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?
It would seem that most people would naturally define law as a system of rules that govern conduct and impose order on society. Such a definition would lend itself to the description of law as a social science: rules, order and logic are all vital elements of science. However, law is also a projection of images and seen in this light shares many of the characteristics of art. One such powerful image is that of Lady Justice which personifies justice and is used to symbolise objectivity, rationality and impartiality: the moral force of legal systems. A study of popular culture indicates that not only does law project images, but that artistic forms are also frequently used to express the law. There are numerous television programmes that are based upon law from Silk to Suits, Judge Judy to Law & Order. The trend of the ‘courtroom drama’ indicates that there is something about law that aligns itself more closely with art than science. Indeed, Raffield reminds us that Roman philosophers emphasised the artistic skills of the advocate and that such skills were so vital to the conception of law that often judges and lawyers had no legal knowledge.
The role of the judge is primarily thought of as weighing up competing interests, evaluating the strengths and weaknesses of arguments and applying reason and rationality where rules conflict. But in deciding a case the judge is also creating a narrative. Legal cases are often read as though they are objective facts that can be observed empirically like a scientist might record data about the world. However, the common law can also be read as a literature – a medium for telling stories about those affected by the decisions of the powerful.
There has been much discussion about the “nature” of law, whether it is science or art. While there are arguments for both views, the question is much more complicated because we would have to clearly define all three terms and what would mean to say that law is science or art. The general belief is that science is objective and seeks to explain the world whereas art is subjective and seeks to express individuality and emotion. The scientist is the one who examines the world and seeks answers and the artist is the one who expresses himself or a larger group of people. Traditionally these two are regarded as different because they seemingly pursue different purposes in different ways. However, further thought on the topic will prove how problematic is this easy-made distinction.
Both science and art attempt to explain the world but different aspects of it and by different means. It is empirically false to say that science is objective while art is subjective because any activity or process that involves human beings is bound to be subjective, since absolute objectivity cannot be achieved, so it is only a question of which one is more or less subjective. In this sense both scientists and artists have the same objectives, to understand and explain the world and human beings are in the centre of that attempt.
So science and art do not seem to be that different after all and the same applies to law; it does not have to be either science or art, it can be both. It is science in the sense that it is coherent and systematic and it is also art in the sense that it relies on disciplines like philosophy, rhetoric and linguistics to achieve its aims. I think there are more arguments to support the hybrid nature of law rather than the limiting one where law is either one thing or the other.
In order to effectively respond to the question ‘Is law an art?’ one needs to first understand the concepts of Law and Art on their own right. Most importantly one must discover those qualities of law that could be of similar virtue to other concepts of Art. Before entering any everlasting and endless concerns on what Law is, we need to think about it in a more practical way, such as ‘In what ways does law manifest’? This leads us to think about the instruments of law; because law is not just an idea, but also founds its authority through the existence of a state and of its institutions. Law in this sense is the Legislation and the following Court decisions, which at times follow the letter of the written law, while other times they interpret the latter in a more ‘creative’ way. Up to this point we have encountered two aspects, which should be examined under the prism of the term Art; the actual legislative text and the Court decisions.
To begin with, Art could be considered to be anything that is done in a creative way. Creative then could be anything made in a new, innovative way, through which this piece of art is able to achieve whatever its existence is meant to achieve. Both manifestations of Law mentioned above, use Language either written or spoken to achieve their purpose. In order therefore to understand which qualities of Law can be considered Art we need to initiate our reasoning from the study of Language, Linguistics and Rhetorics. Despite the critisisms and constant disputes found in academic literature, and even though the Legal Text might seem specific and concrete, the judicial decisions as well as the influence that lawyers’ rhetoric exerts upon judges and jury, is considered a significant starting point to realize the artfulness of law.
A final point to consider is also the idea of Law in broader terms, understood in the context of discipline, punishment and social control achieved through subtle and creative ways, remaining almost untraceable to the naked eye. These thoughts inspired by Michel Foucault, aim to emphasize the techniques and processes of normalization as a means of social control, achieved through the Law (through its authority, force, Language and persuasion) and would therefore set another interesting point to consider, when we think of Law as an Art.
