The Legality of the Image
| Author | Costas Douzinas |
| Date | 01 November 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00296 |
| Published date | 01 November 2000 |
The Legality of the Image
Costas Douzinas*
Intimate links exist between political power, law and images. Theology,
philosophy and law have always developed elaborate rules about visuality. The
iconophilic and iconoclastic traditions complemented one another and combined
to construct subjectivity and to reconcile humanity with finitude. In modernity,
law replaced religion and philosophy conceptualised legality through the
aesthetic category of the sublime. The law understands the importance of the
governance of images for the maintenance of the social bond and helps organise a
regime of permitted images and forbidden idols which amounts to a complex legal
administration of aesthetics and a related aesthetic organisation of law.
It would be a dangerous undertaking for persons trained only in the law to constitute
themselves as final judges of the worth of pictorial illustrations. At the one end some works
of genius would be sure to miss apprehension. Their very novelty would make them
repulsive until the public had learned the new language in which their author spoke. It may
be doubted for instance whether the etchings of Goya or the paintings of Manet would have
been sure of protection when seen for the first time.1
This was Justice O.W. Holmes addressing at the relationship between law and art.
For Holmes, the law can appreciate art only after it becomes a matter of convention
and habit, when art becomes like law. Similar judicial statements are not difficult
to find. Here is a court dealing with planning law: ‘Certain legislatures might
consider that it was more important to cultivate a taste for jazz than for Beethoven,
for posters than for Rembrandt, and for limericks than for Keats. The world would
be at continual seesaw if aesthetic considerations were permitted to govern the use
of [governmental] power’.2But ‘aesthetic considerations are a matter of luxury and
indulgence rather than of necessity and it is necessity alone which justifies the
exercise of [governmental] power.’3Art is radically subjective, while law is
reasoned and objective. In Hegelian terms, law is the combination of reason and
necessity, art of sensuality and freedom.
These judicial statements are part of a typically modern approach to art and law,
exemplified by Kant’s critical philosophy and its various re-formulations by Weber
and Habermas. Modernity releases three areas of enquiry and action, the cognitive,
the practical and the aesthetic to develop their own specific, internal rationality, in
separate institutions operated by distinct groups of experts. Modern law is born in
this separation from aesthetic considerations. The self in art – as painter or viewer
– is free, desiring, with gender and history. The subject of law – as judge or litigant
– is constrained, rational, genderless, a persona or mask placed on the body. Justice
must be blindfolded to avoid the temptation of facing the concrete person and
putting individual characteristics before the abstract logic of the institution.4Law
and art are, and must remain, separate.
ßThe Modern Law Review Limited 2000 (MLR 63:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 813
* Costas Douzinas, Professor and Head, School of Law, Birkbeck College. This is an expanded version of a
professorial inaugural address delivered on 9 December, 1999.
1Bleistein vDonaldson 188 US 239, at 251 (1903).
2City of Youngstown vKahn Blg Co 112 Ohio St. 654, 661–2, 148 NE 842, 844 (1925).
3City of Passaic vPaterson Bill Posting, Advertising & Sign Painting Co 72 NLJ 267, 268 (1905).
4 For a detailed presentation of this argument see Costas Douzinas and Ronnie Warrington, Justice
Miscarried (Edinburgh: Edinburgh University Press, 1995) Chapters 1 and 4.
This is the modern expression of a much older hostility with which classical
philosophy and religion treated art. Plato excluded art and poetry from his Politeia
and in the Nomoi, he contrasted them with law: ‘[W]hen a poet or a painter
represents men with contrasting characters he is often obliged to contradict
himself, and he does not know which of the opposing speeches contains the truth.
But for the legislator, this is impossible: he must not let his laws say two different
things on the same subject’.5Plato praised the mythological Egyptian legislator,
who prescribed acceptable artistic styles and forms, because art can be harmful to
the young. Similarly, the city of Thebes commanded artists to idealise their themes
and punished severely the depiction of ugliness. As Gotthold Lessing put it: ‘the
plastic arts in particular – aside from the inevitable influence they exert on the
character of the nation – have an effect that demands close supervision by the law.
If beautiful men created beautiful statues, these statues in turn affected the men and
thus the state and owed thanks to beautiful statues for beautiful men.’6
The Judaic tradition and biblical law are even stricter with art and images. The
second commandment bans the making of ‘graven images, or any likeness of
anything.’ According to the Jewish theologian and philosopher Maimonides ‘the
first intention of the law as a whole is to put an end to idolatry’,7a sentiment
echoed by the early Christian apologist Tertullian: ‘Idolatry is the principal crime
of the human race, the highest guilt charged upon the world.’8The prohibition
initiated a huge campaign against imagery, which affected both Judaism and
Christianity. The overtly political controversies in the Byzantium, between the
seventh and ninth centuries, and during the Reformation reveal deep-seated fears
as to the uses of imagery. According to the iconoclasts, the best images of God are
formed by the divine word in the soul.9The word and the text are higher, spiritual
expressions of the law. They inscribe themselves in the heart directly without the
interpolation of vision, always open to excess and sin. Pictures seduce the senses
and corrupt the mind, they confuse the copy with the prototype and move emotions
and passions uncontrollably.
After the Reformation and the fusion of secular and ecclesiastical jurisdictions,
these iconophobic ideas became the foundation of the common law. Its force was
based on the celebration of spiritual community, social unity and political
sovereignty and the complementary exclusion of materiality and sensuality, of
enemies without and within, the Romanists and the French, the Egyptians, gypsies
and the Jews, heretics, itinerants and refugees. This strategy of inclusion and
excommunication was organised around an economy of acceptable and forbidden
images which Medusa-like can both fascinate and petrify.10 As the icons were
excluded from churches, figures and imagery were banned from the law. The
image had come to be seen as too worldly, sensual and potentially corrupt and was
5 Plato, The Laws (Harmondsworth: Penguin, 1977) Bk 2, 91.
6 G. Lessing, Laocoon. An Essay on the Limits of Painting and Poetry (1766, translated by E.A.
McCormick, Baltimore: Johns Hopkins University Press, 1984) 13.
7 Maimonides quoted in Moshe Halbertal and Avishai Margalit, Idolatry (Cambridge: Harvard
University Press, 1992) 127.
8 Tertullian, ‘De Idolatria’ in The Anti-Nicene Fathers III (translated by Rev. S. Thelwall, Ann Arbor:
University of Michigan Press, 1976) 61–77 at 62; cf ‘every crime appertaineth to idolatry’, Erasmus,
A playne and godly exposition or declaration of the common Crede (Robert Redman for W. Marshall,
1534) STC 10504, sig. T iii
v
.
9 Origenes quoted in David Freedberg, The Power of Images (Chicago: Chicago University Press, 1989)
396.
10 Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley: University of California
Press, 1995) passim.
The Modern Law Review [Vol. 63
814 ßThe Modern Law Review Limited 2000
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