Document Type

Article

Publication Date

January 2005

Abstract

What is art? Surprisingly, this question is addressed in various places in the law. At these junctures, courts typically attempt to avoid making a judgment. Indeed, the law generally resists any definition of art. The reasons given for this are that these determinations are too subjective for the courts and that judges lack proper training and expertise. Thus, the doctrine of avoidance is the most stable and explicitly stated proposition to be found in these encounters. However, the question of whether an object is a work of art for treatment under the law is often unavoidable. This question gets resolved in two kinds of cases: (1) when there is an explicit issue of whether the object can be classified as a work of art and (2) when the question of the object's value as art operates below the surface. In both, because judges are admonished never to make aesthetic determinations, they are forced to find other ways of deciding cases. Consequently, these disguised aesthetic judgments play havoc with the doctrines of law. Moreover, this ruse masks unexamined aesthetic determinations and thus biases and predilections. It would be preferable for judges to be explicit and self-conscious about their philosophical bent in making these determinations. The law ought to acknowledge the field of aesthetics and the healthy debate about these questions this literature reveals. This lack of engagement in favor of exercised intuition reveals more about the nature of judging than it does the nature of art.https://papers.ssrn.com/sol3/papers.cfm?abstract_id=923416

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