Reflections on Seeing the Art in the University Alabama ... · PDF fileReflections on Seeing the Art in the University of Alabama Law School Building ... my astonishment several people

Reflections on Seeing the Art in the University of Alabama Law School Building By Professor Jay Murphy*

INTRODUCTION AND EXPLANATION: Elsewhere there is a tabulation of the types and varieties of the exciting objects of art in the Law Center. Indeed, there must be thousands. All found and obtained by one person, Dean Thomas W. Christopher, who over the years visited scores of museums, galleries, art stores, book- stores, and must have acquired hundreds and hundreds of cata- logues, brochures, and source upon source of places for art acquisi- tion. Speaking with him recently he paid tribute to his artist wife, Sadie, by saying: "I chose and ordered them. Sadie with her artistic talent made the crucial decisions on the framing and placing of them." I might add that Mrs. Christopher has generously con- tributed many of her own original painting creations to the Law Center and a series which consists of portrayals of historic court- houses of the state. Sadie Christopher has achieved an arrange- ment of the art forms integrated with the architecture of the Law Center, and with juxtapositions of works which only a gifted artist could perceive. There is at once a quiet fusion of growing plants, paintings, sculptures, ceramics, textiles, and other art forms as though in some miraculous way they all grew together as one.

But so much for explanation. A very strange phenomenon happened to me the other night. I really do not believe that I dreamed this experience, and this is the first time that I have mentioned what happened to anyone, let alone in print, but I felt that if ever what happened was to be mentioned, this was the occasion for doing so. Here is my strange experience.

PART ONE

OBSERVER: I had stayed after midnight in the law school and was the only one in the building-I thought. But as I walked down the hall toward the first floor entrance doors, I heard the doors open and a great rustling of feet and subdued talking. Naturally, I

* Member of Law Faculty of The University of Alabama, 1948-1981.

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6 The Journal of the Legal Profession

was curious who the late visitors might be. As I walked past the student lounge and came within view of the main foyer, I saw to my astonishment several people dressed in a wide assortment of garbs busily looking at the paintings on the wall.

I spoke but no one responded. I was unobserved although standing in their midst. I recognized one of the visitors as being the late Dean Roscoe Pound, the great legal scholar, who appeared to be the leader of the group.

Heavens, I thought, the law school was being visited by re- nowned spirits of the past-conducting some kind of a survey for whatever purpose I had nor have no idea.

I could not miss this rare opportunity to be in the presence of those from whom I had learned so much. I joined the group and listened and took notes, and it just so happened I (as usual) had a tape recorder with me. This is some of what I heard: SPEAKER: (In Black Robe) Well, sir (speaking to Dean Pound), what is all this art work doing in this Law Center? I thought that the centers on earth were to study law and not pictures and sculptures and ceramics. DEAN POUND: Yes, I can imagine that you were surprised on entering the Law Center to see paintings at first and not legal stat- utes and constitutions and cases and displays of robes and wigs. SPEAKER: But were you not surprised? DEAN POUND: Astonished, perhaps, and favorably so. SPEAKER: Why astonished? DEAN POUND: Because such a creative idea is quite unlike my recollection of the law schools I knew when on the earth. SPEAKER: Being something of a traditionalist, I fail to understand why you used the word "creative," because surely law is not paintings and paintings are not law, and all these squiggles and scrolls and splashes of colors and sculpture from all ages . . . indeed, even cave paintings of very primitive people. I am quite at a loss to understand what connection this has with law. Look, for instance, if you please, at that Picasso reproduction over on the left as we entered the law school--odd looking representations of distorted looking faces and bodies, and that Chagall over on the right of people and cows and things floating around in the air. Now I do like that mountain over on the back wall. You can tell that it is a mountain. DEAN POUND: How interesting, dear friend, that you feel that the pictures or the sculptures should tell you some specific thing

Reflections on Art 7

about some law, whether the law is good or bad, or what the law is, or what it should be, or what it was a t one time and how it might have changed and what caused the change; or maybe you are thinking of whether or not the "pictures" could have helped you on the bar examination which you took as a young lawyer. Is that what you are doing-wondering how you can learn about the specific positive law by looking at art? SPEAKER: Well, I suppose so, in a sense. Why should I bother with looking at pictures and sculpture when there is so much to learn about the law. The pictures are distracting. DEAN POUND: Before trying to respond to your questions, let me ask how you think of the subject of LAW. How do you think when you ask yourself where law and laws come from? How they are made? Applied? Interpreted? By whom? Under what conditions? How do you think of law of all the cultures and countries and peoples of the world? Of North America? Of Africa? Of New York? Of Tuscaloosa? Of 10th Street in front of the law school? Of early Roman law? Of the early Common Law? Of ecclesiastical law? Of Islamic law? Of Buddhist law? Of Communist law? Of Eskimo law? Of "law" before there was written language? How you think of the law between nations? Of International Law? Of moral law? Of positive law? Of law as an ideal? Of law in the process of evolution of cultures? Of law and science? Of law and technology? Of law and its relations to new insights about the mind? Of law and the impact of the invention of the wheel, of lasers, of DNA, of the Hydrogen Bomb, of the world's food supply, of the computer revolution now going on on the earth, of the need of food stamps, of the four billion population of the earth which is increasing, of new knowledge about the Universe and the origins of the Solar System, of the impact on law of the discovery of Extra Terrestrial Intelligence that the world's astronomers are thinking about? Of new insights into evolution, of the great controversy in the United States concerning creationism and evolution, of the MX Missile System which the United States is proposing to build, of the ICBMs which such great nations as the United States and the USSR have in bountiful supply, of the fact that most of the people governed by law in the world are illiterate, of the fact that popula- tionists tell us that in the 1980s there will be vast starvation of millions of people of the world, of the bountiful supply of food we see in the supermarkets of the United States, of the diverse religious groups in the world, and the fact that among the many reli-


gions each considers that its interpretation is the absolute truth, of the wars that have recently been fought, are being fought, and of preparation for wars which might be fought . . . So tell me, friend Speaker, do you ever think of law in the above contexts?

