Subjective art; objective law.

• Author: Wilkinson, J. Harvie, III

INTRODUCTION 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

The 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. The 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 The 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. The 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.

To say that the difference between law and art is one of reason versus feeling or tradition versus innovation is much too simple, but to pretend profound differences do not exist would be naive as well. This Essay proceeds in three parts. Part I briefly touches on the dramatic changes that have occurred in the arts during the nineteenth and twentieth centuries as subjective expressiveness replaced objective form and structure. Part II discusses the significant temptation for judges to borrow the structure-challenging subjectivity of the arts and to apply it in the law. Finally, Part III explains why art and law are so distinctive that a sense of mutual appreciation should not dissolve the sense of distance that serves these respective callings well.

1. SUBJECTIVE ART

   For centuries, from early Egyptian murals to Renaissance religious painting, art proceeded on the assumption that intense beauty was often best achieved within highly stylized, symbolic, and allegorical forms, many of which struck deep communal chords. Indeed, much Egyptian art went so far as to strip the individual of any distinguishing features, the better to accomplish large public works or to reinforce the hierarchical order of the state. Whether art served the state, the church, or some wealthy patron, the primacy of the individual artist was not loudly proclaimed. To be sure, artists had distinctive styles and chose distinctive subjects, but only--and this is crucial-within bounds.

   Few would disagree that artistic expression over the past two hundred years has undergone a convulsive change. Throughout the fine arts this change has been twofold. First, there has been a dramatic loosening of form and structure in the artistic disciplines. In addition to this loosening of technical requirements, art has experienced a related, though distinct, rise in subjectivity and self-expression. A brief look at these developments in painting and music helps to illustrate the rise of personal feeling and the fall of impersonal formalities.

   A. Subjectivity in Painting and Artwork

   The Impressionists and the painters who immediately preceded them are a logical starting point in any discussion of the rise of the subjective in the arts. Art is by definition an act of expression on some level, but by the mid-nineteenth century some painters believed it had become stale and mechanical. "Proper" artists of the time tended to emphasize carefully studied images of uplifting scenes (or at least time-honored biblical or mythological tales), rendered in painstaking, studio-applied layers of paint.

   Artists such as Eugene Delacroix and later Edouard Manet began to question these dogmatic formulations. They challenged the careful outlining of figures, the archly formal poses in a composition, the stultifying technicalities of light and shading. (3) Instead, they painted what they perceived and experienced. As one art historian described a Delacroix painting of charging Arabic horsemen, "All the painter wants is to make us partake in an intensely exciting moment, and to share his joy in the movement and romance of the scene." (4) This shift from the formal recitation of a particular theme to the communication of feeling for its own sake was both liberating and controversial, and that controversy only grew as younger artists continued to experiment.

   Matters came to a head in 1863 in Paris, then the undisputed artistic center of the world. (5) At the time, the Academie des Beaux-Arts controlled admission to the premier exhibition of the year, the Salon de Paris. Artists whose compositions were displayed at the Salon gained instant credibility and a healthy market for their work. (6) As a result, the Academie enjoyed a role as arbiter of artistic standards, which it chose to exercise by accepting only art that reflected "correct" subjects, styles, and techniques. When the Academie rejected a surprisingly high percentage of the 1863 submissions, (7) Emperor Napoleon III, nephew of Napoleon Bonaparte, responded to protests by decreeing that there should be a "Salon des Refuses," or "exhibition of rejects." (8) The intent of this exhibition was to allow the rejected artists to display their works in the gallery of public opinion.

   In the short term, the exhibition was not a great success, (9) at least in part because members of the Academie managed to place pieces with the most potential to offend in positions of prominence. (10) Edouard Manet's Luncheon on the Grass, at the time an especially controversial image of a nude woman enjoying a casual picnic with two young men in contemporary clothes, was given special prominence. (11) It scandalized viewers. (12) Its bold assertion of an artist's right to paint what he chose, using styles and methods that reflected what he saw, typified the unorthodox approach that had caused the Academie's rejections in the first place.

   But the Academie's efforts to impose impersonal standards on something so variable as personal vision foundered. A sense of newfound freedom characterized the works of Manet and the painters who followed, including Monet, Renoir, Degas, Cezanne, Pissarro, and others. In their hands, the attack on inhibitions imposed by form and structure upon artistic freedom proceeded apace. At least in part as a response to the advent of photography and the corresponding competition it posed to purely descriptive artistic portrayals, (13) painters began to assert that art was less about faithful representation of reality and instead that "we must look at it, not through it." (14)

   To achieve this goal, the Impressionists redefined painting until art was "no longer a 'window' [into the picture], but a screen made up of flat patches of color." (15) This transition away from realistic representation to subjective impression even gave the technique its name. In 1874, an art critic savaged the first independent exhibition of the innovators with a critique entitled "Exhibition of the Impressionists." (16) The title mocked one of Monet's works, Impression, Sunrise...