Christopher Pye, Against Schmitt: Law, Aesthetics, and Absolutism in Shakespeare’s Winter’s Tale, in South Atlantic Quarterly 2009 108(1):197-217.
The essay is purchasable here
From the abstract published on the Publisher’s web-page
Focusing on Shakespeare’s Winter’s Tale, the essay counters Carl Schmitt’s claim that Absolutism represents an ideal conjunction of the monarch’s creative and legislative acts. It argues that early modern theater conveys the problematic character of the relation between law and sovereign act—indeed, that it locates the problem of the political precisely in the aporetic character of that relation. Further, the piece suggests that the aesthetic emerges as a self-conscious and autonomous form, not, as Schmitt would have it, as a depoliticizing feature of liberalism, but specifically in response to the problem of sovereign agency in the early modern era.
Byron Kaldis, Law, Aesthetic Symbolism and Utopia: a Kantian Reading, in International Journal for the Semiotics of Law, Volume 16, Number 3, 2003 , pp. 233-258
This paper is purchasable here
Heather Hughes, Aesthetics of Commercial Law. Domestic and International Implications, in Louisiana Law Review, Vol. 67, No. 3, 2007, available at SSRN here
From the Author’s abstract
Forces entirely apart from rationality shape commercial law. A turn to aesthetics directs attention to the non-rational elements at play in this law. These suppressed elements privilege commercial actors by deterring consideration of legal limitations on commercial activity that could be socially desirable.
Problematic features of commercial law take two different forms. First, there are types of commercial transactions encouraged by U.S. commercial law the very structures of which raise fairness and efficiency concerns. Second, the sheer volume of commercial transactions and the lack of legal controls requiring market actors to internalize ensuing economic, social and environmental costs raise serious questions about the desirability of laws designed to encourage perpetual escalation of commercial activity […]. Much of contemporary commercial law scholarship employs economic modeling or empiricism. Empirical findings or successful economic models, however, do not automatically become fruitful bases for law reform. Aesthetic elements of commercial law affect the capacity to translate the results of analytical approaches (quantitative or otherwise) into law reform.
- Art, Ethics, and Democracy
January 23, 2010, West Chester University
- Philosophy and the Arts
March 26 – 27, 2010, Stony Brook University Manhattan
- Expression and the Inner: 6th Inter-University Workshop on Mind, Art, and Morality
April 8 – 10, 2010, University of Oviedo
Christine Haight Farley, Judging Art, in Tulane Law Review, vol. 79, 2005 available at SSRN here
From the Author’s abstract
What is art? Surprisingly, this question is addressed in various places in the law. At these junctures, courts typically attempt to avoid making a judgment. Indeed, the law generally resists any definition of art. The reasons given for this are that these determinations are too subjective for the courts and that judges lack proper training and expertise. Thus, the doctrine of avoidance is the most stable and explicitly stated proposition to be found in these encounters. However, the question of whether an object is a work of art for treatment under the law is often unavoidable. This question gets resolved in two kinds of cases: (1) when there is an explicit issue of whether the object can be classified as a work of art and (2) when the question of the object’s value as art operates below the surface. In both, because judges are admonished never to make aesthetic determinations, they are forced to find other ways of deciding cases. Consequently, these disguised aesthetic judgments play havoc with the doctrines of law.