The art of law

Jan Šamánek Ph.D., JUDr.

Business Administration Department 

What is law? As a practicing attorney who teaches two legal disciplines at University of New York in Prague, I should know. And just as an art critic should be able to define beauty and a romantic author should be able to define love, I should be able to define law – preferably within one billable unit, and ideally while lounging in the whirlpool.

Jan Šamánek Ph.D., JUDr.

When students are at a loss for what to say about a given subject, they look at the words of notables in the field. Twenty years ago, I picked a definition from the Roman lawyer Publius Iuventius Celsus: “Law is the art of the good and the equitable.” Or in the original Latin, “Ius est ars boni et equi.”

(A handy trick: if you don’t know exactly what something means, it always sounds more credible in Latin. Any non-sequitur will fly. Quod erat demonstrandum. Dona nobis pacem et pasta frutti di mare.)

We tend to approach law as a rational process and the study of law as a rational enterprise. My law school literally gives students diplomas in the “science of law”. We like to treat the law as mathematics, with if-then statements and postulates. My clients believe that by using rational legal arguments, I can influence the opposing party to do the rationally inevitable thing, and become nice people. Or alternatively, that I can use a rational set of tools to convince a judge, who will in turn decide the dispute by using rational analysis and deduction, before rationally changing her socks at the end of the day. A beautiful Kantian project!

Celsus gives an alternative view. Forget the science. There might be just a little space for rationality, about as much as there is in a ballet or the Mona Lisa. Ius est ars. Can you measure art? Perhaps. Is the assessment of art subjective? Absolutely.

This means that according to Celsus, I am a teacher of art. This is liberating. From this perspective, all I can do is to show students great works of art and encourage them to be creative themselves. But if they do not paint Mona Lisas at the end of the semester, it is neither their failure nor mine. There is only so much that teaching can do to make an artist.

And so, recalling Celsus, as an attorney I am a practitioner of art. My court performance is more like a dance, a choreographed ballet, a theatrical performance to raise emotions, rather than a rationally-constructed and argued contribution at a scientific conference. The highest art in the legal profession, of course, is the art of invoicing.

But if you are not convinced by my words, remember that court hearings are public, if you can bear the view. Walk into any courtroom and decide for yourself how much art is involved.