Law as Art

Gary P. Bagnall

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351922784
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Law as Art presents a radical new legal theory, the Law as Art Hypothesis, which conceives law, not as a system of rules, but as a distinctive kind of art work. Law is differentiated as art by the Law as Compound Artistic Type Hypothesis, which uses the heuristic metaphor of the Operatic Music Drama, the most elementally complex compound art form, to develop an idea of legal art as a distinctive empowered text, supported by the arts of drama, painting, sculpture, dress-design, architecture, rhetoric and communication to form an elementally developed yet integrated unitary art work. Part I develops a new realist epistemology to support a contemporary action-type ontology of art, differentiated as art by virtue of its artistic value. Part II opens with a critical review of the arts in legal theory, before detailing the Law as Art and Law as Compound Artistic Type Hypothesis and locating them within contemporary scholarship. Legal philosophical implications are considered and there is an acronym key and glossary, bibliography and index.

1  Introduction

I would like to introduce this book by clarifying the inspiration for yet another attempt to shed fresh light upon what many have come to regard as a frustratingly elusive and, it appears, fatally contested concept: the idea of ‘law’ itself. Contemporary Anglo-American legal theory can fairly be described as being in transition, slowly emerging from a period of self-doubting stasis, barely having survived the critical onslaught of a hostile climate of philosophical scepticism. For some, concern with the idea of ‘law’ has been replaced by new concerns, be it the commendable legal educational goal of seeking innovative modes of disseminating legal information, or a growing preoccupation with analysis of linguistic, rhetorical, and interpretive dimensions of legal practice. I firmly believe I am far from alone in not concluding that such emerging fields of legal inquiry have rendered legal theory creatively obsolete and no longer a vital element in legal philosophy. Quite the reverse. Radical new perspectives within philosophy in general, and legal inquiry in particular, continue to generate challenging invitations to respond imaginatively, and the fact that such radical new intellectual perspectives are still possible at all ought to encourage belief that the central idea of ‘law’ itself may also be the subject of imaginative and insightful re-explanation.

I believe it can be, and the legal theory to be developed is my personal response to the creative challenge issuing from the new philosophies. My general philosophical position may be described as non-foundational realist, (and in this sense decidedly unfashionable), an admittedly unorthodox position, but one for which there is now a growing corpus of significant supporting literature. In Law as Art I endeavour to cohere the new philosophies, (in epistemology, value, and ontology of art), in the hope of advancing what I view as the exciting, emerging shift in contemporary legal inquiry, a fundamental, axial shift away from a scientific approach, (the legacy of the Age of Rationalism), toward a new, long neglected, artistic perspective on law. I believe that this emerging artistic perspective can be considered a discernible, unifying theme in much contemporary legal scholarship, a theme often as yet dimly focused and theoretically adverse in taking great care to avoid the sceptical charge of foundationalism. Conceptual and explanatory coherence is essential to this embryonic perspective in legal inquiry, if it is to avoid the fate of unorthodox movements such as Critical Legal Studies (CLS), which, although occasionally highly effective in its critique of an all too vulnerable liberal orthodoxy, is itself often inadequate, incomplete, if not incoherent, as an explanation of our experience of legal reality. The least of my hopes for this present work is that it will demonstrate that a new and coherent framework is necessary, possible, and that the artistic hypothesis thereby offers a plausible alternative perspective on law.

It is in legal theory, and legal ontology in particular, that I now propose to re-construct the artistic perspective, and this book argues from epistemology, value theory, ontology and morphology of art, toward an altogether new ontology of law as art work. My concern is precisely what kind of entity best explains the idea of ‘law’, or, in my preferred semantics: What is the ‘best explanation’ for law? This work is not presented as a complete legal theory, since that would necessitate a comprehensive descriptive analysis of the class of legal entity, (a task beyond the scope of this volume), in order to fully individuate law as ontological type. But for methodological reasons I do propose (in Part II of this work) to make some preliminary differentiation of law beyond bare ontological type, in order to generate a basic descriptive framework for such future descriptive analysis, a framework which ontologically classifies ‘law’ as a distinctive type of art work. The precise question to be addressed in this work is this: What is the best explanation for the kind of entity ‘law’ is, and what general qualities differentiate ‘law’ from other entities of the same ontological type?

