Art, Pornography and Foucauldian Reconstruction of Comparative Law
Maastricht Journal of European and Comparative Law, Vol. 17, No. 3, pp. 252-280, 2010
29 Pages Posted: 19 Dec 2010 Last revised: 11 Oct 2016
Date Written: December 16, 2010
A versão em português deste artigo pode ser encontrada em: http://ssrn.com/abstract=2305139.
Polska wersja tego artykułu jest dostępna na: http://ssrn.com/abstract=2773240. The article inquires into a delicate and often prudish legal problem of erotic art in the paradigmatic dynamics of national law on obscenity and an ever-growing body of international law of cultural heritage. Pornography is a popular legal construction in distinguishing ‘high art’ from cultural practices, allegedly deprived of artistic value. Yet since when do we know what is the obscene or the pornographic and why do we outlaw certain narratives and visualizations from the realm of freedom of expression? This question remains ultimately vague in national law (predominantly embraced under the heading of boni mores, or ‘public morality’) and even more scattered in contemporary international law. The latter seems to silence somewhat uncomfortable and outdated developments on pornography of the early 20th century. Consequently, this piece is an attempt to trace the genesis and evolution of the legal interpretation of art in the dichotomy of freedom of expression and pornography.
Keywords: freedom of expression, art, obscenity, pornography, postmodernism, bonnes mœurs
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