Viewing Law from the Perspective of Aesthetics —— Also on Legal Aesthetics

Perhaps because of the abuse of rationality and "calculation" rules in the era of industrialization and commercialization, we have lost what Hegel called the "perceptual manifestation of ideas" (aesthetic) ability. The spiritual agitation of lofty images, the game impulse of "no interest", the surprise and pure joy inspired by poetic language, the desire for unlimited imagination to extend freely, the experience and pursuit of "style" and "fun", and the "ecstasy of Dionysian realm" described by Nietzsche in The Birth of Tragedy [1] seem to have gradually drifted away from our perceptual and intuitive vision. So that when we look at the so-called "legal world" dominated by highly rational will from the perspective of art and aesthetics, we will face the criticism of experts who regard law as purely normative science. The theoretical purport of "legal aesthetics" may even be regarded as "neither fish nor fowl speculation" and be laughed at and excluded from the sacred and solemn legal hall. It is difficult for people to accept the fact that how can law become the "object of observation" of aesthetics or art?

Therefore, when gustav radbruch, a German jurist, advocated understanding the essence of law through literary creation and artistic works in his book Philosophy of Law (German version 1932) and demanded the establishment of legal aesthetics, he actually noticed the gap between "the world of law" and "the world of art (beauty)". Radbruch pointed out that with the specialization in the field of culture, law and art gradually tend to be divided, even in opposite positions. Law is the most rigid cultural structure, while art is the most flexible expression of the changes of the spirit of the times, and they are in a natural hostile state. Those talented romantic poets even cursed the law and regarded it as "something that torments and scares people all the time" [2]. In the development of academic history, we find that it is precisely because law and art (beauty) belong to different spiritual fields [3] that talented students who applied for law school in their early years (such as Goethe, Schiller, Marx and Jaspers) could not bear the "mental torture" brought by law and later gave up their legal career.

Undeniably, law is a knowledge that reflects people's experience and rationality, and it is a comprehensive embodiment of people's legal experience, knowledge, wisdom and rationality. Nature and law may also penetrate into the researcher's personal perceptual observation and comprehension, but it is by no means an arbitrary catharsis of personal feelings. As far as its nature is concerned, law is contrary to all ways of thinking that show romantic interest and originality. Especially in modern times, with the legal activities becoming more and more specialized and professional, law and legal language have evolved into a complex professional language that is not completely equivalent to "everyday language" after being refined and processed by legal experts. When talking about its characteristics, radbruch pointed out: "The language of law is calm: it excludes any emotional tone; The language of law is strict: it excludes any reasoning; The language of the law is concise, excluding any pedant. We can also say that the language of law has precise meaning and reference, but because they are languages that need expert operation or "performance" and are disguised by highly developed words, they are not so close to people's vivid and colorful perceptual life, but always keep a "distance interval" with ordinary people's perceptual intuition, and sometimes even inhibit people from conveying aesthetics. In this way, at least as far as the so-called "jurist law" in modern times is concerned, it seems that they have lost the intuitive interest that makes ordinary people feel cordial and happy, which invisibly obscures their own unique aesthetic essence and value.

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The hazy feeling brought by the long history may awaken a trace of aesthetic consciousness in our modern minds, and urge us to explore the rules of so-called "law-abiding singing" that have appeared in history, to study the vivid "lebendiges Recht" that is integrated with the concept of human perceptual justice, and even to have an aesthetic interest in modern laws (codes) or judicial activities that are completely divorced from our temperament and cognition.

Thanks to Giam Batistavico (1668-1744), an Italian philosopher in the18th century, who wrote the book "scienza nuova" in an era when the vigorous development of science and technology brought great "sense of ability" to mankind, bringing our hearts to the dreamy spiritual world in ancient times. The images that we display in the meaning space behind the languages of "poetic economy", "poetic ethics", "poetic politics" and "poetic universe" are still shaking in our dominated hearts.

Vico described the natural image of the origin of "Fa" with his unique language analysis and vivid style. His poetic inference of the word "ius" in ancient Rome reveals a sense of beauty for the law. Vico pointed out:

Ancient laws are poetic ... ancient Roman law is a serious poem, which was performed by Romans in Rome Square, and ancient law is a severe poem creation. [5]

In fact, in an earlier period, Plato, an ancient Greek philosopher, had vaguely expressed the same idea in The Republic and The Law. Plato regarded "the beauty of law and social organization" as a higher level of "beauty" [6]; In his view, the law of establishing a city-state is much better than creating a tragedy, and the noblest (tragic) script can only be perfected by real law. Some great legislators in history (such as Lekugu in Sparta and Solon in Athens) were great poets, and the laws they made were great poems. [7]