My philosophy of non-foundational realism inevitably determines what is to count as theoretical progress and in doing so determines the status to be claimed for the ontology of law as art which follows. It holds there to be no ‘one true theory of law’, therefore my legal ontology can imply no claim to be definitive. Instead, working hypotheses are tested for explanatory ‘fit’ with experience of legal reality, the objective being to arrive at the ‘best explanation’ of that reality, by which I mean the most coherent explanation available. The ‘best explanation’ is (I shall argue) the ‘true’ explanation, but as an explanation, it is a contingent, fallible truth-claim, since any theory is but a part of an ongoing tradition of inquiry and ultimately part of a single, contingent ‘web of belief’. If the artistic hypothesis to be constructed is to be judged the best available explanation of ‘law’, such a judgement can only be made (again, given my epistemology) by engaging the reality of legal experience through the artistic framework of inquiry. The relative weight of any explanation is always its capacity for explaining the subject of experience. The artistic hypothesis, as I shall construct it, will (I hope) prove thought-provoking and convincing, bearing in mind that it is an ‘explanation’ and not a ‘proof’. A concluding judgement of ‘plausible’ as distinct from ‘best’ explanation for the artistic legal hypothesis would be of only marginally less significance, as even plausibility avers to the credibility of the new hypothesis within legal ontology, thereby furthering the emerging axial shift away from a preoccupation with scientific rationalism and its sceptical antithesis.

Yet Law as Art is as much a philosophy of art as it is a legal ontology, because any serious ontological argument for a concept of law as art must first take art itself seriously. In writing of the inspiration behind this work I must acknowledge my indebtedness to the late German conductor, composer, and in his own private way, philosopher of art: Dr Wilhelm Furtwängler (1886–1954), whose still contentious post-war de-Nazification trial recently inspired the play Taking Sides (1995) by Ronald Harwood. Furtwängler was a mesmeric, inspirational, deeply reflective, and serious musician, and it was first through recordings and fragmentary archive footage of his conducting, and somewhat later through his writings (1954, 1956, 1964, 1989, 1991) that he came to influence my own ideas of art and its performance. A colossal public persona shielding a very private man, Furtwängler never intended his work or writings to form the basis of a systematic and coherent philosophy of art, in fact he was quite adamant that technique and analysis ought never to be allowed to constrain the vitality of the work. It is the work, and our engagement of it, which truely matters, and it is this recurring emphasis on the priority of the work which I have sought to express throughout.

Furtwängler’s influence pervades and colours much of what 1 have to say about art, but I have refrained from any attempt to impose upon his ideas what would be an artificial coherence. The colour may often be Furtwängler’s, but the ontology and value theory of art which I will argue for is, I trust, distinctive and contemporary, and is heavily indebted to the contemporary action type ontology of Currie (1989) and value theory of Budd (1995). In acknowledging my artistic debt to Furtwängler, I hope in some small way to demonstrate that the extant writings of this quite remarkable, complex, and most sensitive of artists are, just as much as his recorded legacy (see Ardoin, 1994 and Hunt, 1996), a relevant, rich source of inspiration to anyone who cares to take art seriously. Yet the irony in associating Furtwängler’s reflections on art with what many (not least Furtwängler) have held to be a strongly ‘political’ concept - law - is immediately transparent. Furtwängler’s entire ethos was grounded upon the basic tenet that art and politics are - or at least ought to be - unrelated spheres of human existence. He was wrong, and paid dearly for his error, and he ultimately ‘sacrificed himself to his own fiction’ (Prieberg, 1991: 331). Furtwängler’s error is not, however, without positive consequence, since he lived his error, and in the narrative of his failure the inevitability of the association between the political and the artistic is even more strongly attested.

