­1

Introduction

Procul ab oculis, procul à corde1

A recent study carried out at New York University School of Law looked ­at
how the milieu of judicial proceedings can affect their perceived legitimacy.
During the first year of law school, in addition to the substantive curriculum of
Contracts, Property, Civil Procedure, Criminal Law, and Administrative Law,
the program includes a compulsory course on the elements of lawyering. It
covers legal research and writing, case analysis, advocacy, negotiation, and trial,
and at the end of the first year the students must argue a case. The researchers
divided the students randomly into two groups.2 The first argued in an informal
setting, a classroom or lecture theatre that had been temporarily rearranged into
a courtroom, with a judge in regular clothes presiding. The second group made
their case in a formal courtroom replete with columns, panels, Latin inscrip-
tions, murals, portraiture, bench, bar, and thrones, before judges in robes.
The survey questioned the students as to the authority, legitimacy, and
justice of their first case. Students studying for a doctorate in law, a second
and sometimes a third higher degree, at the end of a year devoted to studying
legal reason; the art of juridical analysis; the line, square, and compass of doc-
trine, precedent and rule, responded that justice was more likely to be done
in the second setting. The group that appeared in the formal court with the
robes and regalia, the Latin and other insignia of maiestas, were significantly
more likely to view the procedure as having greater legitimacy, the judgment
as being more authoritative, and the judge as more learned in law than those
who appeared in the makeshift informal auditoriums. For all the didactic
effort, disciplinary skill, and Socratic dexterity expended on training these
elite law students in the substantive principles and core rules, the precedents

1
Johann Kreihing, Emblemata ethico­-politicorum [1659] (Turnhout, Belgium: Brepols,
1999) emblem 130. (Far from the eye, far from the ­heart).
2
Oscar Chase and Jonathan Thong, “Judging Judges: The Effect of Courtroom Ceremony
on Participant Evaluation of Process Fairness­-Related Factors,” 33 Yale Journal of Law &
Humanities 101 (2012).
1
Legal Emblems and the Art of ­L aw ­Introductio

and other sources of the juridical order, despite the maxim quoad non ultra, study simply absorbed the visual context, the apparent comfort of ­decorum
in its various forms, meaning that there is nothing beyond law, that legal rea- and contentment of sight, without any great degree of critical mediation.
son dictates decision, the students responded positively and affectively to the Structures, it seems, go untutored and unseen.
classical visual emblems, the ceremonial and architectural aspects of the gran- An initial hypothesis can be proffered as to the significance of décor
deur and gravitas of legality. The young students eager for law apprehended, and decorum to the law students in this study. These youths eager for law –
though with minimal training in visual advocacy and therefore likely little juventus cupida legum in the old argot – recognized in the formal setting and
tutored in critical appreciation, that there was more ­to the theatre of justice venerable dress of the courtroom a symbolic dimension of legality that was
and truth than can be captured by reason and reduced to the page. missing from the makeshift hearing in the classroom. More strongly, in the
What is surprising is how unsurprising this is. Justice has always been a image archive that Freud calls the unconscious, there was a prior picture of
theatrical presence, and lawyers have depended on and clung to the accoutre- a judge and court that corresponded more closely to the courtroom than the
ments and other visible aspects of legal decorum and of the rituals of power. classroom setting. The imagery already housed the law in a visual setting,
We do not have the wigs and gowns, silver buckles, codpieces, fur trimmings, derived in part no doubt from film and television, from the architecture
or mandatory dinners at the Inns of Court that subsist pretty much to the and statuary of the city, and from the busts, bronzes, statuary, paintings,
present day in the higher echelons of English common law, but even in the and other plastic imagery in law school. These prior images, these imaginary
United States, the courthouses are frequently columned, ornately decorated, representations of legality, are modern day and subsisting emblems direct-
replete with Latin inscriptions, and contain numerous murals, portraits, stat- ing vision and establishing sites of recognition that correspond remarkably
ues, and insignia of decorum present alongside the elevation of the bench, closely to the legal tradition of figures of justice and specifically to that gal-
the barrier of the bar, and the formality of the judicial robe.3 It makes it safer, lery of juristic images that will be the principal object of this study, the legal
creates a distance, and so offers the comfort of a certain degree of imperson- emblem tradition. These, it is argued, form not only a visual archive but
ality. These aspects of justice seem psychologically, anthropologically, and also a structure of vision, gesture, and look that has remained remarkably
symbolically self­-evident. At the same time, however, the visible qualities invariant over time. The theatrical settings, performative rites, and figurative
of law are not much studied or commented. We inhabit an exponentially expressions of law remain now largely the same as they were at the beginning
expanding videosphere, a Planet Hollywood, a YouTube universe, a gamer of the modern tradition.
zone of augmented life in which the public world of digital transmission Within the popular perception and public imaginary of legality, a judge
penetrates almost every crevice of what was formerly the private sphere. The is supposed to hand down the law and so evidently needs to be placed above
modes of the visible, what were classically the domain of spiritual gover- those to whom the rules are addressed. She also needs to have a surrounding
nance, of the regimen animarum, and specifically of the speculae pastoralis, that will provide the symbolic means of rendering justice as distinct from
the spectral watchtowers of the episcopacy, the domain of what are now the some merely administrative act. This is not just any missive from any scriv-
visual incursions of a pervasively public intimate realm, intrude (or extrude) ener’s boy in his master’s shop, as Sir Thomas More somewhere puts it, but
into all aspects of civil society. For all the abstract recognition of the reori- rather trial is entry into the portals of law; it requires that a threshold be
entation and redistribution of media, relay, and transmission of law, there
are few courses, little research, and a dearth of scholarship on visual advo-
(Chicago: University of Chicago Press, 2000); and Sherwin, Visualizing Law in the Age of
cacy and on critical interpretations of the visibilities of power, even on basic
the Digital Baroque: Arabesques and Entanglements (London: Routledge, 2011). Mention
legal visual literacy.4 The students in the New York University School of Law should also be made of William MacNeil, Lex Populi: The Jurisprudence of Popular Culture
(Palo Alto, CA: Stanford University Press, 2007); and of Neal Feigenson and Christina
Speisel, Law on Display: The Digital Transformation of Legal Persuasion and Judgment (New
3
Judith Resnik and Denis Curtis, Representing Justice: Invention, Controversy, and Rights ­in York: New York University Press, 2009); Alison Young, The Scene of Violence: Cinema,
City­-States and Democratic Courtrooms (New Haven, CT: Yale University Press, 2011) pro- Crime, Affect (London: Routledge, 2010); C. Delage and P. Goodrich (eds.), The Scene of
vides an exhaustive account of the iconography and settings of justice. the Mass Crime: History, Film, and International Tribunals (London: Routledge, 2013). For
4
Anglophone exceptions, in addition to the expansive Resnik and Curtis, Representing surveys of ­current literature, good and bad, see the essays in A. Sarat et al. (eds.), Law and
Justice, supra n. 3, include C. Douzinas and L. Neade (eds.), Law and the Image: The the Humanities (New York: Cambridge University Press, 2010); and Peter Robson & Jessica
Authority of Art and the Aesthetics of Law (Chicago: University Chicago Press, 1999); Silbey, Law and Justice on the Small Screen (Oxford: Hart, 2012); as well as the compendi-
Richard Sherwin, When Law Goes Pop: The Vanishing Line between Law and Popular Culture ous Papke et al. (eds.), Law and Popular Culture (LexisNexis, 2012).
2 3
Legal Emblems and the Art of ­L aw ­Introductio

