Vol. 9 No. 8 (August 1999) pp. 364-368

LAW AND THE IMAGE: THE AUTHORITY OF ART AND THE AESTHETICS OF LAW by Costas Douzinas and Lynda Nead (Editors). Chicago and
London: The University of Chicago Press, 1999. 268 pp. Cloth $47.00. Paper $19.00.

Reviewed by Jennifer Ellen Way, School of Visual Arts, University of North Texas.


"This collection is the first attempt to draw on the critical procedures of law, art history, and cultural studies in order to consolidate a new interdisciplinary field of visual culture and law." (p. 11) The undertaking is ambitious, since co-editors Costas Douzinas, Chair of the Department of Law, and Lynda Nead, Chair of the Department of Art History, both at Birbeck College, University of London, propose, in this compelling anthology not only to establish a field but also identify points for "further scholarship and international debate." (p. 15) Questions about intention and result come to mind. How will a "field" develop from subjects (law and art) that the editors claim scholars treat as distinct bodies of theory and practice? How will those who sow it triangulate law and art through methods and concerns
associated with cultural studies? What "fences" will they use to demarcate their terrain (and, how new is it)? Will they zone it as center and periphery, or emphasize process and interaction? Will they construct the borders so as to remain open, and thus foster truly interdisciplinary exchange, even to the extent that the very composition of the field remains permanently unsettled?

The development and cultivation of scholarship elucidating how law and art interface substantively comes from what the editors argue is a need to redress tenaciously held, though disingenuous, conclusions about relations of law and art in the past and present. For example, in the Eighties, members and institutions of the art world decried the impact on the art world of legal contests of ownership pursued sometimes in the name of copyright -related to author's rights, provenance, or the status of multiples - or moral borders. By "moral borders" I mean the social and ethical "places" a culture apportions to activity wherein distinctions between the licit and illicit
blur, thus inciting attempts to distinguish one from the other and so resolve the meaning and use of censorship, for example, in regard to graffiti or pornography. Members of the art world perceived that in this place, politics involved relations of power meted through a legal apparatus. Its rulings might reinforce the inflamed Right's conservative rhetoric. The art world feared this would lead to curtailing freedoms (purportedly, to them) inherent in the practice of making and exhibiting art in a democracy.

This account, the editors might claim, exemplifies erroneous expectations that law and art engage primarily in terms of "law's art": "the way in which political and legal systems have shaped, used, and regulated images and art" (p. 18). Rather than perceive law entering the art world and doing something to art, the ten provocative essays in LAW AND THE IMAGE demonstrate far more complicated interactions involving the mutual constitution of identity, operations,

Page 365 begins here

and effects. To wit: "This collection challenges the claim that a radical separation exists between law and art and the historically complacent view that only dictatorial regimes develop a policy on images" (p. 9). Aptly, the two parts of the book's title foreshadow its contentions. LAW AND THE IMAGE suggests art as picture or image, the significance of which may follow from laws monitoring production and consumption, including distribution, reproduction, ownership and display. The
book's subtitle, THE AUTHORITY OF ART AND AESTHETICS OF LAW, reverses the order of the terms and invests each with characteristics we may tend to associate solely with the other. Art stands as more than appearance (images seen). The qualifier "authority" invests it with power and, therefore, agency (in the
Foucaultian sense that power performs, it is an active force). Furthermore, the editors posit that law has aesthetic dimensions, in other words, characteristics (and powers?) we might otherwise assign to art alone.

True to what the editors promise in the Introduction, in the essays that follow, scholars from the United States and United Kingdom who are highly respected in art history or the humanities (Georges Didi-Hubermas, Hal Foster, Martin Jay, Mandy Merck, Lynda Nead, Jonathan Ribner, Katherine Fischer Taylor), or in legal studies (Costas Douzinas, Peter Goodrich, Piyel Haldar) energetically excavate links between law and art. To be sure, some stake their interest in "law's art." At the same time, however, the "law" they reconstitute bristles with contradictory agendas engaging multiple facets of culture and society. Furthermore, they marshal tools from the "new art histories" and so avoid approaching art as a stabile subject, easily reducible to the positivist precept of a technique, style, or object existing beyond the reach of social forces.

