I. INTRODUCTION
Contemporary modern society has become increasingly dependent upon visuality. This observation has long called for new directions in cultural studies of how visual representations influence our perception of ourselves and society. The following presumes that this also holds true for our perception of key concepts of law and the legal system. To study this field - both historically and contemporary - is the purpose of the proposed project.
This proposal provides the outline of three separate studies, all supplying different approaches on how to investigate the interaction between law and visual expressions. The idea to study the relationship between visualisation and law is inspired by already developed theories on law as a system for communication in cultural life, and by the attention by artists, architects and filmmakers in conveying their interpretations and creative expressions of key concepts of law to the community. The undertaking of these studies has no parallel in the Nordic countries. Internationally the project will result in a distinct contribution to legal-cultural studies, both on a theoretical and an empirical level.
A primary focus of this project is to offer a distinct, comprehensive theoretical foundation for the study of law and visualisation. Of existing theories on law and culture, the view of law not only as an institutional fact, but also as a communal, communicative and cultural system, has found fertile grounds in analytic philosophy and system theories (Wittgenstein and Luhmann), the mid-twentieth century studies on law and rhetoric (Perelman 1958), and the emerging studies on law, poetics and rhetoric (Boyd White, see below). Noting that these theories primarily are focused on law as texts, their characterisation of law as a cultural artefact nevertheless provides the best available starting point for a study on law and visualisation, both historically and contemporary. So far, only a few and disperse studies on law and visualisation have been conducted. The topic has yet to form a succinct research tradition based on a set of integrated theories. Hence, all three parts of this project aim at contributing to the development of a theoretical foundation for the study of law and visualisation.
The empirical emphasis of this project concerns both selected aesthetical fields (filmmaking, art and architecture) and historical-legal material, both textual and visual. Interpreting the relation between law and visuality may inform legal community and legal science of how key legal concepts are understood and expressed visually. Philosophers such as Richard Rorty have argued that creative expressions are perhaps better suited to convey understanding of law and justice than highly theoretical fields like philosophy itself (Rorty 1989). Accepting Rorty’s observation it is suggested that artists, architects and filmmakers have left us a rich heritage of visual expressions of key legal concepts and events that may be explored in the interest of legal science. Particular attention is given to filmmaking as it furnishes us with the most influential and powerful visual representation of key legal concepts today. Lawyers’ existing interest in film’s visualisation of legal concepts focuses primarily on identifying whether the legal rules are rendered correctly or not (i.e. Bergman/Asimow 1996). Films as a source of knowledge for legal understanding have yet to be appreciated. As a consequence, the third study of this proposal devotes itself to a comprehensive empirical investigation on how legal concepts have been understood and expressed by filmmakers in the twentieth century in a legal-cultural study. The project will also yield empirical studies of how legal concepts are conveyed in art and architecture. Although somewhat subdued in its influence compared to films, they are of significance due to their long tradition, permanency and physical presence in the community. The first and second study will combine their theoretical investigations with visits both to the visual level of legal language (see below for this) and to the representation of legal concepts and institutions in the history of art and architecture.
The remainder of this proposal has three parts. The somewhat novel character of the study of law and visualisation demands a more detailed explanation, naming some of the recent international trends and studies in the field of law, culture and visualisation (II). The three individual contributions are presented (III), and finally a description of the scope and organisation of the project is given (IV).
II. BACKGROUND – LAW, IMAGE AND CULTURE
1. Law as communication
The concept of ‘law as communication in society’ (Luhmann 1996) is an important starting point to discuss the interaction between law and visualisation. The communal and communicative view of law challenges the tendency in Western European research to view law merely as a system of institutionally established and managed rules. As institutions undoubtedly are important to understand law’s function in society, this theory asserts that law is also composed of communicative and communal constructions with corresponding functions. As a corollary to this characterisation of law’s function, visual representations on and of law becomes of interest. Studies have been conducted on how creative expression may shape political conceptions (Murray Edelman 1995), however little is written on how the view of law as communicative and communal constructions affect legal science.
