Law has obvious connections to aesthetic issues, from obscenity laws and municipal aesthetic regulations to copyright, environmental legislation, defenses of “harmless offense,” legal characterization of rights, and issues of textual interpretation. Books such as Douzinas and Neal, Law and the Image, Gearey’s Law and Aesthetics, Kevelson’s collection of the same name and Manderson’s Songs Without Music: Aesthetic Dimensions of Law and Justice have explicitly dealt with more global considerations. First, art may influence the way that law is practiced. Second, law might be itself a form of artistic production. Finally, the study of legal practice promises to help identify aesthetic qualities habitually associated with authority and reason.
Richard Sherwin argues that contemporary media has thinned legal meanings down to spectacle. The “customary balance within the legal system among disparate forms of knowledge, discourse, and power” are “flattened out as they yield to the compelling visual logic of film and TV images and the market forces that fuel their production.” Law, according to Sherwin, had traditionally refused to privilege a single source of knowledge. But today to convince in court one has to use the images and metaphors of mass media. While “Law cases enact a battle for reality” the fight must now go on within the (reductionist) options offered by media sources. Sherwin calls this “the estheticization of the real.” This conclusion repeats in slightly different terms a belief that is endemic to legal discourse – that aesthetic factors, as opposed to argument, short-circuit our reasoning abilities and aim at baser (less rational) faculties. “Image-based” justice is thought to be so seductive that it can sweep away the “actual facts and applicable caselaw.”
On the other hand, in Poetic Justice Martha Nussbaum argues that legal argumentation would be greatly improved if legal professionals would adopt a diet of novel reading. In opposition to the distancing and technical style of many legal opinions, “the novel constructs a paradigm of a style of ethical reasoning that is context-specific without being relativistic, in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on concrete situation, which we are invited to enter through the imagination.”1 Nussbaum’s argument rests upon the claim that proper legal reasoning requires sympathy for the human condition that other models of legal reasoning do not encourage.
Both Sherwin and Nussbaum show how artistic products may broadly influence law. But law can be investigated as an aesthetic product in its own right. Law could be thought of as a form of literature.2 As Robin West argues, legal theorists “persistently employ narrative plots at strategic points in their arguments.” A similar analysis is offered by Patricia Williams in The Alchemy of Race and Rights.
Williams offers a critique of the legal reasoning style students learn during law school. She starts from a manuscript describing a racially motivated experience she had at Benetton’s. Williams then relates how her law review article changed through multiple edits authored by the student editors. First, all emotions were eliminated in favor of the “passive impersonal.” Second, all references to Benetton’s were eliminated for “legal” reasons. Finally, another edit eliminated all references to race. When she argued against the changes she was characterized by the editor as too emotional or as arguing for illegitimate reasons. She observes, “What was most interesting to me in this experience was how the blind application of principles of neutrality, through the device of omission, acted either to make me look crazy or to make the reader participate in old habits of cultural bias.” She writes, “What is ‘impersonal’ writing but denial of self?… denial of one’s authority in authorship is not the same as elimination of oneself; it is a ruse, not reality.” Williams sees this highly codified and impersonal writing style as enforcing an “aesthetic of uniformity.”
Literary moves also govern actual legal practice. Manderson claims “the discourse of law is fundamentally governed by rhetoric, metaphor, form, images, and symbols.” Beebee argues further “Judicial procedure constructs not just law itself, but also reality”; therefore law is a type of “poesis.” Law is a place where narrative possibilities compete for the right to be held as “The” true description of the world. Gearey thinks that awareness of the constructive side of law should push us towards a “Nietzschean aesthetic responsibility” where law is based upon a duty to create. James Boyd White would have lawyers ask, “what worlds, what communities, our expressions and writings create.” Even if the hope for Nietzschean creativity is discounted, it seems hard to argue against some aspects of the law as literature claim. Attorney and judge are largely professional writers. Case law, statutes, and constitutions are all written products.
But why, if the practice of law is largely that of the production and digestion of written documents, its literary qualities have been largely suppressed? Law claims to be a justified, rigorous and structured discipline though it doesn’t follow the methods of social or physical science and doesn’t admit to being a domain within the humanities. Because it doesn’t follow the methods of modern physical science, legal practice cannot be justified through a simple reference to experimental efficacy. And because legal practice is claimed to be more dependable and reasoned than the traditional disciplines included within the rubric of the humanities, law’s self-description must find another type of justification than Nietzschean creativity.
The most important type of justification law offers is that of legitimate authority. As Goodrich explains, law “is in many aspects to be taken as a plastic art, of architecture, statuary, dress, heraldry, painting and insignia-gold rings, rods, coifs, seals and rolls-which provide popular consciousness with a Justice which can be seen and remembered.” The judge’s robe, the ritualistic invocation of oaths and seals, all aim at reinforcing the appearance of just authority.3 The temple-like architecture of most courthouses and even the most visible institution in the private side of law, the firm, are aesthetically packaged to attach law’s power to the authority of tradition, culture and knowledge.
The aesthetics of authority offered by law is similar to that offered by religion. Robes, rituals and grandiose buildings are common to both, as are esoteric texts and specialized methods of interpretation. Also common are ritualistic appeals to internally standardized and policed institutional hierarchies. But modern society has largely de-attached law from religious sources of justification and replaced it with seemingly less metaphysical and controversial entities such as “reason.”
Much of law’s contemporary claim to justification rests upon its appeal to being founded upon and driven by Reason. Every court opinion is thought to get its justness from the reasons used and erroneous opinions are erroneous only because they don’t follow the rules of reason correctly. Law must have various ways in which it symbolizes its reasonableness.