But, oh, let me say another word or two: do you ever think of law in terms of conflict resolution? Indeed, do you ever think of human conflict, whether conflict within oneself and difficulties of adjusting to others and to society, or to conflicts among institutions and groups, large and small, in society from the smallest area on the street corner to the largest area of conflict in the spaces about the earth or on the seas among single and groups of cultures?

Do you ever think of law in terms of procedures for resolving conflicts, of the professions, and forums, the manner of stating cases and of presenting and weighing and understanding evidence, or communication among conflict resolvers on all levels? Do you ever think of fitting in the present method of attempting to resolve conflicts with methods which have proven themselves or which have gone on before and some of which can be used and some cannot?

Do you ever think of the conflicts among and the complexities of the claims and demands of individuals and groups of individuals in society, and how these claims can be known, or identified or selected, and then how they can be weighed or tested to determine which claims should be preferred, which altered, which adjusted, and toward which ends or goals or objectives?

And do you think of such claims on all levels where conflict happens, or has happened or might happen, in the foreseeable future? This means the smallest area between A and B and the largest area between the largest collocation of groups of people?

And when you think about "Law" do you ever look at the history of the peoples and the cultures where the law is involved, and the resources available in the land, in the air, in the water, and the capacities of the people and of their traditions, their religions and their institutions, and their customs, and their folkways and their mores?

Indeed, dear Speaker, do you think of the capacities of the human being to solve problems with his brain capacity, his emotions, the resonances which vibrate through his whole history of creation on the earth, whether you are an evolutionist (as I happen to be, being once a professor of Botany), or whether you are a crea-


tionist and take humankind for what you find in them-as created by God independent of other forms of life-but then have you thought about the impact upon whatever you mean by law of different views which humankind have of themselves, of their origins, of their natures, of their destiny, and of the problem of social control which is created by the fact of different views which Homo sapiens have of themselves and of each other, and how such problems seep over into law and law seeps into their problems? In other words, dear friend in black robe, I am afraid that I have had to go into this long series of questions to you-(knowing, I believe, that actually you have thought of many of these problems or questions which I have raised) simply in order to lay some foundation for us to deal with the question which you raised to me, and I am sure to others of our group who are mightily interested in explor- ing the problem of why the art is in this particular law school. (At this point, Dean Pound pointed to several in the group whom he considered might be interested in the subject, some of whom, we will meet.) SPEAKER: Well, Dean Pound, obviously you are trying to tell me to think of law in a larger perspective, and I must confess that my tendency has been to think of law in a more limited context of the technical, the rules, principles, standards, policies of torts, contracts, criminal law, constitutional law, procedure. DEAN POUND: A very necessary way, of course, to think about law, and one could well say that if one were not a master of the technical, the rules, principles, standards, and policies of various subjects, then he could not represent his clients, or decide cases, or resolve confiicts, or communicate clearly; and certainly he would not be in a position to criticize or suggest change or adaptation to new circumstances and conditions in the environment unless he knew all the techniques.

I find it clarifying for me, at times, to think of a group of people who have come together for the first time and find themselves in need of some of those rules, principles, standards, and policies you spoke of. I ask myself: where do they go to find them? Within themselves? Within their experiences? To their knowledge of historical conditions? To their expectations of the future? To their hopes, values, sensitivities, emotions? To studies from books, re- search? To analyses of customs, habits, mores? To what ancient peoples have done as revealed from scholarship from other cultures? To how problems are resolved outside the jurisdiction of a


state or government-as in methods of private resolutions of disputes? SPEAKER: Are you trying to tell me that law is an invention, a formulation, a creation by humankind from many different sources and like art is the response of a human being to the environment in its broader and deeper sense and meaning? PROFESSOR JOHN DEWEY (Eminent American Philosopher): Dean Pound, I have been following your dialogue with Mr. Speaker, and may I try my hand with the question? Indeed, Speaker almost repeated the title of Chapter I of my book Art As Experience. The title of Chapter I is "The Live Creature." Really, I suppose, the germ of the idea is that we are "live creatures" responding to the totality of our environment to the extent that we are able to feel, sense, perceive, intuit, or be aware of our experiences. -

So it is that when we "produce" a law, to the extent that we are alive to our environment, and probe our experiences of the subject to the deepest depths, and exhaust all reasonable resources in seeing the consequences of our law, and how our "law" fits in with other law and mores and customs and habits and values of society and its human beings, then this comes pretty close to what the creative artist does when he or she lets the totality of one's experience or perception or intuition seep into oneself and emerge upon paper or canvas or in stone, building, implement, or poem. So, perhaps, it is in this area that law and art find common ground.

Most of us are not aware of ourselves as living, breathing orga- nisms with millions, indeed, billions of years of history behind us of living entities responding to our environment. When we breathe, move, look, listen, talk, respond, we are using organs and resources which have survived throughout eons. The living being is constantly interacting with its environment. We sometimes lose sight of this when we are making a law. We forget to be continuously aware of our total environment. This, Mr. Speaker, is, I believe, what Dean Pound had in mind when he elaborated all those details above, asking you how you thought about the subject of law. SPEAKER: I perceive that you are trying to make me conscious of law in a deeper, broader perspective than I normally thought of law. JOHN DEWEY: You are right. I have said that when "consciousness" itself intervenes in this total response of the live creature to its environment, then we really have something far beyond any-


thing which so far as we know has been found in other living creatures of the past or the present. You see with consciousness (when we consciously respond to our experiences and to ourselves), we have the power to regulate, to select, to choose, to act in special ways. I have said the following in my book Art As Experience, (p. 25):

The existence of art . . . is proof that man uses the materials and energies of nature with intent to expand his own life, and that he does so in accord with the structure of his organism- brain, sense-organs, and muscular system. Art is the living and concrete proof that man is capable of restoring consciously, and thus on the plane of meaning, the union of sense, need, impulse, and action characteristic of the live creature. The intervention of consciousness adds regulation, power of selection, and redisposition. Thus it varies the arts in ways without end. But its intervention also leads in time to the idea of art as a conscious idea-the greatest intellectual achievement in the history of humanity.

