The FIVE LEAF manifesto

Why aesthetics in law? Why now?

In 1753, in one of the oft-cited examples of early British aesthetics, William Hogarth famously wrote: “When a vessel sails well, the sailors always call her a beauty; the two ideas have such a connexion!”[1]

The 18th century artist and engraver is also a notable figure in the history of copyright in the United Kingdom, not least for successfully lobbying Parliament to pass the Copyright Act of 1735[2] extending copyright protection to artists and engravers.[3] He was writing during a period of escalating industrialisation, and the significant impact it was having on the arts. This period precipitated further bifurcation in the arts along the lines of traditional visual art on the one hand and mechanical work and the so-called useful arts or crafts on the other. Indeed, Hogarth was an advocate for the total separation of craft and art in order to maintain the perceived value of the fine arts. This included the total separation of fashion and art.[4]

And this campaign for separation was supported by major cultural institutions in the United Kingdom. As one commentator notes, “Unlike some continental academies in the eighteenth century which were sympathetic towards the useful arts, recognizing that academics might influence the quality of design, the Royal Academy was not interested in the useful arts, and was indeed even hostile towards them.”[5]

One might be tempted to see these historical circumstances as enticingly similar to the contemporary challenges for creative work posed by the advent of generative artificial intelligence, or gen-AI. The pressures are very similar, namely the apparent displacement from the creative process through the delegation of free and creative choice to the apparent arbitrariness of (although actual aggregation by) technology. In many respects this arbitrariness contributes to the gamification of production, to which I will return.

There are important reasons to challenge assertions that the advent of AI is simply another radio, or photocopier, or cassette player, or videocassette, or PDF and so on. Is AI simply another chapter in the work of art in the age of mechanical reproduction?[6] My assertion is that it is not. Rather than emancipating the work, AI assimilates the ritual of the singular work in an idolatry of a particular version of artistic value. This is literally what happens when a prompt requests something “in the style of.”

What is this if not a rehearsal of ritual, a nostalgia for what makes art? And the result is that there is simply nothing new. The process becomes a massive echo chamber of aggregated agreement. In this respect, what gen-AI might be summarised as doing is nothing more than the indoctrination of nostalgia for the “classics.”

While this nostalgia might be more usually understood as operating in the service of the economic structures and motivations of art collection and maintaining the economic value of art, seeing it in operation in AI reveals several assumptions in play. First, this coincides with the traditions of the artistic canon, but at the same time it doubles down on the alienation of the original work from the historical circumstances of its production. The art, so to speak, is completely emancipated not from the institution, but from its context.

This in many respects is the phantasy of AI. Such art is rendered, in every sense, “timeless.” And with AI, in rehearsing these nostalgic rituals, not only by prompts but also by its very architecture, there is never anything new.

So no, this is not the next industrial revolution. But it does bear the hallmarks of an industrial-scale disaster.

In particular, the present challenges are not a question of a bifurcation of the work, but rather an alienation altogether from the work. Nevertheless, the methodologies that underpin the interrogation of industrialised crafts in the 18th and 19th centuries are critically relevant for today’s challenges, and in many respects reinstate the deliberate art of craft in the process.

So, let’s return to sailing.

Fundamentally, Hogarth’s observation sets out the persistent tension between the functional and the aesthetic, between the useful and the useless, between production and waste. These oppositional concerns preoccupy the law, particularly intellectual property law, but they also preoccupy higher education.

Higher education is full of misleading and arbitrary oppositions. And this binary thinking is driving some critically disastrous consequences for the arts and humanities on the grounds of rationalisation. We are presented with reorganisations, restructuring, mergers, and ultimately closures of departments in institutions in the UK and worldwide.

With the closure of Arts and Humanities departments across the globe, we are losing some of the most critically important resources for the challenges ahead. And this has a potential impact on the rest of the university sector with the emphasis continuing to be on productivity and outputs, speed and efficiency, and academics and students left with no time to think. In every sense.

Academics are being asked to teach how to draft prompts, not how to think, or importantly, how to want to think. There is a risk that graduates across different disciplines in the Humanities and Social Sciences are emerging wholly alienated from the experiences that ground reasoning. And what is more dangerous than a lawyer with no understanding and no skills and knowledge of legal reasoning? It is one without also the motivation to address that.

At a time when we need reasoning more than ever, there is a distinct drift away from the academic towards emphasis on so-called skills and employability, without addressing the resilience and adaptability with which the powers of reason equip us. This discourse is transforming our universities and threatening to divest us of the very intellectual resources that are necessary to respond to the unprecedented challenges before us: from the climate crisis to the rise of populism, to increasing misogyny and societal division across race and religion, and of course, to the impact of AI.

Within the higher education sector, and higher education government policy, much of this is rationalised through the binary logic of capitalism, through the seemingly competing yet wholly cooperative forces of lack and desire.

Let the market decide, and we never have to think again.

And this binary logic also underpins AI; not only the code but also the rhetoric of AI in writing, art, music, education, and so on.

The reasons for AI use are not presented as new channels of creativity. Just over-production of outputs. We are told it is faster, more efficient, and that the outputs must be protected for these economic reasons, rather than social ones.

