Law in the marketplace

Chapter 9

Law in the marketplace

Marc Trabsky¹

[I]t may be noted finally that our dear and sullied common law does not escape the genealogical principle of institutional reproduction, namely that only through the sacrificial rites of food, through communal ceremonies of consumption, can the human group create and affirm a space of Law.²

The Meat Hall

The Queen Victoria Market is a prominent site of trade in the city of Melbourne. The history of the development of the site – the market was opened on 20 March 1878 to remedy the lack of space for producers in the Eastern Market³ – reveals a spatial conflict in the city between a place for the dead, a place for slaughter and a place for trade. The marketplace is constructed atop the first burial grounds of Melbourne. Yet when strolling through its passageways, past the fish mongers and the butchers, amid the hustle of vendors and the bustle of consumers, the traces of its genealogy are imperceptible. The first incarnation of the market as a livestock cattle-yard, the Meat Market Reserve in 1865, and its subsequent enterprise in wholesale trade with the construction of the Meat Hall in 1869, can no longer be discerned from the interiors of the existing establishment.⁴ The slaughterhouse that once founded the vitality of this place, where consumers could collectively verify the death of the animal before their eyes, has been replaced by a retail emporium that facilitates the exchange of refrigerated meat, amongst other animal produce. I can only suspect that since closing the Meat Hall to wholesale trade in 1874 its pallid corridors no longer run red with blood.⁵

The pungent smell of animal carcasses cannot be so easily eradicated as the sight of blood from the aisles of the Meat Hall. Despite the successive transformations of the site as well as the architectural renovations of the building the stench of dead flesh can still be discerned when consumers stroll through its passageways. It is not the miasma of rotten meat that may be perceived in this space but the odours of suspended decomposition. The preservation of animal carcasses in chilled display cases is not only part of a process of keeping produce fresh for consumption. In slowing down the natural process of decay refrigeration radically alters human perceptions of the sentient being whence the meat derives. Whereas a hastened state of decomposition evinces the ravaging effects of mortality that are shared by all living beings, the refrigeration, preservation and display of different cuts of meat conceals the custom techniques that are applied in the killing of animals. Those bloody processes that transform a living being into an object of consumption. The aesthetics of the marketplace thus distances consumers from the works of the slaughterhouse.

The subtle odour of refrigerated meat in the Meat Hall enables consumers to turn a blind eye to the grisly circumstances surrounding the killing of animals. When Sigmund Freud proposes in Civilization and its Discontents that ‘[t]he diminution of the olfactory stimuli seems itself to be a consequence of man’s raising himself from the ground, of his assumption of an upright gait’, he locates in smell or the lack thereof the origins of human civilization.6 The impairment of the olfactory senses, he continues, gives rise to ‘the continuity of sexual excitation, the founding of the family and so to the threshold of human civilization’.⁷ Yet what is achieved in the Meat Hall through the introduction of the technology of refrigeration and the architectural renovations of its buildings, namely the reduction of unpleasant smells, is not so much a consequence of the desire for an erect posture.⁸ Rather olfactory-reduction technology and architecture combine in this place to constitute the mechanisms in which consumers raise themselves from the ground. The mechanisms which enable them to differentiate the human activity of place-making from the spatial experience of animals. Indeed, the desire for an erect posture does not precede the technological and architectural impairment of human olfactory senses. When walking through the passageways of the marketplace consumers turn their noses away from the rotting corpses in the burial grounds that lie beneath the site. They also shun the spectre of animal carcasses that once flooded the floors of the slaughterhouse that stood in its place. In turning their noses away from the lowly terrestrial plane, the horizontal lie of the animal, and heading towards the lofty apex of commerce, consumers make possible the place of the Victoria Market as a site of trade.