crossed and invokes a professional knowledge, a rhetoric and lexicon, gesture,

and dress that are many years in the making. Law is an antique tradition, a
classical practice, and entails rites and ceremonies that are distinctly solemn
and out of the ordinary. Many of those features are established by and evi-
dent in the early modern law books. Although the prototypes are generally
presented and expounded in books of emblems, we can pause momentarily
on a common law example from a famous substantive work of ­doctrine.
Coke’s Institutes provides an intriguing image of Sir Thomas Littleton close
to the start of the first volume, with his commentary on said Littleton that
he is, as the subtitle elaborates, “not the name of a lawyer onely, but of the
law itself.”5
The propositus, our venerable and venerated judge and author, is placed
in the very center of the image, on a pedestal of six gradations of descendants
(Figure 1.1). He stands above the present and the future, the descending
line, while he himself has over his head, designated in the Latin, recta linea
or proper line, the unbroken chain of his lineage, the representation of his
legitimacy, both literal and figurative.
Recta linea, the proper line, the right lineage, is not only a question of
genealogy and inheritance, of the symbols of legitimacy, but also a matter of
law, of compact and contract between origin and emanation, source of law
and current distribution. Each place on the ascendant line is marked by an
image of hands clasped together, the sign of faith, amity, and contract, from
Cicero to contemporary doctrine. This is the visual representation of bona
fides and shows us visually a law of fidelity, a contractual succession, place,
and belonging evidenced through the image of an insuperable concord, an
unbroken bond that binds antiquity to novelty, past to present, and law to
the subject. This is in a law book on the institutes of the laws of England,
itself a commentary on a treatise on tenures that are held from one genera-
tion to the next according to the rules of succession and primogeniture. And
if this is not enough, the judge himself is in a garb sufficiently ornate and
opulent – robe, furs, and judicial hat – to satisfy even the most demanding
of the eager law students.
There are other images in Coke’s Institutes, including an introductory
one of the book itself on a cushion with a sword and rod of office placed ­
over it. Angels watch and guard. The Latin subscript (Deo, Patriae, Tibi) Figure 1.1 The lineage of the propositus Sir Thomas Littleton, from Sir
reads, in translation: ‘For God, for fatherland and for you’. There is no Edward Coke, The First Part of the Institutes of the Lawes of England (London:
doubt then either as to the image of the origin of law and book or as to its Stationers, 1628). (Reproduced courtesy of the Rare Book Collection, Lillian
Goldman Law Library, Yale Law School.)
5
Sir Edward Coke, The First Part of the Institutes of the Lawes of England. Or, ­A
Commentarie upon Littleton, not the name of a Lawyer onely, but of the Law itselfe (London:
Stationers, 1628).

