Abstract
Beginning by offering an overview on legal aesthetic humanisms as a specific embodiment of critical discourse, and discussing the ways the recreation of juridical experience, rationality, and culture underpinning such a criticism, leaving behind monolithic views on textuality, judgment, and (inter-)subjectivity, positively contributes to unsettling the main assumptions underlying typical understandings of law’s autonomy—mostly those of formal specification of juridical “sources” and “scientific” isolation of legal thought—, this paper argues that simply reproducing aesthetic heterodoxy as the epitome of a humanist ‘alternative to law’ (Castanheira Neves), without first debating the very orthodox-heterodox binomial, ends up overlooking the discursive and methodological specificity of law, as a particular experience (and a promise) of practical and normative validity. In this way, it introduces, from an axiological-normative and juridically oriented standpoint (inspired by Neves’ jurisprudentialism), a different—jusaesthetic—argument for re-examining the relationship between law’s praxis, nomos, and community.
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Notes
Mostly in a “sceptical view”, but not exclusively, the use of the term “movement” (instead of the less-specific “enterprise”) with regards to one of the humanistic trends of a broader ‘“law-and” scholarship’, to borrow Jane Baron’s words [5: 1059], namely law-and-literature, is not consensual, since ‘[…] the different practices sheltering together under the law and literature umbrella are too diverse and potentially inconsistent to form a coherent movement’ [6: 2274, fn. 6.]. Even the contemporary pioneer of law-and-literature revival, James Boyd White, sees the reference to a movement with reservations, noticing that ‘[w]hatever name is used, the kinds of work being done under this general rubric is extremely various in genre and intentions alike. There is no organized program here, no commitment to an ideology, no plan of conquest’ [77: 9].
Regardless of this, since the bare quantitative epistemological and disciplinary expansion to other kinds of art beyond literature does not mean that the typical ‘compare-and-contrast strategy of interdisciplinary critique’ [4: 23] (the standard method followed in literary scholarship) is here necessarily overcame, ‘“[a]rt”—as in the law and literature movement—is in these cases still seen as a metaphor. This is an argument about how we should think about law rather than about what the law actually means to us and how it does so.’ [51: 32].
Borrowing the expression from Nigel Simmonds (see footnote nº 10, infra).
A territory inhabited by ‘non-jealous’ jurisprudences ‘which neither aspires nor pretends to be the only law or universal jurisprudence’ [32: 2]. ‘The Apocrypha is not a school or a movement. There is no political agenda or even any necessary intellectual coherence. What these writers share, instead, is temperament and imagination.’ [52: 59]
In allusion to Karl Popper’s proposal of a metascientific ‘critical method’ in which the ‘critical attitude’ of ‘falsifiability’, as refutation/‘refutabilty’ (‘the attitude of searching for an error’), instead of ‘verifiability’, should operate as a proper ‘demarcation criterion’ in scientific theories [67: 46-52 (cited)].
For an analysis of the category of disgust in its relationship to the very constitution of aesthetics (as ‘[t]he absolute other of the aesthetic’), see [54: 7].
‘That the category of the aesthetic has a complicated semantic history is one of the reasons why it is currently proving to be such a tempting (though at first glance unlikely) theoretical seam for legal scholars to mine, but equally why the precise boundaries of the category, and where within those boundaries legal theorists might most fruitfully focus their attention, can be difficult to discern’ [7: 302].
As it was stated elsewhere [22].
The reference to ‘class’ and to ‘archetypical’ concepts is introduced by Nigel Simmonds (albeit with different purposes). It regards, as ‘class concepts’, concepts that, presenting a ‘general type of structure’ and implying a status description, require ‘full compliance with the requirements of that concept’ (‘Particulars count as bachelors only by fully satisfying a set of criteria (bachelors must be unmarried male human beings) and all particulars that satisfy those criteria will count equally as bachelors. Bachelors do not count as such by degree of approximation to an unattained ideal of bachelorhood; nor do they vary in the extent of their bachelordom.’). While ‘archetypical concepts’ require only a ‘degree’ of ‘approximation to the archetype’, instead of the accomplishment of all-or-nothing standards [74: 53].
