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Larger Than Life

Published online by Cambridge University Press:  18 July 2014

Nicholas Kasirer
Nicholas Kasirer
Affiliation:
Faculty of Law and Institute of Comparative Law, McGill University
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Type
Review Essay/Note critique
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 10 , Issue 2 , Fall/automne 1995 , pp. 185 - 200
Copyright
Copyright © Canadian Law and Society Association 1995

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References

1. See, as a leading account, Gombrich, E. H., In Search of Cultural History (Oxford: Clarendon, 1969)Google Scholar. Interestingly, Gombrich presented a model for understanding history that recognized art and law as facets of a single world view (esp. at 10ff.).

2. In “Writing Canadian Legal History: An Introduction”, David Flaherty wrote an influential critique of conventional legal history as practised in Canada, although the brand of the cultural history of law he advocated did not, at least explicitly, extend to legal iconology: in Flaherty, David, ed., Essays in the History of Canadian Law, vol. 1 (Toronto: Osgoode Society, 1981) 3, esp. at 12–16Google Scholar.

3. The expression “internal legal history” was made popular by Gordon, Robert, “Introduction: J. Willard Hurst and the Common Law Tradition in American Historiography” (1975) 10 Law & Society Review 91Google Scholar. See, by the same author, “Critical Legal Histories” (1984) 36 Stanford Law Review 57 at 95–961Google Scholar, where he referred to the usefulness, for the legal historian, of viewing law as “symbols and rituals”.

4. In respect of the “discovery” of perspective in painting, see Panofsky, Erwin, “The History of Human Proportions as a Reflection of the History of Styles” in Panofsky, E., ed., Meaning of the Visual Arts (New York: Penguin, 1983) 82Google Scholar and, of especial methodological relevance here for its reliance on a theory of symbolic forms, Panofsky, E., Perspective as Symbolic Form (New York: Zone, 1991)Google Scholar.

5. See Legrand, Pierre, “Strange Power of Words: Codification Situated” (1994) 9 Tulane European & Civil Law Forum 1, esp. at 15ff.Google Scholar

6. See, for a successful example of the latter phenomenon, the invocation of illustrations of the marriage contract by Hogarth, Greuze and Watteau to explain the differing roles of the institution as part of matrimonial law in the French and English traditions in Simler, Philippe & Terré, François, Droit civil: Les régimes matrimoniaux (Paris: Dalloz, 1989)Google Scholar at para. 41 [no illustrations].

7. Cohen, Morris L. recently presented a colourful book in this tradition with Law [:] The Art of Justice (New York: Hugh Lauter Levin, 1992)Google Scholar. He did not aspire to write a cultural history of law or of painting, but instead chose a series of images from the world of “art” which presented legal institutions or legal themes from different traditions throughout human history. In his introduction, he wrote of his hope to portray the “broad sweep of the history of law” and, unencumbered by a more ambitious thesis, he commented on a series of otherwise unconnected visual examples of the “interaction of art and law [to] provide a new context for appreciating both disciplines” (at 10). While Jonathan Ribner sketches law and art as part of a single realm of ideas, Cohen sees two paths that run parallel throughout history, intersecting on occasion to provide, as if by happenstance, an illustrated history of the law in books.

8. But see, in defiance of this tradition, Kornstein, Daniel, Kill All the Lawyers? Shakespeare's Legal Appeal (Princeton: Princeton University Press, 1994)Google Scholar. He describes Shakespeare as an “unacknowledged law-giver” who “legislated for the future in his plays more than those who draft constitutions, enact statutes, and judge cases” (at 245).

9. White, James Boyd, The Legal Imagination (Boston: Little, Brown, 1973) at 96–100Google Scholar.

10. Klinck, Dennis R., “This Other Eden': Lord Denning's Pastoral Vision” (1994) 14 Oxford Journal of Legal Studies 25CrossRefGoogle Scholar.

11. But see the efforts by those working as self-styled legal semioticians, notably Jackson, Bernard S., Law, Fact and Narrative Coherence (Merseyside: Deborah Charles, 1988) esp. c. 3–4Google Scholar, who seek to provide a theoretical foundation for such a leap. On the range of different ways in which one can imagine connections between law and literature, see Weisberg, R., “The Law-Literature Enterprise” (1988) 1 Yale Journal of Law and the Humanities 1Google Scholar.

12. For a rich (and polyphonic!) study of aesthetics as a way of seeing law and music, see Desmond Manderson, “Statuta v. Acts: An ‘Aesthetic’ Approach to Early English Legislation”, essay prepared in partial fulfillment of D.C.L., McGill University, 1994 esp. at 14–15 where Manderson sees “law's images as clues to meaning”. An abbreviated version of this essay is published in (1995) 7 Yale Journal of Law & the Humanities 317Google Scholar.