4 5
Legal Emblems and the Art of ­L aw ­Introductio

likely features, embedded in an emblem at the beginning of the treatise that

in many respects founds the modern common law tradition. I offer one
more preliminary instance of the prior history of legal decorum and court-
room hierarchy, again to bolster the record of the students’ perceptions. It is
taken from a Latin edition of the Corpus juris civilis, the great compilation
of Roman law, published in the mid­-sixth century, over a millenium before
Coke’s Institutes.6 Here we see a slightly earlier emblematic representation ­of
lawgiving, the handing down of law, which can add both detail and ­visual
structure to Coke’s schematic tree. The image is inserted into the text of
the universal law and proffers a picture of the lawgiver, Justinian himself
(Figure 1.2).
The Emperor, the most Holy Lord Justinian – Domini Iustiniani sacratis-
simi – is raised on a platform and sits on a throne with a screen behind and
a canopy around. This portrait, in its minimalist emblematic way, ­represents
the majesty and authority of law as staged, dressed, and performed. The
Emperor wears a crown and robes of office. In his right hand is a sword,
and his left hand is raised, with the palm, held in a fist, index finger raised.
The sword, of course visualizes the power and force of law, the rigor of strict
application, while the fist and raised finger dictate silence and indeed the
terror of law (terrorem incutio). The Emperor is looking to the right and
addressing himself to a lawyer and a priest, the two relays of law, while in the
background, on the ledge of an open window, is a stack of law books. The
window marks a transition from interior to exterior and also from terrestrial
to universal, earth to sky. The law books mediate, in other words, between
the heavens, the law of God, and the justice of the Emperor. He does not
judge in his own name but rather applies the higher law to which he has a ­
unique access and greater proximity. His head is raised above the others and
Figure 1.2 Justice and law, from Corpus juris civilis (Lyon: Senneton,
so is closer to the sky and hence the divinity, while the lawyers are closer to
­1547–1551) at I. 8: Domini Iustiniani sacratissimi – Bibliothèque Municipale
the books.
de Lyon, 21511. (Crédit photographique Bibliothèque Municipale de
This is a fairly standard representation of “justice and law,” of “con-
Lyon, Didier.)
stant and perpetual will,” and is repeated in numerous variants within the
Senneton edition of the Corpus. More surprisingly, I suggest that it still
provides the basic visual archive for the imagination and so visualization legality prior to any actual enunciation of norm, rule, or judgment. The
of justice as a theatre of law and truth. We know these images but we also image puts us in the mood for law. And this image, surrounded by Latin
know them as images, and so tend in the modern curriculum to view them text and commentary, puts us in the frame of mind for civil law. It comes,
as ornaments, mere figures on the way to law, rather than recognizing them appropriately, as the emblem that accompanies the first title of the first
as mnemonics, as triggers that engage us with the ceremony and theatre of book of Justinian’s Institutes, and so sets the stage and brings the principal
actor to presence. The stage it sets is that of reading, precisely because the
6
Corpus juris civilis (Lyon: Senneton, 1547–1551) at I. 8. The authoritative ­commentary image is internal to the text, a didactic and different relay set in among the
on the Senneton edition is Valéry Hayaert, Mens emblematica et humanisme juridique
(Geneva, Switzerland: Droz, 2009) chapter 5. Her edition of the Senneton imagery is due
three columns of the words of the law: text, gloss, commentary, and in this
out next year. edition supplemented with marginal notes. The image in a strong sense
6 7
Legal Emblems and the Art of ­L aw ­Introductio

precedes and dominates, or at least overlooks the words, the mere letters In 2006 the English Court of Chancery, in the person of Peter Smith J.,
of the law, and so may be taken as prior to law and above law, with all the handed down a written judgment with certain typographical peculiarities
connotations of hierarchy and precedence that such implies. As for the (Figure 1.3).8 The case, which has generally gone unremarked, concerned
text, we do not, however, generally read Latin any longer. Nor, of course, a claim against the author of a novel, The Da Vinci Code, for copyright
did many of the populace at the time that the Senneton edition was first infringement.9 The dispute was in substantive terms quite ordinary but
printed. That aside, my apologies for the intrusion, but the image at least is the typographical oddities of the judgment did eventually gain some ­slight
visible and comprehensible, indeed recognizable enough even if we neither acknowledgment and then dismissal by the Court of Appeal. The idiosyn-
any longer know its proper encoding nor have much critical skill in looking crasy in question concerned the format of single and seemingly random
at such images. letters in the text in bold italics. The opening line of the first numbered
It is, however, and enduringly, the text, the words, ipsissima verba, ­that paragraph, after the judge’s name, the heading, and subheading, contained
lawyers are trained to address, as if these were not also, in their way, images, the word “claimants,” in which the last letter was thus altered in font and for-
visible signs, figures of a prior source and learning, bringing the speech of one mat. In the second paragraph, the “m” of claimant in the third line was again
absent to our ears without voice, as John of Salisbury put it. This essential vis- changed to bold italics. In the third paragraph the “i”“ of “is” gained compa-
ibility, the presence of the text, the ideographic character of calligraphy and rable and surprising significance and the immediately subsequent first letter
then print, gets lost. There is, of course, a history to the blindness of law, to of the next word, “that” was also emboldened and printed slant. Excised
the oblivion to the ceremonial and theatrical aspects of justice, to which this from the judgment as a separate encryption, the first ten letters formed the
book is addressed, but before embarking on the recollection and elaboration nomination “Smithy Code” followed, once disencrypted by means of the
of the longue durée of legal images I proffer one further and peculiarly striking, cipher actually used in the novel whose authorship was under dispute, by
because both lexical and figurative, example of what goes unseen. The reason question and answer: “Jackie Fisher, who are you? Dreadnought.”
that lawyers are not trained in visual apprehension goes back to the early mod- The visual encryption, the judicially coded statement, is manifestly part
ern war on images, the Reformation critique of the figurative and imagistic of the judgment and so at the very least must be treated as being of persuasive
in favor of the religion of the word, the reformist maxim of sola scriptura, the authority. It is obiter dictum, in the argot of law, something said along the way
text alone, having had some impact upon the common lawyers. Trial was to to decision, part of the reasoning of the judgment but not the reason, not the
be by the word and not the image: Sit liber iudex, let the book judge, was in ratio decidendi or ruling itself. So, in brief, this encryption is part of the legal
this regard the relevant Reformist motto.7 In this tradition it is the unadorned text, an apparent facet of the precedent, visibly an element of the law. But
text, the black letter of the law book, the ironically ornate gothic typeface of it passed quite unseen. Nobody noticed these hieroglyphs, the little symbols
the various institutes, that is supposedly to transport the subject of law, and and properly enigmas that bestrew the judgment. They were not expected,
not the glamour and falsity, the lure and lewdness of the fleshly and physical and they were not seen by the lawyers nor, perhaps even more surprisingly,
appearances of the various legal actors, let alone the illusion of the images did the public and the media, which had taken considerable interest in the
that surround their costumed manifestations. So lawyers are trained to read copyright action because of the huge success of The Da Vinci Code, observe
and interpret but not to look, view, gesticulate, mimic, or act. Such being the this typographical peculiarity. The judge had to e­-mail a journalist to elicit
case, ceremony deflected, histrionics ignored and thrust aside, the text should any reaction to this highly significant although equally unconventional judi-
then be the object of the closest scrutiny, the most careful reading and almost cial invention. The code included in the judgment is extraordinary, without
Aristotelian cerebration. Consider then the following experiment.
8
Baigent & Leigh v. The Random House Group Ltd. [2006] EWHC 719 (CH).
7
W. Fulke, A Rejoinder to John Martials Reply Against the Answere of Maister Calfhill ­(1580) 9
For commentary on the legal historical significance of the judicial encryption, see Peter
133. The argument being that “the spirit by his own substance incomprehensible, is by his Goodrich, “Legal Enigmas: Antonio de Nebrija, The Da Vinci Code, and the Emendation
effect in the holy scriptures visible, revealed, known, and able to be gone unto, therefore of Law.” 30 Oxford Journal of Legal Studies 71 (2010). For an example of an extended
a sufficient judge, taking witness of the scriptures and bearing witness unto them … The academic commentary that makes brief mention of the encryption, suggesting that its
Law of God is judge, not priests.” For discussion of this theme, see Goodrich, “Specters of inclusion was expressive of poor judgment, see Mary Wyburn, “Giving Credit Where It
Law: Why the History of the Legal Spectacle has not been Written,” 1 UCI Law Review ­Is Due: The Da Vinci Code litigation: Parts 1 and 2,” Entertainment Law Review 96, and
773 (2011). 131, at 133 (2007).
8 9
Legal Emblems and the Art of ­L aw ­Introductio