Jacob green (1785- 1863), a famous German fairy tale writer (one of the authors of Grimm's Fairy Tales) and an important representative of the school of historical law, published a long paper "Poems on Law" on 18 16. At the beginning of the article, he expressed the same view as Vico:

Law and poetry were born in the same hotbed. ..... Indeed, the origins of both are based on two properties: one is based on surprise, and the other is based on belief. The surprise here, I prefer to regard it as the beginning of any national law and folk songs. ..... So there are elements of law in poetry, and there are also elements of poetry in imagery. [8]

Perhaps influenced by the research tradition initiated by a group of legal historians such as jacob green, topics such as "law and poetry", "law and drama", "law and painting" and "law and beauty" have occasionally entered the theoretical field of vision of German jurists recently. Generally speaking, the Germans have discussed as widely as possible the problems we can imagine. Here are only the main points of its representative achievements, so that we can have a general understanding:

Otto von Giercke, the late leader of the school of historical law, wrote humor in German Law (187 1).

Josef Kohler, the founder of the New hegelianism School of Law, wrote Shakespeare before the legal stage (1919);

Zitelmann's Law as Art (Die Jurisprudenz als Kunst,1904);

T. Steinberg's Jokes in Law (Der Witz im Recht,1938);

G. Miao Lei wrote Law and State in Recht und Staat in unserer Dichtung (1924);

Adolf Bachrach's Law and Imagination (Recht und Phantasie,1912);

Hans Fell wrote The Method of Painting (Das Recht im Bilde,1923); Law in poetry (Das Recht in der Dichtung,1931); The tragedy of law (Die Tragik im Recht,1945);

H. Aesthetics and Law as Science by storck Hammer (Aesthetik und Jurisprudenz alswissenschaften,1932);

H. On the Style of Law: A Collection of Legal Aesthetics by Triepel (1947);

The world and aesthetics of law by Hugo Marcus (Rechtswelt und Aesthetik,1952);

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German scholars' research shows that law also has its place in the richest part of human mind. As many researchers have clearly pointed out, law can serve art (aesthetics), and art (aesthetics) can also serve law. Like any other cultural phenomenon, law needs specific expressions: language, gestures, costumes, symbols and architecture. These tangible expressions of law can also be evaluated through aesthetics.

René Martic once said in his philosophy of law: "Man is the undertaker of law." We can continue to say that people are also carriers of beauty. For thousands of years, art (beauty) and law are comparable because they both have mysterious origins and pursue some eternal value (such as "goodness"). Law is a tool of justice, and art is a "skill" to create beauty-Greek technology and Roman art. Therefore, in medieval Europe, in modern times, even in the18th century, some artists and jurists still maintained kinship. They were named "Kunstwerker" and worked for the Pope and the royal family. Their skills are varied, such as poetry, architecture, painting, and even the rhetoric of law and the art of law (die Kunst des Rechts). Here, art and law follow the "tradition" of beauty and justice.

In fact, the connection between law and art (beauty) is not entirely the cosmetic modification of artificial life in the "elegant era" (such as "Baroque era" or "Rococo era"). Fundamentally speaking, it is an inevitable phenomenon that people try to "watch" and "appreciate" everything directly. It is people who follow tradition and seek opportunities for free extension that will project their amazing eyes, imagination and understanding on all observable objects, not only continue to explore the truth, goodness and beauty of objects, but also hope to feel the beauty contained in them.

Indeed, not all philosophers and thinkers recognize the internal relationship between truth, goodness and beauty. In Critique of Judgment (1790), Kant even thought that the pursuit of utilitarian goodness and the expression of conceptual truth were harmful to the pure form of beauty. However, if we don't discuss the "essence of beauty" in isolation, but regard beauty as the attribute of the object mapped to human senses, then we can also say that any object and its attributes (including truth, goodness and beauty) may become the object of aesthetics. Moreover, sometimes, knowing the beauty of things is the bridge and foundation to know the truth, goodness and beauty of things. Therefore, Schiller wrote in the poem The Artist (1789):

Only through the beautiful early morning door

You can enter the land of understanding. [9]

Similarly, the so-called unconscious "hidden order" implied by such a complex social phenomenon as law can sometimes be perceived and recognized only through the "early morning door" of beauty. In this sense, we don't regard "legal aesthetics" as a subject of "painting the ground as a prison", but as a way and direction to grasp, examine and judge legal phenomena with the viewpoint, method and attitude of functional aesthetics. Different from other art categories, "legal aesthetics" does not directly show the object of beauty to "bystanders" through intuitive and perceptual presentation, but discovers the inherent beauty order of law through intuitive understanding, explores the aesthetic motivation for the formation of this order, and provides some aesthetic standards and principles for the construction of law. Undoubtedly, legal aesthetics will vividly expand the horizon of law from the perceptual approach, and at the same time activate the legal knowledge that has been suppressed by traditional law for a long time, so that legal researchers will gradually be liberated from the legal doctrine of absolutism and purely rational rule-making, and seek a kind of "harmonious free activity" in legal theory. Or simply put, what the study of legal aesthetics wants to save is our intuitive imagination and the corresponding originality and freedom that has quietly disappeared in the field of legal understanding.

