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Whether aesthetic value can or should be determined by governmental bodies of any sort is an enormously complex problem. The NEA, as a governmental agency, regularly makes determinations of aesthetic value in awarding grants. Although these determinations have been made with extensive use of external reviewers and panelists who are not government employees, they have resulted in enormous controversy in recent years.

Some argue that government funding of the arts is unjustifiable because it is impossible to adequately determine aesthetic value so as to justify funding decisions.(1) In addition, judges have traditionally resisted making any determinations of aesthetic value.
 

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Subjective and objective theories of aesthetic value (2) have been much-discussed in philosophical literature. An objective theory claims (roughly) that aesthetic value somehow resides in properties of the work itself, such that any reasonably competent observer would find them. In contrast, a subjective theory claims that aesthetic value is simply a matter of the psychological effect on or the attitude of the observer, and these vary considerably from observer to observer. (3)

Subjective theories(4) gain plausibility from the difficulty we have in determining what possible basis objective evaluations could have. Assessing aesthetic value does not seem to be the same sort of process as determining the temperature of a liquid in a test tube. The subjectivist has an easy explanation for the extensive disagreement in aesthetic judgments, both within our own time and certainly throughout history. If what makes a work "good" is simply one's own taste, one's own personal reaction to a work, it is easy to explain why there is so much variation in our assessments of the value of works of art.

One of the best-known subjectivists is David Hume, an eighteenth-century Scottish philosopher. He articulated his position most clearly in "Of the Standard of Taste" (1757). Even though Hume believed in subjective aesthetic value, he also thought that taste could be cultivated, "improved by practice, perfected by comparison, and cleared of all prejudice."
 

If aesthetic value is subjective, why is it that we agree on so many great works of art? Have we simply been brainwashed by slick press agents? Are we blindly accepting whatever our culture tells us to like? If aesthetic value is subjective, why do we so often try to persuade friends of the value of a work of art that we believe they have overlooked?

The objectivist (5) acknowledges that it might be difficult to determine the grounds for objectivity and (at least in principle) to agree on the value of a work. But just because it is difficult, does not mean that it is impossible. The fact that we do reach agreement on the value of so many works suggests that somehow there is an objective basis for our judgments. We think Van Gogh was a great painter and Baryshnikov a great dancer, not because they have good press agents, but because they really are great.

If aesthetic value is objective, by what criteria do we determine that a work has value? What do we mean when we say that a work is "good"? Is a work more likely to be good if it is symmetrical, innovative, insightful, unified, complex? Are criteria simply a reflection of the times and culture, or are there universal and timeless standards for determining what work is good?

Governmental agencies in various cultural areas, including the NEA, regularly make decisions according to standards of "artistic excellence and artistic merit," as determined by panels of experts in each field brought in for proposal review. An objectivist might claim that these experts are or should be operating according to objective standards with which they are familiar as experts. A subjectivist might argue that the panelists are merely exercising their personal taste, but that presumably this "taste" is more refined and experienced than most laypersons.

B. How Judges Determine Aesthetic Value

Traditionally, judges have tried to avoid making judgments of aesthetic value in the variety of contexts where such issues arise, such as copyright, customs law, and obscenity. In 1903, Justice Oliver Wendell Holmes stated the explanation for this refusal in terms often quoted in contemporary cases:

[I]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the work of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. (6)

The belief of judges that aesthetic value cannot be determined with objectivity sufficient to satisfy the needs of the court is questionable. A closer examination of the 1903 language of Justice Holmes does not support this presumed subjectivity. Indeed, Holmes' plea that the public must first learn "the new language in which their author spoke" before a genius can be appreciated suggests just the opposite. It says that once we have learned to appreciate a work, we all would be able to appropriately assess its excellent quality. In other words, reasonable people -- competent observers -- could all come to the same conclusion with regard to the work. But this is precisely "objectivity" in aesthetic value. Justice Holmes' own words support the possibility of objective determinations of aesthetic value, not their hopeless subjectivity!

