A recent essay on Thomas Mann by Christopher Beta reminded me of the sharp distinction—opposition even—that Mann drew between “civilization” and “culture,” terms that we often treat as synonymous. For Mann, civilization involves the taming of baser human impulses via universalizing reason and morals; culture sublimates them into particular artistic expression. I take Mann’s point, but it set me to wondering about the place and concept of law, which is commonly thought of as a (maybe even “the”) hallmark of civilization. Perhaps instead of falling on one side or the other, law adds something to both.

In The Birth of Tragedy, Freidrich Nietzsche invoked two sons of Zeus, Apollo and Dionysus, as a way of explaining the power of the great Greek tragedies like Antigone and Oedipus Rex. For the Greeks, Apollo represented enlightenment and reason whereas Dionysus represented ecstasy and intoxication. Nietzsche believed that the tragedies draw their power from a coincidence of Apollonian and Dionysian artistic impulses. It seems to me that law may likewise be forged in the entwinement of the rational and the emotional.

Law of course is “civilizing” in that it is brings order to chaos and deters conduct that is universally condemned. But it also responds to changes in our social beliefs, which—I would submit—are often packaged in artistic form. The range of possible artistic influences is of course enormous, so for now I want to focus on just one aspect of how law and art achieve “meaning.” And by this I mean nothing more than that both legal proceedings and art (for our purposes, painting) represent something that happened elsewhere and at another time.

One mode of expression in painting is depiction, the sort of ordinary picturing that allows most everyone to readily identify the objects presented. A subset of this mode is “narrative” painting—i.e., painting that tells a story. As a walk through a traditional museum like the Louvre or the Met quickly reveals, a good deal of Western artistic production before the 20th century presented stories from the Bible, classical mythology, literature or history. Jacques-Louis David’s “Death of Socrates” is representative in a double sense: it depicts the execution of Socrates (a historical event) as told by Plato in his Phaedo (a literary-philosophical text). Here, audiences were assumed to be familiar with the story depicted.

At some point after the Renaissance, painters began to depict quotidian—as opposed to grand historical—scenes. This “genre” painting is often associated with the Dutch “Old Masters,” who favored sets drawn from domestic or community life. And although the label isn’t usually attached to the Impressionists, they too focused on the workaday world. A personal favorite (because it was the cover of a children’s album I was given when I was a child) and one that I always visit when I’m at the Met is Renoir’s “Madame Charpentier and Her Children.”

I note this particular painting because its “meaning” has changed dramatically for me over time as my knowledge base expanded and interpretive faculties sharpened. When I was a child, I liked the album-sleeve reproduction because it was bright, the children looked happy—and there was that big fluffy dog that let the little girl sit on him! Later, I learned that Madame Charpentier’s gown was from the House of Worth, that one of the identically dressed children was a little boy (it being customary to dress boys under three that way), and that the décor was of the Japanese-influenced sort that was de rigueur in the late 19th century.

In short, the painting represented—and still represents—what my favorite novelist, Marcel Proust, called “the poetry of an elegant home and the beautiful dresses of our time.” The painting thus stands as a representative of haute bourgeoise  sensibility, and is thus available for assessment from a variety of perspectives, ranging from the purely aesthetic to the culturally Marxist. But that’s not all. It turns out that the décor I just mentioned is exactly that of the townhome of Proust’s great female character from his Search for Lost Time, Odette de Crecy, thus demonstrating that new layers of meaning emerge when works are considered in the cross-currents of cultural context.

So what does this have to do with law? I think the answer is found in the confluence of two shared concepts—namely, that both trials and paintings represent something that is not actually present and both require interpretation by an audience. And in the case of a trial there are two audiences: the immediate audience of the jury and at least two potential post-trial audiences—appellate courts and society at large. It’s this second aspect—the social—that I want us to pause and consider.

Philosopher Keith Lehrer asks us to “[c]onsider a spectator, who sees what the content of the painting is like, and tells another what the painting is like.” That listener will know something about the content of the painting and might even be able to identify it but “will not know what it is like until she sees it … .” A similar mismatch is found between what an observer at trial sees and hears (a juror, for instance) and what a member of the public sees and hears in descriptions of the trial (in the media, for instance). But it’s the story of the trial—not the stories that are told at trial (ostensibly) to represent past acts and incidents—that carries the greatest potential for social influence.

Take, for example, “trials of the century” like the Dreyfus affair, the Scopes Monkey Trial, or the Nuremberg trials, each of which provoked (and in some cases still provokes) vigorous social debate. In a similar way, an allegorical painting like Picasso’s “Guernica,” which is often identified as the greatest anti-war painting of all time, continues to influence policy and—through its ambiguous symbolism—invite endless reinterpretation. One possible explanation of this phenomenon is what Lehrer posits as a “representational loop” in which the “content of the painting can influence how we perceive the external model or subject,” which is to say, I think, that objects and subjects can influence one another.

If that’s right—and I think it is—then law is in some sense no less a cultural artifact than painting. True, law can have immediate and enormous consequences when the power of the state is brought to bear on individuals, but the stories that result from law carry emotional weight sufficient to bend law one way or the other over time. In this way, law is both an instrument and informer of culture.

Randy D. Gordon is the Office Managing Partner of the Dallas office of Duane Morris LLP. He is executive professor of law and history at Texas A&M University. His new book project, “Everyday Lawyering: Where Imagination and Morality Meet Advocacy and Logic,” from which this series is partially excerpted is currently under review at a university press.

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