Abstract
The relation between art and law is not limited to the scope of censorship or constitutional protection of works of art. The endless tension between State censorship and freedom of expression, even if it highlights the justifiable need to secure the autonomy of art vis-à-vis law, leads us to ignore the common philosophical matrix of the two normative phenomena. The article aims at illuminating the ontological, aesthetic and political parameters of the production of art/law, through the analysis of two important films, Prova d’Orchestra (Orchestra Rehearsal) by Federico Fellini and Blow Up by Michelangelo Antonioni.
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Notes
Art. 16, Par. 1 of the Greek Constitution stipulates that ‘Art and science, research and teaching are free. Their development and promotion constitute an obligation of the State’. The author analyses the clash between artistic freedom and religious beliefs, which has often troubled the Greek legal order (e.g. the Scorsese case, the Outlook case).
According to Andreas Takis, the constitutional consolidation of the freedom of art offers paradoxically the legal basis for its restrictions. The author rightly observes that the definition of art is assigned to lawyers, since ‘objects and behaviours that cannot claim the protection of law, cannot carry the title of art, at least in the sense that is implied by law, whatever the opinion of the so-called artist and his/her audience may be’.
Here, one witnesses the tension between the subjective and the objective meaning of the statement that Hans Kelsen introduced into legal theory, when he noted that the norm is the (objective) meaning of an act of volition. According to the institutional approach, it is the power of authority that characterises a statement as legal. Therefore, the meaning of discourse is not related to the semantic but rather to the pragmatological dimension of its articulation. However, it is difficult to accept that the subject of the author is absorbed totally by the institution. In other words, does the function of the artist or law-maker suffice for his language act to acquire the status of a work of art or law?
Giorgos Xiropaidis notes that ‘in order to shed light on the manner of being (Seinsweise) of the work of art and the emergence of truth in it, Gadamer is oriented towards the notion of game (…) the game starts to operate when it incorporates the players in its structures. Therefore, the real and active subject of the game is in a way the game itself, which acquires its highest form in art’.
We refer indicatively to the famous painting Las Meninas by Velasquez and the spontaneous musical improvisations of Bartok, i.e. works in which the modern matter of the sovereignty of the creator is underlined.
Prova d’Orchestra (1978), dir.: Federico Fellini, starring Balduin Baas, Clara Colosimo, Elizabeth Labi. Blow Up (1966), dir.: Michelangelo Antonioni, starring Vanessa Redgrave, Sarah Miles, David Hemmings.
In an interview of his with the French critic Michel Siman, Fellini admitted that ‘whenever I was present in the musical production of my own movies, I always felt surprise, admiration and excitement since I always felt like a martyr in front of a miracle. Many different individuals arrived at the studio with their own musical instruments as well as their personal problems, bad mood, illness and their portable radio every now and then’ (author’s translation).
This is the case ‘because only performance can bring to light what exists in the game…’. The music scene looks like politics, since the game that unfolds between the musicians or the politicians highlights publicly the true musical or political proposal.
In contrast to all the rest of Fellini’s films.
Like a cinematographic transposition of the Hobbesian construction of annihilatio mundi, i.e. of the assumption of the natural condition that describes with bleak colours what happens when the State is absent.
According to the fundamental division that Hobbes makes between natural right and natural law, the endless exercise of the former and the indeterminacy of the latter, when there is no normative authority to translate it, entails generalised warfare.
The author claims that the act of ‘giving the law’ remains up to now the most precise definition of sovereignty.
The basic tenet of philosophical hermeneutics is that the understanding of the text cannot be disassociated from its volitional interpretation and application. The meaning of each language act is articulated in the action of its interpretation, which undertakes to instil meaning through its application within a game, in the semantically general and therefore pragmatologically inexpressible text.
The author refers to the analysis by Henri Gouhier of theatre as an art that is fulfilled in two instances. The same is true for law. The lawyer or artist (e.g. musician) of the second instance is an agent of limited sovereignty because he/she is obliged to confront the work of another creator. This is why he/she feels the ceaseless nostalgia for the absolute sovereignty of the creator in the first instance (e.g. the sculptor or painter) and attempts constantly to approach it. And it is his/her interpretative freedom, the pragmatological right to represent the spirit of the first creator, which allows him/her access to the leading position on the pyramid of sovereignty.