From another point of view, law or law, as an appropriate object of aesthetic (artistic) investigation and as an artistic material, is also determined by the uniqueness of law and legal life. As radbruch said, law fundamentally contains a kind of "Der dramatische Konflikt", which contains a variety of opposites, namely, the opposition between fact and value, being and should, positive law and natural law, orthodox law and revolutionary law, freedom and order, justice and fairness, and law and tolerance [10]. The essence of art form (especially drama) is to explain duality (contradiction), especially to grasp the inherent contradiction of law or legal phenomenon. For example, antigone by Sophocles, The Merchant of Venice by Shakespeare and What goes around comes around comes around, all of which vividly reproduce the plot of the legal story in the imaginary reality. Through the fate of antigone and the conflict between Portia and Isabella, the tension between human feelings and law, sin and forgiveness, cruelty and kindness, injustice and justice is revealed. [ 1 1]

Here, art (beauty) vividly retells "countless independent and unconformity voices and consciousness" in the legal world, which makes legal narration and dialogue form "polyphony composed of many voices with full value" (in the words of Mi Bakhtin) [12]. This new narrative way will break or change the established "monologue (theme)" attitude and method of analyzing problems in traditional legal theory research, and make it generate new Diskurs or dialogue rules, thus extending legal principles more suitable for problems in the debate of complex "difficult cases".

In addition to drama, there are other artistic (aesthetic) forms that are particularly suitable for expressing contradictions, including satire and comic art. If a legal person cannot fully realize the deep-seated problems in his career in time, he is not a good and competent legal person. Therefore, serious legal persons should like to treat those who criticize their code in the form of irony, and should like those thoughtful poets, because they are more sensitive to problematic human nature on the basis of justice; At the same time, we should also like Tolstoy, Tolstoy Stoff, or the great judicial satirist (grosse Karikaturisten der Justiz), who is both a satirist and a thinker.

Only people who don't know anything about art will be overly intoxicated with the pure "professionalism" of their works, regard themselves as the most sober, rational and useful part of human society at any time, and develop a narrow and arbitrary professional style. The responsibility of a legal person is not only to operate the law mechanically and meticulously, but more importantly, to show the great spirit of fraternity, humanistic care, aesthetic principles and just feelings in a professional, rational and artistic way.

It is in this sense that a legal person should be both a craftsman and an artist (Kuenstler) and the creator of legal art.

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When we observe the law from the aesthetic point of view, we are likely to study a "pure law" or a pure legal form that is divorced from all contents and regulations as the object of legal aesthetics. But in fact, all laws that can become aesthetic objects contain a space-time dimension. In other words, only when the law exists "realistically" in a specific time and space will it be experienced and recognized by people through aesthetic consciousness. A law without the stipulation of historical geography, realistic humanity (nationality) and specific situation background may be the object of "thinking" (metaphysics), but it can never be the object of "seeing" (legal aesthetics). After all, legal aesthetics is not a philosophical thinking about law, but a study of people's perceptual examination of the beauty of law.

The space-time dimension of law also contains a meaning, that is, the "law" we have seen in history has different aesthetic values and forms of expression. It is impossible for us to examine all the laws in history with aesthetic standards that transcend time, nor can we presuppose their aesthetic significance and value identity a priori. To put it another way, we can't generally declare what kind of aesthetic significance and value the so-called "general law" has, but always say what kind of unique aesthetic significance, value or nature the "law" has here and now or then. Here, the aesthetic attitude of law has actually become a situational attitude.

To observe the law with this attitude, we should always be cautious about the historical, cultural and geographical roots of the formation of the law, explore the secret process of the evolution of the law, and compare the beautiful characteristics, forms of expression, "style" and "style" of the laws in different regions (such as East and West) and different periods (ancient, medieval, modern and modern). In other words, we should have different aesthetic views, methods and attitudes towards different forms of laws (customary law, written law), laws in different regions (such as "Eastern law", "Western law", "Continental law" and "Anglo-American law") and laws with different time structures (ancient law, medieval law, modern law and modern law).

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If legal aesthetics has vitality, it should be nourished by the study of the beauty of legal expression. If we have the curiosity and sensibility of Vico and Green, we will find traces of the beauty of legal form in the interpretation of countless historical materials, poems, ancient laws, precedents, novels, plays and folklore.