Following the recollection of the path of law from a Western European heritage and perspective, we can see that the link between law, or legal experience, and the 'arts of language' is very ancient, even ancestral. It evidences the origin of dialectics and topics as rationality-logos and method-odos, of prudence-Phrónēsis as the virtue of practical wisdom, and of rhetoric-Poíēsis as a practical knowledge or craft-techné by which communitarian values were brought into presence, or externalized, during concrete creative-poietic gestures of prudent deliberation in praxis. The Greek, Roman and Medieval iurisprudential exempla (despite the particularities they entail) are testimonies to this alliance. Indeed, until the consolidation of modern thinking and subsequent empire of positivism and legalism, which separates the law from the just and exonerates the law from the obligation of justice, the normativity of law was thought to be concretely constituted and experienced as a reflection of the typical literary arché (simultaneously nomological and axiological) of the communities in which such an arché was thought to be previously inscribed. About this separation, see, especially, [59: 255–259].
A prior scholarship that does not exactly start in early 20th century legal and literary perspectives, such as those of John Wigmore and Benjamin Cardozo [10, 79 and 80] (despite their subsequent influence), but that has its typical contemporary impulse in the seventies, with the publication of J. Boyd White’s The Legal Imagination, in 1973 [38, 77 and 78].
I am alluding in this excerpt explicitly to the formal (‘axiomatic’) structure of recognition of authority (of the presence of the text and textual authority, in its positive belonging to a normative genre, to an identifiable authorship or signature, and to a name-title) explored (and deconstructed) by J. Derrida in his famous reading of Kafka's Vor dem Gesetz/Before the Law. In Derrida’s view, such presuppositions, in fact, overlook a ‘double problem’ or question: ‘who decides, who judges’ the relationships entailed in the very acts of recognition... and ‘according to what criteria’? Or, to put it a similar way, ‘(who decides, who judges, and with what entitlement, what belongs to literature?)’... and, in this case, to law? [17: 184–188].
‘[…] the discourse of law entails an enfolding of separate languages and jurisdictions, those of conscious and unconscious, of word and image, of simulacrum and symbolum.’ [32: 132].
‘Law is not narrative, but figurative. And this temporally compressed, extranarrative power is likewise at the heart of the transgressive potential that dwells within work of arts. They have the capacity to place us before an event, not merely as the record of something in the past, but here and now. This opens the possibility of transformation by a connection to other lives and experiences that is at once aesthetic and ethical.’ [53: 244].
In this sense, see Douzinas’ “definition” of rights (particularly human rights)—as ‘fictions’—, constituted by the necessary ‘paradox’ of trying to satisfy ‘a desire that never ends’ [19: 261].
‘The aesthetic is an essential component, the raw material, of human experience and although subjective and beyond the remit of formal concepts or universal standards, aesthetic expression represents a form of interaction between individuals and the precognitive world of idiosyncratic established meaning. Through our senses we encounter the world as alternately beautiful and grotesque, alluring and repellent. The communicative power of this sensory information allows for richer intellectual and emotional engagement with objects and concepts as they are in lived reality, according to their sensible essence.’ [70: 86].
Legendre refers to a ‘genealogical manoeuvre’, ‘which is only possible on the basis of the legal categories defined by what we have historically called civil law’ and institutes ‘the principle of Reason, that is to say that each must provide for itself the means to be able to offer each subject an escape from unreason, which in practice means constructing the subject in his own identity so that he can lead a human life’ [42: 5].
The main methodological postulate of H. Kelsen’s Reine Rechtslehre can be seen as an extreme of this limitative attitude.
‘Lawyers take on the mask—the addiction or the terror—of law to the exclusion of all other desires. At the level of jurisprudence the exclusivity of law is reflected in the closure of legal knowledge.’ [32: 7].
