Aesthetics, Culture, and the Whole Damn Thing

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<ul><li><p>Cardozo School of Law</p><p>Aesthetics, Culture, and the Whole Damn ThingAuthor(s): Peter HeereySource: Law and Literature, Vol. 15, No. 3 (Fall 2003), pp. 295-312Published by: Taylor &amp; Francis, Ltd. on behalf of the Cardozo School of LawStable URL: .Accessed: 25/05/2014 12:15</p><p>Your use of the JSTOR archive indicates your acceptance of the Terms &amp; Conditions of Use, available at .</p><p> .JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact</p><p> .</p><p>Cardozo School of Law and Taylor &amp; Francis, Ltd. are collaborating with JSTOR to digitize, preserve andextend access to Law and Literature.</p><p> </p><p>This content downloaded from on Sun, 25 May 2014 12:15:24 PMAll use subject to JSTOR Terms and Conditions</p><p></p></li><li><p>Law and Literature, Vol. </p><p>, No. 3, pages 295</p><p>. issn 1535685X. 2003 by The Cardozo School ofLaw of Yeshiva University. All rights reserved. Send requests for permission to reprint to: Rights andPermissions, University of California Press, 2000 Center Street, Suite 303, Berkeley, CA 94704-1223.</p><p>295</p><p>Aesthetics, Culture, andthe Whole Damn ThingPeter Heerey*</p><p>Abstract. From a judicial perspective, the operation of law is a</p><p>ffected by legal culture and by aes-thetics, that is to say what impacts the senses. Communication to and from the judge is a</p><p>ffectedby the choice between morality and writing. Language, visuality, and humor are seen as aspects ofaesthetics and culture. The resultant effect on the internal psychology of judicial decision making isexplored in this essay adapted from an address to the International Conference of the Law &amp; Liter-ature Association of Australia in .</p><p>When the organizers of this conference kindly (and perhaps courageously, inthe Sir Humphrey sense) invited me to speak, they said that the concerns ofthe conference in recent years have expanded from laws relationship with lit-erature, narrowly defined to include its interaction with the broader realms ofculture and aesthetics.</p><p>I think I know what culture means. But something about aestheticstriggered a nagging uncertainty. I consulted the Oxford English Dictionary1</p><p>and found that the term has been the subject of spirited lexicological combat.The older meaning, of or pertaining to sensuous perceptions, received by thesenses, receives a dismissive obs and has been superseded by of or per-taining to the criticism of the beautiful. This latter meaning apparently orig-inated with the German philosopher Baumgarten in the mid-eighteenth cen-tury but was rejected by Kant. However, the OED says that Baumgartens usefound popular acceptance and appeared in English after , though itsadoption was long opposed. By , Hamilton was using the term in prettymuch its popular meaning today:</p><p>This content downloaded from on Sun, 25 May 2014 12:15:24 PMAll use subject to JSTOR Terms and Conditions</p><p></p></li><li><p>296</p><p>Law &amp; L i terature </p><p> Volume 15, Number 3</p><p>The leaders of the Aesthetic School in poetry have been styled </p><p>fleshly poets,delighting in somewhat sensually-suggestive descriptions of the passions.2</p><p>The leading protagonist was Oscar Wilde, who delighted in dandyishclothes, long </p><p>flowing locks, and promenading down Piccadilly holding a lily.According to Daniel Mendelssohn,</p><p>Wilde had become su</p><p>fficiently famous as a proponent of Aestheticism by hismid-twenties that he went on a two-year lecture tour of the United States, dur-ing which he gave tips to the Colonials on how to make life more aesthetic.3</p><p>But to be aesthetic (in this sense) did not necessarily connote delicacy. InLeadville, Colorado, the local miners invited Wilde down the mine to dinner.The first course was whiskey, the second course whiskey, and so on. But theminers ultimately found it was themselves who were drunk under the table.Leaving town the next day, Wilde came across his hosts in the street verymuch the worse for wear and counseled them against trying to outdrink anIrishman in the future.</p><p>Anyway, I shall hereafter use aesthetics in the Kantian, non-Baumgartian,pre-Wildean sense: pertaining to things perceptible by the senses as distinctfrom things thinkable or immaterial, that is to say to the product of logic.(As will be seen, the latter concept in a legal context is in itself often problem-atic.) I want to say something about: orality, language, visuality, and humor.Finally, I want to touch on the end target of all this culture and aesthetics: thejudge and the internal psychology of decision making.