Aesthetic Judgment in Law

87 Pages Posted: 25 Oct 2017 Last revised: 19 Dec 2017

See all articles by Brian Soucek

Brian Soucek

University of California, Davis - School of Law

Date Written: November 14, 2017

Abstract

Almost no one thinks the government should decide what counts as art or what has aesthetic value. But the government often does so, and often, it should. State actors — from judges and legislators down to customs officials and members of local zoning boards — make aesthetic judgments every day, in areas ranging from tax and tariff law to obscenity and public-funding decisions, from historic preservation and land-use regulations to copyright, trademark, and patent law.

This Article details the breadth and surprising philosophical depth of the law’s engagement with aesthetic questions. And bucking conventional wisdom, it argues that in many areas of law, government should define artistic categories and promote aesthetic values. The usual reasons for treating aesthetic judgment as what Justice Holmes famously called a “dangerous undertaking” turn out to be bad ones. Arguments based on the expertise of judges or the subjectivity of aesthetic judgment are not just unconvincing, they are in tension with one another. And the one persuasive argument — derived from the First Amendment’s prohibition on government-imposed orthodoxies — applies only as far as the First Amendment itself does. This Article offers a framework for deciding when the First Amendment limits aesthetic judgment in law. And in doing so, it also identifies appropriate sites of aesthetic judgment — places where we need more open debate about the substantive aesthetic values we want the law to endorse.

Keywords: Aesthetics, Art, Tax Law, Tariff Law, Land Use Law, Zoning, Historic Preservation, Intellectual Property, Copyright, Obscenity, Public Funding, First Amendment, National Endowment for the Arts, Aesthetic Nondiscrimination

Suggested Citation

Soucek, Brian, Aesthetic Judgment in Law (November 14, 2017). 69 Alabama Law Review 381 (2017). Available at SSRN: https://ssrn.com/abstract=3057775

Brian Soucek (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Dr
Davis, CA CA 95616
United States

HOME PAGE: http://law.ucdavis.edu/faculty/soucek

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