How should we think of law? This was the question we asked in our last session. It was not designed to elicit views on the substantive nature and content of law. Its purpose was to draw attention to a much less discussed and even less debated issue in the contemporary academy: whether the discipline of law is unquestionably a social science. True, just as any other social science, law is concerned with human relationships in a particular society. Yet, it is also true that we speak and think of law as a subject belonging to the humanities, which historically has included the liberal arts (originally being grammar, rhetoric and logic), those domains of knowledge deemed indispensable to the making of a free citizen. This is the perspective we adopt in this module – where we also consider law to be an art.
From Roman times to the Enlightenment, law was defined as ars boni et aequi (the art of the good and the equal), whilst during the Renaissance, law, as vera philosophia (the true philosophy), was the queen of the liberal arts. What then I ask, does law have in common with technê, to use the Greek term for art? How, do the activities of those engaged in the life of law – the legislator, the advocate, the judge – resemble those of the artist? What are the characteristics of law that ally it to the liberal arts? What, more precisely, has law in common with such subjects as literature, history, theology, rhetoric, or logic? And, what practices and techniques does law have in common with these subjects?
Law possesses creative power and imagination, as does art, and is therefore also closely linked to the notion of artifice. Law imitates through invention and fiction, as indeed art imitates nature. Through the art of legislation natural relationships between people are created where there are none, life and personality are bestowed upon lifeless entities, and our conception of what is ‘natural’ or not, of what is just or not, is changed. Without the hermeneutical expertise of the jurist and the judge cultivated through exegesis, commentary on, and interpretation of the legal text, neither the systematic acquisition of legal knowledge, nor the transmissibility of this knowledge and its applicability to the present, would be effected. If the activities of the jurist and the judge link law to theology, literature and history, those of the advocate, join law to logic and oration. For it is the professional lawyer, the advocate, who, if it is to mediate successfully between law and her client, must persuasively touch her audience’s reason and sentiment and thus must excel in logical argument and the art of public speech.
So what do you think? What does your experience tells you? Is law an art?