any obvious legal precedents, a miscellaneous marvel, close to an absolute

novelty and yet it was not even observed by a modern profession whose art is
the strict scrutiny of legal judgments.
This book, the history of the emblem tradition, along with the concept
of, and training in obiter depicta, in things seen along the way to judgment,
aims to supplement and in part to rectify this blindness of lawyers and the
paradoxical invisibility of law. Lawyers should know the appearances of their
profession and should be erudite in the images that they manipulate and
transmit. If robes affect the perception of law students so dramatically then
some awareness of that effect is key to understanding not only the ­symbolic
authority but also the practical public presence of law. If the highly educated
are so affected, is it not plausible to suppose that similar or more extreme
effects will be likely in other groups? If law is predicated upon what an early
Chief Justice, Sir John Fortescue, termed a filial fear of God, then is it not
likely that this fear is conveyed to the infantilized subjects of law through
images? It is time, in short, to return to the history of legal images, and
in particular to the extraordinary and as yet unsung legal invention of the
emblem book, the picture book of law. These were the Planet Hollywood,
the augmented life, the universally accessible representation of norm and law
in the formative era of the Anglican tradition, when, nota bene, the texts were
still in a muddled Latin and a bizarre law French. Here, as subsequent chap-
ters detail, we can find the coda of legal symbols, the gallery of juristic images
and the training in visible law that is so lacking in the modern legal curricu-
lum and equally evidently missing in the contemporary non­-perception of
the visible institutions of the juridical order. Not to see, to be blindfolded, is
to walk in error, as Ripa portrayed.
If it is a question, as here, of images and vision it is necessary to progress,
as I will continue, with visual figures from legal texts. As a point of method,
it must be asserted and apprehended at the outset that images have their own
order and concatenation. They are always accompanied by words but they
are not reducible to words. This point can be made most strongly by an early
modern figure of justice. The image is an emblematic representation of justice
weighing competing claims in her scales. It is from a Reformist treatise on
the Acts and Monuments of religion, published in 1576, and it is at first sight
familiar. It shows Justice with sword and scales in her hands and a blindfold
over her eyes (Figure 1.4).10 To these relatively well known symbols we can
­
Figure 1.3 Cyphers in the transcript of the judgment in Baigent & Leigh 10
J. Foxe, The First Volume of the Ecclesiastical History, contayning the Actes and ­Monumentes
v. The Random House Group Ltd. [2006] EWHC 719 (CH). (Transcript; of thinges passed in Every Kinges Time, in this Realme, especially in the Churche of England
public record.) principally to be noted (London: John Daye, 1576) at 771 under the title: “A lively picture
describing the weight and substance of Gods most blessed word, agaynst the doctrines and
vanities of mans traditions.”
10 11
Legal Emblems and the Art of ­L aw ­Introductio

