Art & Law : Nothing in common ? Quite the contrary
The Beauty and the Right.
Art aims the human ideal of Beauty, deals with and boost the senses through experiences leading to an aesthetic enjoyment, subjective and fully private, individualistic by essence. The aesthetic understanding is subject to the proper “competences”, qualities, predispositions and appetences of each of us.
Law aims another of the human ideal, the Right. Law is objective, universalistic, mandatory, coercive, neutral. It deals with rationale, morals, ethics, systematization need of a justice and equity order.
Art and Law each are combined, sometimes for a long time, with philosophy, history, sciences, politics, ethnology, anthropology, sociology, religion, psychology, and psychoanalysis, but there are between them no or very poor apparent match.
Does it means therefore that Art and Law are extraneous cultural areas ?
Not at all !
“Rules of the Art”, “State of the Art” or “Canons of Beauty” are very usual expression which should encourage and challenge the quest of a strong and close proximity.
First of all, like all human activities, Art owns and follow internal rules, guidelines, concepts, forms, ways of conduct, or objective standards. Art could readily be more or less rationalized, systematized, like Law. This is a matter of comprehensibility by the spectator, as a condition of its aesthetic pleasure. Are these Rules mandatory, therefore “punishable”, in the legal sense ? Yes, because the non-observance will impact or prevent the Beauty to arise.
Systematization is found in all art works categories.
Classical music (at least since the Middle Age) is based on a very elaborate and codified theoretic corpus : a formalized notation system (the score), a tonal and rest combination system (tone ranking established in consideration of the tonic note of a musical scale).
Dodecaphonic music -atonal- (because of its intention to escape from the tonic note “tyranny” and to provide an equal 12-tone treatment) -and serial- (as using all the tones in a single set without repeating inside any of the 12 tones), aleatoric music (introducing random items or giving a choice to the performer), or electroacoustic music (where the notation system and the performer are removed and replaced by a magnetic tape, but requiring however a synchronization in a structured unity) may be seen as being “evolutions” of the tonal system, as reacting from and against it.
Blues music (and its “child”, rock, pop, soul, funky, reggae, rap…) and jazz, improvisation music by essence, are also based on the tonal system. Free-jazz (atonal), for the same above reason, remain basically linked to the tonal system.
A parallel can be made with the lawyer improvisation when pleading : improvisation is based on written notes established within the proper legal frame of the problem to be solved on Court.
Indian, Chinese, Japanese or Arabic music also use modal scales (Arabic music having no formalized notation system).
Like music, poetic has a very structured pattern (verse form, rhyme, rhythm, stylistic elements, diction,…), more than a novel fiction (narrative / descriptive text, register, linkage, stylistic,…).
A pictorial work is a controlled combination of parameters (colors, forms, proportions, tint, perspective, light, plans, material…), as well as a sculpture, a monument, a picture or a mosaic.
Impressionism and Fauvism intended to blur visual reality, while Cubism, Expressionism, Abstract Art, Surrealism, Futurism intended to set free from visual reality. But, at the end, it is an adaptation, a “transmutation”, a deconstruction / reconstruction of Reality.
A movie is the result of a well-organized balance between sound and picture, plans, film sequences, effects, narrative flow, camera perspective, field depth…Chanel N°5 is the result of a complex and secret formula, Chateau Margaux arises from a delicate vinification method. A Chef gourmet dish will not give the expected gustative (and olfactory) pleasure without complying with a detailed recipe,…
Law does not decide of the aesthetic value of an artistic work, nor is intended to determine the limits of what is Art (except in architecture when some Beauty character vests in law requirement in order for instance to preserve the harmony of a whole). A Court fully contributes to determine a financial value when it have to make a decision with regard to an artistic claim.
