Law and Aesthetics: A Critique and a Reformulation of the Dilemmas

This Article both examines these consequences and explains why they have departed so frequently from the ostensible goals of the policies that produced them. It also surveys the principal legal dilemmas that attend aesthetic policy-making, which is sensitive to the values actually at stake in the type of “aesthetic” controversies that legal institutions are called upon to resolve in American society. The aesthetic controls addressed are those adopted in such areas as zoning, historic or environmental preservation, and urban design to shape the visual appearance of the built and natural environments. The content of the aesthetics idea is explored through two hypotheses advanced to explain the social interest underpinning these controls. The first, which has dominated aesthetic-legal thought throughout this century, locates that interest in the preservation or creation of a visually beautiful environment. The second, which is outlined in Part IV of this Article, de-emphasizes visual beauty in favor of the compulsion of groups to protect their identity and, more broadly, cultural stability itself by forestalling threats to environmental features and settings that anchor or reinforce these reciprocal values.