13. See, especially, Panofsky, Erwin, Studies in Iconology: Humanistic Themes in the Art of the Renaissance (New York: Harper & Row, 1972), c. 1Google Scholar, with its special emphasis on the distinction between the mere identification of icons (“iconography”) and the contextual understanding of icons as symbolic forms (“iconology”) within a given culture.

14. See e.g., the round tablets in a print by Louis Laurent, c. 1793, in a statue by Joseph Chinard, 1794 (fig. 7), and on a membership medaillion for the Conseil des Anciens by Nicolas-Marie Gatteux, 1787 (fig. 8).

15. See, as the most florid example, a medal commemorating the Grand Sanhedrin by Nicolas Brenet, c. 1807, in which Napoleon, the law-giver, presents the round tablets to Moses who kneels before the Emperor (fig. 24).

16. See an engraving of a work by J.-N. Laugier (fig. 18). The prevalence of old French customary law in the 1804 document might have suggested French peasant garb as an alternative to the toga as a wardrobe accessory for Napoleon.

17. In an 1805–1807 relief by Jean-Guillaume Moitte, reproduced at fig. 19.

18. Ribner described and reproduced this painting, which had been exhibited at the Salon of 1833, as part of the myth of Napoleon's legislative genius (fig. 26) at 49. It is also, of course, a bold symbol of the cult of the Code civil, matched by similar hyperbole in legal scholarship of the 19th century, and arguably the more enduring myth.

19. This work has been remarked upon by lawyers who see in it a picture of some of the high church feeling felt for the Code civil in French legal culture. See e.g., Carbonnier, Jean, “Le Code civil” in Nora, Pierre, ed., Les lieux de mémoire II: La Nation, vol. 2 (Paris: Gallimard, 1986) 293 at 303Google Scholar (fig. 57) and, recently, evoked by Ensminger, Anne, “Le droit privé en toute privauté: Trois illustrateurs du Code civil français” (1994) 19 Revue de la recherche juridique—droit prospectif 29 at 29–30Google Scholar.

20. France, in the Midst of the Legislator Kings and French Jurisconsults, Receives the Constitutional Charter from Louis XVIII (1827) is reproduced (fig. 29) and commented (at 57) by Ribner. Through all this din, an angel is asleep on an open copy of the Code civil, suggesting at once the immutable and sophomoric character of that monument.

21. Reproduced in colour from a Louvre ceiling that is not in the Michelin guides (plate 5). George Washington looks on, almost smirking, although he is relegated to a corner.

22. See, however, Kelley, Donald R., Historians and the Law in Postrevolutionary France (Princeton: Princeton University Press, 1984)CrossRefGoogle Scholar who resorted to imagery in reconstructing law in post revolutionary France. Kelly alluding specifically to a lost Delacroix of Justinian reading his legal corpus commissioned by the Conseil d'Etat in 1826 in the context of Napoleon's “Romanoid” law-making (at 43). The lost Delacroix work is discussed by Ribner at 58.

23. See Carbonnier, Jean, “La passion des lois au siècle des lumières” in Essais sur les lois (Paris: Répertoire du notariat Defrénois, 1979) 203Google Scholar. Ribner cites this important work in his bibliography at 199.

24. See, as a standard work for discussion of this point, Alpers, Svetlanda, “Is Art History?” (1977) 106 Daedalus 1Google Scholar.

25. For a fine overview that comes down in favour of an important place for artwork in historical research, see Robb, Theodore K. & Brown, Jonathan, “The Evidence of Art: Images and Meaning in History. Introduction” (1986) 17 Journal of Interdisciplinary History 1, esp. at 4–6Google Scholar.

26. Haskell, Francis, History and its Images: Art and Interpretation of the Past (New Haven, Conn.: Yale University Press, 1994) at 7Google Scholar.

27. For a recent examination of how representational art, like Ribner's tablets, can gather and store information, see Lopes, Dominic, “Pictorial Realism” (1995) 53 Journal of Aesthetic and Artistic Criticism 277, esp. at 280–83Google Scholar.

28. In chapter 5, Ribner examines the ceilings of the Palais Bourbon library by Delacroix in which the story of law reform is retold through the lens of divine inspiration.

29. Panofsky, Erwin, Early Netherlandish Painting: Its Origins and Character vol. 1 (Cambridge: Harvard University Press, 1953) at 203Google Scholar. The painting, dated 1434, is reproduced in vol. 2 at fig. 247.

30. For a presentation of Panofsky's iconological method, see Holly, Michael Ann, Panofsky and the Foundations of Modern Art History (Ithaca: Cornell University Press, 1984) at 180–86Google Scholar.

