The Art of Law

The Art of Law
George Karavokyris
Law and Critique
ISSN 0957-8536
Law Critique
DOI 10.1007/s10978-013-9128-y
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Author's personal copy
Law Critique
DOI 10.1007/s10978-013-9128-y
The Art of Law
George Karavokyris
Springer Science+Business Media Dordrecht 2013
Abstract The relation between art and law is not limited to the scope of cen-
sorship or constitutional protection of works of art. The endless tension between
State censorship and freedom of expression, even if it highlights the justifiable need
to secure the autonomy of art vis-à-vis law, leads us to ignore the common philo-
sophical matrix of the two normative phenomena. The article aims at illuminating
the ontological, aesthetic and political parameters of the production of art/law,
through the analysis of two important films, Prova d’Orchestra (Orchestra
Rehearsal) by Federico Fellini and Blow Up by Michelangelo Antonioni.
Keywords Artist Interpretative freedom Meaning Realism Social

contract Sovereignty
In legal reality the relationship between law and art is usually reduced to the
undoubtedly crucial issue of the freedom of the artist and the legality of its
restrictions, since the moral-religious feeling of certain (usually majoritarian)
groups calls for and often enjoys its judicial protection, in direct opposition to the
liberal letter of our polity’s foundational fundamental Law (Tsakirakis 2005).1 The
1
Art. 16, Par. 1 of the Greek Constitution stipulates that ‘Art and science, research and teaching are free.
Their development and promotion constitute an obligation of the State’. The author analyses the clash
between artistic freedom and religious beliefs, which has often troubled the Greek legal order (e.g. the
Scorsese case, the Outlook case).
G. Karavokyris (&)
Department of Law, Democritus University of Thrace, Komotini, Greece
e-mail: gkaravok@gmail.com
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G. Karavokyris
relevant debate is enriched by essentialist, aesthetic or legal definitions of art, which

serve its rather dangerous submission to the rule (Takis 2008, p.17).2
The endless tension between State censorship and freedom of expression, even if
it highlights the justifiable need to secure the autonomy of art vis-à-vis law, leads us
to ignore the common philosophical matrix of the two normative phenomena.
However, legal scholars should also debate about art, not only in order to rescue it
from its conservative persecutors, but also in order to understand law, to the extent
that this is possible. Besides, as Ernst Kantorowitch has successfully noted, the
parallel courses of art and law with respect to their modern nominalist understand-
ing (i.e. their release from the medieval/archaic or realist guardianship of nature
and the consolidation of their unqualified hegemony) converge, practically and
symbolically, in the enthronement of a poet, Petrarch, in the Capitol in 1341
(Kantorowitch 2004, pp. 43–73).
Could it be that art and law do not differ at all, ontologically and methodolog-
ically? Let us start with the way the artistic work and the legal norm are unearthed.
In the first case, the product is detached from its creator, becomes individualised and
takes its unique place in the field of perceptible objects. After completion of the
artistic moment, the painting, novel, poem, sculpture or musical score acquires
materially the property of a work and is substantiated as a perceptible object. The
same is true for the legislator’s statement, since his/her speech act and contribution
to the inexhaustible world of signs is simultaneously assessed as a distinct body and
also as an undisputed work of his/her volition. Both of these personal actions are
registered in a symbolic order, in a system of rules and values that surrounds,
recognizes and over-determines them as real events, following an assessment of
their rightfulness (law) or beauty (art). The formative act of the creator meets the—
de facto and de jure—inevitable boundary of the look of others until it turns,
depending on the outcome of this uncertain communication, from a subjective
statement (mere work) into an objective norm (work of art/law). And it is clear that
every proposition, even though articulated by institutionally competent voices
(Amselek 1980, p.89),3 cannot unobjectionably cross the threshold of law, in the
same way that every work is not automatically promoted to the aesthetic category of
a work of art, especially given that in certain forms of art (including law) the first
act is from the outset proven to be unfinished.
Thus, the understanding of the characterization of the subjective statement of
intent as a legal or artistic work produces two interconnected questions: first, the
2
According to Andreas Takis, the constitutional consolidation of the freedom of art offers paradoxically
the legal basis for its restrictions. The author rightly observes that the definition of art is assigned to
lawyers, since ‘objects and behaviours that cannot claim the protection of law, cannot carry the title of art,
at least in the sense that is implied by law, whatever the opinion of the so-called artist and his/her
audience may be’.
3
Here, one witnesses the tension between the subjective and the objective meaning of the statement that
Hans Kelsen introduced into legal theory, when he noted that the norm is the (objective) meaning of an
act of volition. According to the institutional approach, it is the power of authority that characterises a
statement as legal. Therefore, the meaning of discourse is not related to the semantic but rather to the
pragmatological dimension of its articulation. However, it is difficult to accept that the subject of the
author is absorbed totally by the institution. In other words, does the function of the artist or law-maker
suffice for his language act to acquire the status of a work of art or law?
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The Art of Law
controversial relationship of the creator with his/her work and the interpretative
freedom of its recipients. And, second, the deciphering of the creator’s course of
action from ‘being’ to ‘ought to be’: the metamorphosis (Gadamer 1996, p. 128;
Xiropaidis 2008, p. 18)4 of the acts of the artist or the legislator into artistic works
and legal rules occurs in the context of a (language) game, where the distinction
between real and false becomes extremely hard to discern. The terms of its conduct
have been a matter of concern not only for legal scholars, but also for artists
(Foucault 1993, pp. 27–44).5 In cinema, two important films, Prova d’Orchestra
(Orchestra Rehearsal) by Federico Fellini and Blow Up by Michelangelo Antonioni,
illuminate the ontological, aesthetic and political parameters of the production of
art/law.6 The first focuses on the crucial issue of interpretation, as the work of art is
essentially a two-step procedure, and the second underlines, behind the scenes, the
structural importance of representation and fiction in the art/rule-making process.
Both films, however, adopt a deconstructive view of sovereignty and regard
meaning-production as a historical and social event. The truth of words is not
universal but extremely relative.
The choice of these specific films is in fact driven by their common subject,
which is the critical description of the procedure of law/art-making and the
interpretative production of the work of art/law. Prova is linked to Blow Up because
they share the same philosophical standpoint: the meaning is a matter of mere
representation of plain facts of reality and emerges as a contractual and dialogical
event. Nevertheless, this contract should not be treated and widely misinterpreted as
an inter-subjective convention between equals but as the result of a complex social,
historical, aesthetic and linguistic game, which implies necessarily the power of the
actors and their will to impose their proper interpretation of reality. In other words,
the two films show that reality does not exist as such, but only in the upper sphere of
representation and fiction, always structured not by the reason of the subjects but
by their will. The emphasis on will is the key to understanding the films and
constructing a theoretical analysis of the concept of sovereignty. Prova and Blow
Up appear to reject a universal and naı̈ve approach of reason in order to reveal the
power of the will and desire of the subjects to believe in a certain interpretation and
representation of reality. In both films, the latter is the outcome of irrational
elements. By deconstructing reason, the two directors underline the freedom of
interpretation, explore the uncertain borders of representation and warn the
spectator about the ambiguities and risks within the construction and establishment
of meaning.
4
Giorgos Xiropaidis notes that ‘in order to shed light on the manner of being (Seinsweise) of the work of
art and the emergence of truth in it, Gadamer is oriented towards the notion of game (…) the game starts
to operate when it incorporates the players in its structures. Therefore, the real and active subject of the
game is in a way the game itself, which acquires its highest form in art’.
5
We refer indicatively to the famous painting Las Meninas by Velasquez and the spontaneous musical
improvisations of Bartok, i.e. works in which the modern matter of the sovereignty of the creator is
underlined.
6
Prova d’Orchestra (1978), dir.: Federico Fellini, starring Balduin Baas, Clara Colosimo, Elizabeth
Labi. Blow Up (1966), dir.: Michelangelo Antonioni, starring Vanessa Redgrave, Sarah Miles, David
Hemmings.
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G. Karavokyris
The Music of Law (Prova d’Orchestra)
The very title of the film reveals the stated interest of the director (Tylski 2003)7 in
music, in the swan-song of his collaboration with Nino Rota. According to Hans-
Georg Gadamer, the world of music has an inherently political structure (Gadamer
1996, p. 165).8 Thus, Prova has been interpreted by critics as a political treatise with
references to socialism, anarchy or even fascism. In fact, the film could also be
interpreted as an artistic metaphor on the modern concept of sovereignty. The way
that the orchestra is conducted and the series of events that occur during the eventful
rehearsal demonstrate the hermeneutic nature of art/law.
From (Natural) Darkness to (Social) Light: The Birth of the Work
Fellini describes, as if in a documentary, the efforts of the musicians to tune into an

