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Law and the Faculty of Judgement

Beauty and the Behest: Distinguishing Legal Judgment and Aesthetic Judgment in the Context of 21st Century Street Art and Graffiti

Andrea Baldini
p. 91-106

Abstract

Street art and graffiti are on the rise and their problematic relationship with the law is becoming an increasingly pressing issue. This paper considers a series of high profile street art controversies involving famous street artists Banksy and Alice Pasquini as cases studies for illuminating such a relationship. First, by discussing the “Banksy’s Law” – a “law” protecting street artworks in the style of Banksy while condemning graffiti – and its perceived arbitrariness, I investigate what I call the structural differences between aesthetic and legal judgments. While not denying some continuity in reasoning about the law and the arts, I argue that legal judgments possess a degree of formality that cannot be found in their aesthetic counterpart. Second, in expanding my discussion, I also maintain that aesthetic considerations should not function as overriding reasons in legal determinations. By being illegal, many street artworks and graffiti acquire subversive power. If deprived of the possibility of challenging the law because of their aesthetic value, these art forms would lose much of their political value. And, more generally, a world where artworks cannot challenge the law is a world where the arts are rather superficial forms of entertainment.

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1. Introduction

  • 1 Kant 1902: para. A81/B106)
  • 2 For an in-depth study on this aspect of Kant’s view, see Longuenesse 1998. See also Allison 2001: c (...)

1One of the most peculiar features of Kant’s theory of judgment is that it takes humans’ innate capacity of judging as the central cognitive faculty of the rational mind. For Kant, in effect, the power of judgment – as he calls one’s ability of generating judgments – is the same as the faculty of thinking1. Such a capacity constitutes the core of our conscious mental life by providing an ordered synthesis of the manifold of sensations that we perceive. In Kant’s philosophical system, one exercises the power of judgment across the spectrum of the various activities that the mind carries out, both in the theoretical and the practical domain2. In this sense, such a faculty plays a key role as a unifying principle of our cognizing abilities. Whether we are pondering moral questions or investigating theoretical issues, for Kant, we are still exercising our faculty to judge.

  • 3 Sommer 2014.
  • 4 Sommer 2014: 85

2As Doris Sommer argues, an important trajectory of heterogeneous thinkers interested in aesthetics such as Hanna Arendt, Stanley Cavell, Jürgen Habermas, and Friedrich Schiller draws on Kant’s understanding of the faculty of judgment in justifying the arts’ social value3. If the same faculty of judgment is at play in all cognitions, those thinkers believe, a training of the aesthetic judgment can also improve one’s capacity to think in other domains, including the political, the moral, the theoretical, and the legal one. Since the arts provide us with a relatively safe, convenient, and enjoyable setting to train our judgment, then «the best way to develop it», Sommer adds (perhaps a bit emphatically), is «through aesthetics»4.

  • 5 Douzinas, McVeigh and Warrington 1992; Edlin 2010; Meyer 1999.
  • 6 Craig 2014; Gorman 2001; Walker and Depoorter 2015.

3Within legal studies, meanwhile, scholars have specifically addressed the similarities and connections between aesthetic and legal judgment. Some such as Costas Douzinas, Shaun McVeigh, Ronnie Warrington, Douglas Edlin, and Linda Meyer have explored what one might call the structural similarity of legal and aesthetic judgment, that is, their being alike in terms of the criteria, principles, and procedures that one follows in generating and warranting either one of them5. Others such as Carys Craig, Robert Gorman, and Robert Walker and Ben Depoorter have discussed the legal import of aesthetic considerations, that is, whether and eventually how aesthetic judgments should inform legal determinations6.

4However, these works have overlooked the important differences distinguishing aesthetic and legal judgment. Without denying some continuity between judging in the aesthetic and in the legal domain, there are important asymmetries separating those two cognitive undertakings. By introducing a more fine-tuned distinction between legal and aesthetic judgment, as we shall see, one can obtain three positive outcomes: (i) a better understanding of the nature of both legal and aesthetic judgments; (ii) an impediment from arbitrary applications of legal norms and rules; and (iii) an analysis of the interaction between the legal and the aesthetic which can inform our legal systems.