2. Law and the pictorial turn
The philosophical challenges to the view of law as a text based set of norms, provides another set of theories well suited to the study of law and visualisation. This line of thinking questions the understanding of law as text and the symbol of law as a systematic order and the mechanical workings of justice (Wieacker 1995). The paradigm of textuality has of course always been countered with elements of visuality. But the increased presence of visuality in society has in recent cultural studies been summed up in the expression pictorial turn (Mitchell 1994), thus suggesting a change from the preceding linguistic turn of the mid 20th Century’ cultural studies (Rorty 1967, 1979). A set of new issues regarding the role and impact of imagery in legal texts flows from these theoretical extractions. For example, how language can be formed in the non-linguistic symbol system, and furthermore, questioning whether language must be paradigmatic for the production of meaning. However, most of the work that focuses on the pictorial turn is so far done by philologists. Of particular influence are the Frankfurter School’s incorporation of Walter Benjamin’s image theories in its investigation in visual media, Foucault’s elaboration on the difference between that which can be visualised and that which can be said, and the way Derrida de-centres the model of language (on these issues see Jay 1993 and Levin 1993). Legal scientists have yet to carry over these observations to their own field, and pose the question of which consequences this pictorial turn has for the science of law and for the understanding of the working of law in general.
3. Law and historical changes of perception
The pictorial turn is also evident in recent historical studies. The pioneering studies of Jonathan Crary deal with the new forms of perception and a new kind of spectators (Crary 1990 and 1999). Others have pointed to how the changes in perception have consequences for all visual communication by using the example of developments of camera technologies producing visual expressions in new areas of life (McQuire 1998). Changes in perception have been characterised as a dramatic transformation of the media in modern times, leading to the conclusion that we are dealing with specific historical dimensions of the changes of visual communications, technologies and cultural representations (Briggs and Burke 2002). In legal history, the use of images in legal communication has resulted in some important studies on architecture and legal books (for example Ribner 1993, Goodrich 1995). Of significant relevance for this project is also the study on how metaphors are used in both legal texts and images (Stolleis 2004). In a more legal technical sense Brunschwig 2001 has studied the expressed design of legal norms. These historical studies all form an important basis for further investigations into the historical dimensions of visual legal communications (see below for Blandhol and Michalsen).
4. Law, literature and film
The 1980’s and the 1990’s produced a series of studies on the relationship between law and literature (i.e. Posner 1998) and law and storytelling (i.e. Amsterdam/Burner 2000 and Brooks/Gewirtz 2001). In continuation of the twentieth century’s revival of the studies on law and rhetoric, poetics has become relevant for studies on law and literature (Boyd White 1983, 1985 and 1990). The focus on the poetics of law is of particular use to an empirical study on film and law, as it brings forth theories on the role of metaphors in the legal language. These two decades also produced several social studies on the impact of visual communications on law and justice in modern society as they occur through film, both documentary and fictional (Black 1999, Sherwin 2000 and Goldfarb/Leone 2000). In addition, a few select studies exist on how the communal and communicative understanding of law and legal institutions may be of importance to legal science (Serrano 1988 and Kamir 2001). However, a historical and conceptual study of legal ideas from the filmmaker’s point of view has yet to be conducted.
5. Law and aesthetics
The project takes into account the complex relationship between the cultural construction of art and aesthetics on the one hand and that of law on the other. The topic of law and aesthetics can be divided into two rather different issues: the aesthetics (or aesthetic expression) of law, and law regulating aesthetic expressions. The project will lay emphasis on the first issue, not however excluding the second. The aesthetics of law is of course important as to artistic expressions of all kinds as architecture and filmmaking. In international research there has been a good deal of literature on the physical architecture of law (Bender 1987), such as the buildings of legislators, judges, lawyers and prisoners, both exterior and interior. The same applies to law and film, albeit to a less degree. This literature draws on a host of cultural theories enabling analyses of the connections between politics of law, film and architecture. The expressionism found in pre-war German Cinema serves as an example of the relationship between aesthetics and law: The question whether the films’ lack of traditional narrative and symbolic uses reflected the political chaos of the Weimar Republic, or whether the social unrest allowed for transgression of artistic rules is e.g. explored in Elsaesser 1997. An interesting blend of the two issues mentioned above is found in the longstanding interaction between law and art as to how the changing limits of morality are being defined through the interpretation of legislation. Part of the rise of modern painting has been characterised by different kinds of art that transgresses established art-rules, defiling the beliefs of its audience or challenging the rules of the state (Julius 2002).