autarchic director. In the first scenes, a real chaos unfolds without any musical
accompaniment.9 The pitch-black screen and a series of urban sounds (horns, sirens,
machine roars, airplane engines, etc.) betray a warlike situation, a nightmarish and
deafening cacophony that announces imminent, generalized disaster (Tylski 2003).
The camera describes a world that is incoherent and violent, similar to the pre-social
context of Hobbes or Rousseau. The seats of the musicians are vacant. The
conductor is absent. The travelling of the camera in the empty and noisy space
creates a simultaneous feeling of stress and loneliness for the spectator.
When the musicians arrive and their discourse floods the hall, the pre-political
and pre-musical chaos starts to be explained anthropologically. Each member of the
orchestra proclaims the uniqueness and superiority of his/her musical instrument,
the objectivity of his/her personal passion, and his/her arrogance vis-à-vis his/her
colleagues. Fellini’s camera moves successively from one artist to another. The
wind instruments belittle the percussion. The first violin asserts arrogantly its
primacy over the orchestra and the flute invokes narcissistically its wonder-working
property to identify with the human voice. Apart from a few fragile alliances, such
as the one between the drums and double bass, the harmony of the orchestra is
undermined from within by the variety and solitary egoism of the aesthetic
conceptions of the performers. The disorganized world of Prova functions as an
allegory of the political vacuum (Zarka 1999, pp. 66–69).10
7
In an interview of his with the French critic Michel Siman, Fellini admitted that ‘whenever I was
present in the musical production of my own movies, I always felt surprise, admiration and excitement
since I always felt like a martyr in front of a miracle. Many different individuals arrived at the studio with
their own musical instruments as well as their personal problems, bad mood, illness and their portable
radio every now and then’ (author’s translation).
8
This is the case ‘because only performance can bring to light what exists in the game…’. The music
scene looks like politics, since the game that unfolds between the musicians or the politicians highlights
publicly the true musical or political proposal.
9
In contrast to all the rest of Fellini’s films.
10
Like a cinematographic transposition of the Hobbesian construction of annihilatio mundi, i.e. of the
assumption of the natural condition that describes with bleak colours what happens when the State is
absent.
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The Art of Law
The struggle between the musicians is interrupted by the arrival of the conductor,
the authorized mediator between the fluid natural and the hierarchically structured
social context. The institution of the orchestrator of separate desires, interests and
feelings constitutes a key condition for the performance of the work and,
consequently, for the coexistence of the musicians. The soloists assume that their
experienced conductor is an authorized reader of the score and that they are
supposed to ratify the findings of his volition by granting to him their disastrous
autonomy/independence because, only by doing so, it is possible for the work to be
produced and for them to acquire access to the redeeming property of membership
of the social band. Otherwise, the musical survival and development of each one of
them, i.e. the unobstructed exercise of the natural right to musical desire, passes
through outplaying the one sitting next to him/her.11 The constitution of society
presupposes an act of faith in the authority of a leader who is called upon to
convince the rest of the people of his prudence and ability to resolve the mystery of
nature (Godelier 2007, p. 189). Returning to the film, the musicians now anticipate
the conductor’s arrival.
The conductor arrives and, in the manner of another Sovereign, that of Jean
Bodin (Beaud 1994),12 he sets the right tone for the musicians because he holds the
power to impose a valid reading of reason, just as Moses did (according to the
Judeo-Christian tradition) as God’s lawful representative through delivering the Ten
Commandments to the Jews. The members of the community embrace the
fundamental promise of the authentic translator of textual truth who acts according
to the real intent of their superior author, since nobody can know with any certainty
the commands of the absent regulative authority. The prophet/conductor represents
the spirit of the first creator, the composer of organized society. Through timely
action he revives inactive notes, the still-born bodies of writing that can only exist
through their performance, without which music and law remain potential points of
meaning alone. Fellini conceives music/law as an interpretative process of two
crucial moments, or two times: the authoring of the work and its application/
performance/reading.13 And, even though the former is logically necessary because
there can be no reading before writing (in the same way that there can also be no
imagination without reality), the cycle of production of the work/rule cannot close
without the latter (Cayla 1990, p. 129).14 This necessary mediation of interpretation
11
According to the fundamental division that Hobbes makes between natural right and natural law, the
endless exercise of the former and the indeterminacy of the latter, when there is no normative authority to
translate it, entails generalised warfare.
12
The author claims that the act of ‘giving the law’ remains up to now the most precise definition of
sovereignty.
13
The basic tenet of philosophical hermeneutics is that the understanding of the text cannot be
disassociated from its volitional interpretation and application. The meaning of each language act is
articulated in the action of its interpretation, which undertakes to instil meaning through its application
within a game, in the semantically general and therefore pragmatologically inexpressible text.
14
The author refers to the analysis by Henri Gouhier of theatre as an art that is fulfilled in two instances.
The same is true for law. The lawyer or artist (e.g. musician) of the second instance is an agent of limited
sovereignty because he/she is obliged to confront the work of another creator. This is why he/she feels the
ceaseless nostalgia for the absolute sovereignty of the creator in the first instance (e.g. the sculptor or
painter) and attempts constantly to approach it. And it is his/her interpretative freedom, the
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G. Karavokyris
questions the metaphysical character of classic theories on sovereignty, according to

