Abstract

This Article introduces readers to part of the contemporary scholarly discourse on the philosophy of language, and acknowledges that the Law & Literature (L&L) movement of the past decades has expounded the commonalities between Law and Art -- Both disciplines use language to achieve social and private goals, meeting each other in the classic and modern studies of rhetoric. Law borrows the craft of the literary art in order to advance social activism, and hence the elements and attributes of the literary art and its interpretation have their place in the law. The Article argues, nonetheless, that notwithstanding overlaps and similarities, the two disciplines, Law and Art, remain divergent and incompatible in three core aspects: (i) the mental process of creation and the utilization of facilities, (ii) the work product or output, and (iii) the raison d'etre of law versus art. The Article points out that the mental process and utilization of facilities inherent in law has little to offer the creation of art, and the two creative processes are antagonistic to each other. In fact, the rationality and logic properties of law – the objective of rendering certainty to uncertain future outcomes so as to achieve and maintain order -- will interfere with, and can even destroy, the creation of art. The incompatibility in the creative process of law versus art should ring a note of caution for the responsible lawyer, drafter and user of legal language. In this regard, the Article criticizes the L&L movement of the past decades as not doing justice to the scholarly discourse on law and art. Although the L&L movement recognizes the differences and similarities between law and art, L&L scholars typically stand in the shoes of the readers of the legal and literary text, and speak from the perspective of the receiving end of the text: the process of interpretation. L&L scholars often neglect the perspective of the artist, the nature of the artistic creative process (i.e. the beginning of the communication process), and the incompatibility inherent in legal creation versus artistic creation. This oversight is due, inter alia, to the fact that L&L scholars are all thinkers, lawyers, readers, even literary critics or connoisseurs of art, but they probably don't live their lives as creative artists. Missing from the debate is the voice of the serious creative artist who actively and on a daily basis gets involved in the creation of art as the essence of existence. The marriage between law and art is indeed a paradox because it brings together two antagonistic creative processes. The Article seeks to supply the missing voice and describes the paradox. The Article also argues that future development of narrative legal scholarship will be the place where the antagonistic creative processes of law and art must be reconciled and harmonized – an internally paradoxical challenge for narrative legal writers. In order to gain and retain acceptance, the “narrative” form must be done extremely well, with artistic flare , as well as with dignity, responsibility, and the kind of ethical constraint that typifies the role of a jurist. At the same time, the narrative must be well-crafted to create the sense of “suspended disbelief” expected of the audience of the arts. The Article concludes that in the decades to come, if the L&L movement is to flourish into a “renaissance” tour de force, it needs to focus on the study of the antagonistic creative processes that separate the lawyer from the literary artist, in such a way that concrete suggestions can be made to the future generation of narrative legal writers.