DEAN POUND: I believe, John, that you have put in words what I was trying to demonstrate to our friend Speaker. And that you really are saying that the essence of art, in whatever form, is cap- tured in, or contained in, experience of the live creature. JOHN DEWEY: Indeed, almost those very words are used in my text as follows:

. . . Because experience is the fulfillment of an organism in its struggles and achievements in a world of things, it is art in germ. Even in its rudimentary forms, it contains the promise of that delightful perception which is aesthetic experience. (p. 19)

SPEAKER: It would appear that both you, Professor Dewey and Dean Pound, place a great demand upon one who undertakes to be an artist and a lawyer: a great intellectual challenge if the study is to be properly undertaken. JOHN DEWEY: You are quite right that a production of works of art and works of law (I use the two as being intimately related) requires thinking effectively in terms of qualities and, as I have written elsewhere, imposes " . . . as severe a demand upon thought as to think in terms of symbols, verbal and mathematical. Indeed, since words are easily manipulated in mechanical ways, the production of a work of genuine art probably demands more intelligence than does most of the so-called thinking that goes on among

12 The Journal of the Legal Profession J

those who pride themselves on being 'intellectuals.' " (p. 46) DEAN POUND: I was first trained in Botany, which is a science, and I have tried to utilize that training in my study of law. How- ever, I am keenly aware that law cannot escape from the fact that it also is an art, as much as some would like to define it as a science, although, of course, law has aspects of science. Indeed, perhaps it is best described as both art and science. PROFESSOR KELSEN (Eminent Legal Positivist): Well, if I may enter the discussion, I spent a major part of my life seeking to demonstrate the scientific element in law, and in an effort to re- move from the concept of law all those subjective elements which are undefinable, as justice, right, truth, goodness, and fairness, to keep law as pure as possible. I suspect that what art does for us as we relate it to law is to make us conscious of the creative process in law and of the many factors involved in choosing and managing a system of governance for mankind. Art can very well describe, define, depict ideas of mountains, people, streams, expressions, floating forms, old barns, wheat fields, tropical islands, realistic city buildings, abstract city buildings, Ice Age forebears. Art is like speech and other forms of communication: it intensifies communication and therefore enhances the possibility of understanding among peoples and cultures. To the legal positivist, art, of course, is much more than the lines, colors, shapes, relationships, and shadings as law is much more than the individual words of a stat- ute, or the chemical reaction in the brain cells of a judge. JOHN DEWEY: Indeed, I have written that in some strange way art is something that all can feel, relate to and see, regardless of culture, language, and class; and regardless of the intent of the artist, an indispensible function of the work of art is to communicate, and this communication grows from the fact that the artist shares the same nature with the rest of us, and so his mode of expression is a sharing with us. I have written:

Expression strikes below the barriers that separate human beings from one another. Since art is the most universal form of language, since it is constituted, even apart from literature, by the common qualities of the public world, it is the most universal and freest form of communication. Every intense experience of friendship and affection completes itself artistically. The sense of communion generated by a work of art may take on a definitely religious quality. The union of men with one another is the source of the rites that from the time of archaic


man to the present have commemorated the crises of birth, death, and marriage. Art is the extension of the power of rites and ceremonies to unite men, through a shared celebration to all incidents and scenes of life. This office is the reward and seal of art. That &.weds man and nature is a familiar fact. Art also renders men aware of their union with one another in ori- gin and destiny. (pp. 270-271)

JUSTICE WILLIAM 0. DOUGLAS (Late of the U.S. Supreme Court): It seems, therefore, that the presence of art in a Law Center should, indeed, arouse our sensitivities to the whole concept of the freedom of communication, of expression in all its forms, of freedom of belief and the great role which law must play in pro- tecting this ability of the living organism to respond to its environment and to itself. This, of course, can be shocking to some a t times, and, indeed, could be unstabilizing, and maybe some would see in some art forms "a clear and present danger." JUSTICE OLIVER WENDELL HOLMES: I invented that expression, and it had to do with shouting fire in a crowded theatre. Invented, in a sense to try and make it clear that there should be almost no limits imposed by law to the use of words or other forms of communication by Homo sapiens. Indeed, the artist has led the way so often in history in responding to evils and wrongdoing in the world, and his means of communication can be overwhelming at times in appealing deeply and directly to centers of the brain where mere words cannot penetrate. I would go to the extreme and say that without art there would not be mankind as we know mankind. Indeed, I am saying there would not be human beings if the artistic, the aesthetic, form of expression were not available to them. HUGO GROTIUS (Founder of International Law of Western World): Well now, I begin to perceive that there is a kind of symbi- otic relationship between art .and law; they depend upon each other. It takes both to make human beings and the culture which they share. As you know, my early interest was in seeking some common foundation for the emerging nations of the Western World for solving their problems, for handling their conflicts. The term "international law" has become popular since my time several hundred years ago. And as I listen to you, my friends, deal with the question I wonder if these "modern people" are not overlooking the whole concept of world art and world artistic and aesthetic experience as being one of those means which Professor Dewey spoke


of as striking "below the barriers that separate human beings," and that rather than missiles, and international cartels, and so many other vast manifestations of world conflict that earth people are overlooking the unifying forces of their common feelings as they respond to experience, and if only this could be emphasized then perhaps the commonness or oneness of the aesthetic feeling would be a vital force for showing our brotherhood! JOHN DEWEY: This, indeed, was what I had in mind when I made the above statement, and I am gratified that law itself as seen through our eyes, and I am sure Dean Pound's, likewise has this function of unifying mankind: as a form of art, it is an instrument available with other arts to seek to achieve this end. How interesting it is that, of course, the four billion people of the world and their leaders (and particularly their leaders, since we cannot very well educate all four billion at once or within a short time) must somehow be communicated with, be educated to be aware of the fact of their oneness with each other. This could, indeed, become a massive undertaking by the nations of the world, and help greatly in conflict resolution where conflict now exists. We must emphasize what we share, what we have in common, and not just our conflicts if we are to survive the fate which modern weaponry, nationalism, ignorance, and the arrogance of certainty offer. Art could lead the way and shock us out of our cocoons of complacency or myopia, and out of our "everydayness" so to speak. But we must prepare ourselves and others to be receptive to being shocked into this sense of oneness with others. Law can be a tool for helping shape this awareness of the oneness of mankind. This, indeed, is religion in its broadest sense: the capacity of our intelligence to achieve ideals; here the ideal must be a sense of oneness with each other. CARL GUSTAV JUNG (Pioneer Medical Doctor and Psychia- trist): Indeed, Dewey, although we have never met, I must say that your idea that art can help mankind achieve this sense of oneness is gratifying. It reinforced my own deeply felt beliefs that art has penetrated, and helped those who work in the field of the psyche penetrate, into the unconscious recesses of the human mind: that vast area of still uncharted paths, but deep within where our psyches draw upon the resources of the most advanced and the most primitive parts of our tripartite brain.