which the dignitary is either bound by post-legal moral-political principles (natural
law) or self-restricted (the voluntarism of the German romantics) (Jouanjan 2005),15
encircled in a personal and self-referential monologue. However, on the contrary,
Prova puts forward an alternative, much more open and democratic path for
commitment of the Sovereign/author, that of his dialogical dependence on the
recipients and practitioners of the norm.
Interpretation, Sovereignty and the Social Contract
So, even before the start of the eventful Prova, the special significance of the
interpretative theory for art, law and every form of normative discourse is clarified.
From the moment that the inter-subjective model of production of the work/rule (i.e.
the unhindered understanding between the musicians) inevitably leads to the war of
the natural context, then it is only natural that the conductor/saviour is entrusted
with dictation of the law. In the film the conductor progressively gives life to the
music; and the musicians, after numerous takes, perform the piece intensively and
passionately. Some of them loosen their clothing and transform their voices. They
all participate in a sort of rebirth or metamorphosis of the ‘partitura’. Although
many things have been said about the truth of the text and its semantic or factual
commitment, in Prova it is primarily the relationship that is developed between the
Sovereign and his subjects that is highlighted. This is the case because the
conversion of the script into sound under the direction of the baton and, above all,
its subsequent logical, temporal and local assessment by the recipients is elevated to
a musically interesting performance. Musical or legal interpretation is an eminent
act of sovereignty because law and music are a priori destined to be performed,
read, understood and applied. The author of the law or of the score is oriented
towards its application by another person that is actively involved in the shaping of
the meaning as a co-producer of the work at issue. The undermining of the perfect
sovereignty of the creator is inherent in the authoring of the work, and this is why
he/she must respect the rules of the aesthetic or legal convention that are in force;
otherwise, his/her work will become communicatively deficient.
When, in the film, the idiosyncratic conductor starts to oppress the orchestra, his
legitimization is openly questioned by the undisciplined musicians. ‘Musicians are
workers like others’, the orchestra union leader claims. Then the conductor
aggressively responds: ‘If Wagner had to obey strikers’ and union leaders’ demands,
he would have never succeeded in writing his operas and symphonies.’ And a
musician retorts: ‘It is not, in any case, the union leaders’ fault if Wagner wrote
pompous music!’ (Tylski 2003). This dramatic episode occurs because the factual
Footnote 14 continued
pragmatological right to represent the spirit of the first creator, which allows him/her access to the leading
position on the pyramid of sovereignty.
15
In both the German Historical School of Law by Puchta and Savigny and its descendants, such as
Jellinek, Gerber and Laband, the volition of the Sovereign submits itself to the objective spirit and the
essence of the constitutional text. More specifically, in Jellinek the decision of the State to respect the
moral-political values of constitutionalism is conceived as a case of pure self-restriction.
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dimension of the articulation of the conductor’s discourse, the autarchic and ironic
look (power) that complements the semantic movement (meaning) of his baton,
indicates the excess of his authority, his disrespect for the musicians and their
personalities, and a propensity towards authoritarianism, i.e. the seeds of despotism
that every system of government contains, including democracy (Canfora 2006).
To what is the loss of his directional power attributed? According to the old
copyist and long-standing keeper of the oratory, the authority of the conductor is
deprived of the means of enforcement. The faith and submission of the musicians to
the authority of the conductor now depends on their complete and unpredictable
self-restraint, because one of the most serious reasons for its acceptance (perhaps
the most important one—fear of law or its repressive action—this famous force that
allows us to call it Law rather than a (moral) Idea), has been neutralized in the name
of the equalization of the sovereign with the governed. It is up to the goodwill and
rational discourse of the performers to follow the directed course towards realization
of the work, since potential violation of the work does not subject them to any
sanctions. The only concerns of the copyist are to long for those happy days of
complete harmony when musicians were addicted to discipline and aspired to the
condemnation of their errors. Self-commitment of individuals is not enough to
found sovereignty. Morality without law remains a text with generalized content
that is open to the arbitrariness of every subjective reading; whilst, conversely, law
without force is a crippled act that, even though it seeks to bind external behaviour
of the other, is not sufficiently equipped to achieve it.
It is evident that Fellini’s contract is simply inapplicable as long as the two sides,
the conductor and the musicians, try to enter into a regime of de facto equality, free
from any need for agreement. Therefore, the drafting of the contract/constitution of
the orchestra cannot be achieved in an empirically verifiable moment of agreement
with every individual deciding, without pressure, to grant the right of choice to the
one next to him/her. On the contrary, the Contract, as Hobbes reminds us, takes
place as if everyone has spoken to everyone else, as a being and not as a historical
instant or specific moment of communication, since the conductor/Sovereign is
always already there, existing together with the Society and Language before
humans. It is this obligatory force of his discourse, a product of his superiority in the
deterministically unequal correlation of power that forces the musicians/citizens, the
weak students of the laws of their nature, to consent to, or more precisely to confess
their submission (Goyard-Fabre 1990, pp. 292–295; Cayla 2004, p. 99).16 With their
confession, which is of course not instant but rather translates into a constant and ex
16
An important point of interpretative disagreement in the work of Hobbes is the reason for the
agreement of the subjects in Leviathan’s authority. According to Simone Goyard-Fabre, the contractual
parties act clearly rationally since they realise that the granting of their volition to the Sovereign functions
favours them, due to the securing of the life and development of their personality. Thus, the motive for the
constitution of the polity is found in the content of Leviathan’s promise and not in the power of
imposition that accompanies it. However, this anthropologically optimistic position hardly coincides with
Hobbes’ pessimism and his obvious distrust towards human reason. The Contract does not constitute a
product of rational deliberation or logical political thinking, but rather a matter of coercion by a