There is a “Law of Art”, more precisely there are legal provisions applicable to Art works as generating rights and obligations (copyright and intellectual property protection, abuse and infringement penalties), but this is not in consideration of the inherent artistic qualities nor purpose, to which Law is not interested. There is no specific Law for Art, but legal rules applying to a more extensive scope of intellectual works (logos, trademarks, technical inventions, maps, dictionaries, names, slogans, signs, symbols, software, video games, advertising works, press articles, genetics innovations, nanotechnologies…), both the formation and the interpretation processes are very similar in Art and in Law.
Intellectual curiosity shall more be satisfied when watchful view is given both to the processes of formation and of interpretation, very similar in Law and in Art.
With regard to the formation process, the artist imagination is fully sovereign. It is a mysterious phenomenon of Unreality, but not occurring by chance as it corresponds to an internal and personal need and willingness.
The State (originally the Gods and then God, when Religion, Politics and Art were part of a indivisible whole) and legitimate authorities (including the Courts, particularly in Common Law countries, where the Precedent rule, the Stare Decisis, is the main source of Law) are as well fully sovereign to form a Law, as being an answer of a social Reality and of a willingness expressed by the collective psyche.
The artist possesses its proper creative field, but its imagination feeds on Reality, as inspiratory sources. The artist have to deal with both outside (the then cultural, social, economic, historical surroundings) and personal factors (mood, expectations, cultural and education background,…). These artist’s rooting factors are conditioning, underlying, coloring, guiding, forcing from time to time, and finally contributing to fix the creative fact. Among the constraints, the “market” (for the artist), the “public opinion” (for the State) can be important. This is a paradoxical situation, since it is in contradiction with the “disinterested” essence of the artistic work (it has no other purpose but to be perceived as being aesthetic) and the “neutral” character of the Law.
The French novelist Gustave Flaubert said : “ We do not write what we want ”
The interpretation process is of major importance as well for the dynamics of both Art and Law.
It is in the essence of Law, as being formal, fixed according to a then political, social, economic and cultural context, to be challenged by Reality and Time and therefore interpreted, adapted, supplemented by Court decisions (case law) and lawyer opinion (doctrine) and practice.
Interpretation it’s a way for Written Law (which is more and more part of Common Lawcountries legal system) to “breathe”, to provide vitality and innovation, in order to preserve a continuous social support to Law. Interpretation may be the prelude to amendment, inapplicability or disappearance of an obsolete regulation, to be replaced by an appropriate law. The content of Law and its material support (code for instance) do not merge.
The remarkable nature of the sound and visual works (including dance, film, video, multimedia and holographic works) may lie in the fact that they have existence only when interpreted, played or projected. The dematerialization of the sound emphasizes the sensibility effect.
Such works are linear, with a well-limited temporality : Beauty is ephemeral and fleeting.
They are premiered and then recreated each time when performed. As Law, they are fully detached from there material support (score, libretto, tape) which is fixed like a picture, a statue, or a book (where content and material support are merged, to be indefinitely seen or read, at will, as long as existing).
The Flow vs the Fixed….
The classical pianist or the jazz saxophonist virtuosity, the star ballerina grace, the actor’s performance, the vision of a film or a stage director, or of a choreographer, the scenography and the costume qualities provide the score or the libretto with a perpetual movement.
Regarding a “fixed” work, a painting, a statue, a building, a Haute Couture collection, a jewel, a designer object, a picture, a performer short-lived installation, interpretation (rediscovery, reinvention, rereading) is made through other dynamic form : museums, exhibition, art galleries, sound & light show, kinaesthetic atmosphere, 3D copies for tactile purpose (The Louvre recently opened a specific room), interactive performance,... Layout quality and originality (as a scenography of the Fixed) are essential in order to induce a renewed or a new aesthetic emotion.
Literary and poetic works (excluding theatre plays) “fixed” as well, become dynamic through setting to music (Schubert’s lieder, Debussy’s melodies), operatic (Tolstoi War & Peace by Prokofiev, Homer’s Odysseus in Il Rittorno d’Ulisse in Patria by Monteverdi,…) or cinematographic adaptation (Hugo’s Miserables, Steinbeck’s Grapes of Wrath,…), public reading by an actor, and critics.
Pascal Longy