the scales himself. There is no respect and little propriety there among the
painted and histrionic Romans. Christ and his disciples, by contrast, watch
calmly, and Jesus, recognizable by a halo, is pointing with his index finger
toward the Holy Book. Game, set, and match for the Scriptures, for the word
alone, free of ornament and figures. So it would seem.
The first point to make is that images do not have a single meaning.
They are plural in their significance, technically enigmatic (aenigmata)
and so multiple in reference and connotation, and hence in learning to
interpret these symbols, these visual expressions and accompaniments of
law, we need to address their various levels. According to tradition there
is a distinction to be made between the apparent meaning and the spiri-
tual meaning.12 ­The first depends on the physical eye and things that are
seen. The second looks through the apparent, beyond the image, to its
invisible causes, its allegorical and anagogic (spiritual) meanings. Within
the Western legal tradition this means that the image is necessarily more
than it seems. It conceals more than it reveals and hence needs cautious
and detailed reconstruction. The legal image, the emblem, is a symbol, as
­ explored in greater detail in the next two chapters, and as such it is hiero-
Figure 1.4 Justice, from J. Foxe, The First Volume of the Ecclesiastical History, glyphic, an inherited and hierophantic code that passes on a secret truth.
contayning the Actes and Monumentes of thinges passed in Every Kinges Time, So what of Foxe’s emblem? What of this paradoxically visual image of the
in this Realme, especially in the Churche of England principally to be noted vanity and untruth of images?
(London: John Daye, 1576) at 771. (Reproduced courtesy of HRI Online The initial meaning, apparent to the eye of the body, is evident enough;
Publications, Sheffield.) indeed we are told what it signifies: the Bible, the Holy Book, is worth any
number of papal decrees, Roman Catholic laws, and other idols – gold, silver
and earthly material things.13 They are but vanity and illusion. Truth comes
add the less obvious detail that Justice is here weighing the word of God, ver-
in the form of a single legitimate image, the icon of knowledge and salvation
bum Dei, against the Decretals, the Papal collection of Roman Catholic laws
as such, the Word of God. The Scriptures are the image of images and so
that were in force in England until the Act of Supremacy by which Henry
they tip the scales of an impartial justice and we can see clearly that author-
VIII famously expelled the pope and took on himself, as divine and secular
ity, legitimacy, and truth come in the form of a holy letter, the missive of the
sovereign, all the powers that had previously belonged to the head of the
divinity (iure divinum) written by the hand of God and passed on to human-
Roman Church.11 The image is fairly evidently polemical. Justice is weigh-
ity through the book of laws. This is a beginning and this interpretation is
ing the Latin law books against the reformers’ belief in scripture as ­law. The
not necessarily wrong. I have noted already, however, that it is not without
scales groan to the right of Justice, the word of the Lord apparently being
paradox. The image denies the value of images. They are, like the golden calf,
much heavier than the papal tradition and its numerous councils and bulls,
and the precious metals and stones, weightless in the scales of justice. We
even with the addition of gold and jewels, money and precious stones, idols
can see that. We are instructed to see that by the accompanying text. More
and images, that a group of Catholic figures are frenetically pouring into the
than that, not only does the book itself contain numerous images, but it also
scale to try to increase its weight, while one of them even presses down on
12
The principal modern treatise on the levels of interpretation is Henri de Lubac, ­Medieval
11
John Godolphin, Repertorium Canonicum; or, An Abridgment of the Ecclesiastical Laws Exegesis (Edinburgh: T & T Clark, 1998).
of this Realm, Consistent with the Temporal (London: Roycroft, 1678) chapter 1. I have 13
Another, slightly later version of this same thesis can be found in Meditatio XXVIII,
addressed some of these themes in Goodrich, “The New Casuistry,” 33 Critical Inquiry Evangelio, non Lege, triumphus (with the Gospels, and not human law, comes triumph),
673 (2007) at 680–90. Hieronymus Ammon, Imitatio Crameriana [1649].
12 13
Legal Emblems and the Art of ­L aw ­Introductio