III. THE THREE CONTRIBUTIONS: THE CULTURAL-LEGAL STUDY OF VISUALISATION AND LAW
The following describes each of the three individual participants of the project, but at the same time drawing attention to the theoretical interplay of the proposed studies.
1. Law as cultural artefact (Dag Michalsen)
Dag Michalsen has divided his contribution to the project into three related studies.
His first study will reflect the major concern on how disciplines of legal science and legal history relate to major trends within cultural studies. This demands a discussion of the problematic concept of “legal culture” (Michalsen 2002, 2004). - In a second more detailed and empirically based study Michalsen will seek to investigate in which way and on what premises legal science also can be viewed as visual thought. Drawing upon different modes of legal interpretation and of cultural theory (in particular Benjamin), he will discuss in what way legal thought has elements of ocular thought by giving attention to how ocular characteristics of legal thought have been manifested in legal history, empirically focusing on the nineteenth and early twentieth century English, German and Norwegian legal science. In a recent study Michalsen has already drawn attention to the visual level in a nominalistically interpreted legal language (Michalsen 2004b). - Finally, Michalsen will try to map some historical trends in visual communications in regard to specific branches of law (constitutional law, family law and contract law). In doing so, he also endeavours to examine the traditional borders of disciplines involved in a study of law and visualisation, e.g. defining the relevance of legal dogmatic, legal sociology, legal anthropology and that of law and literature. The three studies will form one monograph.
2. Visual representation and rhetoric in law (Sverre Blandhol)
Sverre Blandhol’s legal-semiotic contribution is planned as a post-doctoral study. The project consists of two parts, each reflecting different social levels of the interconnections of visuality and rhetoric in law. The first and main part of Blandhols project, concerns visuality in legal methods as formulated by legal science and practiced by the courts. On the basis of his earlier works (Blandhol 1999, 2003 and 2004) Blandhol will continue his investigation of different models of legal reasoning, with particular regard to Nordic legal thought. In Blandhol 2004 he explored the philosophical-systematic and the rhetorical-pragmatic traditions in legal science, leading up to a characterisation of what he has labelled Nordic legal pragmatism. On the basis of an historical analysis of different discourses on the methods of legal science in the late nineteenth and early twentieth century he will continue his explorations of Nordic legal pragmatism. In particular he will investigate further the use of metaphors and visualizations as a kind of argumentative strategy in legal thought of this period.
Visualizations and other metaphorical techniques have been used both in theoretical texts reflecting on methodological issues, and in primary legal texts, e.g. judicial decisions. In regard to the methodological texts, the point is to describe the use of visual and rhetorical devices in legal theoretical discourse, and consider their argumentative functions. An analysis of the historical use of such techniques will hopefully lead to a more complete picture of the resources of Nordic legal theory and of its development. In regard to judicial decisions, the issue will be to investigate the use of devices like framing, presenting and statement of facts, comparisons and other kinds of rhetorical techniques, and their function in the decision and its communication. These aspects of the judge’s repertoire, which might be called the poetical functions of the judicial language, have not attracted much attention in Nordic legal theory, but can be regarded as powerful tools for creating new legal norms and principles. The use of rhetorical devices in creating law is not without its dangers and problems however, and the dilemmas that arise when language approaches the limits of rationality, will also be discussed. This part of the project will lead to two studies, 1) Visuality in Nordic legal theory, and 2) The judge as poet – a study of rhetoric and legal creativity in a selection of Supreme Court Judgements.
The second part of Blandhols project will concern the issue of visuality and rhetoric in law on the level of what might be called legal-cultural semiotics: How - that is with what means and on what premises - are we to read the visual representations of law in society as a rhetorical language? Blandhol will draw upon analytical techniques and theory from cultural semiotics, and will focus especially on the physical organization of law, e.g. in courtrooms and official buildings, and the communication of authority in visual images and signs, like the insignia of government, etc. This part of the project will e.g. consist of a case study of the visualisation of law in Renaissance Italy. The analytical techniques and the source material will be further developed during the project.