It is of no surprise that today the slaughtering of animals takes place outside the city limits at a great distance from the Victoria Market. It is equally unsurprising to observe that legislation has facilitated the movement of the place of the slaughterhouse and has regulated all aspects of the production, procurement and exchange of animal carcasses. What is remarkable though is the local history of the transformation of this site in the city of Melbourne. The history of the market reveals in particular a conflict between the lawfulness of a place for the dead, a place to slaughter animals and a place to trade in animal produce. Its spatial history corresponds to different registers of a legal tradition of ordering space: the rights of the dead to remain buried in the grounds of the cemetery, the sacrificial rituals that venerate the site of the slaughterhouse and the usefulness of a place of trade for the residents of the city. Undoubtedly the opening of the Victoria Market in 1878 can be viewed as the effect of complex planning decisions, which were made in response to pressure from vendors at the Eastern Market, the rise of industrialisation, a population boom and the emergence of the problem of hygiene in the city following the 1850s Victorian Gold Rush. The slaughterhouses were after all renowned in Melbourne in the 1870s for their indiscriminate outpouring of waste each year into the city’s rivers: ‘4,000 tonnes of blood and 35,000 tonnes of solids’ to be specific.9 However, this empirical view of history ignores how place-making is a practice of lawfulness. This chapter accordingly rejects the reconciliation of rival understandings of how law operates in the marketplace that are offered in an empirical history.¹⁰ Instead I show how the different registers of a legal tradition of ordering space – discourses of right, sacrifice and utility – circulate and jostle, assemble and compete according to the specificity of the spatial history of the marketplace. Hence, I explore the different registers of place-making as practices of lawfulness that transform land stolen from the Kulin Nation into a colonial cattle-yard, a cemetery into a slaughterhouse and a wholesale meat market into a retail emporium.¹¹

The local history of the development of the Victoria Market into a site of trade moreover attends to the question of the animal in law. I maintain that the relationship between law and the animal is inextricable from the human activity of place-making. In other words, when we think about critical animal law we need to think about a legal tradition of ordering space. We need to locate the lawful relations between humans and animals in the specificity of their spatial histories.¹² For if humans raise themselves from the horizontal lie of the animal by means of the lawfulness of the place of the cemetery, the slaughterhouse and the marketplace, that is if they differentiate their place in the world from the spatial experience of animals through technology, architecture and law, then critical animal jurisprudence needs to account for the activity of place-making. The lawful relations between humans and animals are constituted in the practice of a spatial history: a practice which is studied here as that of transforming, possessing and inhabiting the places of the cemetery, slaughterhouse and marketplace in the city of Melbourne.

The Old Cemetery

The transformation of the Old Cemetery into the Victoria Market during the nineteenth and twentieth centuries reveals a conflict in the city between the right of the dead to remain buried and the usefulness of a place to trade.¹³ The conflict between these competing interests resounds throughout the history of the legislation that enabled the conversion of the burial grounds into an enlarged marketplace for the residents of Melbourne. Although the site of the Meat Hall was located adjacent to the burial grounds, the other buildings that comprise the site were built atop the cemetery following the enactment of the Melbourne General Market Site Act 1877 (Vic) and the Melbourne General Markets Land Act 1917 (Vic).14 The Market Site Act 1877 proclaimed that the grounds of the Old Cemetery should be granted to the Melbourne City Council and the citizens of Melbourne ‘upon trust for the purposes of a general market’ (s 4).¹⁵ However, since the cemetery was the first burial ground in Australia to differentiate the places of the dead according to discourses of race and religion – Wesleyan, Presbyterian, Episcopalian, Roman Catholic, Independent, Jewish, Society of Friends and Aboriginal – the proclamation differentiated between land available for immediate conversion and land reserved for the future extension of the boundaries of the market. For instance, the Market Site Act 1817 transferred to the Council the land of the burial grounds granted to Jews as well as the land set aside for the Society of Friends, Aboriginals and ‘No Man’s Land’, where convicts were buried, for the immediate purpose of enlarging the space available to traders in the Meat Hall. The Act moreover bestowed the responsibility for exhuming the dead, reinterring them in a new cemetery and repairing any graves to the Melbourne City Council (s 3).

The proclamation of the conversion of the first burial grounds in Melbourne into a place of trade was not welcomed unreservedly by its residents. The Jewish community was especially vociferous in protesting against the disinterment of corpses, particularly since the practice is forbidden under Jewish laws. And for the Kulin Nation, the traditional owners of the land, whose land was originally occupied by white settlers for the purposes of burial, the exhumation of indigenous corpses constituted another act of larceny.¹⁶ Nonetheless, all of the graveyards, regardless of discourses of race and religion, ‘were rudely disturbed’, as ‘Garryowen’ observes, when due to a lack of public funds allocated for adequate fencing, a lack of concern for preserving the decorum of a cemetery garden and a growing interest in transforming the land into a place of trade, wandering cattle, horses and swine freely trampled across its graves.¹⁷ Colin Cole further recounts the dismay expressed at the time by the fact that ‘many of the red-gum “headstones” used in its early days were stolen for firewood’.¹⁸ As one concerned ‘grave-owner’ wrote to the editor of The Argus later in response to the failure to maintain the grounds of the cemetery and the proposed plans to transform the site into a marketplace:

My revered parents rest in the old cemetery – my father since 1848 – and I view with horror the proposed action of the City Council, a body which should revere, not desecrate, the last homes of the grand old pioneers of this colony.¹⁹

The conversion of the grounds of the cemetery into a marketplace was a long-winded process that was not complete until the late 1930s. In the early 1900s the Council demanded more room for fruit and vegetable traders and in the 1920s incorporated the remaining parts of the graveyard after the enactment of the Market Land Act 1917. The legislation ‘endorsed the transfer of all remains from the site’,20 which proved to be impracticable at the time,²¹ and extended the boundaries of the market over the entire ten acres of the graveyard. The decision to convert the remaining land into a place of trade led to a protest movement by many outraged residents of the city who campaigned for the preservation of the Old Cemetery. As Sir John Monash wrote, ‘[t]here was no spot in Melbourne so precious and so deserving of respect as the Old Cemetery. Yet it was proposed [by the Council] to blot it out of memory’.²² Despite the efforts of the Old Melbourne Cemetery Preservation League and the Old Cemetery and Soldiers’ Memorial Union, the rituals of commerce prevailed over any potential rights of the dead to remain undisturbed in their graves. Even though the Council was unable to ‘blot it out of memory’, they were successful in at least displacing the furore that emerged over the decision to convert the site into a place of trade. For the decision to not exhume the corpses that lay buried underneath the cemetery has led to the current imbroglio, where thousands of unnamed and unidentified corpses remain profanely encased under layers of reinforced concrete.²³

The sanctity of the Old Cemetery was not simply profaned by the enactment of the Market Site Act 1877 and the Market Land Act 1917 which legally enforced the disinterment of the dead and paved the way towards the development of the Victoria Market. It was also desecrated by the gradual neglect of the grounds of the graveyard. The right of the dead to remain buried ‘in perpetuity’, if it can be said that a secular right exists in common law,²⁴ was also essentially repudiated by the failure to maintain the layout of a paradisiacal garden necropolis.²⁵ In fact, evidence of the failure to prevent animals from trampling over the graves was seized by the Council in support of their plans to convert the cemetery into a marketplace. In other words, the failure to exclude wandering animals from desecrating a sacred place – the delay in fencing the boundaries of the cemetery and the animals disregard for the sanctity of that place – raised questions as to the utility of a place for the dead adjacent to a wholesale meat market. The effect of the Acts then were that they seemed to resolve the problem of where to place the dead in the city. They placated the suspicions and doubts that emerged concerning the usefulness of a sacred site left open to the profane movements of animals. The Acts sought to render useful an inadequacy that threatened the lawfulness of the place of the dead. It did so however by paradoxically seeking to profane what was already regarded as desecrated land. Consequently, the lawfulness of the site of the Victoria Market emerges not simply through the enactment of specific pieces of legislation, but because what was once sacred was transformed into wasted land. And the only way to mask the repugnance of desecration is to render that land useful for the inhabitants of the city.

humans bury not simply to achieve closure and effect a separation from the dead but also and above all to humanize the ground on which they build their worlds and found their histories.26

The burial of the dead differentiates a human place from the spatial experience of animals. The activity of burial is what makes places intelligible, places which Harrison notes do ‘not occur naturally but are created by human beings through some mark or sign of human presence’.²⁷ I want to add though that the activity of burying the dead is always already a practice of making and marking law. The mark of law endows humans with the capacity to bury their dead – epitomised by the common law doctrine of an ‘exclusive right to burial’²⁸ – while the act of burial itself grounds law into the earth. In the development of the site of the Victoria Market the burial of the dead is an activity of its place-making and a practice of its lawfulness. The curious notion, that thousands of corpses remain buried underneath the Victoria Market, does not undermine the lawfulness of its place in the city. On the contrary, the failure to exhume the dead reminds the living of what is necessary to form a place on earth: nature must be irredeemably marked by human presence. The burial of the dead, the mark of law and the sign of the grave ‘effectively opens up the place of the “here”, giving it the human foundation without which there would be no places in nature’.²⁹