normatively superior volition, which undertakes the task to translate positively the natural law of self-
preservation. The best reason, therefore, for obeying the law is the power of law, as observed by Olivier
Cayla.
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G. Karavokyris
post ratification of every law of the polity (Lessay 1988, pp. 99–101), the citizens
have the right to demand from the Sovereign security of their social and political
being.
In Prova, the defeated conductor looks like a lawmaker who is baffled by a legal
order without any law-enforcer. The modern division of the sovereign into two
distinct normative authorities, which constitute two sides of the same coin and
whose dialectical game, a kind of deliberative aller-retour based on a division of
labour that is imposed for the purpose of balancing volitions (the famous principle
of the separation of powers), ends up crystallizing the legal meaning: legislative and
judicial power. The presence of the third person, who is institutionally committed
to articulating and imposing the (legal) truth of each statement, constitutes a
precondition for the transition of the norm from (abstract) natural to (concrete)
positive law. The un-interpreted legal letter is forever captured in its indeterminacy.
Put simply, the text of law cannot be unhurriedly confused with law itself (Troper
2001, p. 60).17 Until the second and decisive moment of its application, law remains
silent because its significance has been postponed until its reading. Consequently,
until the moment the rule is examined by its respective recipients, i.e. the judge, it is
not yet put strictly within the legal order.
In a concert, for example, the audience undertakes to ratify the performance of a
work with its applause or to disapprove of it, examining whether the particular
interpretation of e.g. a sonata by Beethoven agrees with the idea about Beethoven
that the audience itself holds, whether the resurrected sound corresponds to what
Beethoven himself would have liked to be heard, represented on the one hand by the
(legislator) performer and on the other by the (judges) members of the audience
(Cayla 1990). The audience’s decision is the one that will temporarily establish the
correct meaning of the score of the composer, given that nobody can ask him and,
even if it were possible, it would not be important since, with the act of writing,
Beethoven has already paradoxically accepted his absence,18 through the precon-
ceptions and preferences of the particular collective subject, as well as through each
audience that varies from concert to concert. The same is true for the various
interpretations of the sonata, according to the venue, the epoch and musical trends.
Its existence through interpretation indicates that the sonata does not have a
substantial identity, an objective being since, even though it is grammatically and
syntactically the same, it will constantly appear as other, even when faithfully
represented; because a model and a copy are never identical, they simply look like
one another. For example, its truth will differ in a classical interpretation at a
Concert Hall from one that will be highlighted by a rock performance at an open-air
festival, and we may well assume that friends of the Concert Hall would find it
difficult to approve of a dance adaptation by Moby while audiences of the
Rockwave Festival would probably not enjoy a virtuoso performance by Herbert
von Karajan. The recipients of the performance (the audience assigned with the role
17
The division between text and law constitutes a key instrument for the understanding of law through
realist (legal) theory. The interpretative freedom of the reader of the rule is one that in the last instance
lends the text its meaning. Therefore, in the world of law, the judge appears omnipotent—the original
interpreter of legal texts.
18
Given that, according to the famous maxim by Roland Barthes, the author is dead.
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of critic) complete the assessment of the creator’s intentions, which the soloist
submits in the same way that the judge undertakes to determine legally the meaning
of the norm that the legislator has conceived, based on the spirit of the Constitution.
An elementary study of jurisprudential reversals is sufficient for someone to
conclude that the interpretation of the text, this act of volition rather than knowledge
according to Kelsen (Kelsen 1999, pp. 339-342), is not subjected to conceptual
limitations. Therefore, the pyramid of law should be seen as a hierarchy of organs of
State rather than rules. Law is what its implementer decides. In the same way that
the audience decides to characterise the performance of the sonata according to
Beethoven’s idea, the constitutional judge judges the compatibility of legislative
execution with the score of the constitutional legislator, or the administrative judge
judges the respective compatibility of the administrative act with commands of the
mere legislator. The result is the legal dominance of the volition of the judge/reader/
listener with all the strategic and socio-political pressures to which he/she is
subjected, over the (logically prior and necessary) legislator/author/composer. What
the instrument for the application of law or the audience will specify as law is not
related to the syntactic/grammatical clarity or harmony of the initial text, but rather
to the political/social/aesthetic needs that its execution is called upon to satisfy.
However, there is no audience in Prova.
Legitimisation and Representation: The Crisis of Sovereignty
What is the perception, however, on the other side of sovereignty? Let us see how
the conductor explains the massive failure of Prova. His confession focuses on the
non-legal factors of the relationship between the official and the subjects and, more
particularly, on the break-up of its moral unity and legitimacy, the qualitative
downgrading of a relationship that signifies a family in pieces. The faith in the
father/conductor is not as strong as it used to be. Besides, he admits that the glorious
era of inspired conductors is long gone. Submission to power is based not only on
necessity, but also on trust of the subjects in the intellectual supremacy and planning
ability of the sovereign. The concession of their political volition to their
representative constitutes a form of slavery, the highest price that they must pay
in order to achieve and secure their freedom. Concession of the captive’s decision-
making capacity is made more attractive through his/her representation by the free
representative (Jaume 1996, p. 559).19 The citizen concedes to the representative/
interlocutor the right to specify and reconstruct freely his/her subjectivity that is
ontologically inaccessible to him/her. The ruled are unable to be self-conscious and
it is up to the ruler to function, through a peculiar duplication of the spirit of his/her
mandate, as the imaginary author who undertakes to diagnose the real volition of
his/her interlocutor, while the consensual character of the act allows the citizen to
think comfortingly that he/she remains the actual and autonomous creator of his/her
life.
19