5This papers aims at more fully specifying largely neglected differences between aesthetic and legal judgment. In particular, I argue for the two following claims. First, legal and aesthetic judgments are structurally different. Second, in order to preserve arts’ political value, aesthetic considerations should not function as overriding reasons in legal determinations.

6In order to better clarify my view and to connect my discussion with actual artistic practices, I focus on some recent controversies of street art involving two prominent figures: Banksy and Alice Pasquini. For my purpose here, that is, to clarify the differences between aesthetic and legal judgment, street art and graffiti offer us very instructive cases for their constitutive problematic relationship with the law and their essential political significance. Of course, the specific focus of my argument does not prevent it from having broader application. Section 2 discusses the structural differences between legal and aesthetic judgments. In section 3, I argue for the claim that aesthetic considerations cannot serve as overriding reasons in legal judgments.

2. Judges, norms, and the arbitrariness of Banksy’s “Law”

  • 7 CosmicdaisyUK 2012. See also Walker 2014.

7Jane Peterson’s documentary Graffiti Wars – which aired on Channel 4 – mainly portrays the feud between Banksy, the famous street artist from Bristol, and the late King Robbo, a legendary graffiti writer from the 1980s London underground scene7. According to the documentary, the spray-can battle between Banksy and Robbo started after Banksy defaced one of Robbo’s iconic pieces. Robbo painted that mural, carrying the lettering “Robbo Inc.”, in 1985. He did it on a wall next to Regent’s Canal, beneath the London Transport Police headquarters. Banksy’s act of disrespect brought Robbo out of retirement. The battle consisted in a series of overpaintings, where each one would deface the work of the other. A group of Robbo’s sympathizers (the so-called “Team Robbo”) joined the ranks of the London graffiti writer, buffing many of Banksy’s works.

  • 8 CosmicdaisyUK 2012.
  • 9 Of course, popularity may very well be relevant.

8In Peterson’s documentary, however, another “war” is also briefly addressed: the war between the law and graffiti. By watching the documentary, one can learn about what I shall call the Banksy’s “law” (BL). Though not a positive norm, BL nonetheless informs and guides the daily routine of London’s anti-graffiti squads. While intransigent with graffiti and their creators, these squads are much more tolerant with works of street art in the style of Banksy. In talking about BL, street artist Ben Heine summarizes it as follows: “Clean it off, and if it’s a Banksy, leave it”8.The justification for such a disparity of treatment – as Kenny Wilks, Head of the Street Environmental Services, tells us in the documentary – has to do with the perceived aesthetic value of Banksy’s works and, more generally, street art influenced by his style9.

  • 10 Young 2014: 103.

9In many places other than London, authorities seem to be treating differently street art à la Banksy and graffiti. Allison Young reports that, when interviewed, many street artist and graffiti writers testify for this asymmetry of treatment. In talking with artists from New York, Berlin, and Rome, “a recurrent theme”, Young writes, “was that police also appear to maintain a firm distinction between graffiti and street art, with the former provoking a more punitive response than the latter”10. In this sense, BL – or something like it – seems to operate across multiple contexts, if not globally.

  • 11 It is generally agreed that a piece is a graffiti painted in at least three colors. For a useful gr (...)

10In a revelatory sequence of Graffiti Wars, the director points the finger in what appears as a procedural paradox following from BL: treating in opposite ways two similar styles of urban creativity equally violating laws about uses of public surfaces. The scene depicts Martin and Darren, two members of the London Graffiti Removal Squad, in the act of removing an example of graffiti, that is, a “piece”11. Right above it, the camera spots a mural in a representational style echoing Banksy’s famous stencils. The squad is ignoring it. When asked why, the two workers mention the policy which I have called BL. At the same time, not surprisingly, they show their doubts about such a directive, which they seem to deem as arbitrary. «To me», Darren says, «personally, you should remove everything». And, arguably, many would find his position reasonable.

  • 12 Margolis 2004: 49.

