Aesthetic judgment and legal justification

Published date29 February 2008
Date29 February 2008
AuthorGuyora Binder
Guyora Binder
Although criticized as illegitimate, literary elements are necessary
features of legal argument. In a modern liberal state, law motivates
compliance by justifying controversial prescriptions as products of an
appropriate process for representing the will of society. Yet because law
constructs the will of individual and collective actors in representing them,
its representations are necessarily figurative rather than mimetic. In
evaluating law’s representation of society, citizens of the liberal state are
also shaping their own ends. Such self-expressive choices, subjective but
non-instrumental, entail aesthetic judgment. Thus the literary elements of
rhetorical figuration and aesthetic appeal are fundamental, rather than
merely ornamental, to legal justification.
In the modern liberal state, law is seen as legitimate in so far as it
successfully represents popular and individual will. Liberal legal thought
tends to equate law’s legitimacy with the objectivity and mimetic accuracy of
this representation. Thus, law achieves legitimacy by fulfiling democratic
will, satisfying preferences, or protecting rights.
Critics of liberal legal thought often respond that law is illegitimate
because (1) it does not achieve its claimed objectivity or because (2) its
Special Issue: Law and Literature Reconsidered
Studies in Law, Politics, and Society, Volume 43, 79–112
Copyright r2008 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00604-7
formality precludes it from fully and authentically representing the
subjectivity of society’s members. In making these arguments, critics of
liberal legal thought deploy the analogy of law to literature in antithetical
ways. Thus, critiques of the first kind insist that law is too literary – that is,
too figurative and imaginative to represent objectively. Critiques of the
second kind, however, charge that law is not literary enough – that is,
insufficiently sensitive and expressive to represent authentically. Both of
these arguments treat the literary as an anomaly within law, although for
different reasons. The first critique accepts the modern liberal state’s
aspiration to represent society objectively, and berates it for falling short of
this ideal. The second critique presumes the modern liberal state’s success in
achieving objectivity, but rejects this standard of mimesis in favor of
authenticity. Both accept the liberal premise that law should accurately
reflect society in its deliberations and decisions, without changing society.
Each criticizes part of modern liberal legal thought’s program of objective
representation, at the price of endorsing the remainder.
Drawing on pragmatic epistemology, post-structuralist literary theory,
and institutionalist critiques of rational choice theory, this chapter rejects
liberal legal thought’s aspiration to mimetic accuracy. Moreover, it rejects
both forms of criticism as expressions of the same flawed aspiration. It treats
the charge that law is insufficiently objective as a form of skepticism, and
treats the complaint that law effaces authentic subjectivity as a form of
sentimentalism. Both critiques are unpragmatic, demanding of law what it
cannot possibly – and should not aspire to – deliver. Rather than evaluating
law as a mimetic representation of society, this chapter reinterprets law’s
allocation of decisionmaking authority as a necessarily figurative and
constructive representation of society’s will. It understands legal argument
to make a rhetorical appeal to aesthetic judgment rather than an empirical
claim to mimetic accuracy. And it treats the larger question of the legal
system’s legitimacy as a similarly aesthetic question of expressive validity.
Thus, rather than treating the literary as anomalous within law, this chapter
treats the literary as inherent in the construction and operation of legal
Like much imaginative literature, law represents subjectivities and their
desires. But, also like these types of literature, law’s relationship to what it
represents is figurative and performative rather than straightforwardly
mimetic. Law constructs subjectivities in the process of representing them.
In this way it composes and portrays the characters on which it relies for its
authority. On this view, legal systems should be judged as much on the basis
of the desires and characters they cultivate as on the basis of their efficiency
in gratifying those desires or their accuracy in representing those characters.
Law’s portrayal of society is ‘‘true’’ only in so far as we choose to make it so
by identifying ourselves with it. Thus legitimacy involves a performative
element, depending on the commitment of those who choose to identify with
the law. Law can never simply reflect our authentic selves. Instead, it enables
us to express ourselves in certain ways, and thereby precludes us from
expressing ourselves in other ways. The question of who we should become
is neither simply a question of ethical duty nor an arbitrary matter of
consumer choice. Democratic self-fashioning poses value questions, but
these value questions call for aesthetic judgment.
One of my aims in laying out this aesthetic account of legal authority is to
clarify the conceptual architecture of my book written with Bob Weisberg,
Literary Criticisms of Law (Binder & Weisberg, 2000). The book reviewed
and critiqued the emergent law and literature scholarship of the late
twentieth century. It incorporated our earlier article ‘‘Cultural Criticism of
Law’’ (Binder & Weisberg, 1997), and drew on other work of ours, including
Bob’s well-known article ‘‘The Law-Literature Enterprise’’ (Weisberg,
1988). Threaded through Literary Criticisms of Law was an argument that,
(1) in the modern liberal state, law represents society rhetorically rather than
mimetically and (2) the authority of law and the validity of particular legal
arguments depend upon aesthetic judgment. In reviewing law and literature
scholarship in that volume, we had two aims. One was to collect and
explicate works that revealed law’s rhetorical and aesthetic dimensions. The
other was to expose and critique the skeptical or sentimental premises of
much law and literature scholarship. This chapter explicates the critical
perspective developed in Literary Criticisms of Law, but does not attempt to
illustrate or apply that perspective. It does not address the state of law and
literature scholarship because what I have to say on that subject, I have said.
My account of the role of the literary in legal authority will proceed as
follows. First, I will develop and explain a conception of literature as
rhetorical (i.e. figurative) discourse presented for aesthetic judgment.
Second, I will offer a conception of law as a relatively coercive, formal,
and justificatory institution. In so doing, I will contrast two models of
justification within such an institution: a modernist model that seeks
foundations in physiological or psychological facts, and a pragmatist model
that tests claims by their implications for practice and evaluates these
implications aesthetically. Third, I will offer an account of legal argument as
a rhetoric offering narratively structured figurative representations of
subjectivity for aesthetic judgment and expressive identification. Finally,
I will characterize the skeptical and sentimental critiques of law as
Aesthetic Judgment and Legal Justification 81

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