I can not leave my artistic influences without mentioning opera, and in particular the operas of Wagner. What can I say about Wagner? If Furtwängler was, and remains, a figure of contention with the capacity still to evoke disagreement, Wagner has this power to an even greater degree. Probably, after Christ, the most written about man in history, whatever one thinks about him personally, his works are monumental, acutely challenging, and for many, (myself included), infinitely faceted works of genius. I have no doubt that but for my familiarity with opera, and Wagner’s operatic music dramas in particular, this book would not (indeed, could not) have been written. It was my familiarity with Wagner’s highly developed music dramas, as complex, compound types of art work, that suggested such a metaphorical model for legal art, when seeking to answer the question: If ‘law’ is art, what kind of art could it be? Unlike my debt to Furtwängler, which does draw heavily upon extant writings, my association with Wagner is most strongly with his operatic works, and only to a limited extent with Wagner the prolific writer and philosopher. This is simply because Wagner’s writings have not touched me the way Furtwängler’s even less systematic, but more penetrating, less egotistical and polemical work has. Wagner’s operatic works, on the other hand, have the capacity to touch one deeply, if not to envelop entirely. Therefore, the operatic music drama model I will employ (Part I, Ch 5) is constructed from personal experience of engaging Wagner’s art work, and not directly (or indirectly, for that matter) derived from a systematic interpretation of his written legacy, significant in itself though it is.

Of my legal influences, I can only declare that consciously I have none of a similar weight to the artistic sources already mentioned. I have sought to engage my subject from within this new artistic perspective. Despite having a non-foundational realist epistemology, there are no traditional ‘Legal Realist’ antecedents, no prior framework of legal inquiry beyond a belief in the inadequacy and incompleteness of all that has gone before, and an openness as to the possibilities of a restored, philosophy of art in explaining the reality of everyday legal experience. Having acknowledged the principal influences which inspire and colour this book, I should say something about its narrative development.

The book is in two progressive yet distinct parts. Part I encapsulates ideas on philosophy and art generally, and details an epistemology (Ch 2), ontology of art (Ch 3), theory of artistic value (Ch 4), introduces the morphological (or descriptive) analysis of art work (Ch 5), and concludes by developing a morphological model of a particular type of operatic art work, the ‘operatic music drama’. Part II seeks to combine the theoretical ideas articulated and the heuristic model of the operatic music drama (introduced in Part I) to construct an ontological theory of law as art. It opens with a critical and consolidating review of the new scholarship on law and literary art work (Ch 6), proceeding to clarify the crucial tenets of the emerging artistic perspective in legal inquiry, and then demonstrates how they may be taken to provide a significant degree of support for both the primary Law as Art Hypothesis and its derivative Law as Compound Action Type Hypothesis (Ch 7). This hypothesis is further revised using morphological criteria, in the light of experience of legal reality (Ch 8) and the book concludes by briefly reviewing the most significant implications of the artistic hypothesis for subsequent legal inquiry (Ch 9). The hypotheses this book argues for may themselves be summarized as follows. The primary ontological artistic hypothesis, the Law as Art Hypothesis, is that law is best explained as a kind of artistically valuable action type. The Law as Art Hypothesis is then developed to encapsulate what is distinctive about legal art work as art. This developed hypothesis, the Law as Compound Action Type Hypothesis, is that legal art work, (as a kind of artistically valuable action type), is best differentiated as art using the metaphorical heuristic of the operatic music drama - its closest analogous art form - and this metaphorical model is further refined in order to reflect the primary qualities of the legal art work that individuated law from its operatic heuristic.

The nature of my subject matter, not to say its interdisciplinary nature, inevitably demands much of the reader, especially with regard to the specialist use of language and idiosyncratic use of common ideas. Since my purpose is to stimulate as much critical discussion of the artistic hypothesis as possible, I have tried to minimize these occurrences in order to make the argument accessible. The list of abbreviations with glossary at the front of this book, (abbreviations which I will use from Ch 2 onward), is provided to help identify and clarify key concepts and idiosyncratic terminology, and familiarity with the glossary before proceeding further is suggested. The general legal reader, perhaps unfamiliar with epistemology or the philosophy of art, may be well advised to pass over Part I, Chs 2–4 and begin reading at Ch 5, before proceeding to Part II.

