Banksy and Binnie

On Friday, October 5, a work entitled “Girl With Balloon” – spray-painted by the artist Banksy on canvass – was sold for 1 million pounds at a London auction.

Then the painting was shredded.

Observers at the auction watched as the painting suddenly started descending through its frame, exiting the lower portion having been cut into pieces. It was later revealed that Banksy had hidden a shredder inside the frame years earlier, anticipating the auction of the painting and planning to destroy it.

Banksy posted a video of the incident on Instagram shortly afterwards, with the comment: “The urge to destroy is also a creative urge”, citing Picasso.

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Critical Legal Studies emerged as a movement of legal theory in the 1970s. One of principles associated with the CLS movement is the notion that law is indeterminate: that legal authorities do not themselves determine the outcomes of legal disputes.

This thesis can be either outrageous or blandly obvious, depending on one’s perspective. It is certainly outrageous in that it challenges the very legitimacy of our justice system. If a clear statute is not enough to provide a definite outcome in a well-defined circumstance, then what does that say about the certainty and predictability of our legal system? The situation is made far worse if the indeterminacy of legal outcomes can be linked to bias and power structures inherent in the legal system.

But the thesis is also blandly obvious, as the very existence of lawyers attests. Indeed, if the application of the law was so simple and clean in all cases, there would be no need for a profession dedicated to it.

In my view, a certain amount of indeterminacy in the legal system is undeniable. Legal professionals – and also social scientists and researchers – need to be on guard to ensure that elements of indeterminacy are not based in systemic bias. But even absent bias, indeterminacy will remain.

Legal indeterminacy exists in no small part because factual indeterminacy exists. It’s not just courtrooms that are gray; the world is gray. Ambiguities pervade. People’s motivations are unclear – even to themselves. And even if we can agree that objective facts exist, they are necessarily skewed when reported, as memories are manipulated by time and sentiment.

Ambiguity is an uneasy state of affairs for a justice system. We have all kinds of mechanisms in place to eliminate ambiguity. For instance, in civil cases, being 51% sure about a fact translates into a 100% legal outcome.[1] Accordingly, when faced with a $100,000 claim, a judge who is 51% sure the plaintiff is telling the truth will award the plaintiff $100,000, not $51,000. Even if a judge is completely unsure about the truth of a fact, that uncertainty will trigger a presumption that then translates into a 100% legal outcome.[2]

This is why lawyers spend so much time and attention working on the “theory of the case” – the narrative that they believe will be at least 51% convincing to the trial judge. Because the world is gray, cases are inherently (or, at least, usually) gray too. And that’s where framing comes in.

In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, the Supreme Court had the opportunity to look the issue of framing in the legal profession. In that case, the Court was seized with a jurisdictional question: Can a party forego the judicial review of a decision within the jurisdiction of one court, and simply bring an action in damages based on the consequences of that decision in another court?

In a section of the judgment entitled The Concern About “Artful Pleading”, Justice Binnie addressed the idea that a skilful lawyer could manipulate the substantive debate before the court in order to achieve a desired jurisdictional outcome. He wrote:

[75]  The Crown contends that TeleZone’s argument would risk putting judicial review of federal decision makers back in the provincial superior courts dressed up as damages claims.  On this view the “artful pleader” will forum-shop by the way the case is framed.  Of course, “artful pleaders” exist and they will formulate a claim in a way that best suits their clients’ interests.  However, no amount of artful pleading in a damages case will succeed in setting aside the order said to have harmed the claimant or enjoin its enforcement.  Such relief is not available in the provincial superior court.  The claimant must, as here, be content to take its money (if successful) and walk away leaving the order standing.

In Justice Binnie’s view, “framing” can only go so far. “Of course”, as he puts it, lawyers will work hard to put their clients’ claims in the best possible light. But they cannot change the facts, they cannot change the law, and they cannot hide the remedy they are seeking. In other words, lawyers can and will use their skills to maximize their clients’ chances of success within the gray zone, but that gray zone is still located inside a defined structure. It is not a free-for-all.

Thus, indeterminacy exists, but it exists within a predictable world with known rules. Framing can only get you so far.

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Seen through Justice Binnie’s lens, Banksy did not destroy anything.

This is important because artists do not have the right to destroy works of art that they have created once their works have been rightfully sold. While artists retain moral rights in their art,[3] it would be difficult to argue that such rights extend so far as to deprive purchasers of what they bought. So if Banksy really did destroy “Girl With Balloon”, he could very well be liable towards the purchaser.

Here is how the New York Times further reported the incident:

The ever-elusive, ever-inventive Banksy has once again made a fool of the art world, and captivated millions. But has the joke itself slightly self-destructed? Banksy’s remotely shredded “Girl With Balloon” was meant to poke fun at the excesses of the auction market. Yet thanks to the huge amount of publicity generated by this ingenious prank, his prices look set to soar even higher.

“It was a brilliant PR stunt,” said Offer Waterman, a dealer in 20th-century British art, who attended Sotheby’s Friday night contemporary art auction but left before the sale of the Banksy. “It’s going to elevate his prices.”

Mr. Waterman is among those who think the Banksy sold at Sotheby’s has increased in value post-shredding. “It’s become worth more as a conceptual moment than as a work of art itself,” said Mr. Waterman […]

Adopting the view cited to Waterman in this passage, the shredding was “a brilliant PR stunt”; it was “a conceptual moment” that was notionally distinct from the “work of art itself.”

I would suggest the shredding was not secondary to the “work of art” or just a “PR stunt” – it was an integral part of the artwork as it was always conceived by the artist.

“Girl With Balloon” always came with the frame. The auction house apparently asked if it could be removed:

In an interview with The Art Newspaper published on Wednesday, [Alex Branczik, Sotheby’s head of contemporary art in Europe] said that Sotheby’s had asked Pest Control, Banksy’s official authentication body, if the gaudy frame could be removed before the auction.

“Pest Control said very clearly: The frame is integral to the artwork,” Mr. Branczik said.

Accordingly, for “Girl With Balloon”, the frame wasn’t just part of the framing. It wasn’t just a way of presenting a painting on canvass to the world. It was a substantive part of what “Girl With Balloon” always was.

Only when the shredding began did the artwork become fully actualized.

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Both law and art are engaged in the search for truth.

They may use different means to get there, and they may serve vastly different purposes in our society, but they are both very much about truth. And on this, Banksy and Binnie agree: truth goes deeper than a question of framing.

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[1] Art. 2804 C.C.Q.
[2] Art. 2803 C.C.Q.
[3] See Copyright Act, RSC 1985, c. C-42, s. 28.2.