Boorstin finds in Blackstone’s Commentaries an “aesthetics of reason” used to justify British common law.4 Not only were simplicity, symmetry and balance aspects of a universal reason to be found in common law, but disorder, complexity, and obscurity in the law was also seen as a manifestation of the sublimity of nature’s reason. And all of these qualities were included within a “rationalist aesthetic.” For Blackstone common law mirrors nature and nature is beautiful because it is a manifestation of universal laws of reason. Therefore the relation between law and aesthetics is a natural one.
Janice Toran argues that simplicity, elegance and coherence often make the decision between one legal procedure or rule and another. Geary describes this as “a belief in the inherent worth of form.” The questionable move here is to think that such qualities are more a matter of reason than aesthetic preference. Aesthetic principles such as symmetry might appear correct superficially, but cover up deeper irrationalities. Of course it may be equally questionable to think that reason can be characterized in a manner that excludes the aesthetic, but that is an assumption common to most legal ideals of reason.
Aesthetic analysis of the stylistics of legal writing offers fertile ground for the bringing to light hidden assumptions as to the nature of reason much as an analysis of “conceptual art” promises to bring to light hidden assumptions as to the nature of a “concept.” In addition to the qualities of simplicity, coherence, symmetry, etc., legal texts have other qualities of an unconsciously inherited yet highly symbolic concept of reason.5 Case law, the legal brief and the ever present legal memo all are characterized by a quest for uniformity, an almost fetish-like attachment to the distancing “anti-aesthetic” aesthetic of restrained black type on white bond paper and elimination of the emotional, subjective and particular, in favor of the overtly abstract and technical. Reason is associated with distance, coolness and technical terminology. Highly stylized use of analogy and citation to legal authority attached to formalistic and explicitly “logical” moves are also emphasized. What is interesting here is that the legal profession has no way to test its claims to being ruled and justified by reason other than to appeal to its own formalistic criteria. As Geary puts it, “Law is a kind of confidence trick … the system manufactures its own conditions of legitimacy and then attempts to legislate them as a priori universals that have a legitimizing effect through their appeal to reason.”
The best example of this type of circular and insular type of internal justification is Dworkin’s theory of “law as integrity.” Dworkin’s theory rests upon a strong attachment to the concept of “principle.” A principled system of law is largely characterized as one that rejects the possibility of “checkerboard” laws. Checkerboard laws treat similar legal events with different and “arbitrary” distinctions and grounds. Why do checkerboard laws fail at offering anything more than arbitrary distinctions? Dworkin’s explanation is telling – first, he admits that checkerboard laws may hypothetically succeed in providing fair solutions. Further, he admits that it is not a certainty that checkerboard laws will be more unjust. Hence the dilemma: “we have no reason of justice for rejecting the checkerboard strategy in advance, and strong reasons of fairness for endorsing it. Yet our instincts condemn it.” His solution: we oppose checkerboard laws because “we say that a state adopts these internal compromises is acting in an unprincipled way.” But what does this mean but they don’t live up to Dworkin’s vision of law as integrity? But how do we arrive at legal integrity rather than checkerboard law if fairness and justice are not the deciding criteria?
According to Dworkin judges should interpret laws as if they were authors of a chain novel. In the “enterprise” of the chain novel a “group of writers writes a novel seriatim; each novelist in the chain interprets the chapters he has been given in order to write a new chapter,” the interpretive rule that governs is that each author “has the job of writing his chapter so as to make the novel being constructed the best it can be.” First, note the Latin flourish – the legal analogue to scientific language. Second, note that “best” here rests largely upon an assumption that unity is better than fragmented – an aesthetic preference. The two tests that the chain novel must pass bear this conclusion out. First there is “fit” and second, make it “best all things considered,”- Dworkin admits these are largely aesthetic considerations. Principle reduces to the proper form; apparent is equation of reason with simplicity and coherence, etc. It all feels rigorous and principled – though why it feels so is largely an unanswered question. Importantly, Dworkin’s judge makes law the best it could be – not the world.
In conclusion, not only do areas that are explicitly aesthetic exist within legal controversies, but also law itself is a literature-based product. It is interesting that a domain of social practice that is so overdetermined symbolically is presented as if it is independent of aesthetics. In fact, aesthetic factors are most often characterized by the legal profession as pernicious. But law really offers an “anti-aesthetic” aesthetic. Looking at the aesthetics offered by law raises questions about symbolic ideals of what is neutral, just, principled or reasoned, and asks whether such an attitude toward aesthetic factors is biased towards certain conclusions. Observing the aesthetic factors operating in an area purportedly purified of such an influence can help widen appreciation of the importance of aesthetics in everyday concepts such as reason.
1. See the analysis of Bowers v. Harwick for a convincing example of how legal argumentation can use the strategy of distancing and different levels of generality to come to insensitive and unjustified conclusions.
2. There are legal theorists that think this claim is overstated. See, for example, Richard Posner’s Law and Literature: A Misunderstood Relation, (Cambridge: Harvard University Press, 1988) at 79. It should be stated that Posner does think that the study of literature may properly sensitize lawyers to the “great issues that law intersects.” (175)
3. See Peter Winn “Legal Ritual” in Kevelson (ed.) Law and Aesthetics (New York: Peter Lang, 1992) for a discussion of the relation of law and ritual.
4. Daniel Boorstin, The Mysterious Science of the Law (Gloucester: Peter Smith, 1973). It is important to note that Blackstone’s Commentaries is generally acknowledged to be one of the most important influences in the practice of early American law.
5. The excessive reliance upon footnotes is just one of the most conspicuous aspects of this highly formulaic picture of reason.
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2002 © Brian Butler