Subjective Art; Objective Law
2010; Columbia University; Volume: 85; Issue: 4 Linguagem: Inglês
ISSN
0745-3515
Autores Tópico(s)Law in Society and Culture
ResumoINTRODUCTION I. SUBJECTIVE ART A. Subjectivity in Painting and Artwork B. Subjectivity in Music C. Subjectivity in Literature and the Sciences II. LAW AND THE ARTISTIC TEMPTATION III. OBJECTIVE LAW A. Process: Individualist Art; Representative Law B. Purpose: Provocative Art; Stabilizing Law C. Power: Persuasive Art; Binding Law CONCLUSION INTRODUCTION fine arts have undergone a revolution. Liberating waves have swept art, music, and literature in the nineteenth and twentieth centuries, empowering artists to experiment with anything and everything. overwhelming trend has been toward the subjective, experiential, self-referential perspectives of performers, composers, and painters. Form and structure were often cast aside if they impeded the implementation of intensely personal visions. With the benefit of hindsight, we can see the astonishing enrichment that resulted from this trend. It gave us Monet's Water Lilies and Picasso's Cubism. Bach's contrapuntal melodies were succeeded by Bartok's sometimes discordant compositions inspired by folk music. Poetry began emphasizing mood over rhyme and meter. These developments may alternately shock, enlighten, or challenge observers, but there can be no question that they deepened the artistic conversation and expanded the range of artistic expression available. Given the strong tides of personal sensibility in artistic expression and indeed in popular culture, it would be surprising if there were not a strong temptation for judges to follow suit. Like the pounding timpani that open Richard Strauss's Thus Spoke Zarathustra, the drumbeat of self-reference that has so enriched art has reached the ears of even the more staid practitioners of law. As Justice Holmes famously asserted at the beginning of Common Law, The life of the law has not been logic: it has been experience. (1) It would hardly be expected, of course, that judges would openly acknowledge the influence upon them of the exaltation of self-expression in the fine arts. But then again it would hardly be expected that a trend so prevalent in painting, sculpture, music, dance, theater, or architecture would somehow leave judges immune from its influence. Professor Jonathan Turley has made this point while discussing national security law, noting that [i]n many ways, the endeavors of law and art seem to have converged ... as the Court has moved from more classic to more impressionistic interpretations of constitutional provisions. (2) However, the phenomenon is hardly limited to national security. Judges feel a strong and understandable temptation, evinced in evocations of judicial empathy, evolving social norms, and living constitutionalism, to do justice as they feel it should be done rather than adhering to the strictures of text and structure. Art's inspirational power and its loosening of form and structure mightily encourage this impulse. In fact, those jurists who reject formal restraints in favor of freewheeling adjudication are the inheritors of the artistic mantle, attempting to claim for judges the freedom artists enjoy. This form-loosening trend has produced some magnificent art, and some may hope for similarly beneficent results in the duller confines of law. But great art does not make good law. Art and law are created through distinct processes and serve different purposes. Law also commands the full power of the state, wielding ironically a power both greater and lesser than the power of the arts. These differences make it dangerous for law to imitate art's subjective impulses and emotions. Law is not in the eye of the beholder. personal feelings that have ignited and revolutionized the arts undermine the very foundations of law if cross-applied. Instead, law should serve as the foil for art, providing stability and structure in a society whose art should reflect the range of its emotions and ascend the pinnacles of its passions. …
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