The philosopher Walter Benjamin declared, “In the fields with which we are concerned, knowledge comes only from the lightning flashes. The text is the long roll of thunder that follows.”[7] But gen-AI use is not the “lightning knowledge” of which Benjamin spoke. This is just a senseless over-production of artefacts. Just like fast fashion, we now have fast fiction, fast art, fast film, fast music, fast PowerPoint! The discourse around gen-AI is capitalising on a consumption juggernaut, training and re-training users as impatient, incompetent, and ineffectual. The result is massive over-production with every latest craze, from turning your family into a Studio Ghibli frame, to turning yourself into an AI doll, and now Nano-Banana. All with catastrophic environmental consequences, and little to no free and creative play. The AI equivalent of fast fashion landfill.

Aesthetics requires effort and a sense of effort, effort that is itself productive and intrinsically valuable, joyful. There is that indefinable jouissance in intellectual effort.

But the intrusion of AI is facilitated by the gamification of learning, of education, of work, of socialisation. With that, the impetus is not only on speed but also on the rules of play. There are serious harms that attend this, including the addictive nature of use that is integral to the design. Prompting is the new doom scrolling.

This is wholly different from the openness of free play, of authorship, if you will. This is something I have written about in detail elsewhere, in Wanted. But in the simplest sense, the openness and purposeless abundance of free play is constrained by the rule of the game in AI – both in terms of its design and its use. It simply does not work that way.

AI suggests the outsourcing of doubt. But alienation from doubt is alienation from curiosity and thought. Thought, as Jean-François Lyotard assures us, is mobilised by doubt.[8]

But the rhetoric around the use of AI in education and research suggests the dispensing with doubt, with uncertainty, with risk, and certainly with curiosity. But the reality is emerging from the exercise finding nothing, learning nothing, understanding nothing, and perhaps most tragically of all, thinking nothing at all.

Aesthetic judgment is the very nature of legal reasoning. In many respects, law is necessarily a process of taste. A judgment of beauty (or the harmony of a legal puzzle resolved) is a reconciliation of function and aesthetic. The vessel that sails well.

In commercial law that engagement with reasoning and aesthetic processes is of critical importance. And it is perhaps more important in commercial law than any other area of law, not by reason of specific necessity, but by reason of resistance.

Every year I am faced with some resistance to aesthetic methods, but usually by the end of the semester (almost) all the students have been energised by the opportunity to think and to think for themselves. The classroom is a battlefield of academic and theory versus practical and commercial. And that battlefield wages most vehemently in the context of commercial law.

Aesthetics in research and teaching, more than ever, provides the opportunities and resources to combat the alienation from our own imagination.

And so, we need clowns. And by that, I mean we need the unfettered curiosity of genuine play. We need aesthetic interventions in commercial law to disrupt the hold of the misleading rhetoric of economic rationalism in learning, in research, and in practice. And imagination matters in policy making. It is the stuff of law.

Imagination is experience, not just a static and inert output. It is the substance of knowledge and legal reasoning. We need aesthetics in the classroom, and even more specifically in the commercial law classroom. Students need the permission and freedom to play, to be curious, to experiment, and to take risks. And that is the thunder.

And it is in this storm, that I introduce FIVE LEAF.

So, this is a call to arms … and legs and feet and hands and ears and everything else. Aesthetics not as a novelty, but as an integral part of the legal experience.

Welcome to FIVE LEAF. We are just getting started!

Endnotes

[1] William Hogarth, The Analysis of Beauty: Written with a View of Fixing the Fluctuating Ideas of Taste (J Reeves, 1753), 14.

[2] 8 Geo 2, c 13.

[3] See further Ronan Deazley (2008) Commentary on the Engravers’ Act (1735) in Lionel Bently and Martin Kretschmer (eds) Primary Sources on Copyright (1450-1900), www.copyrighthistory.org

[4] David Irwin (1991) Art versus design: The debate 1760-1860, Journal of Design History, 4(4), 219-232, 219.

[5] David Irwin notes, “Before the Industrial Revolution had scarcely got under way, William Hogarth was already expressing concern at the possible dangers industrial development might hold for the fine arts”: David Irwin (1991) Art versus design: The debate 1760-1860, Journal of Design History, 4(4), 219-232, 220.

[6] Walter Benjamin, ‘The Work of Art in the Age of Mechanical Reproduction,’ in Illuminations, Harry Zohn (trans) (Harper Collins, 1992/[1955]), 211.

[7] Walter Benjamin, The Arcades Project, Howard Eiland and Kevin McLaughlin (trans) (Belknap-Harvard University Press, 2002), [N1,1].

[8] Jean-François Lyotard, The Inhuman: Reflections on Time, Geoffrey Bennington and Rachel Bowlby (trans) (Stanford University Press, 1991/[1988]). Lyotard declares, “I do not like this haste. What it hurries, and crushes, is … the unharmonizable … As if reason had no doubt that is vocation is to draw on the indeterminate to give it a form, and that it cannot fail to succeed in this. Yet it is only at the price of this doubt that reason reasons” (4).