal system can be connected by an underlying symbolic structure whose study is essential for understanding both the legal system’s details and larger issues of legal-cultural identity. Influenced by the work of Clifford Geertz in anthropology, I’ve explored this idea in a variety of ways since my first book, Black Trials, which sought to put that theory into practice through the techniques of literary-historical narrative. Film provides another method for pursuing this goal.

The film isn’t an illustrated lecture, and its purpose isn’t to make an analytic argument. Film makes its meaning through visual gestures and accompanying music and sound. But I’d like to note something about the origin of the film’s main idea: that post-war Austrian identity rests on an ideal of the public interest embodied in elite managerial institutions, and that this ideal represents a curious echo of monarchy within a modern social democratic state.

It isn’t surprising that this structure of thinking and identity should be reflected in water law. The beauty of the Austrian environment is one of the essential foundations of the modern Austrian sense of national self—the Austrian “brand,” both internally and externally, is as the land of mountains and Mozart. Austrians constructed this national self-understanding in significant part after World War II as part of an effort to differentiate their country from Germany. And since the 1970s it has been essential to the country’s economic health, which rests significantly on tourism.

Austrians have protected this cultural resource by nurturing the view that strong government authority is integral to their political community. It’s for this reason that environmental law, the individual experience of water, constitutional jurisprudence, and the individual experience of government all share a common symbolic structure—and that this structure can be captured in film.

A final word for the technically-oriented readers of this blog. The film was shot on a Panasonic Lumix GH4 at 25 fps—that’s to keep images under European PAL lights from flickering—a hard lesson learned a couple years back after I shot 24 fps under fluorescent bulbs in university offices). The audio was recorded internally with a small, expensive Senheiser shotgun mic and a rudimentary lav. A few clips also were shot with my iPhone, in NTSC rates. Most of the shots are hand-held, including the pans, and were steadied in post, though the interviews use a tripod. I edited with a MacBook Pro using Adobe Premier Pro, After Effects, and a smattering of Audition. When the film comes together, I’ll be relying on Audition and Speedgrade for the finishing touches.  As with the video I posted back in January, this is do-it-yourself, micro-budget filmmaking, which I hope gives it a distinctive feel and perspective.


  1. It is a beautiful idea to compare the pureness of water in Austria to the pureness of law according to Kelsen's theory! But it could be misleading, if you look at Kelsen's motivation: he wanted to get rid of ideological political influences on law, and he chose the word "pure" to express the idea of legal reasoning being "stricly legal" (and nothing else). There is nothing mystical about that.

  2. Thanks, Eric! I certainly hope that this is precisely the aspect of Kelsen's approach to the ideal of purity I've brought out in the film—it's what was intended. But then there is a further step, namely to connect the formalism of the pure theory of law and its understanding of the state, in which law and state merge, with the strong exercise of state administrative authority used in Austria to keep its waters pure. The metaphor of purity is important to me in this respect in highlighting not a mystic aspect to Kelsen's legal philosophy—it's anything but that—but rather a shared set of attitudes about state authority across Austrian legal fields. Under Kelsen, the state is protected in its purity by walling law from politics; in Austrian environmental law, at least in the case of water regulation, the environment is protected in its purity through a strong administrative state theorized as the exercise of neutral expertise in the service of an a-political conception of the public. In both cases the state and its law are theorized as a-political at their core: an elite managerial conception of government and the public interest that is a curious echo of monarchy—and that registers, or that can be made to register, in film. And so then, also, the film explores the use of metaphor as a tool in legal-cultural analysis. So I think we in fact agree, at least about the core concern you raise.

    1. correction: "in the service of an a-political conception of the public interest."

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