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The art conundrum: defining art in law

Swietochowski, A. (2020). The art conundrum: defining art in law. (Unpublished Doctoral thesis, City, University of London)

Abstract

For law, art is a conundrum which needs to be solved. Art in law is littered with inconsistent judgments due to the judicial avoidance of overtly debating art theory. As consequence, it has been difficult to succinctly identify a legal definition of art. Previous literature has highlighted that there is a lack of appreciation for art theory in law. Generally, art is defined through legal formalism and the reduction of art to a commodified form of property. Consequently, legal judgments tend not to appreciate the significance of art and often stop short of delineating a legal definition of art. With art law often being restricted to a case-by-case basis, it has previously been hard to draw clear trends in the legal definition of art. However, through the comparative analysis applied in this thesis, it is clear that the court undeniably relies on the subtle application of a variety of art theories. The extent to which these theories are applied is dependent on the requirements of the legal context. Law is capable of defining art and although the default approach is one of avoidance, it must be possible to reach a clear understanding on how law defines art. This understanding can only be met through the realisation of the Art Conundrum Theory.

As no singular art theory is appropriate for defining art in law, the Art Conundrum relies on a cluster approach to art. This facilitates the consideration of multiple art theories only insofar as is necessary to reach a binding legal judgement. The parameters of this consideration are set by the legal context in which the art arises. This allows the court to reframe the problem of art to a specific legal issue to reach a judgment. Through addressing the various key legal approaches to art in both English law and other jurisdictions, it is clear that the application of the Art Conundrum is both inevitable and necessary. As an amalgamation of the previous approaches to art in law, the subtle application of the Art Conundrum cannot be ignored. The conclusion is met that the Art Conundrum is the most appropriate legal approach to defining art and should be understood as the primary approach to art in law.

Publication Type: Thesis (Doctoral)
Subjects: K Law > K Law (General)
Departments: The City Law School
Date available in CRO: 01 Jun 2021 13:29
Date deposited: 1 June 2021
URI: https://openaccess.city.ac.uk/id/eprint/26221
[img] Text - Accepted Version
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