31. Panofsky embarked on an “iconological” interpretation of a work of art after having identified the primary (that is factual) and secondary (that is iconographical, including imagery, allegory) subject matter of a work. A third phase requires the viewer to examine the work in the context of the “world of symbolical values”: see supra, note 13 at 14–15. On the connections between Panofsky's method and the theory of “symbolic forms” associated with the philosopher Ernst Cassirer, see Holly, ibid. at 126–35.

32. The work (c. 1791), ironically housed today in the Château de Versailles near Paris, depicts the hysterical fervour of members of the Assemblée nationale pledging on 20 June 1789 to stay united until the establishment of a constitution (reproduced in colour at plate 1).

33. See Baecque, Antoine, “The Allegorical Image of France, 1750-1800: A Political Crisis of Representation” (1994) 47 Representations 111CrossRefGoogle Scholar, in which the classical allegorical repetoire as it was deployed in French politics is analyzed.

34. Which they do, on occasion, albeit timidly, as in MacNeil, Sayre, “Some Pictures Come to Court” in Harvard Legal Essays in Honor of and Presented to Joseph Henry Beale and Samuel Williston (Cambridge: Harvard University Press, 1934) 246 at 248Google Scholar.

35. Historian E.P. Thompson has set a standard for this kind of work by reconstructing the legal customs of the 18th-century English working class on the basis of songs, caricatures, broadsides and other scraps of informal legal scholarship in Thompson, E. P., Customs in Common (New York: New Press, 1991) esp. c. 1 & 3Google Scholar.

36. See e.g., Friedman, Laurence, “Law, Lawyers and Popular Culture” (1989) 98 Yale Law Journal 1579CrossRefGoogle Scholar.

37. Legal anthropologist David Howes sketched a bold theory for comparative constitutional law on the strength of different understandings of community inherent in works of two 20th-century artists: see Howes, David, “In the Balance: The Art of Norman Rockwell and Alex Colville as Discourses on the Constitutions of the Unites States and Canada” (1991) 29 Alberta Law Review 475Google Scholar. Howes also compared pop charity songs in pursuit of comparative constitutional law with great success: see Howes, David, “‘We Are the World’ and its Counterparts: Popular Song as Constitutional Discourse” (1990) 3 International Journal of Politics, Culture and Society 315CrossRefGoogle Scholar.

38. See e.g., Rosenberg, Norman, “Hollywood on Trial: Courts and Films, 1930–1960” (1994) 12 Law and History Review 341, esp. at 341–45CrossRefGoogle Scholar for a compelling defence of legal scholarship on the strength of sources that are not perceived to be “distinctively legal”.

39. See e.g., Gillers, Stephen, “Taking L.A. Law More Seriously” (1989) 98 Yale Law Journal 1607CrossRefGoogle Scholar and, tackling the same from a theoretical perspective, Schlag, Pierre, “Normativity and the Politics of Form” (1991) 139 University of Pennsylvania Law Review 801 at 858ff.CrossRefGoogle Scholar

40. See Macaulay, Stewart, “Images of Law in Everyday Life: The Lessons of School, Entertainment and Spectator Sports” (1987) 21 Law & Society Review 185CrossRefGoogle Scholar, where a general theory is proposed, and several examples, including professional sports, are considered.

41. See e.g., Carbonnier, Jean, Sociologie juridique (Paris: P.U.F., 1994) at 182–85Google Scholar (“Les documents iconographiques”), who wrote of the “musée imaginaire du droit” made up of paintings and sculptures and other legal icons.

42. Hazard, John N., “Furniture Arrangement as a Symbol of Judicial Roles” in Renteln, Alison Dundes & Dundes, Alan, eds., Folk Law: Essays in the Theory and Practice of Lex Non Scripta (New York: Garland, 1994) 459Google Scholar.

43. Hargreaves-Mawdesley, W N., A History of Legal Dress in Europe until the End of the Eighteenth Century (Oxford: Clarendon Press, 1963)Google Scholar.

44. Goodrich, Peter, Languages of the Law: From Logics of Memory to Nomadic Masks (London: Weidenfield & Nicolson, 1990) at 4Google Scholar.

45. See, generally, Gridel, Jean-Pierre, Le signe et le droit (Paris: L.G.D.J., 1979), esp. parts I & IIIGoogle Scholar.

46. See Macdonald, Roderick A., “Pour une reconnaissance d'une normativité implicite et inférentielle” (1985) 18 Sociologie et sociétés 47CrossRefGoogle Scholar, where a theory of law living outside text and other traditional modes of expression of normativity is richly presented.