How should judges reason when faced with issues calling for the determination of aesthetic value? What should be the basis for their determinations? Can and should such legal decisions be based strictly on application of legal rules or must judges necessarily also appeal to the aesthetic view of their community and themselves in making determinations affecting art? Is it possible to codify aesthetic value so that it can be applied consistently by all judges?

In the lawsuits challenging NEA statutes on "obscenity" and "indecency," the courts have refused to interfere with these assessments of aesthetic value, deferring instead to the expertise of the panels and NEA National Council. Yet in some contexts, such as customs law, judges unavoidably must make assessments of quality.(8) It also could be argued that judges cannot avoid making judgments of aesthetic value, at least implicitly, in some contexts.(9) A better understanding of how judges determine aesthetic value would also enhance our understanding of how governmental agencies can and should make such determinations in the awarding of funds.

Discussion questions

In considering the operation of NEA review panels, does it matter if aesthetic value is "objective" or "subjective"? If it is "merely" subjective, could the review panels' conclusions have any validity sufficient to justify the expenditure of government funds? If it is "objective," what are those artistic standards, where do they come from, and how are they justified?

Can judges avoid making determinations of aesthetic value, as they claim they are doing? Are the determinations they might make in a legal context different from those that are made by art critics, historians, artists, and philosophers? In what ways?

NOTES

1. Richard A. Posner, "Art for Law's Sake," The American Scholar (Autumn 1989): 513-520; Andre Ryerson, "Abolish the NEA: Government Is Incapable of Detecting Artistic Genius," Policy Review CIIII (Fall 1990), 32-37. Return to text

2. It is beyond the scope of this paper to attempt to distinguish here between "artistic value" and "aesthetic value," which has been the subject of extensive philosophical discussion. Return to text

3. For introductory overviews of the objectivist debate, see John Hospers, "Problems of Aesthetics," in The Encyclopedia of Philosophy, Vol. 1, edited by Paul Edwards (New York: Macmillan Publishing Co., Inc.), pp. 35-56, 52-55; Margaret P. Battin, et al., Puzzles about Art: An Aesthetics Casebook (New York: St. Martin's Press, 1989), pp. 33-37. Return to text

4. See also, introductory discussions of subjectivity ("psychological definitions") in Monroe C. Beardsley, Aesthetics: Problems in the Philosophy of Criticism, 2d ed. (Indianapolis: Hackett Publishing Co., Inc., 1958, 1981), pp. 512-15, and Battin, op. cit., pp. 34-35. Return to text

5. Objectivists include C.E.M. Joad and Monroe C. Beardsley. Battin, op. cit., pp. 33-35. Return to text

6. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). This was quoted in Justice Souter's decision in Campbell v. Acuff-Rose, 62, U.S.L.W. 4169, 4173 (1994), which held that the 2 Live Crew parody of the Ray Orbison song "Pretty Woman" constituted "fair use" of the original. Return to text

7. Another statement early in the century is typical of the legal attitude toward aesthetic value. Henry P. Chandler said in 1922 that "beauty" lacks the sort of objective standard which could be used for regulation. Instead he notes that a standard is evolving through public opinion. "The Attitude of the Law toward Beauty," American Bar Association Journal VIII (1922), 470, 473-74. Return to text

8. Peter H. Karlen has summarized areas of law where assessments of quality are necessary. In customs law, for example, objects which are among the "fine arts" qualify for exemption from the normal duties on imports. "Aesthetic Quality and Art Preservation," Journal of Aesthetics and Art Criticism XXXXI (Spring 1983), 310-11. Return to text

9. I have argued elsewhere that Justice David Souter make numerous assessments of aesthetic value (despite his insistence that he was not) in determining that the parody by 2 Live Crew of "Pretty Woman" constituted "fair use" under the copyright law. Julie Van Camp, "Judging Aesthetic Value: 2 Live Crew, Pretty Woman, and the Supreme Court,"1995-96 Entertainment, Publishing and the Arts Handbook (New York: Clark Boardman Callaghan, 1995), pp. 125-135. Return to text

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