11The arbitrariness of BL is primarily (perhaps not exclusively) a consequence of what I call the structural differences between aesthetic and legal judgments. Broadly speaking, such differences can be summarized in the following claim: legal judgements possess a degree of formality that is absent in their aesthetic counterparts. As prominent pragmatist philosopher Joseph Margolis argues in his discussion of the legal and the moral, in effect, «legal questions concern formal findings of responsibility or liability or guilt with regard to normatively freighted charges drawn up in advance», and «there is nothing in any “merely” moral or political dispute that compares with this kind of formality»12. When considering legal and aesthetic judgments, one can say something analogous: there is also an important difference in the degree of formalization that one can respectively find in legal and aesthetic judgements.

12One can clarify the differences in the level of formality of legal and aesthetic judgment by considering the two following interrelated points: in the aesthetic domain, there are no recognized judges and we cannot find laws in a proper sense. In the remainder of this section, I consider those two claims in the light of my discussion of the structural differences of legal and aesthetic judgment.

  • 13 For an informative recent discussion of aesthetic experts see Lopes 2015. Lopes’s argument is sympa (...)

13First, when I say that – pace Hume – in the domain of aesthetic we do not find a suitable counterpart to the figure of the law judge, I am not denying the existence of experts in aesthetic or artistic matters: among others, art critics, art historians, philosophers of art, and curators generally qualify as aesthetic experts13. However, thinking that these experts play a role equivalent to that of legal judges is definitely an inaccurate – and misleading – overstatement. When comparing the activity of judges of art or law, one is merely drawing a loose analogy. If taken too seriously, such a comparison would obscure rather than clarifying the respective nature of both varieties of judgment.

  • 14 Lopes 2015: 326.

14A significant asymmetry separating the legal from the aesthetic domain has to do with the absence of procedures in selecting aesthetic experts. Though education surely enhances one’s aesthetic expertise, a degree in a relevant field is by no means a necessary or sufficient condition for being an aesthetic expert. As Dominic McIver Lopes underlines, «a fair sample draws aesthetic experts from many walks of life»14: we can find aesthetic experts not only among art professionals, but also among chefs, tailors, barbers, and so on. On the contrary, in modern legal systems, judges are professionalized figures. They undergo specialized forms of training and they obtain their professional qualification through a series of standardized examinations. In general, formalized procedures of selection guarantee the competence and aptness of law judges. On the contrary, we have no formalized criteria for evaluating aesthetic competence.

  • 15 Mothersill 2000: 251.

15In effect, every theory arguing for a significant parallel between aesthetic and legal judgement on the ground of the (apparent) similarity of law judges to aesthetic expert, needs to face, as Mary Mothersill puts is, «the question that troubled (or should have troubled) Hume, namely “By what marks do you recognize [aesthetic], the ‘true [aesthetic] judges’’’?»15. And when looking at the case of the London Graffiti Squad Removal mentioned in above, this problem clearly appears in its full import. It is controversial who should decide, among the many questions that BL raises, whether street art is more valuable than graffiti. In effect, one of the reasons why BL appears arbitrary lies exactly in the contested nature of expert selection in aesthetic matters. That Kenny Wilks, Head of the Street Environmental Services, serves as the aesthetic expert in border-line cases of street art – as the documentary tells us – clearly shows the problematic nature of procedures of expert selection in the arts.

  • 16 Edlin 2010: 432.
  • 17 Edlin 2010: 432.

16Setting aside procedures of selection, there is a deeper point that one can make in distinguishing between judges and aesthetic experts, which directly connects with my second consideration. It illuminates more explicitly in what capacity judges and aesthetic experts (or every appreciator of art, for what matters) formulate their judgments. Let me clarify this point by considering Douglas Edlin’s discussion of the similarities between aesthetic and legal judgment. Working within the Kantian tradition, Edlin suggests that the aesthetic judgment is autonomous and subjective. That is, when a person is «adjudging an artistic object», no one else «decides for her and no one else can tell her how she should feel about or react to a work of art»16. Analogously, Edlin suggests, «judges … reach legal determinations by their own lights and in the absence of external pressures or precommitments»17.

17Here, the exact sense in which Edlin uses «external pressures or precommitments» is crucial. If one understands external pressures and precommitments as acts of intimidation directed against the judge and various forms of bias, then one can agree with Edlin. However, there is an obvious sense in which judges’ formulation of legal determinations is influenced at least by a precommitment, that is, the precommitment to the law. In effect, legal deliberations aim at reaching determinate conclusions that appear warranted or valid according to an antecedent canon of laws.