As in the nominalist contract of Hobbes. On the contrary, in Locke the clear establishment of the right
of resistance assumes that the representative is accountable to the represented.
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G. Karavokyris
The politico-legal necessity of representation does not, however, exclude its self-
undermining, which Rousseau rightly suspected (Rousseau 2006, p. 73), due to the
political suppression of distance between the representative and the represented and,
more specifically, due to the substantive absorption of the latter by the former. In
today’s bourgeois democracies, the crisis of law, the transposition of policies from
parliament backbenches to bureaucratic executive power and, primarily, of power to
the judges, i.e. to bearers of a weaker democratic legitimacy, as is the case with the
European Sovereign as well, weakens institutionally the figure of the represented
who rarely participates in the exercise of sovereignty and hardly recognises himself/
herself as the mastermind of the sovereign’s decisions. When the game of power is
turned into its mockery, the body of the last interpreters, the mere citizens who daily
endure the imposing persuasion of authority, can only recall their confession to a
Sovereign who insists on acting on the basis of the oblivion of their initial Promise,
which results in the last ones becoming, thankfully, first.
Therefore, returning to Fellini’s film, it is not at all strange that after the end of
the interval, the medieval oratory of Prova is sunk into total darkness that is
reminiscent of the initial scenes, while regular tremors, like minor earthquakes,
foretell the final break-up of the unbalanced order. A few minutes later, while the
conductor appears willing to continue despite the darkness, the scene depicts a
grotesque display of unravelling human instinct: a couple make love under the
piano, others fight, and some laugh hysterically. The uprising reaches its peak. The
war that was announced in the opening of the film finally breaks out.
‘No to the music of power, no to the power of music!’ ‘Death to the conductor!’
The reaction by the musicians concerns every form of power and every prospective
sovereign. The dichotomy of freedom and authoritarianism, democracy and
totalitarianism, is abolished since, from now on, the concept of power per se refers
to an unbearable oppression. The State is considered a priori a cunning normative
authority that deceives the citizens. Temporary substitution of the orchestra’s
conductor by the metronome aims at perfect rationalization, production of the
absolutely pure norm. Automatic and mechanical measurement of the tone relieves
the musicians from any doubts over the intentions of the conductor and, moreover,
the correct reconstitution of the spirit of the composer. Music can now be
objectively performed. Its normative truth is rescued from the malevolence and
individual interest of the Sovereign. However, the metronome is quickly unfixed
amidst clashes between its supporters and its opponents, with the latter
demonstrating in favour of the socialization of music production, and holding the
view, obviously, that the automatic sovereign continues to be a choice of certain
individuals.
‘The orchestra is the terror and the conductor is death!’ With the closing of the
cycle of interpretation/power, Prova returns to the natural context, where nothing
can have meaning, not even life itself. Not accidentally, in the next scene, a giant
iron sphere demolishes the wall, like a metaphysical punishment of political hubris,
and falls upon the unfortunate and uninvolved harpist. Her death symbolises
political suicide of the community, the decay/rejection of sovereignty and
abandonment of the work/rule to the mercy of subjective cognitive beliefs. The
basic content of the social contract, the guarantee of life, has been already violated.
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The Art of Law
The State/conductor went over the line (Lambrinou and Balabanidis 2009, p. 228)
and its abolition (following the resistance of its citizens) leads again to point zero,
where the dialogical game, as well as communication itself, are abolished and the
break-up of the convention entails violence of uncivilised and unperceived reality.
The Event of death, however, which states the start of the political, will function
in Fellini’s community as a loud reminder of the necessity of the Social Contract
and the re-establishment of the moral-political bond between the representative and
the represented. The existential shock of the event comes to outflank personal
disagreements and underlines the most powerful reason for selling out one’s
personal autonomy and accepting sovereignty. Their funeral performance attains the
most beautiful harmony. Order returns to the ruined oratory. The conductor and
musicians succeed in their full identification, like a unanimous coherent act of will.
This, however, occurs only temporarily. In the very last scene of the film the
autarchic voice of the maestro, yelling ‘Da Capo (again)’, echoes again from the
depths of the background, like a malicious farce.
The Tremendous Power of the Artificial (Blow Up)20
If Prova deals primarily with sovereignty and its interpretative dimension, Blow Up
touches the epistemological limits of art (in this case, cinema) and law, since it
places at the heart of its reflections the phenomenologically endless relationship
between art and reality, which, in the canvas of law, uses the colours of law and
nature. While Fellini analyses the (political) process of the production of law/art,
Antonioni clarifies its (knowledge/theoretical) foundations. In fact, Prova and Blow
Up are connected, since comprehension of the production of meaning and,
consequently, of the establishment of sovereignty presupposes not only the
demonstration of the game as it happens (Prova), but also the study of the terms of
engagement (Blow Up).
In two important scenes of the film, situated in the swinging and degenerate
London of the 1960s (the one being the photographic reconstitution of a murder in
the park and the other being an imaginary tennis match), the director conceives art/
law as the game of representation of the external world. It is impossible to grasp law
or art if we do not assess the status of reality, i.e. the totality of empirical and
perceptible objects that stimulate human reaction. The relationship between ‘being’
and the cinematographically, morally, politically or legally ‘necessary’ starts from
the first, indispensable part of the equation because the weight of the word or the
image depends philosophically on the importance that we attribute to the object.
According to Aldo Tassone, Antonioni is primarily interested in ‘the ontological
relationship between the professional photographer and reality’ (Tassone 2007,
p. 272). In other words, Antonioni is demonstrating clearly that signification,
20
Froger 1999, pp. 131–155; Deleuze 1985. At this point, let us borrow the well-known phrase by Gilles
Deleuze, la puissance du faux, which conveys the difference between classical and modern cinemat-
ographic narration.
123
G. Karavokyris
interpretation and meaning-production essentially depend on the relation between