In both the German Historical School of Law by Puchta and Savigny and its descendants, such as Jellinek, Gerber and Laband, the volition of the Sovereign submits itself to the objective spirit and the essence of the constitutional text. More specifically, in Jellinek the decision of the State to respect the moral-political values of constitutionalism is conceived as a case of pure self-restriction.
An important point of interpretative disagreement in the work of Hobbes is the reason for the agreement of the subjects in Leviathan’s authority. According to Simone Goyard-Fabre, the contractual parties act clearly rationally since they realise that the granting of their volition to the Sovereign functions favours them, due to the securing of the life and development of their personality. Thus, the motive for the constitution of the polity is found in the content of Leviathan’s promise and not in the power of imposition that accompanies it. However, this anthropologically optimistic position hardly coincides with Hobbes’ pessimism and his obvious distrust towards human reason. The Contract does not constitute a product of rational deliberation or logical political thinking, but rather a matter of coercion by a normatively superior volition, which undertakes the task to translate positively the natural law of self-preservation. The best reason, therefore, for obeying the law is the power of law, as observed by Olivier Cayla.
The division between text and law constitutes a key instrument for the understanding of law through realist (legal) theory. The interpretative freedom of the reader of the rule is one that in the last instance lends the text its meaning. Therefore, in the world of law, the judge appears omnipotent—the original interpreter of legal texts.
Given that, according to the famous maxim by Roland Barthes, the author is dead.
As in the nominalist contract of Hobbes. On the contrary, in Locke the clear establishment of the right of resistance assumes that the representative is accountable to the represented.
MacIntyre criticises the moral discontinuity of the modern subject that is due to this very modern ideal of spontaneous sentimentalism of the self. Moral constitution and integral life are cancelled by the prevalence of the volitional and arbitrary self, the projection of a subject that is subjected to the naive and disastrous doctrine of ‘I do what I want’.
Such as the British philosopher of law, John Finnis, for whom the legal nature of the rule is not disconnected from the law and its content. Similar views have been put forward in France by Stéphane Rials, on the question of supraconstitutionality. We hereby need to note that philosophical realism must not be conflated with legal realism. Realist philosophers talk about essences and truths, while their legal counterparts talk about names, conventions and decisions.
Antonioni confesses that ‘I do not know what reality is. Reality eludes us, changes constantly. When we think that we touch it, the situation has already changed into something different’.
Antonioni claimed: ‘I do not think that the appearance of reality can be conflated with reality itself. In reality, phenomena can be infinite, and the same is true for reality itself, however I do not know enough and thus do not believe it. Reality may perhaps be a relationship’.
References
Alferi, Pierre. 1989. Guillaume d’ Ockham, le singuilier. Paris: Les éditions de Minuit.
Amselek, Paul. 1980. Norme et loi. Archives de Philosophie du Droit 25: 89–107.
Beaud, Olivier. 1994. La puissance de l’Etat. Paris: PUF.
Brunette, Peter. 1998. The films of Michelangelo Antonioni. New York: Cambridge University Press.
Canfora, Luciano. 2006. Democracy in Europe a history of an ideology (Making Europe) (transl. Jones, Simon). London: Blackwell.
Cayla, Olivier. 1990. La souveraineté de l’artiste ‘du second temps’. Droits 12: 129–147.
Cayla, Olivier. 2004. Aveu et fondement du droit. In Vérité, reconciliation, separation, ed. Barbara Cassin, Olivier Cayla, and Philippe-Joseph Salazar, 89–110. Paris: Le Genre Humain, Seuil.
Deleuze, Gilles. 1985. Cinéma 2, L’image-temps. Paris: Les éditions de minuit.
Edelman, Bernard. 1999. La personne en danger. Paris: PUF.
Finnis, John. 1980. Natural law and natural rights. Oxford: Clarendon Law Series, Oxford University Press.
Foucault, Michel. 1993. Words and things: an archaeology of the human sciences (transl. Costis Papagiorgis). Athens: Gnwsi (in Greek).