47. For a vivid discussion in respect of law's signs on the highway, see Ensminger, Anne, “Autosignaux, la norme balladeuse; avertisseurs, optico-acoustiques et plaques d'immatriculation” (1992) Revue de la recherche juridique—droit prospectif 178Google Scholar.

48. Gridel, supra, note 45 at 4 wrote that the “‘signe juridique’ est une technique extra-linguistique d'expression du droit dans la vie sociale”.

49. See, on the limits of meaning in legal texts, Schlag, Pierre, “Le hors du texte, c'est moi: The Politics of Form and the Domestication of Deconstruction” (1990) 11 Cardozo Law Review 1631Google Scholar.

50. See Goodrich, Peter, “Pro Lectione Pictura Est: ‘The picture takes the place of knowing how to read’: Images of the Legal Body in the Work of Pierre Legendre” in Kevelson, Roberta, ed., Law and Semiotics, vol. 3 (New York: Plenum, 1991) 95Google Scholar.

51. See Didi-Huberman, Georges, Devant l'image (Paris: Minuit, 1990), esp. at 25Google Scholar: “… les images ne doivent pas leur efficacité à la seule transmission de savoirs—visibles, lisibles ou invisibles—, mais qu'au contraire leur efficacité joue constamment dans l'entrelacs, voire l'imbroglio de savoirs transmis et disloqués, de non-savoirs produits et transformés … C'est le plus grand risque de la fiction.”

52. Ribner, at 192 note 6, cites the declaration of Shelley, from “A Defence of Poetry” (1821) that “poets are the unacknowledged legislators of the world”. This sympathetic idea seems to have been airbrushed from the theory of sources in French law today where inspiration and revelation are all but forgotten. On this latter point, see Vanderlinden, Jacques, “Contribution en forme de mascaret à une theorie des sources du droit au départ d'une source delicieuse” (1995) Revue trimestrielle de droit civil 69 at 76Google Scholar.

53. See Ribner, Jonathan, “Revolutionary Fictions” (1993) 52 Art Journal 88Google Scholar, in which the role of art and fiction in shaping the conscious and unconscious political aspirations of a culture is considered briefly.

54. See, also, examples of “dissident art” at 92 which, for Ribner, served to “repudiate” the notion of the civilizing force of enacted law so dear to official artists of the period.

55. The portrait, reproduced at plate 8, survives as a work of beauty as much as a legal sign, though this combination of aesthetic value and semiotic value is not, it must be said, present in all the paintings selected by Ribner. This would appear to sustain the argument of Francis Haskell, supra note 26 at 3: “while it is true that many images of historical interest are devoid of artistic quality, it does not follow that the reverse of this proposition is equally valid.”

56. Gombrich, E. H., Symbolic Images: Studies in the Art of the Renaissance, vol. 2 (Edinburgh: Phaidon, 1953) at 172Google Scholar: “For if the visual sign is not a conventional sign but linked through the network of correspondence and sympathies with the supracelestial essence which it embodies, it is only consistent to expect it to partake not only of the ‘meaning’ and ‘effect’ of what it represents, but to become interchangeable with it”.

57. Curtis, Dennis E. & Resnick, Judith, “Images of Justice” (1987) 96 Yale Law Journal 1727CrossRefGoogle Scholar, in which a broad historical argument is mounted to demonstrate that the imagery associated with a god-like Justice served to reinforce a view of justice “at arm's length from human frailty and fallibility” (at 1748). For a treatment of the same theme in the French legal tradition, see Jacob, Robert, Images de la Justice: Essai sur l'iconographie du Moyen Âge à l'âge classique (Paris: Léopard d'Or, 1994)Google Scholar.

58. See Lord, Barry, The History of Painting in Canada: Towards a People's Art (Toronto: NC Press, 1974)Google Scholar in which his Fred Taylor's “Applying the Tracks” is reproduced at fig. 176. At 194–98, Lord explained how Taylor's work reflected a socialist's view of the power dynamic in the workplace.

59. See Trépanier, Esther, “Hommage à Marian Dale Scott, 1906–1993” (1993) 15 Journal of Canadian Art History 68 at 86Google Scholar (fig. 10) where “Community 7”, c. 1958, is reproduced. On the dialogue touching on art and politics between Marian Scott and F.R. Scott, see Djwa, Sandra, The Politics of Imagination: A Life of F.R. Scott (Vancouver: Douglas & McIntyre, 1989) at 101–05Google Scholar.

60. “Préface” in Gridel, supra note 45 at 1.

61. One disturbing reminder is Mona Harrington's account of the effect that the portraits of male legal luminaries in the halls of the Harvard Law School had on her as a first-year law student. See Harrington, Mona, Women Lawyers: Rewriting the Rules (New York: Penguin, 1993) at 45Google Scholar.