Indeed, were it not for art, I do not believe human beings could ever be conscious of themselves, or even partially understand


their behavior. Yet, if those who make laws do not understand the noble and base forces within their brains, they fool themselves when they try to resolve their conflicts. They won't even know what conflicts are, or where they come from. Indeed, I have written that if our leaders, United States lawmakers, and Russian lawmakers, for example, lack an awareness of how they are so often controlled by their unconscious and refuse to see some "evil" or "baseness" within themselves, they will project their evil onto their adversaries and make them twice as big, twice as evil, and, figura- tively and actually, build twice the number of missiles because of their double fear of each other.

So a sense of oneness which can be stimulated by the art in us, and the deep reasonances of the artistic imagination within us, beckon us to look into our psyches, and looking into our psyches to see who and what we are and what makes us behave as we do is the most indispensable requirement for law if laws are to be made to deal effectively with ourselves on the smallest individual scale or on the widest world scale.

I have seen recently a book by Professor Falk entitled The Endangered Planet, referring to the planet earth, and outlining the threats of war, pollution, overpopulation and the capacity of our earth friends to destroy themselves; and this great scholar is crying out for Homo sapiens to see their oneness before it is too late. What a great pity that there is a sense of oneness all around us if only we could open our eyes to look: at planet earth, at orga- nisms, at the cosmos, at each other. And if anything has the potential of helping us escape from the mundane, isolated and subjective and see ourselves together as one, the artist is there to help us. JUSTICE DOUGLAS: In a recent NASA publication, Archibald MacLeish (Eminent poet and lawyer and former head of Library of Congress) was bold enough to try and make the point that once mankind went into outer space and looked back and took a picture of earth floating alone in space, a beautiful blue and green source of life, that this would spark all mankind into an awareness of our oneness with each other. Alas this has not yet happened, yet I suspect the fact that it has not, points to the complexity of the problem of altering mankind's view of itself, and, of course, art is a major vehicle in this endeavor. I share the views above, and I feel strongly that mankind must be educated to become aware of himself in all his potentialities. The artist is necessary for this process, but he or she alone cannot do it all; and without the artist within


each of us alerted to the issues involved, then none of us can do it. Indeed, what a seminal idea it was to have the halls and class-

rooms and resting places in this Law Center filled with what I should call "creativity." If anytime in the history of the world "creativity" is needed, it surely is now, and law is to my mind the most powerful invention of mankind for conflict resolution. I t is as though from the walls and hallways there is a vast cry directed to those who are teaching and studying law: to probe your own depths of creativity because time is running out for earth people. DEAN POUND: My, my, but we have come a far piece from where we started (observing that the group had walked throughout the Law Center and into the remote rooms and hallways on all floors and even penetrated the offices): I am almost overwhelmed with the scope and variety of the art works we have observed. There must be thousands. Did you observe in the faculty lounge on the third floor the sculptured Tanzanian head with the bark of the tree serving as the back part? A tiny tribute to an unknown artist, and his or her contribution to us. A sense of being alive, of living is almost overwhelming as one walks through this building. JOHN DEWEY: You remind me of a passage in my book Art As Experience where Emerson also felt the deep spirit of living when he said:

Crossing a bare common, in snow puddles, at twilight, under a clouded sky, without having in my thought any occurrence of special good fortune, I have enjoyed a perfect exhilaration. I am glad to the brink of fear.

On seeing Emerson's response above, I wrote:

I do not see any way of accounting for the multiplicity of experiences of this kind (something of the same quality being found in every spontaneous and uncoerced aesthetic response), except on the basis that there are stirred into activity resonances of dispositions acquired in primitive relationships of the living being to its surroundings, and irrecoverable in dis- tinct or intellectual consciousness . . . . There is no limit to the capacity of immediate sensuous experience to absorb into itself meanings and values that in and of themselves-that is in the abstract-would be designated "ideal" and "spiritual." (p. 29)

DEAN POUND: How do you suppose (speaking to the group ac- companying him) we can account for the fact of this tremendous and existing display of art, indeed, of almost all ages; schools, and


in exemplary variety? JUSTICE DOUGLAS: The Emerson quote above reminded me of the philosopher William Barrett, who in his recent book The Illu- sion of Technique, recounts in the epilogue chapter (where he is seeking to come to terms, in my judgment, with the nature of things after the fullest life of intellectualization and introspection) his relationship with nature which has touched the deepest roots of his being. He said:

. . . I remember the stabbing vision of a swan in the river a t Zurich, at night under the cold and falling rain, asleep, rocked in the rippling water, its long neck folded back on its body. I cannot, even now, remember a more beautiful sight . . . . (p. 342)

Professor Barrett's communion with nature among the giant oaks and ash of summer and winter have touched resonances which go deep into the experiences of the live organism. His last paragraph reads:

So each day I pass judgment and sentence myself to remain among the living. Condemned to live, I must then ceaselessly create reasons for living. The judgment is not so severe, nor the task so difficult, as we imagine. We have only to be open to the world and it will pour in riches a t our feet. Before this winter I had not known that the bark of a tree, caught in yellow sun- light, could be enough to restore a life. (p. 345)

I mention all the above in order to try and respond to Dean Pound's question of how can we account for all this art in the Law Center. Perhaps I can help a little. Sometime ago, I was at the University of Alabama School of Law on their Law Day and learned that Dean Thomas W. Christopher, like myself, grew up wandering amidst the hills and the trees feeling at one with the wild flowers, the streams, moss on boulders, and with the silence of the deep forest. Indeed, he quoted to me from my autobiography where I had sought to describe a feeling (much like the above one of Emerson's or Professor Barrett's, I suspect) which goes deep within one:

. . . Even a minute violet quickens the heart when one has walked far or climbed high to find it. (p. 36 of Autobiography)

I might add that it was recently called to my attention that almost the identical feeling was described by Japan's greatest haiku poet


Matsuo bash^ (1644-1694) where he wrote:

Coming along the mountain path, There is something touching

About these violets.

