In defence of art criminals

Henry Meyric Hughes doubts if the law can define artistic shock.

Anthony Julius is a prominent lawyer who achieved a certain notoriety but also a wide measure of critical acclaim for his controversial study, T. S. Eliot, anti-Semitism and Literary Form . In his latest book, Transgressions, he sets out to explore what he terms the "offences of art" from a legal and moral, but also a social and aesthetic, point of view. Appropriately enough, the idea for this work was triggered by his own perplexed response to the Royal Academy's "Sensation" exhibition in 1997 and a couple of pieces he was commissioned to write around that time: an article on censorship of the arts during the 1980s for the New Statesman and a paper on "art crimes" for a gathering of lawyers, in which he developed his notion of artistic "transgression" within a wider historical (and legal) context.

Julius asks whether modern art still has the power to shock us, whether it serves, in the process, to enlarge our imaginative horizon or merely to diminish our sense of humanity, and whether artists who use shock tactics to engage our attention are not merely submitting to a law of diminishing returns.

With his legally trained mind, Julius quickly sets about describing the framework for his investigations and defining his terms of reference. The word transgression, he informs us, entered the English language in the 16th century, when it had strong scriptural and legal associations, but went on to acquire all manner of moral, geographical, social and institutional connotations. Taking his lesson from St Paul - "Where no law is, there is no transgression" (Romans 4:15) - Julius goes on to propose that there are four essential categories of meaning to the term, which are closely interrelated to the point of occasional interchangeability: the denial of doctrinal truths, rule breaking (including the violation of principles or conventions), the giving of serious offence and the exceeding, erasure or disordering of physical or conceptual boundaries. There are even, he suggests, "social practices that are multiply transgressive, art-making chiefly among them". And he goes on virtually to equate modern art with transgression, in distinctly 19th-century terms that pit a progressive avant-garde against the conservative academy and the refusés against the salon , with a confidence that makes scant allowance for shifts between the two.

In defence of the four types of transgression just identified, Julius postulates four kinds of legitimation, which may be used in isolation or, more frequently, in combination with each other: first, the "aesthetic alibi", to justify art as a privileged zone and the artist's freedom from normal social and legal constraints ("art for art's sake"); second, the "estrangement defence", whereby art first alienates us from the world and then restores us to it with an enlarged sense of its significance; third, the formalist defence, such as Zola deployed for his friend, the painter Manet, whom he praised - despite the provocative nature of his subjects - for treating figure painting "as only still lifes are allowed in art schools to be treated"; and, finally, the "canonic defence", exemplified by Willem de Kooning's remark to the critic Harold Rosenberg that "it is so satisfying to do something that has been done for 30,000 years the world over" and used to defend an obviously "scandalous" work, such as Tracey Emin's My Bed (1998), through reference to art-historical precedent, in this case Robert Rauschenberg's Bed (1955). As Julius shows, all four arguments were deployed, with varying success, in defence before the US Senate of Andres Serrano's Piss Christ (1987), which was multiply transgressive, through its indifference to social and religious taboos (human waste defiling the sanctity of the crucifixion), its supposedly cathartic effect on the viewer (aesthetic pleasure, followed by guilt and disgust and succeeded, in turn, by a form of heightened awareness); its "formally pleasing", though "edgy" qualities; and its powerful iconoclastic impact, within the tradition of (Catholic) religious iconography.

In line with Michel Foucault and others, Julius treats Manet as "the first transgressive artist of the modern period" and quotes approvingly the comments of the theorists of Cubism, Albert Gleizes and Jean Metzinger: "We love Manet for having transgressed the decayed rules of composition." From here, he proceeds to a detailed investigation of the ways in which critics (starting with Zola) have explained and justified the principle of transgression as a redemptive force, to the point where in current parlance, "to describe an artwork as 'transgressive' is to offer it a compliment".

But what of Julius's conclusion, that most transgressive art ends up neglected, destroyed or - like Manet's - stranded in a museum and abstracted from all contexts, "inviting only the purest, most disengaged of gazes from its passing audience"? In common with critics such as Arthur Danto, whose "end of art" thesis he espouses, and Donald Kuspit, who has argued that all boundaries have now been erased, Julius concludes that the burden on artists to conform to a master narrative has been lifted, and the "'art' is no more than a composite of individual styles". The pessimism of this conclusion (though Danto sees it as a release) is mitigated, to an extent, only by the strategies through which he imagines the creative artist may seek to overcome ("transgress") the limits of the end game in which he is trapped.