includes, dramatically and frontally, an image of the Holy Book itself, weigh- the great reformer himself, Martin Luther, wrote in Latin. So the lettering
ing down to the ground, winning the balancing contest. on the disputed books is the same. One cannot, in other words immediately
The inescapable fact that the word is an image, that the printed book see the distinction qua writing, even if it is evident enough from their differ-
expresses what the Counter­-Reformation used to call the “inke divinitie,” ential weight and from the surrounding figures, plainly and ornately dressed
tips us from the immediate to the allegorical meaning. There are three words respectively.
in the image: Justice, Verbum Dei, and Decretalis (the latter being shown, Justice is on a pedestal, a common enough sign of veneration, and her
in part at least, twice). The vernacular is in plain typeface on a white back- head is in the clouds, symbolizing a heavenly and not an earthly provenance
ground, as if in print. In the context of the image, however, this nomination and function. Justice appears vicariously, for another and greater sovereign,
of the central figure, this motto, itself becomes a figure. The plain typeface extant super terram, beyond all worldly things. As if being on a pedestal, on
and the appearance of print are significant of the new technology and gra- high, were not enough, Justice is also blindfolded, a common symbol for the
phosphere in which law can now be promulgated in the vernacular.14 The period but one that is peculiarly paradoxical in this particular image. ­Justice
typeface ­reflects the theory of literalism, of unadorned letters, and of ver- is gauging the value of two different books but she is not reading them. She
nacular scriptures, inclusive of English laws. At the same time, however, the cannot read them; it is by their weight alone, their gravitas, that we shall
letters, by dint of their position in the image, have become part of the image, know and judge them. That is not only a peculiar way to decide a literary dis-
they have become figures. In filmic terms this is the equivalent of a title pute, but it is also visibly and intentionally paradoxical in that if Justice could
credit, meaning that the letter has been sent; it is now a figure on screen or have looked she would have seen that the scales containing the Decretals are
in image and rather than being simply read, it must now be viewed. The let- filled up with more text and with far more weighty objects than the singular
ters in the image “are complicated and reworked, they are emancipated from and small Holy Book. The papal scale looks much heavier, but, and this is the
the graphic traits that identify them as letters … they are made to be seen, message, appearances can be deceptive. Images are not what they seem. They
they sketch the contours of a motif.”15 In Freudian argot, the titular graphic have no being; they lack substance and so are not to be believed.
designation has become a heavy sign, a condensation indicative of charge The higher power that Justice represents is not impacted by the actual
and reference. No longer a mere word, the inscription of justice becomes weight of the things weighed. The worldly goods and other vanities that the
emblematic and signifies the motif and meaning of the image in its very papists have thrown onto the scales do not have any apparent effect. She can-
appearance, in its letters. It is black on white. Unornamented and plainfaced, not see them, and she cannot feel their weight. By the same token, the finery
not even in bold, the titular figure references a theory of the text as an image- of the garb, the ornate vestments, the mitres and habits, the signs of office
less access, as a royal road, via regia to a truth that cannot be seen. and dignity that the Roman Catholics display will not influence Justice. She
The title word indicates far more than it appears to say. So too, the image cannot see them, she does not care about them. Nor, and this takes closer
is an emblem, as a combination of verbal figure and picture it is a symbol, scrutiny, is Justice affected by the strange and motley animals, the bats, liz-
and so it necessarily shows more than it appears to display. Here we properly ards, and toads that are hanging from the scales, adding their satanic weight.
enter the tradition of muta eloquentia, of visual laws, silent speech, things Sorcery, in other words, as symbolized by the “hubble and bubble, toil and
shown but not said. The allegory, and it should be familiar to a scholarly trouble” that these magical ingredients represent, will not impact judgment.
audience, is of a law that comes down from on high, of a divine legisla- Justice is immune to all extraneous intercessions, temporal and spiritual,
tion, which is represented first in the very different typeface, mimicking venal and magical alike.
scribal calligraphy and the italic of emphasis and holiness, of the lettering The anagogic, which is to say the spiritual level of interpretation of the
of the Holy Book and the Decretals. Roman letters are for Roman truths, and image, has to start from the fact that magical intercessions, miracles, and
remember that God spoke in Latin for centuries after the Reformation. Even mercy are the sole domain of the divinity whom Justice so plainly represents.
It is “He” who can raise the dead and turn water into wine because divinity is
14
I am borrowing the distinction between graphosphere and videosphere, between ­print not physical and has neither being nor body but inhabits rather the invisible
and digital relay, between the physical and the virtual from Régis Debray, Vie et mort de cause of things. The image of Justice is the sovereign’s conduit to human-
l’image: Une histoire du regard en Occident (Paris: Gallimard, 1992) 221–54.
15
Laurence Moinereau, Le générique de film: De la lettre à la figure (Rennes, France: Presses ity and the terrestrial. For the divine itself is an image and expresses itself
Universitaires de Rennes, 2009) at 17. through images, through angels to be precise. There is a political theology to
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Legal Emblems and the Art of ­L aw ­Introductio

the image that restricts the various modes of figurative expression. For the
Roman Catholics, images of the spiritual world, of heavenly things, were
icons and permissible because ordained and interpreted by the priesthood
and its imagistic, which is to say spectral and unwritten traditions. For the
Reformers, the Catholics were deceived by images and indeed worshipped
images. They were by that token idolaters and hence the Reformist restriction
of spiritual imagery to printed images, namely the letters of the Holy Book.
A brief detour is necessary. If the religious image is the exclusive and
authorized domain of faith then what does this tell us about the image of
Justice in Foxe’s emblem? The blindfold on Justice would seem to signify
that it is not for us humans to see. If Justice herself will not look but ­has
bandages over her eyes, then how much more will it be the case that mortals
are neither to look upon nor attend to appearances? The image of Justice
signals: don’t look. It acts as a prohibition. It also marks exclusion, and the
blindfold, as developed later, is an indication that mortals should keep out.
Justice is not a matter for vision through physical, bodily eyes. In that it is a
matter of images, it is something that lies beyond the surfaces and symbols
actually seen. Justice is an image whose meaning is fought out institutionally,
between structural figures, here Reformists and Catholics, as they endeavor
to establish control over the visible order of government and law, the visioc- ­
racy as I coin it.16 That said, the image seemingly excluded from worship and Figure 1.5 Wisdom dominates the stars, from George Wither, A Collection
observance, except in the form of the Scriptures, the impact of images on law of Emblemes, Ancient and Moderne: Quickened with Metricall Illustrations,
and lawgiving is striking. both Morall and Divine: and disposed into Lotteries … (London: Robert Allot,
If Justice is blind, that does not necessarily mean that she cannot see. As 1635) at 31 – sapiens dominatibur astris. (Reproduced with the permission of
I argue later, Justice is more than capable of seeing through a bandage and Rare Books and Manuscripts, Special Collections Library, Pennsylvania State
indeed of seeing without eyes. The delegates can in any event depend upon University Libraries.)
their principal, their sovereign. It is this dependency, this insertion into the
hierarchy of images, into the visiocracy, that will transpire to be the most An emblem from the lawyer George Wither can demonstrate the point.17
lasting effect of the Reformist conception of the image. The blindness of Here we see the sovereign, crowned and with a scepter of office in his left
Justice is emblematic. This means, as in dream interpretation, that we, the hand, standing upon the globe (Figure 1.5). The motto is in Latin and reads,
viewers are also somehow blind. The spiritual meaning of the image becomes translated, that “wisdom rules the stars.” The sovereign indeed stands so tall
much more apparent when we realize that Justice is blindfolded but can still in the image that his right shoulder almost touches the stars, which a group
see metaphorically, weigh and render (daub) judgment. The simple point is of wise men in the background, to the right of the sovereign, are trying to
that the eye of the spirit, the interior eye, has precedence over the exterior, describe and to reach out toward. An astronomer sits and records the stars in
just as, in common law, it is unwritten law – custom and use from time the blank pages of a book, but the sovereign holds in his left hand an empty
immemorial, the law of nature and of God – that has precedence over ratio pad onto which the stars are raining down. Here is light out of light, but, ­as
scripta, written law, namely legislation and its various failing attempts to Wither is at pains to point out, the stars are merely signs of a higher power.
intervene in a law that only the learned can properly apprehend.
17
George Wither, A Collection of Emblemes, Ancient and Moderne: Quickened with Metricall
16
There is also the parallel term iconocracy, which is developed in Marie­-José ­Mondzain, Illustrations, both Morall and Divine: and disposed into Lotteries … (London: Robert Allot,
“Can Images Kill?” 36 Critical Inquiry 20 (2009). 1635) at 31.
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Legal Emblems and the Art of ­L aw ­Introductio