When talking with Dean Christopher, one instantly felt in the presence of one who had wandered deep into the forests of nature from early childhood in the rural environment where he was fortu- nate to have been raised. One could sense years of unseen vibra- tions from his experiences helping to shape his total being. So it is with him, as with me, there was nowhere that I felt as free and at one with existence than to be alone high up among the aromatic cedars and clear mountain streams teeming with life, chance, and process.

So, if I may respond to Dean Pound: I suspect that it was from somewhere down deep in these accumulated experiences of the past flowing through the billions of years of preceding life and out- ward into present expression through my earth brother-in-nature, Dean Christopher, that the art in the Law Center came. It's both as simple and as complex as that, I suspect. He has himself painted, created, designed, molded, shaped, formed, or whatever terms we could use, the Law Center into a work of art. The forests and streams and resonances of the long past flowed through him to create this unique work of art which I happen to feel springs from the same deep sources, if we truly dig deep, as the law. Indeed, I learned that Dean Christopher's first published work was of poetry for which he was highly acclaimed. In Poems From A Carolina Farm, does not this first poem help us understand the source of the art in the Law Center:

RED HILLS The Hills

so red, so galled and gullied, Belong to me-

as breath, as soul-

And I to them. My roots are nurtured here

even beneath the granite, Clutched by this grasping soil-

anchored, loved.

Reflections on Art

This is my dirt; I am its man;

We are one: as the seed and lint in cotton, as the eroded field and the pine.

So in death- Though my bones lie in Moab My heart shall rest here

Among the Hills.

JUSTICE HOLMES: Well, we are nearly at the end of our inspec- tion of the Law Center, and it looks like we have come full circle. I am often quoted as saying something to the effect that the life of the law has not been logic but experience. Our friend Dewey had defined the art, the aesthetic, in us as coming from the live creature responding to environment and to deep things going on within ourselves, as we experience; whether making a painting or making a law. It's in the experience where law becomes art and art fuses with law. This must be one of the vital messages of the art in the Law Center . . . .

PART TWO

OBSERVER: I saw my wandering friends take one last look at the Chagall to the left of the entrance door, and floating right through the windowpanes they disappeared over toward the Coliseum.

A few days after the above experience, we were discussing in class if there were "fixed" ways of looking at justice, law, woman, man, good, morals, etc., and the problem of what we as human beings bring to our viewing process; that we see through our unique lenses. We discussed many ways that different schools of jurisprudence or legal philosophy look upon law.

Perhaps, we thought the works of art on our new Law Center's walls could furnish an opportunity to explore the ideas of fixed ends, and our different lenses. Was there a fixed way to look at law and art? And what do we bring to the looking process?

We all trooped out in the corridor on the second floor and began looking. Some of us, I am sure, felt a little silly. What could we learn from a bunch of pictures and sculpture about our immediate subject?

Some days later, following our own walk through the corridors, I tried to summarize on paper a few of our ideas in a "memoran-


dum" to the class as illustrated by the following excerpts:

MEMORANDUM

FROM: One Ibex Worshiper (J. M.) TO: Other Ibex Worshipers (Our Class) Re: An Unrehearsed Experiment Concerning Art and Law [a

brief summary, with an additional note or two] on some strange goings on in the Philosophy of Law Class of March 8, 1978.

We were confronted with the problem of trying in some way to focus on John Dewey's method of intelligence as it related to solving problems involving moral and social issues; problems of good, justice, the purpose of law and legal institutions, etc.; ideas devel- oped in Dewey's Reconstruction in Philosophy, and chapters 7 and 8 on moral and social reconstruction.

Among the many ideas in the chapter on moral reconstruction there was the concept of "Fixed Ends" or a fixed way of viewing woman, man, humankind, law, life, justice, good, art, religion, political, social and economic institutions and arrangements, etc. Dewey, and many others, of course, wrote extensively on how this fixed way of looking, viewing, explaining, and holding of views in- terfered with critical evaluation, and creative action and problem solving.

The other (of the two ideas we sought to consider) was the question of what we as human beings bring to the viewing process. The recognition of the fact that as human beings each of us is unique, with our own experiences (and common experiences), and that when we view law, justice, art, religion, a rock, bug, mountain, judge or jury, and all other phenomena that we see through our own lenses which affect what we see, how we respond, what we value and how we evaluate: as the looking or seeing process filters through our conscious and unconscious psyches. We can say this in words. We can repeat that we are aware that we look through our own eyes. But strangely, it seems we are often not aware that this process is going on, and so we often may not be aware of our own limitations, the possible distortion of some of our seeing lenses, as we look, see, reflect, and make judgments.

Now how can our class undertake to partially deal with this problem? We discussed for a few minutes some of the many ways that law has been looked at: the system of natural law with its

Reflections on Art 2 1

many changes, yet some fundamental substratums, over the years, historical jurisprudence, legal positivism, the pure theory of law, legal realism, the Scandanavian schools, sociological jurisprudence, and other "ways" or "systems." We observed that concepts of social utility, social solidarity, happiness of the greatest number, pro- motion of the good, the maximum of freedom, maintenance of social control, the furtherance of maximum human growth and other ends or objectives have been postulated by law and society viewers.

Perhaps, the works of art on our new Law Center's walls furnish a ready-made opportunity to explore the two ideas above? So we set out to test ourselves and our hypothesis; to keep two things in mind (two of the many things in the Dewey chapters): 1. To see if there is a fixed way of looking at law and art. 2. To look and see if what we are bringing to the looking process modifies, clarifies, obfuscates, etc., what we see.

