Letter from America: Hearsay Rule

Signet Magazine

At least as far back as Horace, humanists have postulated an inter-relationship of the arts (ut pictura poesis - as is painting so is poetry). But the exact nature of this inter-relationship has remained a matter of dispute. German writer and philosopher Gotthold Lessing (1729 -1781), for instance, stressed that the “similarity of effect” between the visual and literary arts did not imply coincidence because “the two arts differ both in the objects imitated as well as in the manner of imitation”. American art historian Rensselaer Lee (1898 – 1984), however, suggested - in apparent agreement with Sir Joshua Reynolds (1723 – 1792) - that the two art forms share a deep purpose: “the chief likeness of painting to poetry lay not in adherence to a set of precepts borrowed from the sister art, or in any imagined correspondences of form, but in ‘nobleness of conception’”. Despite these (and other) different ways of conceptualising a transarts relationship, there remains a strong sense that textual and modelling approaches to creation and representation can each inform the other. Here, I hope to test this assumption and - more particularly - consider whether a relationship between the visual, literary and performing arts extends to other disciplines, especially law (and legal texts).

One way to ease into our discussion is to remark on the many alignments between law and narrative, both of which are historically situated. As Professor Brook Thomas (University of California) states it, laws and literature both “grow out of a particular place and time”. This suggests that one way to examine the intersection of various narratives and laws is with the tools of historicism, whether traditional (e.g., the historical determinism of French historian and critic Hippolyte Taine (1828 - 1893) or “new” (e.g., the cultural poetics of American literary critic Stephen Greenblatt (1943 - ).

This formulation gets us to an important point: for Taine any historical artefact is situated within a causal stream. It is both producing and produced. Through reverse engineering of artefacts, then, we can learn something about how they issued and what they may have in turn influenced. Any document, then, “is simply a mould like a fossil shell, an imprint similar to one of those forms embedded in a stone by an animal which once lived and perished”. So just as we can study a fossil to form some idea of the animal that formed it, so may we study a document to comprehend its author. Under this way of thinking, a document can be described as a momentary fix and snapshot of then-extant  cultural cross-currents. Thus, contra strict textual constructionists, “[i]t is a mistake to study [a] document as if it existed alone by itself. That is treating things merely as a pedant, and you subject yourself to the illusions of a book-worm” (Taine).

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