18However, aesthetic experts – or, more generally, individuals appreciating art – do not formulate judgments according to a preexisting and well defined body of norms and rules. Richard Wollheim makes this point explicit when stressing the freedom that is at the core of the interpretation of art:

  • 18 Wollheim 1980: 139. Emphasis added. Mothersill 1984 provides the most recent detailed discussion of (...)

we need to realize that, at any rate over a great deal of art, the artist is characteristically operating at the intersection of more than one intention. It would therefore be quite alien to his purposes if there were rules in art that could be unambiguously correlated with a “meaning”…18.

19Whereas law judges with their verdicts determine the legal significance of an action in terms of an existing body of laws, aesthetic experts cannot reach conclusions about the “meaning” – or value – of an artwork in a similar way. For this reason, legal judgments depend on application of pre-existing norms in ways which importantly differ from what happens when one tries to determine the aesthetic or artistic value of an artifact. When judging the aesthetic, we operate in the absence of specific laws.

  • 19 In this sense, I accept some of the difficulties in the formulation of legal judgments discussed in (...)
  • 20 Mothersill 1989: 79.
  • 21 This is what Mary Mothersill calls the First Thesis. See Mothersill 1984.

20Let me hasten to say that I am not claiming that applications of laws to concrete cases do not raise interpretative problems. Of course, there is no algorithm that can determine the application of non-innocuous legal predicates to actions19. However, as Mary Mothersill points out, «Where there are formal definitions – [as in] parts of the law – there are criteria for the application of predicates»20. In aesthetics, there are no such criteria. Put more technically, one cannot provide a rule for applying aesthetic predicates such as «beautiful» to non-aesthetic features21. On the contrary, legal norms provide judges – at least in a large number of cases and to a significant degree – with rules for applying legal predicates to actions.

  • 22 Summers 1992; 1996.

21Let us consider the following norm: “No writing on the wall”. This norm is formal in a standard legal sense: it is appropriately complete, definitive, and general22. It provides us with a clear criterion for applying pro tanto legal predicates such as “vandalic”, “unlawful”, and “unauthorized” to particular actions and their outcomes either violating or complying with this norm. For this reason, put in front of a wall which has been painted, even individuals who are not experts in legal matters like Martin and Darren – the two members of the London Graffiti Removal Squad interviewed in Graffiti Wars – can easily identify what stands in front of them: both the graffiti and the mural à la Banksy qualify as pro tanto forms of vandalism.

  • 23 Mothersill 1984: 102 and ff.
  • 24 CosmicdaisyUK 2012.

22On the contrary, one cannot find a similarly complete, definitive, and general norm that could show Martin and Darren (or a law judge) how to apply an aesthetic predicate such as “beautiful” to an artifact. For instance, by adapting one of Mothersill’s famous examples23 – in spite of what BL and Wilks maintain – to say that an artwork is by Banksy does not tell us much about its being beautiful or aesthetically valuable. And for this reason, I suspect, Darren says in front of the camera: “It is hard to decide for what is art and what is vandalism”24. In effect, judging whether or not an act is pro tanto vandalic is rather straightforward. But determining the aesthetic value of an artifact is a much muddier and controversial undertaking. This significant difference appears as one of the main reasons why BL appears arbitrary: it does not provide us with formal criteria for applying in warranted way a relevant predicate, that is, “beautiful”.

  • 25 Young 2014: chap. 5.

23Before concluding this section, let me add a qualification. My aim is not to discourage any interaction between the legal and the aesthetic. In effect, I very much agree with Alisson Young’s call to a legal reform capable of addressing the issues raised by new artistic practices in the public domain such as street art and graffiti25. What I am suggesting can be summarized as follows: when rethinking the legal aspects related to street art’s and graffiti’s uses of public space, legislators should take seriously the structural differences separating aesthetic and legal judgment. By keeping those differences in mind, it is possible to counteract or limit, among other things, the arbitrariness afflicting uncritically conceived policies and regulations.