We are "invited to contemplate the vertiginous thought that the exceeding of boundaries itself represents a notional boundary to be exceeded. Conformism becomes deviance, and religious devotion a Dadaist gesture in the face of quotidian sacrilege" - early examples being Salvador Dalí's regressive manner of painting and Anselm Kiefer's photographic series, Occupations (1969), which were a violation of the postwar taboo on themes that had been tainted with Nazi associations. In contrast to the shock art of the generation featured in "Sensation", Julius points to the existence of a reflexive and more self-effacing art, exemplified by the commemorative works of Hans Haacke and Jochen Gerz and Esther Shalev-Gerz in the 1980s and the tentative emergence of a "non-transgressive aesthetic" in the past ten years, for which, however, he fails to provide convincing examples. Finally, he suggests that the boldest gesture of all for the contemporary transgressive artist is to appropriate the "end of art" thesis as his own and declare a moratorium on the art of the past, with the implication that amnesia becomes a new condition of creation. Certainly, the flattening of historical perspective and the collapse of geographical, social and cultural boundaries in the past decade have offered many possibilities for new forms of artistic activity, but Julius does not elect to go into their implications for the future of the museum. Instead, we are treated to a somewhat inconsequential "coda" on Theodor Adorno's romantic epigram, that "every work of art is an uncommitted crime", which serves as a pretext for some discursive reflections on the ability of the transgressive artist, obeying only the laws of his imagination, to elude the confines of conventional morality and conquer the freedom to "uncommit" (Julius's word) the "crimes" of everyday life.

Julius is at his best when developing his argumentative skills as a lawyer and amateur philosopher. When it comes to wider issues of the artistic imagination, one doubts whether he brings the right tools to the task. The language he employs is that of the courtroom, and the occasional epigrammatic quips ("art exasperates law; law oppresses art"; "not every state is oppressive, and not every subversion is liberating") are poor compensation for the rather tiresome taxonomies of artistic behaviour and human response. What starts out as an interesting disquisition on the notion of transgression in art ends up as a critique of modern art as a whole - specifically of western art since the impressionists, and its discontents. By his own admission, the works he finds most disturbing are those that "deny us the means by which we might frame our objections in purely moral and legal terms". This means that he has considerable difficulty with much work of the past decade, which bears renewed signs of surrealist influence and is "not assimilable to principles of morality or law" - works such as Thomas Grunfeld's Misfit (Cow) (1997) or Paul McCarthy's Spaghetti Man (1993), which "disturb the tacit relationship between taboos, legal rules and moral principles", "address pain, death and dismemberment from a detached, speculative perspective" and "bring together elements that should remain apart, in their hybridity refusing what might be termed the ordinary integrity of things".

In this respect, Julius's remarks on Goya as a didact and child of the Enlightenment are revealing, as is the contrast that he draws between Goya's work and that of his "transgressive" emulators, Jake and Dinos Chapman. In Goya, he sees the ability to peer fearlessly into the abyss of human degradation and to return to humanity with a message and a warning, "to banish harmful beliefs commonly held... and to perpetuate the solid testimony of truth". In the work of the Chapmans, he finds no liberation from superstition, no release from fear and no possibility of redemption from the unspecific horrors of the Peninsular wars, world war and the Holocaust combined - this last representing for Julius one of those taboos that remains permanently beyond the reach of would-be transgressors.

This book contains a wealth of interesting material, many valuable insights and occasional flashes of brilliance; but it is based on a limited interpretation of the modernist canon. Why is there no discussion of the influence of German idealist philosophy, for instance, or of notions of exoticism and the "primitive"? And why no examination of the true genesis of the avant-garde in the run-up to Manet, from Jacques-Louis David through Delacroix to Courbet, whose L'Origine du Monde (nowhere alluded to here) is arguably the most scandalous painting of the 19th century? There is something arbitrary about Julius's choice of examples from the 20th century, too, as if art continued unbidden to support the traditional narrative structures of a previous era, instead of responding to a new sensibility and a new range of imaginative and expressive possibilities. Ultimately, we are left hungry for a deeper understanding of the creative process and for an answer to the question posed by the Italian artist, Giulio Paolini, as to how a work of art can "survive, evoke the scandal of its own existence".

Henry Meyric Hughes was director of the Hayward Gallery.