Since the turn of the millennium, I have often dealt with legal issues in my works of digital conceptual art. This led not only to an ongoing interest in various processes taking place within the legal system, but also to a comparison of this normative discipline with art.
In spite of all the legitimate criticism towards the status quo, a legal system is first and foremost a constituent part of any democratic form, as it applies established rules, defines boundaries more precisely, sanctions violations and negotiates liberties. In the theory of the state, the judiciary, along with the legislative and executive branches, represents one of the three pillars of a constitutional democracy, based on the separation of powers.
Against this backdrop, over the years I have come across, among other things, two landmark decisions1 of the German Federal Constitutional Court (hereinafter abbreviated as Bundes-verfassungsgericht or BVerfG) on the freedom of art, which I would like to unfold below with regard to their effects on art, on its theorization, its teaching and on art criticism, in order to stimulate and encourage self-reflecting, self-referential and enlightening discourses.
To this end, I will first of all expand on Article 5 of the Grundgesetz (German Basic Law, abbreviated: GG) in its entirety, and then, on the basis of a landmark decision of the Bundesverfassungsgericht of February 24, 1971, I will point out the lines of distinction contained in the individual paragraphs of this article of the Basic Law. In conjunction with a further landmark decision of July 17, 1984 the derivations described by me in the follo-wing should then be more easily comprehensible. Methodically, I interlock the different levels of meaning at their interfaces, a procedure that corresponds to my artistic strategy.
All in all, the field of law, which according to my observation is often underrepresented in art-theoretical discourses, but which nevertheless is able to formulate rules, can be shown to be at least a relevant subset of the dispositif of art. In fact, the development of the law through the interaction of jurisprudence, legal literature and case law, together with public and media reception, can probably be regarded as the basis for coexistence, at least in constitutional democracies2.
1 Cf. Wikipedia, List of Landmark Court decisions, https://en.wikipedia.org/wiki/Lists_of_landmark_court_
decisions (accessed 4 April 2020).
2 Cf. Bundesministerium für Justiz und Verbraucherschutz, Basic Law for the Federal Republic of Germany. Art.
28 Para. 1, https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0148 (accessed 4 April 2020).
Article 5, German Basic Law3
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.
(3) Art and scholarship, research, and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.
In its ruling of February 24, 1971 (Mephisto decision) the Bundesverfassungsgericht made the following distinctions of the individual paragraphs of Article 5 GG in relation to each other and determined the sphere of art as a legally protected good as such:
“Art having its special nature and rules, its guarantee by Art. 5 III, 1 GG is absolute. The clear terms of that provision foredoom any attempt to limit it, whether by narrowing the idea of art in the light of one’s value-judgments or by extending or invoking the limitations applicable to other constitutional provisions.
The Bundesgerichtshof [cmt: Federal Supreme Court] was quite right to state that Art. 5 II GG which limits basic rights under Art. 5 I is inapplicable here. The different guarantees in Art. 5 GG are systematically separated, and this shows that the limitations in Art. 5 II are inapplicable to matters covered by Art. 5 III, since Art. 5 III is a lex specialis in relation to Art. 5 I. Nor is it acceptable to sever parts of a narrative work of art, call them expressions of opinion under Art. 5 I and then apply to them the limitations laid down in Art. 5 II. Nor do the travaux préparatoires of Art. 5 III support the view that the authors of the Constitution regarded freedom of art as a subspecies of freedom of expression or opinion.”4
Within the scope of the German Basic Law, the limitations formulated in Article 5 II GG can, in summary, affect freedom of expression and information, as well as freedom of the press and freedom of reporting. However this does not restrictively apply to art and also not to science, research and teaching, since the court could not find any other indications in the documentation of the legislative process that lead to the development of this third paragraph at the Bundestag, and thus positions Art. 5 III as a lex specialis5. A broad inter-pretation of restrictions by other constitutional provisions is just as inconceivable as – and this will become relevant for the freedom of teaching in the following – restricting the freedom of art through a narrowing of the concept of art.
3 Bundesministerium für Justiz und Verbraucherschutz, Basic Law for the Federal Republic of Germany.
Art. 5, https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0034 (accessed 4 April 2020).
4 BVerfGE 30, 173 – Mephisto, 24 February 1971, https://germanlawarchive.iuscomp.org/?p=56 (accessed 4 April 2020).
5 Cf. Wikipedia, Lex specialis, https://en.wikipedia.org/wiki/Lex_specialis (accessed 4 April 2020).
In its landmark decision of July 17, 1984 (Anachronistic Parade), the BVerfG then makes more detailed observations about the art system and at the same time clarifies the concept of art in order to guarantee the freedom of art:
“Previous attempts by art theory (including reflections by practicing artists on their work) have failed to come up with a workable definition of the subject matter ‘art’. As a result, it is not possible to resort to an established term of ‘art’ from the extra-legal sphere.