</p><p>O R A L I T Y</p><p>If we want to inform or persuade people, we can speak to them or write some-thing for them to read. The former process has some advantages. The listeneractually sees the speaker. As Haldar says, truth is embodied and generated bya living presence.4 The speakers persona emphasizes the speakers message.The speakers message is bound up with the way the speakers persona pre-sents. In some situations, there may be the possibility of dialogue; if thespeaker can answer queries of the listener, the message becomes all the moreconvincing.</p><p>This content downloaded from on Sun, 25 May 2014 12:15:24 PMAll use subject to JSTOR Terms and Conditions</p><p></p></li><li><p>297</p><p>Heerey </p><p> Aesthet ics , Cul ture , and the Whole Damn Thing</p><p>Speech, however, has one particular disadvantageit is not permanent.The impact may fade, like the memory of a delicious dinner. A judge some-times has to read a transcript of an oral argument. Not infrequently the read-ing is a little disappointing; what was striking and persuasive to the ear seemson paper orotund, repetitive, and banal.</p><p>One advantage of writing, despite the hindrances of modern technologysuch as dictation equipment, is that it encourages the revision, polishing, andclarification of form and substance. Lincolns draft of his Gettysburg addressis full of corrections and alterations. Although it was spoken, it is rememberednot because of the impressions passed on by those who heard it at the Gettys-burg Cemetery, but for its nobility of thought, deceptive simplicity of expres-sion, and exquisitely structured cadences.</p><p>In courts, the choice between the oral and the written form involves impor-tant historical and cultural factors. Additionally, the mode of discourse becomesa factor because it, though now trite to observe, reflects and affects power.</p><p>From its inception in eleventh- and twelfth-century England, the jury trialwas unavoidably an oral system. Jurors were usually illiterate. The case had tobe heard and determined while the judge was in the assize town. Hence thesharp division in the common law tradition between the preparations fortrialpleadings, particulars, and the likeand the great set piece of the trialitself. Moreover, since only the parties and their lawyers could prepare thecase for the judge, the system was, of necessity, adversarial. So the culture isdifferent from the continental inquisitorial system in which there is a continu-ing investigation supervised by the judge, of which the examination of wit-nesses is but a part.</p><p>In recent times, there have been major changes in the conduct of civil litiga-tion in Australia. In the Federal Court, under the Individual Docket Systemintroduced in , each case is allocated at filing to the docket of a particularjudge who deals with all preliminary issues, such as arguments about plead-ings or discovery, and then conducts the final hearing. So in a sense, the trialcommences before that judge when the original application is filed.</p><p>Almost invariably nowadays the witnesses provide written statements oraffidavits on which they may be cross-examined. They do not give oral evidence-in-chief in the traditional way. But the theatricality of the trial process dieshard. There has never been a jury trial in the Federal Court since its inceptiontwenty-five years ago.5 Except for personal injuries and defamation cases, civiljuries have long since disappeared from the state and territory courts. Never-</p><p>This content downloaded from on Sun, 25 May 2014 12:15:24 PMAll use subject to JSTOR Terms and Conditions</p><p></p></li><li><p>298</p><p>Law &amp; L i terature </p><p> Volume 15, Number 3</p><p>theless, it is striking how often commercial barristers, who have probablynever seen a live jury in their professional lives, cross-examine as though theywere determined to get a point across to the bright looking woman in the backrow or to smarten up the dozing chap in the front. Thus the witness mighthave asserted fact X in his written statement but the cross-examiner has a let-ter of the witness in which Y, the contrary fact, is stated. So there is elaborategate-closing, as it is known in the trade: When you wrote the letter of 1June, you knew this was an important issue? Yes. You wanted the letter to beas accurate as possible? Yes. So you made all the inquiries you thought werenecessary? Yes. Etc., etc. Then with a triumphant flourish the letter is pro-duced, and the hapless witness is directed to fact Y. So whats the truth, whatyou say in the letter or what you say in your statement? Etc., etc. Ho, hum,thinks the judge. The reality is that, a few weeks later in final submissions, thejudge will simply be asked to disbelieve the evidence of the witness as to Xbecause he said Y in the letter. The same point could probably be made, andwith equal effect, without any cross-examination.