The Art of Law
It seems a bit strange to me that New York city might turn out to be such a battleground for the arts. I've been there only once, a small town boy in a big time city, but it seems to me the same city that boasts the (nearly) Naked Cowboy busking its busy streets, would find little problem with tucking a naked woman into a gallery front window and calling it art. But under their tough exterior it seems New Yorkers are acutely attuned to what makes—or fails to make—a work of art. Brian Reed's recent art installation, which involves one entirely nude Ms. Megan Hanford, seems to have struck a nerve. The involvement of law enforcement, and the removal of the Ms. Hanford installation to a less visible location, just goes to show how deep the issue has dug into the New York psyche. American's thrive under the powerful first amendment protections of free speech provided by our constitution; however these rights occasionally clash with some of our more conscientious conservative values.
These issues presents a subtle shift away from a careful study of aesthetics toward a view of art as a product of social convention and intellectual investment. This shift in how we conceptualize the philosophy of art, complicates the tension between art and law. While, in the past, many philosophers—Kant specifically—have argued for that which is aesthetically “good” or universal, this position is difficult to establish and maintain. However, Kant rightly argues in his framework for art as a forerunner of morality. If universal aesthetics can be defended, in many ways universal morality is an easy concession. This type of congruent relationship between art and law—with morality forming the foundation of law—in many ways, eliminates the friction between art and law, because it implies a should in both realms. If we can argue that one should find some piece of art attractive, I think it would not be a difficult philosophical leap to also say, that art should be lawful. This stands in contrast to the later theories, such as those of Danto and Dickie, which pitch the definition of art away from aesthetic “shoulds” towards art as intentionally created and empowered by social convention. This definition makes classification of art a bit easier because it divorces art from aesthetics, it does however raise its own issues: if art is socially convened, how should it interact with law?
The Reed exhibit is not the first time the judicial system of New York City has rubbed shoulders with artists. In the 1990's Spencer Tunick began to do photo shoots with nude participants. These sessions sparked several arrests and a protracted legal battle between Tunick and the city of New York. While Tunick eventually won the right to do his shoots—a federal judge granted him 15 minutes to complete his photo op—Tunick acknowledged the implicit issues of such art exhibits. In a comment on the ruling, Tunick pointed to the importance of context and social convention in the use of the nude in art: “This is a victory for the body as an art object, not a sexual object or a recreational object”. The nude in and of itself is nothing new to the art world. Throughout its longstanding tradition there is a theme of using nudes in art, from Leonardo da Vinci's blend of the scientific and artistic in Vitruvian man to the stretching of aesthetics in Les Demoiselles d'Avignon by Pablo Picasso. These pieces, although perhaps controversial at the time, are now deemed classic pieces of art. These types of nudes have in fact, become somewhat of a tradition: either through the Kantian lens of the body as aesthetically beautiful and to be celebrated, or the transformation of the human body through social convention into an acceptable form for art.
Lets return for a moment to the theory of Dickie before a final look at the intersect of art and law and what sort of implications that may carry over into both realms. It is important to note that as far as art philosophy goes Danto is in many ways the intellectual forerunner of Dickie's philosophy: their philosophies are similar and complimentary. It was Danto who laid the foundation of art as institutional rather than purely aesthetic which laid the groundwork for Dickie's more explicit exposition of the art world. Dickie submitted three pieces of the functional art world: the institution, conferring of status for candidacy for appreciation, and appreciation. It is through this process that people within the art world (or the institution of art) create pieces of work which submit (confer status) to the rest of the art world as candidates for appreciation. Whether or not a work is appreciated doesn't drive this theory of art, rather it is social convention which describes art.
One of the lawyers who represented New York in the legal quandary surrounding Tunick's nude shoots, emphasized the crux of the issue: people cannot choose on first glance not to participate in this art—it is openly displayed in the public sphere. I think in some respects the criticisms of the art world can be useful in deciding this conflict—in the past they have come down hard on things they view as pornographic rather than artistic. This is perhaps the most important piece of figuring out the intersect between law and art: what is socially accepted as not risque but rather artistic? Reed's window display crosses a line, because it fails to take into account deep set cultural lines about modesty and public decency: while there is a definite defense of first amendment rights to free speech and a precedent of using nudes artistically in history, neither of these are adequate to justify such a display. In the same way that hate speech is not necessarily protected under protection of free speech, the free display of nudity (as evidenced by many indecent exposure laws) is too close to that occasionally blurred line between Avant-garde art and uncouth displays. While the art world and art critics can help us determine where that line falls, it is ultimately the judicial system which dictates how that line meshes with the public sphere. The sphere of art seems to usually rally at the edge of what we find acceptable, and I don't begrudge that, however, until the rest of us catch up—I argue for the protection of the rights of the viewers, rather than the artists.
By Liam Corcoran
Expected graduation date: May, 2011
Hometown: Pullman, WA
I really enjoyed writing for this class, and this was probably the paper which I most enjoyed working with. It was fun to integrate a variety of perspectives and theorize on what each of them would have to say on how law and art should interact.