The fact that there is no consensus whatsoever in art theory as to objective standards also has to do with a special feature of artistic life: the express aim of the ‘avantgarde’ is to expand the borders of art. This goal, as well as a widespread mistrust on the part of artists and art theoreticians against rigid forms and strict conventions, are inherent features of the field of art deserving of respect, which indicates that [Incomplete translation sic: only] a broad definition of art may lead to appropriate solutions.”6
In addition to a material concept of art, which was elaborated in the Mephisto decision of 1971, and a formal concept of art, which can also be found in the 1984 decision on the Anachronistic Parade, when considering what falls under freedom of art, the Bundesver-fassungsgericht recognizes appropriate solutions only by applying a broad concept of art.
Although the court does not provide a definition of a broad concept of art, programmatic exclusions, such as those which, in my opinion, can be observed in various approaches to art theory, surely lack a constitutional basis with regard to these judicial classifications.
Since, as far as I know, the epistemic foundations of art theories regarding limitations of the concept of artistic freedom have not yet been examined, this line of conflict should consequently be analysed, whether in art theory or within interdisciplinary constellations, for example in conjunction with sociology or the legal sciences. After all, what is at stake here is no less than the impact on committees for the allocation of public subsidies or on the composition of appointment commissions, to name only two examples.
It is, by the way, remarkable that in its 1984 decision, the BVerfG came up with a very similar conceptualisation to that of Joseph Beuys, who had already put forward his idea of an expanded concept of art7 in 1970.
The law is just as clear with regard to the freedom of scholarship and research, which are ranked equally to the freedom of art in Art. 5 III GG. Due to the restriction bans, which in consequence of the Mephisto decision are applicable to these areas as well, it follows that: “The clear terms of that provision foredoom any attempt to limit it […] by narrowing the idea of ”8 scholarship and research in the light of their own value-judgments. For art theoretical approaches as a form of scientific or research activity, this certainly opens up
6 BVerfGE 67, 213 1 BvR 816/82 “Street Theater Case (Anachronistic Parade Case),” 17 July 1984, https://
law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=637 (accessed 4 April 2020).
7 Joseph Beuys. Das Geheimnis der Knospe zarter Hülle. Texte 1941–1986. Ed. Eva Beuys, München: Schir-mer / Mosel 2000, pp. 136–137.
8 See also BVerfGE 30, 173 – Mephisto.
spaces of thinking and shaping, paradoxically even for drawing boundaries and exclusions with regard to their applied concept of art.
Similarly, the challenge arises of how theoretical concepts that do not allow a broad concept of art or that make significant exclusions can still be integrated into teaching.
Here Article 5 Para. 3 Sentence 2 GG is no less clear: “The freedom of teaching shall not release any person from allegiance to the constitution.”9 Along with the Mephisto decision, according to which “any attempt to limit it […] by narrowing the idea of art in the light of one’s value-judgments”10 are foredoomed by the clear terms of that provision, this creates a constitutional conflict area for analogous approaches to art theory. As stated above re-garding the concept of the freedom of art, concrete philosophies and theories, for example Kantian aesthetics, idealistic aesthetics and Adorno’s aesthetic theory, should be examined for possible exclusions against this expanded background.
A comparable area of conflict is also emerging for criticalist texts, i. e. texts that are preoc-cupied “with the application of values and judgments”11, as soon as these are dealt with in the teaching of art criticism. This extends their legal assignment from the sole scope of protection of expression according to Art. 5 I GG to the area of scientific, research and teaching freedom according to Art. 5 III GG. In the field of teaching, however, both the requirement of adherence to the constitution according to Art. 5 III, 2 GG and a broad concept of art have to be considered. This stratification becomes challenging for all authors of criticalist texts, if they want to credibly include their own texts in their teaching.
In any case, skepticism is always required in regards to theoretical conceptions, whenever they approach art with additional normatives. For example, when demands are made that art should or must take care of this or that, or that it should comply with certain require-ments. In fact, art can deal with its own discipline, also with its own contexts, i. e. self-refe-rentially. It can also stimulate philosophical discourses and can deal, inter alia, with social, religious, ecologic, economic, historical, political, scientific and also legal topics. It can be useful12 and can even be useless13. But “art” has neither to be the one or the other. This is what Art. 5 Para. 3 of the German Basic Law stands for in connection with the above-mentioned fundamental decisions of the Bundesverfassungsgericht on the freedom of art.
2020
9 See also Bundesministerium für Justiz und Verbraucherschutz, Basic Law for the Federal Republic of Germany. Art. 5.
10 See also BVerfGE 30, 173 – Mephisto.
11 Irit Rogoff. From Criticism to Critique to Criticality. in: transversal 01.2003, https://transversal.at/trans-versal/0806/rogoff1/en (accessed 4 April 2020).
12 Cf. Tania Bruguera. Reflexions on Arte Útil (Useful Art), November 2012, https://www.taniabruguera.
com/cms/592-0-Reflexions+on+Arte+til+Useful+Art.htm (accessed 4 April 2020).
13 Cf. Michael Lingner. Krise, Kritik und Transformation des Autonomiekonzepts moderner Kunst. Zwischen Kunstbetrachtung und ästhetischem Dasein. in: ästhetisches dasein, eds. Michael Lingner, Pierangelo Maset and Hubert Sowa, Hamburg: Materialverlag 1999, pp. 25–45, https://ask23.de/resource/ml_publikationen/
ml_kt_h-a99 [accessed 4 April 2020] and in this anthology.