In response to KD 287:
It is sadly ironic that one of the most popular playwrights at the turn of the 19th Century was condemned in a law court – a case of art fighting art. Oscar Wilde was renowned as an orator, and held observers entranced as he fought his case at the Old Bailey.
Setting aside any other potential issues, Wilde would have been an object of much admiration in the ancient classical world, where the skills or the orator were held in high regard. Indeed, the predecessors of todays jurists were those skilled in the art of rhetoric, and Wilde would have found great kinship with his ancient literary brethren.
As mentioned in the post, Wilde was a staunch supporter of the Aesthetic movement, although perhaps this was not widely known until he chose to publicly announce it as a consequence of the action brought against him by the Marquis of Queensbury. Interestingly, the aesthetic movement was one that argued against the influence of political and social ideology on the very subjects that collectively formed ‘the Humanities’ – for example art, music and literature.
Whilst the movement was perhaps most prominent in the 19th century across Europe, it does have contemporary supporters. For example Harold Blum (Professor of Humanities at Yale University) raised objections to ‘the projection of social and political ideology onto literary works’ and considers this is causing an ongoing difficulties for humanity scholars.
There is much to commend in Wilde’s stance not only in his fight against homophobia, but also in his support of aesthetics and that movement’s fight to preserve the Humanities in their untained form.
To answer whether law is art, it is necessary to answer what is art. But as we are not doing that, I’ll try answering the law question by assuming different concepts of what art is.
If we are to take art as a ‘form of expression’, then it could be said that an advocate is an artist, as the advocate is using oratory, persuasion skills etc. (similar to what ML461 said). At the same time, it could be argued that the expression is not ‘natural’ since an advocate can only express oneself only in a very specific environment – court room. Also, if we take art as an expression, everything becomes art, because more or less everything can be seen as a form of expression (what is ‘expression’?).
If we look at art from an aesthetic side, there is the question of beauty. The idea of beauty is associated with pleasure, so in order for law to be considered art it is necessary to prove that law in all its shapes is capable of producing pleasure.
If we are to take the institutional definition of art, this means that law can’t be seen as art since art is something which is created by an artist for public appreciation.
Finally, there is the question ‘what is law’. Do we look at law as a collection of rules written (like a constitution), do we include trials into the idea of law? It could be argued that trials are not part of law, because they are dealing more with what should be done if law is broken, but not law (i.e. written laws) itself.
“I am one of those who are made for exceptions, not for laws.” In spite of this, Oscar Wilde imprudently initiated litigation for libel after being accused of ‘posing as a soddomite’. This action led him to proclaim the truth of his love of aestheticism and of the beauty of a younger man. The venue was the stage of the Old Bailey law court, London in 1895. He and the barristers both advocates and prosecutors, all of a high social position, had outstanding ability and experience in the power of the art of eloquence and persuasion and created fascinating theatre to a large audience in the court and via the press. The jury was unable to reach a substantive verdict after the first trial such was the powerful oratory from both sides. But according to the prevailing Victorian moral ostentation, the logical conclusion of conviction with ‘gross indecency’ led to his downfall and bankrupt destitution. It bolstered society’s fear of aestheticism’s indecent morals and created an exceptional intolerance of homosexuality. The Criminal Law Amendment Act had just been passed and artfully allowed the interpretation that same-sex sexual activity was an offence. Wilde’s ‘love that dare not speak its name’ was spoken; the consequences ended his writing and his life. He was sadly correct and damned to hard labour for stating that his love ‘… is in this century misunderstood.’ Wilde left England following his release from prison for a more societally liberal France. He died in 1900 in the beautiful rue des Beaux Arts, St Germain des Pres, 6th arrondissement, Paris. Wilde’s last residence is not far from the venue for this module and accommodation there is available for 3,000 Euros for six nights. I acknowledge my reading and use of the texts by Douglas O. Linder, ‘The Trials of Oscar Wilde: An Account’ and Antony Edmunds, ‘Attitudes to Class at the Wilde Trials’.
Is Law an Art? Yes! Art is a means to express oneself. It can be unique to the individual, or can be used to portray someone else, and what is art to one person may not be to another. However, as a means of expression, the term ‘art’ encompasses all, and in that sense law is one of many methods of expression. Just as a writer portrays their art in the written word, and a painter in a picture, so a lawyer expresses their art vocally.
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