Froger, M. 1999. Deleuze et la question de la narration. Cinémas: Revue d’études cinématographiques 10: 131–155.
Gadamer, Hans-Georg. 1996. Verité et méthode, les grandes lignes d’une herméneutique philosophique (transl. Pierre-Grondin Fruchon, Gilbert Jean-Merlio). Paris: Seuil.
Godelier, Maurice. 2007. Au fondement des sociétés humaines, ce que nous apprend l’anthropologie. Paris: Albin Michel.
Goyard-Fabre, Simone. 1990. Loi civile et obéissance dans l’Etat-Léviathan. In Zarka, Yves-Charles and Jean Bernhardt (eds), Thomas Hobbes, philosophie première, théorie de la science et politique, 289–304. Paris: PUF, Léviathan.
Jaume, Lucien. 1996. Représentation. In Dictionnaire de philosophie politique, ed. Philippe Raynaud, and Stéphane Rials, 559–564. Paris: PUF.
Jouanjan, Olivier. 2005. Une histoire de la pensée juridique en Allemagne (1800–1918). Paris: PUF, Léviathan.
Kantorowitch, Ernst. 2004. Souveraineté de l’artiste. In Mourir pour la patrie et autres textes, 43–73. Paris: Fayard.
Kelsen, Hans. 1999. Théorie Pure du droit (transl. Charles Eisenmann). Paris-Bruxelles, vol. 2. Dalloz: LGDJ-Bruylant.
Kracauer, Siegfried. 1983. Theory of the Cinema: the liberation of natural reality (transl. Dimosthenis Kourtovik). Athens: Kalvos (in Greek).
Lambrinou, Katerina, and Giannis Balabanidis. 2009. The State went over the line. Nea Estia 1819: 228–234. (in Greek).
Legendre, Pierre. 1992. Les enfants du texte. Étude sur la fonction parentale des Etats. Paris: Fayard.
Lessay, Franck. 1988. Souveraineté et légitimité chez Hobbes. Paris: PUF, Léviathan.
Lyotard, Jean-François. 1979. La condition postmoderne. Paris: Μinuit.
MacIntyre, Alasdair. 1984. After Virtue. Notre Dame: University of Notre Dame Press.
Mitsopoulos, Georgios G. 1998. The problem of the notion of legal being. Athens-Komotini: Ant. N. Sakkoulas. (in Greek).
Rials, Stéphane. 1986. Supraconstitutionnalité et systématicité du droit. Archives de Philosophie du Droit 31: 57–76.
Ricoeur, Paul. 1988. Philosophie de la volonté, Ι, Le volontaire et l’involontaire. Paris: Αubier.
Rousseau, Jean-Jacques. 2006. Social Contract (transl. Vassiliki Grigoropoulou and Alfred Steinhauer). Athens: Polis. (in Greek).
Supiot, Alain. 2005. Homo juridicus, essai sur la fonction anthropologique du droit. Paris: Seuil.
Takis, Andreas. 2008. On the freedom of art: an essay of political and constitutional theory. Athens: Savvalas. (in Greek).
Tassone, Aldo. 2007. Antonioni. Paris: Champs-Flammarion.
Troper, Michel. 2001. La théorie du droit, le droit, l’Etat. Paris: PUF.
Tsakirakis, Stavros. 2005. Religion versus Art. Athens: Polis. (in Greek).
Tylski, Αlexander. 2003. Rota & Fellini, The War: an analysis of Orchestra Rehearsal, 1979. Cadrage, 1ère revue en ligne universitaire française de cinema.
Wicker, Guillaume. 2003. Fiction. In Dictionnaire de la culture juridique, ed. Denis Alland, and Stéphane Rials, 716–720. Paris: PUF.
Xiropaidis, Giorgos. 2008. The conflict of interpretations, Gadamer-Habermas. Athens: Polis. (in Greek).
Zarka, Yves-Charles. 1999. La décision métaphysique de Hobbes. Paris: Vrin.
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Karavokyris, G. The Art of Law. Law Critique 25, 67–85 (2014). https://doi.org/10.1007/s10978-013-9128-y
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DOI: https://doi.org/10.1007/s10978-013-9128-y