The editors organized the essays around four themes: Vision and the Law; The Law of Images; The Art and Architecture of Justice; Obscenity and Art. Methods range from sophisticated iconographic accounts of, for example, why something looks the way that it does, or why images were thought to have a dangerous, seductive potential, to investigations of "meaning" in art through political economic concepts, such as equivalence theory and fetish as analyzed by Horkheimer and Adorno in DIALECTIC OF ENLIGHTENMENT (1975), which Martin Jay discusses in "Must Justice be Blind?" A brief description of two additional, stellar contributions suggests the variety of topics and approaches awaiting readers. In "Bodies of Judgement: Art, Obscenity, and the Connoisseur," Lynda Neal moves persuasively from a careful, historically nuanced discussion of collecting practices in eighteenth century Naples to thoughtful implications about the epistemology of art arising from the practices of a specific group of individuals - male connoisseurs. By revisiting distinctions the cultural historian Kenneth Clark made between nakedness and nudity in THE NUDE (1956), she deftly folds into her narrative crucial questions about the place of women (as viewers, collectors, and subjects)
in the connoisseur's purview. In "Obscene, Abject, Traumatic," the last essay in the collection, Hal Foster mines "laws" in psychoanalytic theories in order to correlate theories of representation and the gaze to obscenity in contemporary art. His discussion will enlarge the horizons of what should count as "thick" cultural description of (still under-theorized) operations of looking.

Douzinas and Nead posit their anthology as solid footing for setting forth into a new arena of scholarly inquiry. Therefore, it is

Page 366 begins here

reasonable to expect to find, in their Introduction, a persuasive account of what the landscape of law and art has looked like until now. In dense prose and cursory fashion, they revisit Continental philosophy in order to establish how firmly established is the belief in a "separation" between law and art. Why is it necessary to render this tradition, if it truly exists as the compact unit that the phrase "Continental philosophy" suggests, as lord of a field, the divided plots of which remain
to be sighted and consolidated in the late twentieth century? Also, I missed a stimulating review of the academic and practical work anticipating the essays here collected (I assume there is precedence), as well as musings from the editors on why they feel that establishing this field is useful now - and for whom and to what end. To be sure, art historians will find in the anthology a fascinating mediation of "art" through cultural studies. Thought-provoking, balanced blends of theory and
scholarship should draw scholars specializing in the art, sociology, or political science of certain historical periods. (I don't work in academic legal studies, so I am not sensitive to whether those who do will feel that the book is pitched and can respond well to their interests and needs).

Nevertheless, too heavy-handedly, and unconvincingly, the editors point to a lacuna, the "discovery" of which they cite several times as necessary justification for hoeing new terrain. The inference is that readers will come to the anthology burdened by an "historically complacent view that only dictatorial regimes develop a policy on images" (p. 9). I'm not convinced the indictment rings true. In part, it is based on associating art with freedom from law, chiefly, because the definition of avant-garde activity so often associated with modernism in art (to which the editors refer repeatedly) includes being in the forefront of society and evading codes of
behavior by which the masses comport. Yet, revisionist art history, the "new art histories" - whatever the methodological direction is called - has spawned the tendency to approach art, whether we conceive it as object, image, practice, or event, as a "text" engaged (determined by, determining, and in dialogue) with other social and cultural "texts" active in history. Therefore, the editors may rightly claim that the essays pose important questions and responses. Nevertheless, the prospect of such activity had been prefigured.

To bolster the disparity Douzinas and Nead anticipate readers will insert between law and art (that is, before the essays enlighten readers), the editors qualify art as "modernism" and proceed to explain that we repress connections between this and "law": "The common concerns of and mutual influences between law and art are acknowledged today only as discussions of art policies under fascism and Soviet communism" (p. 5). The editors need the disparity so they can position their anthology as a challenge. Never mind that with this strategy, they cast their project as avant-garde, an example of ahead-of-the-pack modernism they claim to both invoke but soundly redress. Casting their topic thus enables the editors to "discover" similarities between law and art. Oddly, while the editors insistently qualify art as image, and both art and image as "modernism," none of the essayists investigate the latter concept. Indeed, why introduce it? Were you to say "modernism" aloud at an annual meeting of the College Art Association, you would find people waiting to hear what you mean. Art and cultural historians have demonstrated that "modernism" was never as one-dimensional as members of the art world, at various times, have needed it to be (so they could argue that something is "other" to it). In fact, depending on what one means by "modernism," it may contain sediments of