3 The legal history of ideas in films (Cecilie Schjatvet)
Cecilie Schjatvet’s legal-cultural contribution is planned as a doctoral dissertation. The main focus of the study is to identify the development of key legal concepts as they are understood and expressed by filmmakers in the twentieth century. Film theory will be an important reference to discover films where visual representations of legal concepts are explicitly stated or treated as an underlying theme. In addition, as a legal historian and former filmmaker, Schjatvet will also analyse other visual representations of legal concepts on film, even if ideas on law or justice are not identified as such in existing film theory. In this undertaking, the legal history of ideas will serve as an important aid, by identifying how films’ expression of legal concepts interact with historical legal developments. To trail the legal history of ideas in cinema, the 1915 breakthrough of feature films in popular culture serves as a starting point. At the onset of professional cinema, it is possible to identify three distinct traditions that filmmakers develop further throughout the century, and that makes it possible to talk about a legal history of ideas in film:
(i) “Law, justice and big society.” With the first American box office hit, D.W. Griffith’s Birth of the Nation on the overthrow of the white supremacy in the south, cinema was given a legacy of visualising law and justice through the perspective of the group, or big society. Following Griffith, an intellectual and thematic tradition formed where the belief in the groups’ ability to provide just societies oscillated from estrangement in German expressionism to idealised realism in post war movies, to exuberant pessimism in times of social reconstruction (i.e. Fritz Lang’s Metropolis, Jean Renoir’s Le Grande Illusion, Jean-Luc Godard’s La Chinoise and Nagisa Oshima’s Justice by hanging).
(ii) “Justice and the individual.” The predecessor of the tradition that visualises justice as something harboured and realised in relation to the individual may be found in Victor Sjøstrøm’s rendition of Henrik Ibsen’s epic poem Terje Vigen. Sjøstrøm’s visualisation of justice as a result of the forces of nature differs dramatically from late century’s idea of justice being dependent on the perseverance of the alerted protagonist hero fighting a battle against the stronger state (i.e. Peter Weir’s The Witness).
(iii) “Justice and the court system.” The creative heritage of the now so many films about the ordeals of officers of the court may be found in Richard Dreyer’s Jean D’Arcs Passioner. Filmmakers perception of the court has changed dramatically since Dreyer’s depiction of Jean D’Arc’s suffering as something eternally beyond the spheres of a demure court system, to the latter part of the century where court cases tend to symbolise the object of self-fulfilment of the individual (i.e. George Cuckor’s Adam’s Rib).
Schjatvet will contextualise how these traditions fill concepts of law with a set of ideas different from law’s own imagery. She will develop a theory of how the representation of law in cinema introduces an important difference between historical and fictional “facts.” She will work on a presumption that filmmakers’ perception of legal concepts relies on a shift from a dichotomy between law and fact, to a dichotomy between law and fiction. The act of replacing fact with fiction is the basic characteristic that enables filmmakers to translate legal scientific terms to lay man’s terms and thus making “law as culture” relevant and meaningful to law’s subjects. Furthermore, this approach enables lawyers to discuss how filmmakers’ visualisation of different legal ideas may be discussed on a legal-cultural level.
IV. REFERENCES
1. Books
Amsterdam and Bruner: Minding the Law: How Courts Rely on Storytelling (Harvard 2000)
Asimow and Bergman: Reel Justice: The Courtroom Goes to the Movies (Kansas City 1996)
Bender, John: Imagining the Penitentiary: Fiction and the Architecture of Mind in Eighteenth-century England (Chicago 1987)
Black, David A.: Law in Film (Urbana/Chicago 1999)
Blandhol, Sverre: Juridisk ideologi: Alf Ross' kritikk av naturretten (København 1999)
Blandhol, Sverre: ”Retorikk og juss” in: Tidsskrift for Rettsvitenskap [TfR] 2003 pp. 499-518.