3. Beauty, Politics, and Subversiveness

24In examining the relationship between legal and aesthetic judgment, there is another important conceptual issue that one needs to address. That is the issue of whether and eventually how aesthetic considerations should inform legal judgments. In effect, one can imagine a situation where a legal system has properly addressed the structural differences distinguishing legal and aesthetic judgments by developing sensible legal practices. However, even under such circumstances, the question would still be open about whether and how aesthetic considerations should matter in legal determinations.

  • 26 In Italy, for instance, art. 54 of the penal code acknowledges such a relationship between morality (...)

25The discussion of whether and how aesthetic judgments should enter the legal domain finds an instructive parallel, once again, in the analysis of the relationship between morality and the law. Moral considerations obviously inform legal determinations and, at least in some cases, orient judges’ and courts’ decisions. Consider for instance when the law looks at people saving illegal immigrants whose life is in imminent danger, as it has been sadly happening along the Southern coast of Italy in the last few decades26. Under these circumstances, the moral duty of saving a life functions as an overriding reason in dealing legally with people helping the illegal immigrants getting safely ashore. In effect, rescuers cannot be prosecuted for their actions. In this sense, legal systems generally recognize a moral obligation of assisting those in needs that has primacy over the pro tanto laws prohibiting the facilitation of illegal immigration.

  • 27 Consider, for instance, the controversy surrounding Serrano’s Piss Christ and Robert Mapplethorpe’s (...)

26Of course, in judgments of the law, aesthetic and legal considerations may very well interact in many different ways. For instance, judgements of originality and aesthetic value seem crucial in determinations about copyright infringement, at least under current legislations. And concerns about artistic value play an important role in legal proceedings concerning controversial cases of public funding for the arts27.

27In the space provided, I cannot offer a comprehensive analysis of these interactions. For this reason, I want to narrow down the issue that I am addressing here, and focus on the following question: Can aesthetic considerations function similarly to moral ones by providing reasons overriding pro tanto legal considerations?

28The previous question seems central in the example of the London Graffiti Removal Squad and BL. In effect, one can reasonably understand BL as stating that aesthetic value is an overriding reason in legal determinations about cases of vandalism and criminal damage. The (alleged) aesthetic worth of Banksy’s works – and of pieces of street art in his style – appears to the officials overseeing the removal of graffiti in London as a reason to bracket certain laws about unauthorized uses of public spaces.

  • 28 One can find an informative selection of newspaper article on this episode at the following link: h (...)

29However, recently, another street art controversy has put under the light the question of whether aesthetic merit can be an overriding reason in legal determinations. I am thinking about the trial of AliCè – whose real name is Alice Pasquini – in Bologna28. In 2013, AliCè painted some murals in different locations of this city in Northern Italy. Identified as the author of those pieces, local authorities have charged AliCè for criminal defacement of property. On February 2016, judge Gabriella Castore found AliCè guilty of those charges and levied her a fine of 800 Euros.

  • 29 Rotondi 2016.

30When motivating her decision, judge Castore explicitly rejected the idea that considerations of aesthetic or artistic value can be overriding reasons in legal determinations. This makes the trial pertinent to the present discussion. By responding to both the defensive argument of AliCè’s lawyer Stefania Martelli and public prosecutors’ request of acquittal, judge Castore said: «the existence of the crime cannot have as parameter […] the possible artistic nature of the artwork that one is creating»29. In the sense, AliCè’s trial shows how the question under consideration is pressing for both theoretical and practical reasons.

  • 30 Ibidem.
  • 31 Rotondi 2016.

31In her judgment, judge Castore appeals to motivations echoing what I have said in the previous section. She claims that «evaluations of a painting’s artistic value [are] a function of taste and social feelings or individual variables, often influenced by fashionable trends»30. Moreover, «though [AliCè] is considered a talented artist though of course among those who appreciate street art and similar artistic genres, those who value other artistic forms may very well disagree»31. Arguably, one can see in her words the expression of the lack of aesthetic laws and the controversial nature of expert selection in matters of artistic evaluations.

  • 32 Gorman 2001.
  • 33 Gorman 2001: 2.