The first picture we looked a t happened to be of a mountain and desert scene. (Was this the art counterpart of "legal positivism"?) We could see a mountain. We could see sand. The first question was: was this the only way of painting or viewing a mountain? Was there one fixed way of illustrating a mountain, sand, grasses? We observed there were things about the structure of rocks, mosses possibly growing in cool places on and alongside rocks, microbic life beneath the soil, animal life, plant life, molecu- lar arrangements, subatomic forces which were not visible in the picture! Yet we had an impression of mountain, sky, sand. Obvi- ously, there was no fixed way of depicting a mountain or of viewing one. But what did each of us bring to the seeing? Those with geol- ogy background might see 300 million years of evolution of the mountain, collision of continents, volcanic activity. Some would bring mountain climbing experiences; some desert experiences; some fears or apprehensions. Thousand of images within ourselves could be created. We were all pretty receptive to this mountain picture. No exclamations or indications of uncertainty of what we were viewing.

But then the very next picture was of a squiggly group of forms and splashes of color: the abstraction by Jackson Pollock. Only a few feet away from our "secure" mountain and we at once saw a rustle and heard a rumble among ourselves when confronting this very abstract picture. Quite a shock from just having felt com- fortable with the mountain and the high sky. Questions and comments like "What's that?" "What do you see?" "Could you do


that?" We caught ourselves bringing fixed views to an art object! And

so maybe to law? Religion? Morals? Justice? I t was pointed out that Jackson Pollock could have painted, and did paint, exceedingly realistic landscapes, portraits, and pictures of "things," that if he were standing here he could paint an exact portrait of each member of the class. So obviously he must have had some reason for doing the abstractions. Perhaps he was searching for new ways of viewing, of expressing aesthetic feelings? Perhaps he was letting the art forms simply decide for themselves, through him, what seemed to be pleasing, or shocking, or creative, or expressive? Per- haps it was a way of looking into the human mind, into the complexities of modern technological society, or into some of the deep recesses of the psyche as it responded to color, form, line, and relationship? An adventure into the heretofore unknown? On closer, more intense looking, we began to see that something was going on which was not apparent a t the outset of our first glance. Many began to "see things" and comment on them and on the seeming order in the apparent chaos. I t was pointed out that the great Polish artist, Kandinski, originally trained as a lawyer a t the beginning of this century, had "created" a quite new way of painting abstractions which had a profound influence upon later developments in art, creating for the Western World a new sensitivity of human beings to new form, line, and color arrangements. Pollock's painting built on the experience of Kandinski: so modern natural law, as sociological jurisprudence, could not have occurred without new discoveries of the 19th century about the intricacies of the mind and society.

The Pollock picture was something like a loud, unexpected sound inducing excitement; there may have been a certain amount perhaps of antagonism, since its "meaning" was not readily apparent. Or embarrassment? Was there a fixed way of doing abstractions? Obviously not, since a casual view of nature is replete with "abstractions," and the opportunities for creating abstractions are limitless. It was not "understood" perhaps as we expected. In the same way that the Panama Canal Treaty, a labor boycott, a coal strike, federalism, freedom of speech, or other phenomena of the law, if not approached with critical and imaginative insight, could be responded to with misunderstanding, anxieties, and anger if our fixed expectations were not satisfied.

We were surely bringing different lenses to view this painting!

Reflections on Art

The main point then was: how can we make ourselves aware each instant of our looking at law and other phenomena of the nature of our special inner lenses and those sanded and honed by our experiences and life's impressions? And be conscious of others' lenses: judges, juries, witnesses, opposing counsel, students, faculty and administrator colleagues in the law business?

The question was asked whether a government decree that art forms could only follow one set pattern, that art creativity would be decreed as to its specific predetermined form and content, or that certain art forms would be prohibited, would have consequences upon the nature of society or human beings' perception of themselves and of existence, as extensive as a similar decree that law forms were absolutely decreed to be in certain fixed and un- changeable shapes? There was some disagreement in the class about this. A suggestion was made that a fixation of law would have far more drastic consequences than a fixation of art. My response to this was that as a hypothesis, my tendency would be to disagree with the suggestion. As shall be seen later, a splendid and beautiful illustration was given us of the tremendous role which art plays as a former and shaper of social institutions, individual values, ideals, and predispositions, equal in consequence certainly to law, and maybe even greater in some areas: this is the Ibex sculpture discussed later on.

We then went on to see a picture by Renoir of a woman who was in a field and carrying a bag of fish! "A fisherwoman." A very impressionistic picture and severely criticized by many a t the time it was made. You didn't see the veins on the woman's legs. You didn't smell the fish. It was an idealized kind of picture. I t didn't show the intense work, hunger, and anxiety of many fisherwomen. It was pointed out that fisherwomen in Korea and China, who worked long hours on fishing boats, looked quite unlike this idealized form of woman, and we wondered then if there were only one way of depicting a fisherwoman. We concluded that there was not. That there were idealized ways and more naturalistic ways-which raises the question of what is "natural" in art, law, human beings? We saw many students responding more intimately to this figure of the female than to the Pollock abstraction which we had just looked at.

It is interesting that we responded with favor toward the Re- noir painting-at least there were no audible reactions which we had experienced with the Pollock'paintings. Was it because we had


in some way become accustomed to Renoir-type paintings: recog- nizable people and scenes with vibrant colors yet lacking the naturalistic detail of a photograph-type picture? Perhaps this illus- trates the presence of those unperceived, unfelt, unintellectualized things that are happening to us constantly as we and the environment and culture interact. Raising the question of how we can become more aware of the forces within and without ourselves which make us believe, see, act, feel toward law, art, religion, society dif- ferently because we happen to be living today rather than fifty, a hundred or ten thousand years ago.