the perceiving subject and the perceived object.
Meaning, Truth and Reality
In the eccentric life of the photographer, meaning is sought in the clichés that reflect
the contradictory aspects of 1960’s London, be it the dull factory and the silent
workers of the first scenes, or the noisy clowns and innocent, yet ambitious, models
that make love with him and with his lens. In these first scenes there is a certain
social realism that seems to inspire the protagonist. The factory appears as if it has
been shot in black and white, and Thomas emerges through the mist with the other
workers, as an undercover artist. Then we learn the truth: he is a leading society
photographer who drives a Rolls convertible and photographs top-models. However,
the empirical impression of the ‘social’ does not seem to be sufficient to give
coherent and comprehensive meaning to his life, since from the outset his subjective
vision shows an emotional and arbitrary perception—beyond the rational and
reflective production of meaning. Thomas simply registers the points of an
unconnected world, being unable to understand and, much more, to unify their
signifiers. The first thing that comes to our mind, therefore, is that the hedonistic and
fragmentary life of the photographer, his personal sentimentality (MacIntyre
1984),21 renders him immature and incapable of perceiving a reality that is full of
messages. As with the unorganized universe of Prova, meaning is postponed until
the event of interpretation. The egoistic and narcissistic perception of reality by the
artist fails to convey the world with significant words. Thomas, like the musicians
before the arrival of the conductor in Fellini’s film, is stuck in a sort of ‘natural
state’ where reality seems meaningless, and impossible to construct coherently.
The photographer is doomed to be captured by the rather narrow perception of
his eye and surface of his existence, thereby forgetting its truth. By innocently
submitting to the charm of the metaphysic of the subject, according to which the
individual is self-proclaimed as master of himself and the world, the protagonist
does not substantially reflect on nature, the highest normative authority in which he
is invited forcefully to find meaning. Thomas is possessed of extreme nervousness,
selfishness and arrogance, suspended from a dark reality, despite the class statement
of luxurious cars and dazzling women.
The creator is tasked with arranging natural chaos, by reading the objective
content of the (superior) external world. In other words, the text of nature is
normatively binding for its interpreter, who only needs to transcribe it concisely and
authentically in his photographic discourse. His eye is now an act of knowledge
rather than volition, because the philosophical realism that imposes it accepts the
gnoseological readability of the object. Things carry their meaning within them or
refer to pure ideas; they constitute full signs, transparent and accessible to certain
21
MacIntyre criticises the moral discontinuity of the modern subject that is due to this very modern ideal
of spontaneous sentimentalism of the self. Moral constitution and integral life are cancelled by the
prevalence of the volitional and arbitrary self, the projection of a subject that is subjected to the naive and
disastrous doctrine of ‘I do what I want’.
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The Art of Law
gifted minds that are tasked with the obligation to explain and (why not?) to govern
the world.
On the other hand, the dormant philosophical realism of the first scenes of Blow
Up is epistemologically interesting for art itself, implying that only the ascertain-
ment of the essence of reality renders it possible. The question of what art is and is
not cannot be downgraded to an object of subjective pleasure and appreciation by
everyone, and concerns the philosophers of aesthetics and law. On the contrary,
ethical moralism or extreme and autonomist aestheticism in art both refer jointly to
the universal norm (aesthetic or moral) with which the creator needs to harmonize
in order to become part of the artistic community. There is no place for radical
hermeneutics in theories of the sacred and the good in art, since the theology of the
beautiful (Takis 2008) that governs creation is constitutionally mapped as an eternal
or historical truth. The game of art is reduced to a non-negotiable logical foundation
of (artistic) reason, in opposition to the relativist or scepticist argument. Even in the
pragmatist argument of Rorty or late Wittgenstein, art as dialogue or form of life is
based on a more or less universal principle that comprises the rational structure of
actions or common sense.
Similar theories have been put forward concerning law. For the proponents of
natural law who tend to refer to Aristotle or Aquinas, as well as for the supporters of
anthropological theorisation of law or human dignity, the necessity of the legal rule
must come under the nature of things and be protected by subjective voluntarism
that governs prevailing positivist legal dogma and practice. The legal rule cannot
ignore basic anthropological givens or objective moral-political values that exceed
assessments of the instruments of law. The idea/norm of humanity, the unity of
mind and body that lends to the individual the property of being, or even the
heterosexual structure of family, constitute indicative arguments for construction of
the content of the legal statement, which, for a few realists (Finnis 1980; Rials 1986,
p. 57; Edelman 1999; Legendre 1992; Supiot 2005),22 metaphysical or historical, is
related to the legal status of the rule.
The aforementioned positions will be refuted later, when Thomas accidentally
meets the couple in the park. In the park, the camera of Antonioni changes point of
view and we see Thomas at a distance, realizing that he has less control over the
understanding and interpretation of the world. The antithesis between nature and
civilisation becomes clear by the selection of the place: the park (Brunette 1998).
Thomas feels that something important is taking place in front of him, that at last he
is offered the rare opportunity to encounter and capture reality. It is now established
that the former distance between what he thinks and what he sees will be totally
abolished. He sees the woman and starts to photograph her, and then she seems to be
pulling the man in a certain direction. Thomas’ frustration to capture the couple in
their intimate moment is a sign of the strong curiosity of the artist over the meaning
22
Such as the British philosopher of law, John Finnis, for whom the legal nature of the rule is not
disconnected from the law and its content. Similar views have been put forward in France by Stéphane
Rials, on the question of supraconstitutionality. We hereby need to note that philosophical realism must
not be conflated with legal realism. Realist philosophers talk about essences and truths, while their legal
counterparts talk about names, conventions and decisions.
123
G. Karavokyris
of reality and his ambition to discover and decode the truth in the unknown territory
of the park.
Later, in his laboratory, the development of the photos proves to be a tough
process. The more Thomas blows up the image, the more reality is decomposed and
suddenly looks like a rough sea of dots and signs. The trajectory of his eye towards
the meaning of the image methodologically presupposes positioning at the correct
distance. Such a positioning depends solely on his own perspective and on the
personal attention (Ricoeur 1988, p. 148) that he will dedicate to the object. The
careful examination of the images, and primarily that of the woman, will help him
discover an unidentified figure lying behind the bushes. His visit to the park will
reward him: the dead body of an unknown man is the meaning revealed to him after
the torment of hours of close observational work. Reality, therefore, is already there;
it exists and nobody can turn their eyes away, not even Descartes, and send it
arbitrarily to the sphere of imagination.
Antonioni’s theory of knowledge blends with the Aristotelian world-vision. The
unclassified world receives a sense of order when Thomas removes the veil of nature
and uncovers the indisputable event of the murder. Natural indeterminacy and
imperfection of the subject provide the prudent observer with the discretion to shape
it and, in particular, make it specific. The full and detailed photographing of the park
and the couple will lead to the knowledge of the hidden inside the general and
blurred image of the murder, and will confirm the rational property of human
intellect. To begin with, the scene of the park reassures us of the existence of truth.
The heroic, almost Promethean attempt of the creator is not in vain.
However, our relief will not last long. Later, Antonioni gives us the key to
understanding art, which does not differ at all from modern law. This key is none
other than fictio, the ontological presupposition of art/law that comprises the
nominalist projection of the lie as if it were truth.
The Foundation of fictio
Immediately after the discovery Thomas undergoes great disappointment due to his
inability to prove it to the others. The obvious truth of the murder becomes un-
communicable because the potential audience appears to be provokingly indifferent.
In the next scene there is a rock concert. The director warns us of what is going to
follow, with the definition of art as a linguistic-social game. In the concert venue,
the broken guitar of the rock star is considered by the enthusiastic audience as a
high-value fetish object. The crowd goes wild and fights over the famous guitar and
Thomas manages to escape with it. Finally, he tosses it on the ground. The meaning
of this scene seems to be clear: outside the hall, in the streets of conservative
London, the same object acquires exactly the opposite meaning and is reduced to
useless garbage. Reality has a certain meaning for Antonioni; the one ascribed to it
through its collective naming. Each action presupposes its signification by a
community; otherwise it is condemned into indeterminacy and, eventually,
inexistence.
From the above, we realise (as we also did during the Prova analysis and the
collective production of the score by the orchestra) that the absolute notion of truth
123
The Art of Law
begins to be relativized through its mediation by the historical preferences of social