The stars are heavenly bodies and they influence us by their brightness and dignitatum or marks of dignity and office, both military and administrative.19
their motions but like any other image they are but a reference to a further The person was publically an image, and indeed the term persona refers not
and invisible source. This we actually see in its more usual form in the far simply to a theatrical mask but also to an institutional status and role. The
right­-hand background of the emblem, where, shining toward the sovereign’s person is, in the law French of the Anglican tradition, legally parsona, a par-
scepter is the sun, a marker of nature and divinity, though here without any son, the representative of a place and commonality.20 To this must be added
visible sign of the divine printed on its surface, in Hebrew or some other the other early codifications in books on heraldry and armory, of the ­proper
image. The key to the picture, front and center, is thus the eye in the sover- laws of representation of office, identity, profession, and family. These led
eign’s chest. Here is wisdom exemplified and embodied as the very heart of to the systematization of devices, sometimes called impresa, the individual
sovereignty, expressed as an interior eye. The sovereign, like Justice, has no symbols of family lineage and honor. From this grew the emblem tradition,
need of bodily eyes or of exterior vision. What matters is the unwritten law, which shares many of its images with the devices but has its own rules of text
the reason of nature that is carried inside and seen by the eye of the spirit as and image, representation, and interpretation.
it looks in before it emanates outward. Wisdom precedes vision, and knowl- In that the legal emblem tradition is the early modern codification of
edge comes before sight. We have, in short, to learn how to see and make the visual upon which the theory of obiter depicta is predicated, the next sev-
sense of the external world. This is the political theology of the image as we eral chapters take up the specific juridical themes of the emblems, resident
inherit it and manipulate it in law. Vision is mediated and motivated. It is both in law texts and in emblem books. Ranging from obscene cautions to
constructed and constrained and it is to this that the emblem tradition was moralizing and didactic normative images, the visual bases of institutional
directed and toward which I turn in subsequent elaborations. governance are set out and explained in their proper emblematic context
First, the principles of obiter depicta, of learning how to view law as well of origin. We learn the lexicon of the visual by attending to the gallery of
as to read it, are announced and explained. There is a tradition of juristic legal images and the epistemic trajectory that the Cambridge scholar and
vision just as there is a textual tradition and indeed the humanist lawyers Ramist systematizer Philipot so beautifully captured in his genealogy of
were the founders of that tradition of emblems and images in the early mod- heraldry: “The Egyptians folded up their Learning in the dark contexture
ern era. They borrowed from the theologians and were influenced by the of Hieroglyphicks, the Greeks wrap’d up theirs in the gloomy vesture of
religious debates but law had its own contribution to make and this legal Emblems, and the Romans lodg’d it behind the cloudy Traverse of Allegorical
theory of the image, the jurisprudence of vision, is outlined under the rubric Allusions pourtrai’d in those mysterious Signatures that adorn’d the Reverse
of the methodological neologism obiter depicta. The early history of legal of their Coin, either Consular or Imperial.”21 Glory and rank, dignity and
images, the narrative that ends up in the emblem tradition, is next traced honor are lauded and ordered in images and they are to be understood as the
and ordered. Here it is necessary to provide a short history of the early mod- visibility of presence and the mode of publicity, the spectacle of the social as
ern law of images, the ius imaginum as it was received from the classics dur- organized and ordained through law.
ing the Renaissance reception. The first Revolution of the Interpreters that It is against this background that the specific imagery of justice and law
Pierre Legendre has elaborated at length in terms of the twelfth century tex- needs to be reconstructed and viewed as a coherent visual tradition and trans-
tual reception of the two laws, ecclesiastical and civil, needs its supplement mission of legality as and in pictures. Some of the visual archive is relatively
in the reception of the legal art of armory (symbola heroica), the manufac-
ture and circulation of the signs and visual symbols of the classical law of 19
John Selden, Titles of Honor (London: Stansby, ­1614).
place, role, dignity, title, and office.18 Modern lawyers inherit a gallery of 20
Maitland, Selected Essays (Cambridge: Cambridge University Press, 1936) chapters 1
visual figures, as also a structure of sight, and these need to be reconstructed. and 2 is the classic common law discussion of parson and person. Further recent work
The law of images begins with what the antiquarian and radical lawyer John includes Roberto Esposito, Third Person. Politics of Life and Philosophy of the Impersonal
(Cambridge: Polity, 2012); Connal Parsley, “The Mask and Agamben: the Transitional
­Selden termed Titles of Honor, the Renaissance version of the Roman notitia Juridical Technics of Legal Relation,” 14 Law Text Culture 12 (2010); P. Goodrich, “The
Theatre of Emblems: On the Optical Apparatus and the Investiture of Persons,” 8 Law,
Culture and the Humanities 47 (2011).
18
Pierre Legendre, Les Enfants du texte: Étude sur la fonction parentale des États (Paris: ­Fayard, 21
Thomas Philipot M. A., A Brief Historical Discourse of the Original and Growth of ­Heraldry,
1992) at 237 et seq. and partially translated in Goodrich (ed.), Law and the Unconscious: Demonstrating upon what rational Foundations, that Noble and Heroick Science is Established
A Legendre Reader (London: Macmillan, 1995). (London: Tyler and Holt, 1672) 1.
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Legal Emblems and the Art of ­L aw ­Introductio