Blandhol, Sverre: Nordisk rettspragmatisme – Savigny, Ørsted og Schweigaard om vitenskap og metode (doctoral dissertation tbp. Oslo 2004)
Briggs, Asa and Peter Burke: A Social History of the Media. From Gutenberg to the Internet (Cambridge 2002)
Brooks and Gewirtz: Law‘s Stories. Narrative and Rhetoric in the Law (New Haven 2001)
Brunschwig, Colette: Visualisierung von Rechtsnormen. Legal Design (Zürich 2001)
Crary, Jonathan: Techniques of the Observer: On Vision and Modernity in the Nineteenth Century (Cambridge, Mass 1990)
Crary, Jonathan: Suspensions of Perception. Attention, Spectacle, and Modern Culture (Cambridge, Mass 1999)
Douzinas, Costas and Lynda Nead: Law and the Image. The Authority of Art and the Aesthetics of Law (Chicago 1999)
Edelman, Murray: From Art to Politics. How Artistic Creations Shape Political Conceptions (Chicago 1995)
Elsaesser, Thomas: “Germany: The Weimar Years” in The Oxford History of World Cinema Geoffrey Nowell-Smith ed. (Oxford 1997)
Goldfarb, Ronald and Richard Leone: TV or not TV. Television, Justice and the Courts (New York 2000)
Goodrich, Peter: Oedipus Lex: Psychoanalysis, History, Law (Berkeley 1995)
Jay, Martin. Downcast Eyes. The Denigration of Vision in Twentieth-Century French Thought (Berkeley 1993)
Julius, Anthony: Transgressions. The Offences of Art (London 2002)
Makir, Orit: Every Breath You Take. Stalking the Narratives and the Law (Michigan 2001)
Levin, David Michael (ed.): Modernity and the Hegemony of Vision (Berkeley 1993)
Luhmann, Niklas: Das Recht der Gesellschaft (Frankfurt 1996)
McQuire, Scott: Visions of Modernity (London 1999)
Michalsen, Dag: Rettsvitenskapens rettshistorie in: TfR 2002 pp. 309-435
Michalsen, Dag: Hva er ’Europeisk rettskultur’? in: TfR (tbp) 2004
Michalsen, Dag: The Nominalistic Argument in Interpreting Past Legal Texts in: Michalsen ed: Reading Past Legal Texts. (tbp. Oslo 2004b)
Mitchell, W.J.T: Picture Theory (Chicago 1994)
Ch. Perelman et L. Olbrechts-Tyteca: Traite de l'argumentation. La nouvelle rhetorique (Paris 1958).
Ribner, Jonathan P: Broken tablets. The Cult of the Law in French Art from David to Delacroix (Berkeley 1993).
Posner, Richard: Law and Literature (Cambridge 1998)
Rorty, Richard: The Linguistic Turn: Recent Essays in Philosophical Method (Chicago 1967)
Rorty, Richard: Philosophy and the Mirror of Nature (Princeton 1979)
Rorty, Richard: Contingency, Irony and Solidarity (Cambridge 1989)
Schjatvet, Cecilie: Fru Justitia er du anstendig? Betydningen av retoriske virkemidler i juridisk argumentasjon in: Kritisk Juss 4 (2000) pp. 329-338
Serrano Gonzalez, Antonio: La imaginación del poder (Zaragoza 1988).
Sherwin, Richard: When Law goes Pop. The Vanishing Line between Law and Popular Culture (Chicago 2000).
Stolleis, Michael: Das Auge des Gesetzes. Geschichte einer Metapher (München 2004)
White, James Boyd: Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (Wisconsin 1985)
White, James Boyd: The Legal Imagination (Chigaco 1985)
White, James Boyd: Justice as Translation: an Essay in Cultural and Legal Criticism (Chigago 1990)
Wieacker, Franz: A History of Private Law in Europe (Oxford 1995)
2. Films
Cuckor, George: Adam’s Rib (USA 1949)
Dreyer, Richard: Jean D’Arcs Passioner (Denmark 1928)
Griffith, D.W.: Birth of the Nation (USA 1915)
Godard, Jean-Luc: La Chinoise (France 1967)
Lang, Fritz: Metropolis (Germany 1927)
Renoir, Jean: Le Grande Illusion (France, Great Britain, USA 1938)
Oshima, Nagisa: Justice by hanging (Japan 1968)
Sjøstrøm, Victor: Terje Vigen (Sweden 1915)
Weir, Peter: The Witness (USA 1985)