Page 367 begins here

law (something of which art historians are aware, however, the editors of this anthology would be correct in urging further work here). For example, as understood by artists active in Europe and the United States in the early twentieth-century, "modernism" included a search for "laws," that is, essential, universal truths. Also, think of all the "modern" artists trained in law.

All of which leads me to wonder - what do the editors mean by "law" and "art"? Perhaps they felt compelled to refer to their subjects in the most inclusive of ways. Hence, the essays would shape and clarify what and how "law" and "art" mean as they relate. Furthermore, the editors may have considered that erring on the side of breadth was important now. I'm not as sure about "law," but definitions of "art" are ever so blurred because of the wide range of materials, technologies, and social tools artists are using and also because, at the end of this millennium, there is much talk in the art world about the transgression of boundaries, fluidity, and chaos. Still, the editors risk mystifying the historical basis and specificity of their subjects. Indeed, when they write "law," do they mean federal law? Religious precepts? Community mores? Laws of psychoanalytic theory? All of the above? The lack of clarity occasions questions about identifying and representing (including naming) a subject and, or what becomes a subject within, a "field" of inquiry, and how to proceed in referring to it without constricting, at the outset, the dimensions to which
a new field may aspire.

Problems may also arise for readers because of the way the editors describe their subjects in action. To cite one instance, in the Introduction the editors refer to "law's aesthetic policy" - what on earth could this be? Readers are left to imagine referents for "law", let alone when it is cobbled together with "aesthetic policy." True, sometimes the editors follow up; on pages 15 and 19, readers will find a few lines about this phrase. Yet, what does a new, interdisciplinary area gain when
the editors surveying its topography compress the operations of one of its subjects into a phrase that accords the subject agency - minus social institutions, players, and historical and cultural circumstances? Is there a more useful way to outline a host of forms, procedures, and operations than by relying on the amorphous but mighty "law," capabilities of which the editors' choices in phrasing imply are omnipresent and transcendent (even though they take pains to argue that, ultimately, the situation is not as it seems)?

Additional turns of phrase introduce ways of thinking antithetical to the cultural studies methods through which, the editors suggest, practitioners in this new field will revisit dialogue between law and art. One example: "The central aesthetic question of representation and mimesis is intensely influenced by legal considerations, and law's answers determine the regime of icons and idols in each period" (p. 9) From where did this central question come? For whom is it central? The essays display many debts to cultural studies, particularly those examining - and most of them do - the creation and deployment of power. But the turn to cultural studies raises
questions about who will work in the new field. Are legal scholars trained in cultural studies? And, what is it about cultural studies that bodes a fertile plain on which to search for and investigate the meeting of law and art? Are there other methodological grounds that might bear equally tantalizing intellectual or practical fruit?

One last series of thoughts. What might a participant in this new field say about its

Page 368 begins here

timing as a cultural project? For instance, is there a connection between, on the one hand, members of the academy supplying a bounty of examples of power in art through law and, on the other, a contemporary anxiety that art enjoys little force in the world today? Will this field yield what, to many working artists, is little more than a mirage, an image of art having authority, but an authority rooted mainly in moments of the historical past? How might a desire for this image relate to the visualization, even aestheticization, of law in the body (albeit the so-thin as to be evanescent body of Calista Flockhart playing Ally McBeal) and law in our homes, in bodiless images (of Ally McBeal, Law and Order, The Practice, Cops) that flicker nightly across our television screens?

REFERENCES

Clark, Kenneth. 1956.THE NUDE: A STUDY IN IDEAL FORM. Princeton:
Princeton University Press

Horkheimer, Max and Theodor Adorno 1972. DIALECTIC OF
ENLIGHTENMENT. New York: Herder and Herder.