32However, these seem to be contingent reasons for excluding aesthetic considerations from bearing on legal determinations. In effect, as I have already said, one can imagine circumstances under which a legal system includes appropriate procedures counteracting those difficulties characterizing aesthetic judgments. For instance, many authors propose reasonable strategies for addressing what Robert Gorman has called the necessity of aesthetic judgments in legal evaluations of copyright cases32. I agree with Gorman’s idea that it is «possible to suggest certain guidelines that would improve judicial decision making»33. For this reason, contrary to what judge Castore seems to maintain, appealing to what I have called the structural differences between legal and aesthetic judgment is not enough for rejecting the view that aesthetic considerations can function as overriding reasons in legal determinations.

33There is a deeper – and philosophically more compelling – reason why aesthetic worth should not be taken as possibly overriding legal concerns. Put in a sentence, the primacy of aesthetic considerations over legal ones would deprive the arts of political significance. In effect, violating the law is often a strategy by means of which artists express their dissent against what they consider dysfunctional and unjust rules, norms, and regulations. In giving a free pass to artistic expressions, one would also deprive them of a capacity of revealing conflict and disagreement about important issues.

  • 34 Baldini 2016b; Baldini 2016a.
  • 35 For a discussion of the complex relationship between street art, subversiveness, and illegality, se (...)

34In the case of street art and graffiti, the significance of the arts’ eventual loss of political value is a point that even champions of the Modern separation of art and life cannot easily dismiss. As I have argued in some recent articles, in effect, street art and graffiti are essentially subversive artistic practices34. And once deprived of their political function, the nature of these art forms is seriously compromised. Of course, many (though not all) examples of street art are subversive because they are illegally installed on the city public surfaces35. If aesthetic worth would shield street art from the law, (at least some) street art would turn into some form of toothless urban decoration.

  • 36 Irvine 2012. Baldini 2016b and Baldini 2016a provide a sustained discussion of this claim.
  • 37 McAuliffe and Iveson 2011: 133.
  • 38 Bacharach 2015: 495.

35In general, one can understand street art’s and graffiti’s subversiveness as a function of their capacity to turn inside-out accepted norms of visibility in public spaces. As Martine Irvine suggests, street art violates what Jacques Rancière calls the “distribution of the sensible”, that is, the set of laws and conventions regulating what can be seen in public spaces36. «From this perspective», as Cameron McAuliffe and Kurth Iveson argue, «graffiti is embraced as a way of unsettling settled visions of the city, providing space for those whose presence is not strongly represented in visions of order»37. In a similar vein, Sondra Bacharach argues that street art «constitutes an act of defiant activism designed to challenge and change the viewer’s experience of her environment»38.

  • 39 As Baldini and Pietrucci 2017 argue, in peculiar contexts such as post-earthquake L’Aquila, street (...)
  • 40 An Interview with Alice Pasquini by Street Art Mecca 2014.

36Primarily, though not exclusively, street art and graffiti challenge the monopoly of commercial communication over the uses of urban visible surfaces39. Prominent street artists such as Banksy, Garrison Buxton, Tom Civil, Ad Deville, and Ron English see their works as oppositional to advertising. One should notice that AliCè also champions this idea. In an interview with Streetart Mecca, she says: «This type of communication [i.e., street art] is completely different from what we have usually in the street with advertising […].»40.

  • 41 Austin 2010: 42.
  • 42 Iveson 2013. Iveson takes the notion of the right to the city from Harvey 2008 and Lefebvre 2003.

37If street art is critical of dominant hierarchies of visibility, rather than an issue to be solved, the subversive potential of violating the law seems an important resource for street artists. John Austin emphatically underlines this point when he writes: «illegally placing work on public walls is a significant contribution to, even a step forward for, modern art»41. And, Iveson suggests, the shift from legal to illegal uses of public space which street artists and graffiti bring about is crucial for enacting the “right to city”, that is, the right to shape and reshape the city’s geographies and to use its resources42. In this sense, legal systems that would consider aesthetic considerations as reasons overriding legal concerns would deprive street art and graffiti – or any other art form, for what matters – of subversive power.

  • 43 Zio 2016.
  • 44 Zio 2016.