Through ‘[…] [a] register of imaginary laws which are imaginary for the simple reason that legal science and its history of power denied reality to those jurisdictions, fictions or laws’ [32: 3].
See, for instance, C. Douzinas’ deconstruction of Enlightenment founding arguments on societas, humanity and human rights [20: 161, esp.].
‘The supposed illegitimacy of the Apocrypha demonstrates the power of the orthodoxy to set the terms of the debate and to exclude forever texts that proved impossible to domesticate.’ [52: 31].
‘Law, conceived as a genre of literature and as a practice of poetics, can thus only be understood through the very act of forgetting, through the denial, the negation or the repression by means of which it institutes its identity, its life, its fictive forms.’ [32: 112].
‘In jurisprudence, formalism describes an approach that seeks to isolate and classify law’s unique organising principles.’ [30: 4].
‘[…] law’s name can be understood as a personification that suggests that law has an identity, and an ability to declare its own constitution. For law to survive as law, it has to remember, and cause others to remember, its name’ [30: 19, fn. 30].
According to Gearey’s reading of Weinrib’s formalist “aesthetic” perspective, ‘[f]ormalism discovers first principles in the resolution of a dispute between two private individuals, a plaintiff and a defendant. Central concepts, such as harm, duty, right and causation, are the grammar used to articulate this relationship as a fundamental point of reference that can account for law at both a procedural and doctrinal level.’ [30: 4].
Whilst aesthetics reminds us that ‘[t]he claim to the unity of judgment or to the closure of law at best represents a fiction and at worst a symptom of a confused forgetting or deeply unhappy repression.’ [32: 137].
Although Dworkin’s normatively driven vision of law as integrity (and the community of principles it inspires) could hardly be seen as a formal, conceptualist defence of a juridist point of view, the centripetal or internalist intent underlying his argument is normally assumed in critical stance as being so. In this way, it is refuted, e.g., by C. Douzinas’ empirical diagnosis, which states that ‘[t]he coherent and principled legal system Rawls and Dworkin evangelise bears no relationship to the way the law actually operates. Both in its biopolitical form and in its sovereign expression, the law replicates social relations losing all remnants of consistency and coherence and openly violating the principles of justice and rights that gave it a modicum of completeness and integrity.’ [20: 115-116].
‘No single gloss could exhaust a text’s meanings’ [30: 79].
‘There is no real Father behind the name, no God behind the word, no other of the Other […] [there is no] sublime legislator.’ [19: 328].
One strongly inspired by Derrida’s arguments, but not exclusively. See, e.g., D. Manderson’s reading of Gödel’s theorem (‘Gödel’s theorem demonstrates that legal meaning exceeds rule following. Even from the point of view of law as a system of rules itself, legal meaning requires another element which, by definition, cannot be defined in terms of those rules and systems and remains an indigestible supplement or remainder to them’) and subsequent critique to the plain connection between such a theorem and undecidability [51: 194 ff., 262]).
‘Our sensate relation to this network of symbols and metaphors constitutes a productive force which, in relation to the legal community, contributes to the formation of legal principle and judgment […] The cognitive function of metaphor, for example, is to create an opportunity for modifying the conceptual frameworks used in sense-making. Metaphors such as ‘the floodgates’ produce a special effect by conveying connotative meaning which enriches the text and renders meaning more precise and determinate. Equally, picture language has the ability to easily communicate ideological propositions which support the values shared by the legal community and, being semiotically-loaded and subject to aesthetic interpretation, it has the capacity to elicit a cohesive sense of belonging and, significantly, legitimise the authority of law.’ [70: 86-87].
‘Just as the law cannot be represented, the poem itself moves towards its own disappearance. When Shelley compared poets with legislators, he was trying to conjure this strange energy.’ [30: 20].