In John Dewey's Art As Experience (which I feel is one of his greatest works), Dewey speaks of Renoir and his critics a t the time Renoir painted:

If judicial critics do not learn modesty from the past they pro- fess to esteem it is not from lack of material. Their history is largely the record of egregious blunders. The commemorative exhibition of paintings by Renoir in Paris in the summer of 1933 was the occasion for exhuming some of the deliverances of official critics of fifty years before. The pronouncements vary from assertions that the paintings cause a nausea like that of seasickness, are products of diseased minds-a favorite statement-that they mix random the most violent colors, to an as- sertion that they "are denials of all that is permissible [characteristic word] in painting, of everything called light, transparence and shade, clarity and design." As late as 1897, a group of academicians (always the favorites of judicial criticism) protested against the acceptance by the Luxembourg Museum of a collection of paintings by Renoir, Cezanne, and Monet, and one of them stated that it was impossible that the Institute should be silent in the presence of such a scandal as reception of a collection of insanities since it is the guardian of tradition-another idea characteristic of judicial criticism . . . . The greater part of the collection is now in the Louvre-a suffi- cient comment on the competency of official criticism. Dewey, Art As Experience (pp. 301-302)

(Note: by "judicial critic" Dewey refers to criticism based on technique: that it is "technique," a procedure, a certain way of depicting a subject, which is important as opposed to the "meaning" or the new ideas, or feelings which are being expressed.) Dewey says (pp. 303-304):

I repeat that here we have exposed the inherent defect of even


the best of judicial criticism. The very meaning of an important new movement in any art is that it expresses something new in human experience, some new mode of interaction of the live creature with his surroundings, and hence the release of powers previously cramped or inert. The manifestations of the movement therefore cannot be judged but only misjudged when form is identified with a familiar technique. Unless the critic is sensitive first of all to "meaning and life" as the matter which requires its own form, he is helpless in the presence of the emergence of experience that has a distinctively new char- acter. Every professional' person is subject to the influence of custom and inertia, and has to protect himself from its influ- ences by a deliberate openness to life itself. The judicial critic erects the very things that are the dangers of his calling into a principle and norm.

Perhaps it is needless to observe that once a Renoir "becomes accepted" the force sets into use a Renoir as a standard from which one deviates at one's peril! So Jackson Pollock, Picasso, and modern natural law and legal realists beware!!!

The next picture dealt with Rome at dawn or dusk. It was very abstract with vertical lines and just the outline of a basilica in Rome. And we looked at it and it was noted that this doesn't look like any picture of any city. Was there one fixed way of looking at Rome? Where were the people? Automobiles? The sculptures? And inside the peoples' homes? We observed there were multitudes of ways of viewing a city, like there must be multitudes of ways of viewing law and social institutions. And the deeper one digs, the more complexities or problems become apparent to explore. And then one can never reach the very absolute bottom for all time. Then,we ask ourselves what we brought to viewing this picture? Apparently, ow experiences of dawn and dusk assisted us to relate to this very abstract picture of Rome. So this varied experience of dawn and dusk was something that created a sensitivity or a receptivity. We became more conscious of our lenses. We next moved on around to various other pictures, and ended with the Ibex sculpture which is by the gate going into Mrs. Fitts' office. A printed statement at the base of the sculpture told us that some of our ancestors worshiped the Ibex as far back as 4,000 B.C. in the early Iranian culture-a symbol of affection and reverence.

So here was a symbol of religion, a symbol of deity, a symbol of unity in this society; and it was Joseph Campbell in his The Masks of Cod who has written about idealized animals as vital


symbols for the explanation of existence by our early human ancestors. Here was a wonderful opportunity to go back to the question that was raised when we were looking at the Pollock picture and ask the question, "What would have happened if one had abol- ished the use of the Ibex as a symbol of art, as a symbol of religion, and as a symbol of the meaning of existence from this early Iranian society?"

The answer would seem to be that it would have had cata- strophic consequences upon this society and its people. The human beings would have lost a great symbol of their existence if they were forbidden to symbolize with animals or with this Ibex.

This might correspond to the elimination of the religious symbols of the Western World: the symbols of Judaism, of Islam, of Buddhism, and of Christianity.

This suggested that the elimination of the mode of expressing an idea of art could have as fantastic consequences, be as complex and as far-reaching, as the elimination of the doctrine of separa- tion of powers, or the jury system, or a constitution, or the concept of contract. I t might even have more far-reaching effects because with the law itself you would always have customs to fall back upon and the traditional ways of behavior of people which would tend to regulate people and institutions in the absence of the positive law. But if one eliminated the means of expression, the mode of understanding existence through the art forms, one might have eliminated a vital means of the conception of existence itself, with terribly disruptive consequences upon human behavior and the forms of social institutions. So it was the opportunity of looking at that little Ibex which helped to answer the question which was raised in looking at the Pollock abstraction and joined art and law as vital instruments for creative human existence.

Yet, our friend the Ibex carries with it powerful forces against change. So, once a symbol is established it tends to become a symbol that to change makes the proposer of change a violater of such a fundamental value as to bring down the wrath of all creation upon one. The concepts of precedent, stare decisis, and the slow processes of development extolled as a deep cultural and legal value by the school of historical jurisprudence correspond perhaps to establishing relatively fixed standards, norms, and concepts, and points the finger of disloyalty a t those who wish to legislate or judicially create to meet the challenges of new, or newly recognized, phenomena in the legal culture: so the Commerce Power is ex-


tended to what "affects" commerce, and the First Amendment is judicially "discovered" to be present in the Fourteenth Amend- ment! And the forces against such "change" accuse the Court of judicial usurpation!

So this little class experiment and tour tied in exceedingly well with the two ideas which we wanted to try to explore, which Dewey and others of the scientific humanistic tradition have emphasized and which the modern movement of sociological jurisprudence and legal realism have helped to further and to help shock ourselves, for a moment, to concentrate on asking ourselves the question whether there are, or should be, absolutely fixed ways of viewing any legal, social, political, economic, religious, psychic, biologic, or other phenomena.

And should we not keep our minds open with all routes available for hypotheses and attempt to make the best decision based on the concrete situation presented to us? And to introspectively and carefully ask ourselves as judgers, as human beings who have had much experience with life and nature, what we bring to viewing and judging what is justice, what is moral, what is best in law, what is the solution to any problem? Whether or not it is the Pan- ama Canal problem, the coal strike problem, or setting a 15 mile speed limit on 10th Street in front of the new Law Center.