38Also practitioners often express their views on the issue of illegality in graffiti and street art, and emphasize its close connection with the political significance of these art forms. In a recent interview, UTAH and ETHER, a legendary couple of graffiti writers, say: «For us, the most important aspect of graffiti is [its] illegality, and the vitality and energy that’s inherent to illegal graffiti»43. In that same interview, they link the illegality of the act to its political value by adding: «With our art, we hope to create a dialogue with our audience and to challenge their conventional viewpoints [concerning] public versus private property, or the blurred lines of what constitutes as legal and illegal»44. In an interview, internationally acclaimed graffiti writer Fra32 told me that «graffiti is a practice of resistance: for this reason is illegal. […] If graffiti were accepted, I wouldn’t do it.»

39If one takes seriously the idea that these are subversive artistic practices questioning dominant hierarchies of visibility, then one should also accept that issues of aesthetic worth should not interfere with street art’s and graffiti’s social and political value. And facing the legal consequences functions – both historically and conceptually – as a powerful message denouncing laws and norms that one deems unjust.

40The relationship between legality and social resistance find an instructive parallel in the tactics typical of the civil rights movement. Consider for instance Rosa Park’s response to the bus driver’s order to give up her seat. In telling the story of the famous episode which turned this African American woman into an icon of the Civil-Rights movement, Park said:

  • 45 Williams 2002: 66.

When [the bus driver] saw me still sitting, he asked if I was going to stand up, and I said, «No, I’m not». And he said, «Well, if you don’t stand up, I’m going to have to call the police and have you arrested». I said, «You may do that»45.

41Park’s proud acceptance of the legal consequences of her act makes her refusal a powerful act of social resistance. If Park would have retreated in front of the legal consequences of her actions, we would not remember her gesture as we do today. Similarly, if street artists and graffiti writers could find protection from the law in the realm of the aesthetic, their actions would lose (at least part of) their subversive nature.

  • 46 Dewey 1980: 3.

42With a friend like me, one might say, street art and graffiti do not need any enemies. And it is true that I am not interested in providing a eulogy of these art forms, whose problematic nature is impossible to deny. However, I do also recognize that graffiti and street art embody genuine political concerns and aim at illuminating critical aspects of the ways in which we regulate our urban lives. These controversial practices – whose significance transcend the boundaries of the aesthetic, narrowly construed – would lose much of their political significance if their aesthetic value would result in a legal free pass. And, more in general, disconnecting the arts from the other domains of human action, including the legal, would turn these forms of expression into mere entertainment, incapable of influencing our political lives in serious ways. Preserving the social and political relevance of the arts, which John Dewey called the «continuity between the […] works of art and the everyday events, doings, and sufferings»46 is, I believe, worth a very high price, even in legal terms.

4. Conclusion

43In this paper, I have compared legal and aesthetic judgment. While recognizing some continuity in evaluations about aesthetic and legal matters, I have illuminated some of their generally overlooked differences, and have discussed some important issues emerging from their interaction. The analysis that I developed is distinctly pragmatist, and brings to the table typical concerns and resources of this school of thought. First, my discussion of the structural differences between legal and aesthetic judgments follows from a typical pragmatist analysis of predication. While in many varieties of discourse including the aesthetic one predication functions informally, in special cases such as the law, formal criteria significantly guide the application of predicates. Formality in the law is important in preventing from arbitrary applications of norms. Legislators should keep this into consideration when developing appropriate norms for dealing with aesthetic matters of legal significance.

44Second, I have looked at the interaction between the legal and the aesthetic domain from a pragmatist perspective. Because of their political nature, street art and graffiti of the 21st century offer a perfect counterexample against the Modern separation of art and life. Art need not be segregated into a separate realm. These artistic practices, in effect, are important tactics of dissent. If aesthetic considerations could function as overriding reasons in legal determinations, then the political possibilities of these art forms – and of the arts more generally – would be greatly diminished. Appreciating the arts and their multifarious values does not entail always protect them from the law: sometimes, we should let the beauty fight the behest.

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Irvine, M.
– 2012, The work on the street: Street art and visual culture, in I. Heywood, B. Sandywell, M. Gardiner, G. Nadarajan and C.M. Soussloff (eds), The Handbook of Visual Culture, London, Berg, 235-278.