In this respect, perhaps the most exciting thing is to explore the "poetic method" of distant times described by Vico and Green. These laws expressed in poetry record the life feelings of every growing nation, as well as their imagination and desire for hazy justice, sacred rules and secret order. In the Indian Code of Manu written in the style of "Slokas", we even read the enlightenment wisdom from ancient "poetry" [13]. These poetic methods, full of wonder, imagination and piety of our ancestors, will be a mirror worthy of eternal introspection for our later mature and sophisticated human beings. Their charm will increase with the evolution of history. Because we know that law and justice sometimes have to present vivid appearances, otherwise people will not see their realistic figures [14]. Here, the vivid beauty of poetry "harmonizes its internal and external boundaries, rules and freedom" [15].

The vivid expression of law is not limited to poetry, but may also be manifested in folk proverbs, aphorisms, essays, rhymes or paintings. The irrefutable evidence provided by Japanese jurist Sui Chong (1855- 1926) in the book Evolution of Law shows that in the history of the evolution of laws in the East and the West, the transformation from "intangible law" to "shaping law" has experienced "sentence method", "poetic method" and "rhyme method". Such as concise and symmetrical ancient German legal proverbs, the rhyme of "Twelve Copper Tables" in Roman law, and vivid "elephant punishment" (painting) in Taigu, China, are typical of the above legal forms. In Sui Jishi's view, these changes in legal expression actually reflect the growth of human wisdom and cognitive ability and the conscious development of social forces [16].

In addition, the judgments (precedents) of judges in different periods in history are also suitable forms to express the aesthetic value of law. In fact, the rules of formal beauty of law (such as symmetrical balance of legal language, simplicity and rhythm of logic, diversity and unity of legal style, etc.). ) more reflected in the judges' judgment, it is unique and aesthetically interesting. The aesthetic value produced by the judges' "beautiful" judgments is by no means superior to any excellent works of art. Rudolf Som once praised Celsus's judgment ability, saying that he can draw universal laws from individual cases and use the most concise language form; These forms have the impact of words flying in the air, lofty and clear, just like a bolt of lightning illuminating the distant landscape [17]. It is precisely because of the same aesthetic desire that Judge Benjamin N Cardoso of the United States (1870- 1938) once said: "Unless for some good reason, I don't want to destroy the symmetry of the legal structure by introducing incoherent, irrelevant and artificial exceptions." [ 18]

In short, aesthetic materials such as sentence style, poetry style, verse style, painting style, writing style and aesthetic judgment. It exists in the long history of all ethnic groups and has become a rich treasure to be developed urgently. Legal aesthetics should light the fire, guard the light carefully and illuminate the passage in and out of the dark.

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Finally, people may equate the study of legal aesthetics with a tendency of legal romanticism or legal aestheticism (perfectionism), which may be an unnecessary worry. Here, I don't want to discuss too much, just want to explain that legal aesthetics is a kind of knowledge that uses multidisciplinary methods and attitudes, while legal romanticism and aestheticism are a kind of "ideology" oriented by practice, and they are essentially different. The main purpose of legal aesthetics research is by no means to serve this kind of "collocation", nor to collude with it. On the contrary, it is essentially against any form of dogmatism and aestheticism in legal concepts or legal procedures. Because only those who recognize the boundary of "beauty" will make prudent judgments and decisions in the rational practice of law and avoid the arbitrariness of aestheticism in practice [19].

Legal aesthetics advocates an open spirit of exploration and an attitude of constantly exploring the unknown. If philosophy is going to an endless "road in the forest", then legal aesthetics will also choose this road that may be "suddenly cut off in no man's land". In Poets and Philosophers, Heidegger expressed the feelings of scholars "on the road":

Road and thinking,

Stairs and speeches,

Found in walking alone.

Perseverance,

Problems and shortcomings,

The cohesion on your lonely road. [20]

-This should also be the homosexual interest of all scholars who pursue the "exploration" of legal aesthetics.

[1] The Birth of Tragedy: Selected Works of Nietzsche's Aesthetics, translated by Zhou, Sanlian Bookstore, 1986, p.1-0/08.

[2] gustav radbruch, Rechts Philosophy, S.205ff. [3] According to Hegel's explanation, law belongs to "objective spirit", and art or aesthetics belongs to the perceptual stage of "absolute spirit".

[4] gustav radbruch, Rechts Philosophy, s. 206 .[5][ Italy] Vico: "New Science" Volume II, translated by Zhu Guangqian, The Commercial Press, 1989 edition, p. 563.

[6] Plato: "Drinking" 210 b-d. See [Ancient Greece] Aristotle: "Poetics", translated by Chen Zhongmei, The Commercial Press, 1999 edition, p. 262.

[7] See Zhu Guangqian: History of Western Aesthetics, Volume I, People's Literature Publishing House, 1982, page 55 below. Chen Zhongmei: A Comparison between Plato's Poetics and Artistic Thoughts

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