One of the objectives we sought was to learn from the art experience, to see that art is an instrument, a means to further understand ourselves, society, and existence, and is not just an absolute and in itself. And this raises, of course, the great question in law of tolerance for ideas, tolerance for different ways of viewing things, a willingness to explore and to communicate and exchange ideas. And this further raises the tremendous importance of having an open and free system of communication in society in order to exchange ideas and to permit experimentation with novel ways of managing ourselves and nature. And this helps give further meaning to the concept of freedom of inquiry, expression, and belief.

Of course, there is need for some measure of "fixity." We do need a speed limit, a legal system, but the "fixity" must be always flexible enough for possible change, always a hypothesis!

In showing how art assisted human beings in thinking about, viewing, searching for design, plan, order, etc., in all other disci- plines, Dewey observes:

The variety and perfection of the arts in Greece led thinkers to frame a generalized conception of art and to project the idea of


an art of organization of human activities as such-the art of politics and morals as conceived by Socrates and Plato. The ideas of design, plan, order, pattern, purpose emerged in distinction from and relation to the materials employed in their realization. The conception of man as the being that uses art became at once the ground of the distinction of man from the rest of nature and of the bond that ties him to nature. When the conception of art as distinguishing trait of man was made explicit, there was assurance that, short of complete relapse of humanity below even savagery, the possibility of invention of new arts would remain along with use of old arb, as the guid- ing ideal of mankind. Although recognition of the fact still halts, because of traditions established before the power of art was adequately recognized, science itself is but a central art auxiliary to the generation and utilization of other arts. (pp. 25-26)

I have enjoyed for years Dewey's observation of the "skills" of the artist and the scientist (which, or course, could be applied to lawyers, preachers, farmers, politicians, law teachers, law studenta, businessmen, or ditchdiggers.)

Because perception of relationship between what is done and what is undergone constitutes the work of intelligence, and because the artist is controlled in the process of his work by his grasp of the connection between what he has already done and what he is to do next, the idea that the artist does not think as intently and penetratingly as a scientific inquirer is absurd. A painter must consciously undergo the effect of his every brush stroke or he will not be aware of what he is doing and where his work is going. Moreover, he has to see each particular connection of doing and undergoing in relation to the whole that he desires to produce. To apprehend such relations is to think, and is one of the most exacting modes of thought. The difference between the pictures of different painters is due quite as much to differences of capacity to carry on this thought as it is to differences of sensitivity to bare color and to differences in dexterity of execution. Ae respects the basic quality of pictures, difference depends, indeed, more upon the quality of intelligence brought to bear upon perception of relation than upon anything else-though of course intelligence cannot be sepa- rated from direct sensitivity and is c o n n e d , though in a more external manner, with skill. Any idea that ignores the necessary role of intelligence in production of works of art is based upon identification of thinking


with use of one special kind of material, verbal signs and words. To think effectively in terms of relations of qualities is as severe a demand upon thought as to think in terms of symbols, verbal and mathematical. Indeed, since words are easily manipulated in mechanical waye, the production of a work of genuine art probably demands more intelligence than does most of the so-called thinking that goes on among those who pride themselves on being "intellectuals." (pp. 45-46).

Final Remark

The point was raised that perhaps the purpose of art was to convey an idea and perhaps that alone was its purpose. But later we discovered that art was an instrument in doing more than con- veying one idea of one mountain, or of one fisherwoman, or of one abstract bunch of lines, or of one Ibex, but it was something which hit right at the heart of the conception of many in the humanistic tradition, that the purpose of art, of law, of religion, and of other institutions and ways of viewing existence was to promote the all- around growth of human beings to their maximum potential. Of course, how to create the sensitivity toward each other, a sense of oneness, of compassion is perhaps the major task of human beings.

So, we are surrounded with all sorts of phenomena every minute of our existence to help us respond in a more creative way to life. And potentially and subtly the art forms in the new Law Center could become a means to a fuller, deeper, more exciting and imaginative understanding of law, society, and ourselves.

And if the effects are only to make us conscious that the fixed, immutable, and absolute are dangerous precipices to avoid, and to be persistently conscious of the nature and limitations of our own lenses, the rewards will be great indeed.

Besides-how pleasant to be surrounded with such vast creativity by Homo sapiens!

The small cave painting of our unknown ancestors of perhaps 40,000 years ago on the wall near my office thrills me with an inti- macy with humankind each time I approach my door. Come up to Room 310 and share this feeling with me and our common ancestors. We all are kin-you know! Proven by art long before Darwin!

The cave painter of 40,000 years ago unknowingly began a stream of creativity which tends to transform all those today who see the reproductions on various walls throughout the world. It makes one wonder what, and how, and if we, any of us, or any of


our ways, will have a creative impact upon our future kin 40,000 years hence. Or perhaps whether a painting today will outlive in creativity all the laws, courts, Taft-Hartly Acts, law schools, and concepts of sovereignty in the international community? Or whether, indeed, we are or shall be intelligent enough to utilize art to help us survive and further our creativity.

Indeed, the art in the Law Center may in the long run of things, in ways far subtler than we can describe or even imagine, have a more profound influence upon our behavior and values than what is inside the books. I recall one of the most exciting intellectual experiences I ever had was, while teaching the course in Con- tracts, I began taking courses in drawing and painting, and for some strange reason I found myself beginning to "picture" contracts as a plant or living organism with atoms, molecules, veins, as a legal positivist, and seeing contracts in the context of societies in the world, of history, of logic, of future and of past, and of problems to be resolved and to be prevented. Oddly, as I learned much later, I was learning, as later brain researches have illustrated, to draw not only on the left side (the linear side) of my brain, but also on the right side (the graphic, the picture making side) of my brain, and the art experience, being in some strange way the tool or instrument which melded or fused the two parts, helped me to see more of the total process. But all this is so didactic!

The art just makes one feel good wherever one goes in the Law Center-like the expression I observed the other day on Dean Christopher's face as he walked in the faculty coffee lounge and brought out to show us the most delicately sculptured face from one half of a small tree trunk by a sensitive African sculptor from Tanzania. Observing his expression, the feeling of warmth with which his hand caressed the bark of the tree (left on the back by the sculptor) answered the question with which these comments began: why is the art in the Law Center? We were his students, and the Law Center was his classroom!

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