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– 2004, Moral Philosophy After 9/11, University Park, Pennsylvania State University Press.

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Note

1 Kant 1902: para. A81/B106)

2 For an in-depth study on this aspect of Kant’s view, see Longuenesse 1998. See also Allison 2001: chap. 1.

3 Sommer 2014.

4 Sommer 2014: 85

5 Douzinas, McVeigh and Warrington 1992; Edlin 2010; Meyer 1999.

6 Craig 2014; Gorman 2001; Walker and Depoorter 2015.

7 CosmicdaisyUK 2012. See also Walker 2014.

8 CosmicdaisyUK 2012.

9 Of course, popularity may very well be relevant.

10 Young 2014: 103.

11 It is generally agreed that a piece is a graffiti painted in at least three colors. For a useful graffiti glossary, see The Words: Graffiti Glossary 2016.

12 Margolis 2004: 49.

13 For an informative recent discussion of aesthetic experts see Lopes 2015. Lopes’s argument is sympathetic, I believe, to my distinction between legal judges and aesthetic experts.

14 Lopes 2015: 326.

15 Mothersill 2000: 251.

16 Edlin 2010: 432.

17 Edlin 2010: 432.

18 Wollheim 1980: 139. Emphasis added. Mothersill 1984 provides the most recent detailed discussion of the view that there are no aesthetic laws.

19 In this sense, I accept some of the difficulties in the formulation of legal judgments discussed in Douzinas, McVeigh, and Warrington 1992.

20 Mothersill 1989: 79.

21 This is what Mary Mothersill calls the First Thesis. See Mothersill 1984.

22 Summers 1992; 1996.

23 Mothersill 1984: 102 and ff.

24 CosmicdaisyUK 2012.

25 Young 2014: chap. 5.

26 In Italy, for instance, art. 54 of the penal code acknowledges such a relationship between morality and the law.

27 Consider, for instance, the controversy surrounding Serrano’s Piss Christ and Robert Mapplethorpe’s exhibition “The Perfect Moment”.

28 One can find an informative selection of newspaper article on this episode at the following link: http://www.associazioneantigraffiti.it/2016/02/21/caso-di-alice-pasquini-street-artist-conosciuta-come-alice/.

29 Rotondi 2016.

30 Ibidem.

31 Rotondi 2016.

32 Gorman 2001.

33 Gorman 2001: 2.

34 Baldini 2016b; Baldini 2016a.

35 For a discussion of the complex relationship between street art, subversiveness, and illegality, see Baldini 2016a, Brighenti 2016, and Chakal 2017.

36 Irvine 2012. Baldini 2016b and Baldini 2016a provide a sustained discussion of this claim.

37 McAuliffe and Iveson 2011: 133.

38 Bacharach 2015: 495.

39 As Baldini and Pietrucci 2017 argue, in peculiar contexts such as post-earthquake L’Aquila, street art and graffiti do not question advertisement’s dominion of visibility, but other hierarchies of visibility. This is per se a rejection of Riggle’s criticism against my view. See Riggle 2016.

40 An Interview with Alice Pasquini by Street Art Mecca 2014.

41 Austin 2010: 42.

42 Iveson 2013. Iveson takes the notion of the right to the city from Harvey 2008 and Lefebvre 2003.

43 Zio 2016.

44 Zio 2016.

45 Williams 2002: 66.

46 Dewey 1980: 3.

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Per citare questo articolo

Notizia bibliografica

Andrea Baldini, « Beauty and the Behest: Distinguishing Legal Judgment and Aesthetic Judgment in the Context of 21st Century Street Art and Graffiti », Rivista di estetica, 65 | 2017, 91-106.

Notizia bibliografica digitale

Andrea Baldini, « Beauty and the Behest: Distinguishing Legal Judgment and Aesthetic Judgment in the Context of 21st Century Street Art and Graffiti », Rivista di estetica [Online], 65 | 2017, online dal 28 novembre 2017, consultato il 22 septembre 2018. URL : http://journals.openedition.org/estetica/2161 ; DOI : 10.4000/estetica.2161

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