groups, which in turn are formulated in space and time (Kracauer 1983). Truth has a
social meaning and its verification is impossible unless it is shared with others. The
rationalism of Thomas is fully destroyed when he returns to the crime scene at the
park and the body is no longer there. The deconstructive course of the director
culminates in the last scene of the film where Thomas follows a virtual game of
tennis, without rackets and tennis-balls, between comic mimes. During the game the
photographer observes carefully, in total silence, the invisible tennis-ball and then
hears clearly the sound of the ball and the racket. It is now clear that Thomas
accepts the interpretative authority of the mimes and adopts the irrational reality of
the game. When the imaginary tennis-ball lands outside the court, near the
protagonist, the significance of the positioning of the ball acquires critical
importance both for him and for the puzzled viewer. The camera focuses briefly
on the grass, at the point where the imaginary object is supposed to be. The
ratification of the participation of Thomas/the viewer in the community of mimes,
where the crazy representation is transformed into a logical reality, is marked by the
return of the ball from the photographer to the players. Blow Up ends with a
challenging message: the imaginary tennis-ball exists.
The position of the Italian director is very close to the nominalist theory of
knowledge and meaning. For William of Ockham or Hobbes, the objective
knowledge of nature is conceptually inaccessible because objects on their own do
not constitute signs but rather references that are incapable of referring to anything
other than themselves. It is impossible to read them, since they are in a condition of
natural autonomy, which entails their absolute uniqueness and insignificance. In
vain, the artist or the lawyer seeks truth in contemplation or admiration of the
natural world, aiming for its decoding and precise representation, as Thomas did
with the images of the murder. And this is so not only because reality escapes us
constantly (Brunette 1998),23 but also because faith in a particular meaning
presupposes the normative game of discourse over objects, rather than its seemingly
scientific adaptation to them. The release from the realist mimesis of the world
allows a community to deliberate and produce empirically inexistent, irrational or
even surrealist objects, as primarily happens in art (e.g. the invisible little ball) or in
law (fictions of law). Between the aesthetic conception of the external world and
its perception by human intellect there is an unavoidable vacuum that intuition
constantly attempts to cover.
In brief, it is the words that create the objects and not the other way round,
through a cognitive process based on good faith and use of words-signs that acquire
meaning within sentences. The latter are characterised as true when the convergence
and agreement of the references of reality with individual existences are achieved
(Alferi 1989). It is obvious that their articulation, such as the assessment of the
broken guitar or tennis in Antonioni and the dramatic rehearsal in Prova, does not
take place in a solitary and strictly individual situation, given that in that condition
the self-sufficiency of the subject renders language and the description of objects
23
Antonioni confesses that ‘I do not know what reality is. Reality eludes us, changes constantly. When
we think that we touch it, the situation has already changed into something different’.
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G. Karavokyris
unnecessary, but rather stems from authority and the agreement within the social-
linguistic groups (the mimes and the rock fans in Blow Up, the conductor in Prova),
i.e. in a relational context (Tassone 2007, p. 281).24 In both films the act of
signification presupposes the communication of the agents and implies necessarily a
dialogical dimension. This hermeneutical process does not consist of a solitary
appreciation of the actor. On the contrary, it is influenced by the prejudgments and
the dominant representations of the community. Nevertheless, the game of
interpretation has no ontological or essential boundaries and is constantly changing,
even, sometimes, in the most radical ways. Dialogue is an endless process that can
eventually overstep established meaning and lead finally to an emblematic change
of paradigm. Prova and Blow Up underline that signification is above all a matter of
convention and not of nature. The dramatic failures of the rehearsal in Prova and the
surprising epilogue of Blow Up seem to demonstrate the impossible limitation of
signification. Therefore, from the moment the subjects accept the characterisation of
an object and incorporate it into an artificial conventional order of signs and
signifiers, be it artistic, legal or political, it is possible for every creator to suggest
the introduction of his/her own name within the given sentence, even if this does not
correspond to reality at all.
Furthermore, however, the conventional formation of reality, which contains the
conscious violation of its natural truth, constitutes the statutory condition for the
conduct of the game of art/law. The logically unquestionable lie of the invisible ball
or the legal rule that commands that ‘nobody may ignore the law’ is presented in the
artistic or legal community as a statement that involves claims of truth, as a meaning
that claims acceptance by all art-lovers or law interpreters as if it were true
(Mitsopoulos 1998; Wicker 2003, p. 716). The lie is the foundational act of art/law,
the ontological precondition which the praxis of the creator refers to, or otherwise
the fluid foundation of the game. When Thomas throws the imaginary ball back to
the mimes or when the judge accepts the representation of the legal party by its
advocate and talks to him/her as if he/she were the instigator of the judged act, or
even when the law regulates facts that are not susceptible to counter-evidence,
then natural reality is substituted by fictio, to an extent that the two become
indistinguishable. This is because fictio does not constitute merely a representation
of the world but rather a self-reliant and perhaps superior reality, full of events,
values and meanings, which bind the life of every one of us conceptually and
practically. We only need to ask ourselves to what extent the State or the Sovereign
People, i.e. the names that accompany us endlessly, can be reduced to tangible
beings. Thus, the virtual world of the creature constitutes a real world, an endless
series of names that give organized existence to the chaotic universe and allow for
dialogic communication. It is clear for nominalist-modernist theory that there is no
onto-logical limit to the judgment that is registered in the act of naming, since logic
has already been ruthlessly undermined by the primary decision to betray nature. If,
then, the (logical) crime constitutes a (real) norm, it seems totally impossible to
24
Antonioni claimed: ‘I do not think that the appearance of reality can be conflated with reality itself. In
reality, phenomena can be infinite, and the same is true for reality itself, however I do not know enough
and thus do not believe it. Reality may perhaps be a relationship’.