It is not uncommon for theoretical monographs to put forward an extended summary of the argument by way of introduction, but I do not propose to follow tradition in this respect. Rather, I will close these introductory remarks by presenting a precis, in the form of a schematic representation, of the revised Law as Compound Action Type Hypothesis (distinguished by the abbreviation LCATH₂), which this book concludes is the best explanation for ‘law’. It is this conceptualization of law which the reader is challenged to evaluate for explanatory ‘fit’ through experience of legal reality.

‘Law’ is an artistically valuable (i.e. intrinsic, sentiment-dependent, intersubjective, anthropocentric, incommensurable, contextual, contingent, non-ethnocentric, objective) action type (i.e. performance achieved by the artist or more often a plurality of artists, possessed of structure and heuristic, capable of multiple instantiation) whose enacting actions are its tokens; as a kind of artistic action type it is a compound (dominantly audiovisual and multisensory, engaged both voluntarily and involuntarily, highly interactive and tactile, structurally significant, elementally very highly developed, complex and integrated, primary elements of text and power, secondary elements of drama, painting, plastic arts, dress-design, architecture, rhetoric and communication), dramatic enactment (as compositional framework type: predominantly utilitarian given expression within representational, expressive, and thematic accessories; as compositional type: employs pictorial and sculptural representation in both static and mobile types, visual dramatic representation in mobile type, auditory mimetic/descriptive representation, linguistic-symbolic/literary representation, strongly narrational but including writing and dramatic text which may often be compound and highly complex); as action type it is dynamic and of variable choativity, text is a dominant element, costuming and scenery are developed, architecturally sympathetic performance environment, elementally integrated into a single art work, strong systematic tendency, integration being enhanced by the imaginative receptivity of the ‘audience’; possessed of style (understood historically as a set of common structural and heuristic traits) of disparate works sharing a common provenance (interpreted widely including individual, group, race, geography, chronology).

PART I

ON ART

2 An Epistemology of Art

Introduction

When theory and hypothesis is outside the mainstream of academic opinion, as is much of that which follows, then it is imperative that the theoretical pediment is clearly explained at the outset. Not to do so increases the possibility of inviting inappropriate assumptions and critique through the complacency of conventionalism. Such philosophical complacency has recently been convincingly challenged in the work of Quine (1969, 1980), Putnam (1981, 1982, 1983, 1984, 1990), Devitt (1978, 1982, 1984), Goldman (Alan H., 1978, 1979, 1986, 1988), Gilbert (1990), van Fraassen (1980, 1984), Boyd (1980, 1984), Hacking (1983, 1984), Churchland (1979), Gewirth (1978), Shapere (1984), Miller (D.A., 1987), McMullin (1984), Field (1974) and Lewis (1984) amongst others, which collectively can be said to have laid the intellectual foundations for an emerging new realism, what Putnam (1990) has recently described as ‘realism with a small r’, in order to clearly differentiate it from both Berkleian, transcendental Kantian, and objective Hegelian Realism. Philosophers such as Boyd, Shapere, Sturgeon (1982), Gilbert, and Werner (1983) have, in the context of moral knowledge, gone so far as to suggest the possibility of moral objectivity (moral facts) whereas others (such as Devitt, 1984), have expressed honest doubts about the extension of ontological realism to epistemological realism generally, whether ethical or not.

To date, most of the work has been carried out in the important areas of scientific epistemology and semantics, but the ‘one world’ view which the new realism claims to reveal, integrates knowledge, including moral and political knowledge, with historical context - agent-percei...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Series Preface
• Abbreviations and Glossary
• 1 Introduction
• PART I: ON ART
• PART II: ON LAW AS ART
• Bibliography
• Index