• Rechtverblüffend

On the beautification of places and artistic meaning

or why we need a broad social debate on aesthetics!

by Marius Müller

Have you ever thought of "beautifying" your "place"? Well, I was certainly quite excited when, with completely different intentions, I dealt with the Annual Tax Act (JStG) 2020 and the associated changes to the German Fiscal Code (AO) a few months ago. Almost three years of doctoral studies on historical interactions between aesthetics, art theory and jurisprudence had left their mark. Side note: Especially (but not exclusively) the founders of associations among you are certainly familiar with the charitable purposes of the AO. Since the reform, the aforementioned "promotion of local beautification" is also part of the catalogue (section 52 para. 2 p. 1 no. 22 AO). After these introductory remarks, we are already in the middle of a topic that, in my opinion, receives far too little attention: namely, the topic of the interaction of art theory and law. Which "aesthetics", which concept of art is applied in law has socially explosive power, for better or for worse. Just take a look at the USA. Even a populist like Donald Trump has, one might hardly be surprised, discovered beauty as part of his ersatz monarchical position of power: what has become of his "Executive Order on Promoting Beautiful Federal Civic Architecture"? Such a free space for error must not be allowed to develop! But this is only in passing. Thematically, we have already been in the field of non-profit law - the intellectual loops are about to come to an end, I promise.

Photo by Fré Sonneveld on Unsplash

What I am concerned with in this context is the following: The social function of the aesthetic should (finally) become the subject of a broader debate in 2021, also conducted by younger people. Why? Because it is not only the freedom of art that thrives on an informed debate. In the digital age, we are surrounded by aesthetic questions. The artistic has left the sphere of l'art pour l'art for quite some time - remember the debate about the poem on an outside wall of the Alice Salomon University in Berlin? Instead of "What is art allowed to do?", the core question was "What is art?” Various areas of cultural education are also closely interwoven with aesthetic questions - heritage conservation is unfortunately only one of the more rarely mentioned fields.[1] However, the aesthetic and its ethical implications were already well understood there around 1900! With a view to wind turbines and photovoltaic systems, the questions are also topical again - besides the Montagne Sainte-Victoire, Passau's roofscapes are just two examples.[2] Aesthetics and law go hand in hand here. So the beautification of the place in the sense of the JStG 2020 is just another example!

Now, a look at history:

In 1907, the Prussian "Law against the Defacement of Towns and Scenic Areas" came into force. With the aim of protecting towns and cityscapes and above all (Rhenish) landscapes from advertising (oh Dada terror!), this law was already number 2 in a series of legislative activities. According to its section 2, property rights could also be restricted because of the "artistic significance" of streets and squares. The yardstick for this question of significance was the concept of the painterly. Without a doubt, this law was the success of committed citizens who were able to secure a cultural idea with a legal basis. The later perversion of some ideas should not obstruct the view of important interactions! Included in the artistic category of meaning was a way of thinking that elevated the "painting understood as a work of art to the paradigmatic case of the picture". What had to be described as pictorial was that which "can in itself exert a pictorial effect on the viewer, inspire him to artistic creation or feeling, without having to be a work of art itself". In his contribution to the "Mitteilungen der k.k. Zentralkomission für Denkmalpflege", Fortunat von Schubert-Soldern was even more explicit. Between past and present value, it should be the aesthetic potential that constituted a site or landscape as an object of protection:

“The former process will always have to refer back to the past and give us the concept of the painterly by way of art tradition. Accordingly, we call everything painterly that has become the permanent possession of art, or rather of paintings, of motifs from the outside world, and has become, as it were, its inventory and tool.”

As a pupil of Alois Riegl, von Schubert-Soldern did not leave the claim to modernity of truly cultural legislation unmentioned. The painterly should only be able to create artistic meaning in the context of a reception of art directed towards paintings:

“Of course, it is clear that painterly values disappear over time through lack of care and are replaced by new ones, and that those motifs that the innovators are trying to introduce into our modern artistic life cannot yet be considered lasting values, because they do not tie in with the established tradition and accordingly offer no guarantee of permanence.”

Where do we stand today, now that the "newer ones" are not so new anymore and where the landscape painting in the salon, the selfie in front of an impressive architectural panorama or an impressive landscape on Instagram have taken the place? Perhaps the differences between then and now are less apparent than we thought. But it is as Schubert-Soldern stated: "painterly values" disappear if they are not communicated or questioned. Aesthetic reality and real reality must be re-examined and renegotiated in their relationship to each other today. This is where the debate should begin! Finally, there is a conciliatory certainty: even today, Hans Scharoun's plans for the redevelopment of the Münsterplatz in Ulm would certainly not be able to be realised - decisive spiritual values nevertheless require contemporary self-assurance! In any case, the beautification of our everyday life already begins in the mind, doesn't it?

[1] Are you interested in cultural policy, heritage and sustainability? ESACH still lacks a legal working group ( [2] I thank my colleague Valentine Molineau here at UNIDROIT for the fascinating discussion on wind turbines and Cézanne.