Costas Douzinas in his article “A Short History of the British Critical Legal Conference or, the Responsibility of the Critic” examines the role of critics and intellectuals. He distinguishes between intellectuals of the past and the present arguing that the former had a clear aim to fight for universal values, while the latter are incorporated into the social system and are in a way “institutionalized.” There is a tendency to distinguish legal from other texts on the grounds that they operate differently. Law is seen as an objective set of rules necessary for a functional society and as such it is immediately thought of as a special kind of text not to be treated like the rest. But texts are imbued by ideology and represent a position, as Michel Foucault has argued. This is especially the case with Law where the correlation between power and text could not be clearer.

What Douzinas argues and what is a crucial point, is that Law and legal texts are to be analysed and interpreted as texts produced by someone rather than accepted as given, objective rules to be obeyed. In that sense, he agrees with Chomsky, as he states in his article “The Responsibility of Intellectuals,” that intellectuals are to “speak the truth and expose lies” and to “see events in their historical perspective.” Legal texts need to be contextualized and recognized as authored texts. Identifying Law as discourse and analyzing it as such is the role of the modern critic/intellectual who has to respond to the needs of a changing world, interpret it, and criticize it, if there is any hope for a better society. However, the ubiquitousness of power declared by Foucault does question whether it is even possible to separate texts from power.

Is Law an Art?

My perception of law has changed and developed throughout my life.  Before entering education as a mature student, as a lay person, law was about what you read in the papers (mostly criminal activities), what you watched on TV and thinking you know your rights whilst going about your everyday life.  As a student of law, my initial thought was that to study law was to learn about the offences and to learn statutes (what I now know as ‘black letter’ law) and to learn it ‘parrot-fashion’!  What a shock it was!  I soon began to realise that studying law, through various lens, enabled students to gain a full understanding about the foundation of law.  These lenses included looking at law theoretically, conceptually and, studying at Kent Law School, critically – this was alien to how I had originally expected to learn law.

In 10 years gone by, whilst teaching, I am now studying law once again.  This time, examining law in conjunction with Humanities.  In the few sessions we have had, I am now beginning to realise that I am studying law through another lens – law as an ‘art’.  The question asks whether law is an art but one thing I do know is that I have never considered myself as ‘arty’ or creative being a lawyer!  However, after reading the material for this module, I am having to reconsider my initial thoughts about the creative lawyering.  The first thing that sprung to mind when considering law as art was that the most important skill a barrister has to learn (or a solicitor-advocate) is the ‘art of persuasion’ (something I learnt in Ian Morley’s book – The Devil’s Advocate).  Thinking about the influential characters in fiction and on TV – Atticus Finch, Rumpole, Kavannagh QC and in recent time, Martha in Silk – you appreciate that these great characters possess the ‘art of persuasion’.  By articulating creative arguments, they have achieved ‘justice’ for their clients – another notion discussed in the readings to come.

As Clive Anderson wrote in the Telegraph in 2009, in his piece about Garrow’s Law, William Garrow, an 18^th Century barrister, was a  key figure in developing the trials at the Old Bailey and began the adversarial system we have today because of his “art as an advocate”.  So in answer to the question, is law an art, it has to be answered in the affirmative – so bring it on!!

The above ‘title’ is based on a comment in the article – The Medieval Idea of Law (Walter Ullman). The article discusses the role the Glossators, who rediscovered ancient Roman legal texts, played in the advancement of Roman law; and the Post Glossators who expanded the early work of their predecessors and developed Roman law into something more than just ideas, more than just a virtue. The Glossators did not attempt to harness any new concepts to the ancient texts, they simply commented upon them using their singular belief that law was only based on Justinian teachings. The Post Glossators took this and built upon it, introducing a philosophical undercurrent. They formed a highly regarded European school of legal studies, creating universities such as those in Bologna, Peruvia, Padua and Siena; and devoted much of their energy to determining how law could be applied in practice rather than just principle.

Law is a system for governing society, a way to maintain, support and protect public order, and as such it cannot be based just upon one tenet as the Glossators suggested. In my view, and in common with the notions put forward by the Post Glossators, law is not only based on an ethereal notion of justice, but has as its cornerstones morality, philosophy, religion, history, science, sociology and yes, ethics. Therefore the many and various ideas introduced and evolved by the Post Glossators helped to develop law from a narrow concept into a multi faceted principle.

But were they correct? Were their endeavours misplaced, and is too much made of law today. Should law be an insular notion, untroubled by consideration of philosophical and moral direction?