For instance, we can think about the normativity of ‘human rights’ and its metapositive character (as one of the signs of that distinction, albeit not rigorously self-sufficient). For a synthesis of the difference in question, that is, between the metapositive dimension of ius and the political dimension of lex, and, also, for a defence of the priority of the normativity of law, as an experience of axiological meaning and practical-normative grounding, over rights, even ‘human rights’, see, e.g., C. Neves' arguments [59: 284–285, esp.; 60: 33 ff.]. See, also, and despite the differences between C. Neves’ and R. Cover’s approaches (which cannot be properly discussed in this opportunity), R. Cover’s conception of ‘law as nomos’ as ‘a legal world conceived purely as legal meaning’, whose cultural ‘jurisgenesis’ ‘requires no state’—then distinguishing the ‘the social organization of law as power and the organization of law as meaning’, concluding that ‘[t]he uncontrolled character of meaning exercises a destabilizing influence upon power. Precepts must “have meaning,” but they necessarily borrow it from materials created by social activity that is not subject to the strictures of provenance that characterize what we call formal lawmaking’, and that ‘legal meaning is a challenging enrichment of social life, a potential restraint on arbitrary power and violence’ [13: 10–11,18, 68; 14: 1602, fn. 2].
To J. Bruner, such communal tools are ‘symbolic systems that individuals use in constructing meaning […] systems that were already in place, already “there”, deeply entrenched in culture and language […] whose tools, once used, made the user a reflection on the community' [9: 11].
Alluding to J. Balkin’s complex notion of ‘cultural software’ as humanly shared ‘tools of understanding’ created by ‘bricolage’, as ‘tools used to make other tools’ [3: 6, 31 ff.], and of the methodological role of disciplinary canons, as what ‘provide’ the ‘members’ of a discipline ‘with tools of understanding. By providing people with some tools rather than others and by enhancing some skills at the expense of others, disciplines necessarily push their members toward asking the kinds of questions with which these tools are best equipped to deal and treating all other questions as variants of these. A tool opens up the world to the person who uses it. Yet, it opens up the world in a particular way. The world begins to resemble and seems to be organized around the intellectual tools that lay to hand’ [2: 955].
‘The postmodern “return” to aesthetics, therefore, particularly in relation to law, far from constituting an abandonment of ethics, is a recognition of their intimate alliance’ [51: 194].
Remember Levinas’ understanding of ‘justice’ (notwithstanding the subsequent fusion between this justice and state’s legal order, which is justified in the need to establish ‘[...] institutions to arbitrate and a political authority to support’ ‘justice’) as the ‘third’ which emerges as an ‘appeal to a Reason capable of comparing incomparables, a wisdom of love’, or ‘a comparison of what is in principle incomparable, for every being is unique; every other is unique […]. At a certain moment, there is necessity for a “weighing,” a comparison, a pondering […]’. ‘[T]here is always a third party in the world: he or she is also my other, my fellow’. As a consequence, justice always interrupts ‘the order of the Face to Face’, limiting a person’s responsibility, if not dissolving the purely ethical appeal to answerability that she is confronted with [43: 104–105, 166–167, 195–196].
A recreation that can even operate in the opposite direction, as S. Heinzelman clarifies (in reference to A. Welsh), when it is fiction (in that case, literary fiction) informing, and, in decisive ways, influencing and modifying, the comprehension and the limits of law’s practical experience: ‘[a]ccounts of real and fictional legal events reflected changes that had occurred in evidential theory and practice over the last century. As Alexander Welsh has argued, the particular development of evidential narratives through the eighteenth and nineteenth centuries led to an increasing reliance in trials on circumstantial details and a forensic analysis of the character’s motives and intent.’ [37: 229]. For a supplementary discussion on the methodological connection between law and narrative, see [23].
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Duarte, B.P. New (Post-?) Textualities and the Autonomy Claim: Rethinking Law’s Quest for Normative Convergence in Dialogue with Law and Aesthetics’ Heterodoxy. Int J Semiot Law 35, 231–258 (2022). https://doi.org/10.1007/s11196-021-09844-8
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DOI: https://doi.org/10.1007/s11196-021-09844-8