Wednesday, December 11, 2002

I'd like to thank Sam Heldman for dropping my name in public, and giving me the chance to continue in this direction knowing I haven't made too much of a fool of myself yet. But that being said, I think there is still a problem in his understanding of esthetics as it applies to everyday life, including the writing and presentation of legal briefs.
As I I wrote recently Americans have developed a division between the esthetic and the intellectual that is anomalous in its relation to most of the planet. We are taught to see our shared values as imperitives, often religious or economic, and esthetics, whether rarefied or not is seen as connected more than anything else to leisure, as something for the weekend. Sam makes this bias clear when he writes: "Thinking of legal communication as being artistic in this sense may seem like an oxymoron, or at least a very very bad idea, if you think that legal writing must always strive to be as un-idiosyncratic and as crystal-clear as possible."
I am going to have fun here, because Sam has given a perfect example of the mistake many people make, and he's also my perfect audience, since a corollary to Sam's intellectual misunderstanding are the unintellectual -or anti-intellectual- and equally mistaken assumptions of the artists themselves, who are as immune to a discussion of the nature of art as theologians are to the nature of religion. Law is the perfect field for this discussion.

Art is that which convinces.
I heard a story, apparently true, of a well know analytic philosopher who gave up on his field after witnessing an exchange between lawyers in a courtroom.

Why is it that legal argument and esthetics should ever 'appear' oxymoronic? Why is it that an artistic temperment is assumed to be 'eccentric'? As I said in the post I linked above, it's often not the story that makes a case but the manner of its telling. A classically perfect piece of oratory has a material logic, in the sounds being made, the vowels, consonants, pitch and rhythm that's the perfect parallel to the clear logic of the argument. When I attempted to define a work of art I didn't say there was no art anywhere else. Perhaps I should have been clearer.  We're pattern makers; we create them even against our will. Try to speak random jibberish and you'll find that you're unable to;  immediately you begin making patterns. Sounds will repeat or will be answered: 'ug ug' 'bim boom.'

Every legal brief has art in it: word choices based on how pairings or groups sound together, words that are easy to pronounce in quick succession, metaphors used to make the issues more concrete to the reader or listener...
My comment about what makes a work of art took that logic farther. When the subtlety of the literary construction becomes inseparable from the beauty of the argument, then a legal brief, or any document can in effect do double duty. The Gettysburg Address is considered a work of art.
Martin Luther King and Malcolm X were both powerful orators. But my parents always found King's preacher's incantations overblown and annoying. For them Malcolm X was was more interesting. King would speak as a shepherd, from a superior position, while Malcolm X spoke to his audience as he would have someone speak to him, as an equal. King cajoled and exhorted, and Malcom X taught, in the sense that a teacher teaches those who will succeed him. I could go on, but the point here is only that for each, his art made manifest the choices he had made about himself and his community and history. The esthetic and the ethical mirrored one another. Their artistic devices were not mere design but acted as parallel to their intellectual and emotional lives, as is true, in a less self conscious way, for anyone. But they were skilled at it.

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