Marmor on How Art Is Like Law @CornellLaw

Andrei Marmor, Cornell University Law School, has published How Art is Like Law as Cornell Legal Studies Research Paper No. 24-13. Here is the abstract.

What makes something a work of art? Can we answer this question in a philosophically satisfactory way? I think that we can, as long as we understand the question as one about metaphysical grounding. One of the main arguments of this paper is to show that any plausible metaphysical grounding of artworks is going to pull in the direction of an institutional theory of art: An artifact is a work of art in virtue of its being identified and engaged with as such by the relevant community. Now, to legal philosophers this should sound very familiar, and that is really the main point of this essay. In jurisprudence we call this view legal positivism, and the point is that from a metaphysical perspective, the views are basically the same: certain types of artifact are art, or law, respectively, solely in virtue of an intricate convergence of conduct and attitudes that obtain in a certain population. The argument proceeds in three main stages: First it aims to show that the question about what makes things works of art, just like the very similar question about law, is best understood in terms of metaphysical grounding. Second, it argues that from this philosophical perspective -- asking in virtue of what, metaphysically speaking, an object is a work of art -- the answer of the institutional theory is eminently plausible: The gist of it is that something is an artwork, when it is, in virtue of the fact that it is considered to be art by a certain population, an artworld community. Finally, the paper argues that the grounding account can help us to answer some of the objections to the institutional theory, both in art and at least indirectly, by analogy, in law as well. Eventually, I hope to show that thinking about ways in which art is like law tells us something interesting about the nature of both.

Download the article from SSRN at the link.