</p><p>Under the Individual Docket System, interlocutory squabbles over partic-ulars, discovery, and the like have greatly diminished. Because everybodyknows the judge hearing such a dispute will be conducting the trial, neitherside wants to create an impression that they are obstructionist or pedantic oravoiding the merits. Shortly after the introduction of the Individual DocketSystem, two Melbourne barristers wrote to the Australian Law Journal makingthis very point as an argument against the system.6 I was able to </p><p>find their letterby using the ALJ s excellent index, which intriguingly commenced under thetitle Judges:</p><p>appointment and removal, by whom, </p><p>asleep, time for objection, </p><p>case management, use of di</p><p>fferent judge to try case, </p><p>The barristers argued that a judge hearing the trial who has already beenexposed to it in pretrial warfare may have formed strong and marked impres-sions about itand the parties merits.7 I do not doubt that this may well,indeed probably does, happen, but it is not necessarily a bad thing. Althoughjudges and lawyers will tell you there is no such thing as a technical pointonly a good point or a bad pointjudges are human. Most judges wouldmuch prefer to arrive at a judgment that is legally correct but at the same time</p><p>This content downloaded from on Sun, 25 May 2014 12:15:24 PMAll use subject to JSTOR Terms and Conditions</p><p></p></li><li><p>299</p><p>Heerey </p><p> Aesthet ics , Cul ture , and the Whole Damn Thing</p><p>ethically satisfying and right. As the old saying goes, inside every judge beatsthe heart of a juryman. Persistent obstructionism provokes in the most detachedand dispassionate judicial mind the suspicion that an element of counsels tacticsmay be a consciousness of the lack of merits. The possibility of this aesthetic reac-tion is as likely to occur to a judge in the trial itself as in pretrial maneuvering.</p><p>An aspect of the common law tradition of orality is the great importanceattached to the witnesss demeanor, used in what the Shorter Oxford 8 notes asthe usual current sense, namely manner of comporting oneself towardsothers; bearing. Appellate courts give great deference, or say they do, to theunique position of the trial judge who sees and hears the witness.9 Here surelyis aesthetics in its purest form. How the witness looks and sounds to the judgeis to be accorded great value. (Demeanor in this context is to be distinguishedfrom aspects of a witnesss performance, which might be readily discerniblefrom the transcript, such as evasive answering.)</p><p>Lawyers and judges carry in their minds a stereotype of the good wit-ness, a person who stands up straight, looks the judge in the eye, speaks uploudly and clearly, does not appear hostile or argumentative, shifty or dim.One of the best good witnesses I have seen gave evidence in a celebratedcase at the High Court in London in . The witness, the plaintiff in the case,stood up and spoke up. He played the straightest of bats.10 The leading Silk11</p><p>cross-examining got nowhere. I was not surprised when at the end of the trialthe jury returned a thumping verdict for the plainti</p><p>ff, one Je</p><p>ffrey Archer. Aslater events showed, his evidence was a pack of lies, and Lord Archer is nowserving four years for perjury. The case is also memorable from an aestheticpoint of view for the notorious observation of the trial judge to the jury aboutJeffrey Archers wife, Did she not have a certain fragrance? or words to thateffect. The jury was invited to ponder the unlikelihood of the plaintiff turningfrom Lady Archer to cold, rubberised sex in a hotel room.</p><p>The choice between the oral and the written may be affected by perceptionsof the objectives of the process or by competing power imperatives. A vividillustration of this is found in Shoshana Felmans article, A Ghost in theHouse of Justice: Death and the Language of the Law.12 The author contraststhe Nuremberg trials of Nazi leaders in </p><p> with the trial of Adolf Eichmannin Israel in </p><p>.Both prosecutors used the trial to establish monumental history. At</p><p>Nuremberg, a deliberate choice was made to rely on documentary evidence.In the words of the chief prosecutor, Justice Robert Jackson,</p><p>This content downloaded from on Sun, 25 May 2014 12:15:24 PMAll use subject to JSTOR Terms and Conditions</p><p></p></li><li><p>300</p><p>Law &amp; L i terature </p><p> Volume 15, Number 3</p><p>The documents could not be accused of partiality, forgetfulness, or invention,and would make the sounder foundation, not only for the immediate guidanceof the tribunal, but for the ultimate verdict of history.13</p><p>But novelist Rebecca West, covering the trial for the New Yorker, found itinsu</p><p>fferably tedious, and another observer described it as an excruciatinglylong and complex trial t...</p></li></ul>