well known and debated: the blindfold on justice, the judge with amputated
hands, as well as myriad swords, scales, tablets of law, costumes, and rods of
office. Images of sovereignty, from Leviathan floating above the earth to ema-
nations of light from the clouds, lightning and laughter are also reasonably
familiar if not particularly well understood. Other emblematic symbols –
doors, gates, flags, sails, windows, books, masks, clouds, and screens as also
colors, animals, birds, precious metals, and stones – require greater degrees
of explanation. They are hieroglyphs, enigmas of law, esoteric symbols of
erudite meanings. They have to be translated as well as interpreted so as to
reconstruct the visible law as it transmits custom and norm, moral and cau-
tion through visual depictions that accompany but are not reducible to ­their
verbal explanations.
We walk, according to St. Augustine, among images; we walk among
ephemeral visual perceptions, amidst appearances, variable personae, but also
we move because of images. It is the imagination that propels us to action and
there is indeed a sense in which images excite and ignite, generate fear and
hilarity, in ways that prose generally cannot. The image is poetic rather than
prosaic, plural rather than unitary, and it entertains. The growing popularity of
film and law, the increasing use of visual modes of advocacy, the money spent ­
on image management, media filters, and spin all suggest that visual apprehen- Figure 1.6 Inept princes (in principes ineptos), from Joannes de Solorzano
sion is the law to come. The reason is that image and symbol have effects that Pereyra, Emblemata centum, regio politica (1653) at 307. (Reproduced
exceed those of the word, for sure, but it is also that images attract faster and courtesy of the Rare Book Collection, Lillian Goldman Law Library, Yale
influence further than the dead letter of prose. The image is spirit; it animates Law School.)
and personifies in ways that are more effective and less easily controlled than
words. It allows for a final and hopeful preliminary point. The legal emblem
was a humanist invention and it was both normative and humorous, serious The motto translates as “Against Princes who select inept judges” and
and trivial, obvious and unsettling. In combining image and letter, visual and the image shows that most familiar of figures, the law as an ass (Figure 1.6).
verbal, theatre and law, the emblem played with the boundaries of the norm On a platform, center stage, the ass is seated on a throne, a canopy above its
and unsettled the certainty and ease of the inherited acclamatory ceremonies. head, and a row of houses, the many windows of the administration of jus-
It is precisely the emblem that can provide an independent and ungoverned tice in the background. The ass is an emblem for the people gathered in the
picture of the social and legal, of office and rule. That is its most profound foreground, below the pegma or stage, who stare up at this ridiculous figure
potential. The image made manifest in the text of governance is also a quintes- of law, so nobly staged. It is an immediately recognizable figure although it
sential vehicle of satire and critique of law. A final example, an initial envoi into has greater, different, and many more meanings than are currently contem-
the imaginary, can be taken from a humorously critical emblem that can be plated. I will add two connotations from the sources contemporary to the
traced to the Spanish moralizing emblematist Juan de Covarrubias.22 author of this emblem and in excess of a simple viewing of the donkey as ­an
image of the fool.
22
The figure is taken from Joannes de Solorzano Pereyra, Emblemata centum, regio ­politica First, the ass is not so much incompetent as weak willed. The ass, accord-
(1653) at 307. The immediate sources of that image is Andrés Mendes, Príncipe per- ing to the image gallery, the lexicon of symbols that accompanies the emblem
fecto y ministros ajustados, doumentos politicos, y morales (1642) and Juan de Horozco y tradition, is a sign of avarice and of moral indirection. The ass knows better
Covarrubias, Emblemas morales (1589), as recorded in Antonio Bernat Vistarini and
John T. Cull (eds.), Enciclopedia de emblemas Españoles illustrados (Madrid, Spain: Akal, but does worse, according to one motto and in this account, drawing us back
1999) at 110. to the law students’ perception of the importance of decorum and dress, the
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Legal Emblems and the Art of ­L aw

sovereign who chooses inept judges is both making a spectacle of himself and
dishonoring his role, his office and function (dignitas). He is avaricious of the
truth, a miser with the law, a sovereign with short hands or, as depicted here,
with no hands but rather hooves. The second connotation is that in failing to
invest in law, in appointing useless judges, the prince too becomes an ass. You
will be known through your judgments, indeed as in your sentences so are
you judged. The law, according to this emblem, is only as good as its inter-
preters and manipulators. If they lack dignity, if they do not merit honor, if
they have neither decorum nor nuance then the judges cease to deserve elec-
tion to their offices. The inept judge is the delegate, the vicarious, of ­an inept
sovereign and he is one who by this token no longer merits obedience to their
rulings. The humorous and scathing quality of the emblem helps to remind
us that in introducing the visual into the legal, in acknowledging the figura-
tive dimensions of law, the image broadens the scope and bite of jurispru-
dential inquiry. The image offers another relay, a more humanistic reflection,
a chain of didactic and critical viewings, by means of which a long forgotten
or at least legally censured, radical tradition of critical legal apprehension is
opened up. The legal imaginary is replete with symbols of justice and injus-
tice alike, and it is to this visual tier of norm and critique, to this plurality
and potential of the image, that the concept of obiter depicta is directed.

22