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The Art of Law
distinguish rationally between the false and the real or to approach knowledge
outside the constantly evolving deliberative (conventional) condition. The truth of
art and law is game itself (Lyotard 1979). The attempt to reduce it logically ignores
the fact that at its heart lies the most emphatic rejection of reason, which renders
possible not only the negation but also the fully open and unpredictable evolution of
the game, according to the volitions of interested players. Its irrational foundation
allows any action to be potentially characterized as law or a work of art. This thesis
sounds—and may well be—dangerous, however, it is only by accepting it as high
risk that we shall be able to grasp and defend not only law or art, but above all
freedom itself, the greatest and truest of lies.
Conclusion: The Hermeneutical Concept of Sovereignty
The critical juxtaposition of the two films aims finally at illuminating a rather
frustrating remark for all parties involved in the art/law-making process: that the act
of the so called ‘sovereign’ artist or legislator is in reality a limited and not an
entirely free declaration of will. Even if the films are presented separately, they are
profoundly connected, as they constitute two faces of the same coin: the exercise of
sovereignty through interpretation of rules. The link between the two films is
essentially the freedom of interpretation. Power does not lie in the writing of the text
but in its interpretation. Bearing this in mind, two major conclusions should be
drawn from a critical standpoint, based on the philosophy of hermeneutics and
critical legal theory.
An in-depth study of the Prova case results in the complete inversion of the
pyramid of rules and, consequently, of the hierarchy of sovereignty. More
specifically, the enormous interpretative power of the musicians, which explains the
disastrous outcome of the rehearsal, indicates that the will of the sovereign depends
on the appreciation and the evaluation of his/her subjects. To put it into Kelsen’s
terms, the subjective declaration of the sovereign/creator has ultimately to be
transformed into an objective one by the entitled or ‘authentic’ interpreters.
Needless to say, this two-step process (writing and reading of the text) implies that
we should seriously have doubts about the major figures of our legal system, such as
the ‘sovereign people’ or the ‘sovereign legislator’. Instead of adopting the
essentialist concept of sovereignty, where the sovereign author has full conscious-
ness of the meaning of his/her words as a rational and perfect subject of discourse,
and is also considered to have a fixed identity, Prova introduces an hermeneutical
concept of sovereignty that considers the sovereign person/author as being subject
to the recipients of his/her words. Thus, the identity of the sovereign is never stable
but always elusive, in a state of permanent action. The author is, according to Paul
Ricoeur’s famous formulation, ‘oneself as another’ and not ‘oneself as himself’.
This hermeneutic definition of identity deconstructs the metaphysical belief of the
transparency and the permanence of the author and allows us to understand that the
creation of rules and works of art occurs essentially in the second time of creation
and, consequently, that the identity of the author is constantly happening, is always
in action and never captured. On legal grounds, this interpretative and dynamic
123
G. Karavokyris
concept of identity implies that real sovereignty resides in the authentic readers of
the law, the organs of the State (for instance, the judges) that are charged with the
mission to determine constantly the meaning of the sovereign’s declarations.
Nevertheless, Prova offers an incomplete (critical) vision of the concept of
sovereignty because the analysis is not largely extended to the ontological
conditions of the game of art/law, apart from the freedom that is accorded to the
interpreter and the underlining of the relative dimension of the concept of meaning-
production and truth itself. In other words, the second part of the article regarding
Blow Up complements the first, as it emphasizes the anatomy of the interpretation of
the work of art/law. The techniques of representation and fiction are clearly depicted
in the film in order to demonstrate finally that creation/interpretation is an act of will
and faith, and not one of reason, within the contextual limits of a language game.
Taking this into account, Antonioni warns us seriously that the search for a true
reality in art (and this conclusion applies also to rules) is in vain. The essentialist
thesis is again, as in Prova, severely deconstructed, as far as the act of creating is
concerned. The concept of reason and the invocation of true meaning are in fact the
pretexts that tend to cover the arbitrary element and volitional aspect of art/law-
making.
Admitting on the one hand that the author is limited by his/her interpreters
(Prova), and on the other hand that interpretation is an act of will and faith (Blow
Up), means that the game of sovereignty is deprived of any rational (substantially
speaking) foundations, that it is finally a free game in its historical, social and
linguistic context. This bottom-up approach to sovereignty, where the subjects
interpret freely the author and become the real authors of the rule or of the work of
art, is strongly attached to radical democratic theory. However, the normative
freedom of actors in this game of sovereignty implies a risk that a democratic
society has to accept: the impossible distinction between reality and fiction and the
modern technique of representation that eliminates the distance between the
governors and the governed make it difficult sometimes to prevent misleading
citizens. By watching and analyzing the two films we realize that, if any object may
be named ‘law’ or ‘art’, there is nothing that guarantees it is ‘just’ or ‘beautiful’.
Nevertheless, this open and uncertain choice is not only a procedural characteristic
of a democratic regime but also a valuable and essential one.
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The Art of Law

Law and Critique

The Art of Law

Springer Science+Business Media Dordrecht 2013

Keywords Artist Interpretative freedom Meaning Realism Social

relevant debate is enriched by essentialist, aesthetic or legal definitions of art, which

The Music of Law (Prova d’Orchestra)

From (Natural) Darkness to (Social) Light: The Birth of the Work

Fellini describes, as if in a documentary, the efforts of the musicians to tune into an

questions the metaphysical character of classic theories on sovereignty, according to

Interpretation, Sovereignty and the Social Contract

Legitimisation and Representation: The Crisis of Sovereignty

The Tremendous Power of the Artificial (Blow Up)20

interpretation and meaning-production essentially depend on the relation between

Meaning, Truth and Reality

The Foundation of fictio

begins to be relativized through its mediation by the historical preferences of social

Conclusion: The Hermeneutical Concept of Sovereignty

Edelman, Bernard. 1999. La personne en danger. Paris: PUF.

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