Aesthetics of Law and Literary License: An Anatomy of the Legal Imagination

Abstract

As a normative discipline, law defines its territory according to simple categories which establish absolute principles purporting to offer a single truth as to what is just and unjust, right and wrong, good and bad. In addition, linguistic and extrasemantic devices such as synecdoche, metonymy, rhythm and metaphor serve a referential function with which to penetrate the collective consciousness. The core assumptions derived from the implementation of socio-linguistic mechanisms transform the nature of legal analysis and are embedded within a diverse interplay of meanings. Aesthetic imaginings are evidenced to underpin and sustain ‘law’s symbolic processes and doctrines, institutions and ideas; that is, a realm of limitless fantasy, of free-flowing nomological desire, fixed around, and fixated upon controlling images that condense its central juridical concepts’; as the ‘jurists follow their own poetic and aesthetic criteria, their own spectral laws’ (MacNeil in Novel judgments: legal theory as fiction. Routledge, Oxford, p 9, 2012; Goodrich in Legal emblems and the art of law: obiter depicta as the vision of governance. Cambridge University Press, Cambridge, p 155, 2013). Yet still, founded on the negation of its own history, legal practice maintains that juridical arguments comprise only dialectical reasoning about objectively determined concepts: ‘law is a literature which denies its literary qualities. It is a play of words which asserts an absolute seriousness; it is a genre of rhetoric which represses its moments of invention or fiction… it is procedure based upon analogy, metaphor and repetition [that] lays claim to being a cold or disembodied prose’ (Goodrich in Law in the courts of love: literature and other minor jurisprudences. Routledge, Oxford, p 112, 1996). This article will explore the continuing commitment of modern legal practice to particular aesthetic values and how these are crucially implicated in a variety of legal competencies including the formation of key legal concepts and general intellectual activity.