Introduction
Since the time when artists were believed to need a certain degree of creative autonomy, a discourse has evolved about their so-called moral rights.Footnote 1 Commonly referred to as personality rights, moral rights originate in the idea that works of art are not merely commodified objects but also expressions of the artist’s creativity and innermost being. This Romantic idealization of art as an expression of the human spirit promotes the idea that, in addition to their economic copyrights, artists ought to have a sort of natural right that precludes their work from being altered or recontextualized in ways that would violate their artistic integrity. From the end of the twentieth century onwards, this idea has found its way into national legal systems, of which France and Germany were the first. In 1928, artistic moral rights were recognized in the Berne Convention for the Protection of Literary and Artistic Works. This international treaty, signed by 177 states, formulates said rights as follows: “Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”Footnote 2
The intuitive appeal of this provision is reflected by the considerable body of doctrine-oriented research that focuses on its implementation in many countries.Footnote 3 By and large, it seems to presuppose that the legal protection granted by moral rights is a positive thing and to stress that there is room for improvement and harmonization across the globe. In recent times, however, criticisms have sprung from the field of cultural theory. Amy Adler, for instance, opposes the current practice of moral rights protection because “it fails to recognize the profound artistic importance of modifying, even destroying, works of art, and of freeing art from the control of the artist.”Footnote 4 She argues that we are captivated by a fantasy of artistic creation in which a genius author expresses a vision in a work of art that therefore must be preserved in its original form.Footnote 5 Adler provides many examples to support her claim that this fantasy is not worthy of legal protection, one of which is Robert Rauschenberg’s “Erased de Kooning Drawing.” In an attempt to challenge accepted notions of authorship, Rauschenberg erased a Willem de Kooning drawing and consequently exhibited it as his own art.Footnote 6 According to Adler, such a case illustrates how art can emerge from alteration and even destruction. She goes as far as to consider these actions as a reflection of the essence of contemporary art making. In that light, she concludes that “moral rights law endangers art in the name of protecting it.”Footnote 7
This article analyzes the debate between the proponents and opponents of the legal protection of artistic moral rights, drawing from agonistic insights about the nature of political space and, more specifically, the nature of art as a political space. This focus is premised on the observation that the debate tends to remain a conflict of alleged interests: that of the artist in protecting the integrity of their work, that of the public and certain stakeholders in preserving cultural property, and that of contemporary art and, by extension, its public and other stakeholders in the modification or even destruction of artworks. There will be no denying that these interests exist or that their respective spokespersons are entitled to defend them in public discourse. However, an academic debate about the desirability of the recognition of a right calls for an impartial – that is, not interest driven – reflection on the functioning of legal standards in continually contested societal domains, such as that of art. Arguably, the political theory of agonism and its underlying philosophical tradition can stimulate such a reflection.Footnote 8
The line of argument of this article will pursue the following trajectory. First, drawing from the political theory of agonism, (public) art will be conceptualized as a practice that opens a space of antagonistic struggle, in the sense that artistic expression is seen as inherently conflictual. After reconstructing the rationale behind artistic moral rights, their entrenchment will be envisaged as a governmental intervention in antagonistic space so as to protect certain interests. From an agonistic viewpoint, it is only logical that such an intervention evokes resistance – the plea against moral rights protection is, as it were, a counter-hegemonic response that comes with its own interest-based imposition of order. This interpretation of the debate underlines a further insight that can be drawn from the political theory of agonism – namely, that rights are very much part of the political contest rather than instruments to subdue it. This assertion will prompt the analysis that, from an impartial perspective, the debate should not revolve around what interests are to be served by either granting or denying artists moral rights. Instead, it should inquire whether such conflicts of interests are to be fought out via the concept of a “right.” After a discussion, this article will end by concluding that it would be a mistake to try to settle this issue, for what is in the best interest of the agon is, and should be, equally contested.Footnote 9
There will be two limitations on the scope of this article. First, by focusing on the right of integrity and, thus, looking away from other artistic moral rights that countries have chosen to implement since the adoption of the Berne Convention, this article will be concerned mainly with what is deemed the most essential issue: the extent to which artists are to be legally entitled to protect their work from alteration and destruction. This perspective allows for a confrontation with what is fundamentally at stake: the role that governments and legal systems can play in mediating an artist’s control of their own work. Second, the inquiry is narrowed down to “site-specific public art.” This terminology refers to creations that are commissioned by a public process, using public funds, and that are made for one specific location and cannot – from an artistic viewpoint – belong elsewhere. This is not to preclude that (parts of) the analysis could be equally relevant to private and/or site-independent pieces, but both the role of the state and the inherent contestation are most explicit in public, site-specific art.
Art as antagonistic form of cultural space taking
As a conceptual starting point, this contribution presupposes that works of art attempt to occupy a bit of cultural space, which denotes the entire sphere of knowledge and experience that we tend to place under the heading “culture.”Footnote 10 Philosophically speaking, this occupation of cultural space does not only take place in the sense of filling room but also in other domains of experience, such as the semantic, the visual, and the emotional.Footnote 11 A sculpture, for instance, imposes a certain material order that is fixed three-dimensionally. It is a demarcated area, as it were, or (after Martin Heidegger) a “place.”Footnote 12 The moment someone interprets a sculpture, it starts to occupy space beyond the physical – for instance, in that it imposes a certain order on this person’s visual experience or cognition.Footnote 13 All this seems to serve the fact that human beings tend to seek beauty and personal meaning in works of art. In that sense, art can also be argued to impose a certain order on our aesthetic judgment and emotional experience.
Seeing art as a form of space taking helps to elucidate how it has an intrinsic political dimension.Footnote 14 Drawing from Carl Schmitt’s conception of “the political,” the aforementioned types of order imposition have in common that they are including and excluding acts of force. Sometimes, in the literal sense, an artwork can occupy not only physical space and take hold of its surroundings but also, and at the same time, more metaphorical senses of inclusion and exclusion.Footnote 15 When it comes to public art, this “Schmittean” element is probably more explicit and contentious, but in more private forms of exhibiting and experiencing art, the political is by no means absent. When reading a novel, for instance, we may freely choose to be affected by a work of art, but once we have taken that decision, we are equally subjected to the hegemonic ambitions of, for example, artistic conventions and the rules of how to convey meaning with language. In brief, each domain of experience comes with its own space-taking set of order impositions.
The political theory of agonism contends that an inherent antagonism is behind this hegemonic tendency.Footnote 16 In an abstract sense, this theory seems to be driven by the image (sometimes ascribed to the French sociologist Henri Lefebvre) of a space-taking force that is met with other forces that contest it.Footnote 17 Therefore, (political) space is almost naturally subject to friction. Following a similar line of thought, Jacques Rancière contends that political space in general, and artistic space, in particular, will always be met with challenges to the limits and fixity of imposed order. Once space has been taken and a reality seems to present itself as a given, this “givenness” will be resisted. Rancière employs the term “dissensus” to denote this antagonism: “If there exists a connection between art and politics, it should be cast in terms of dissensus … artworks can produce effects of dissensus precisely because they neither give lessons nor have any destination.”Footnote 18 Dissensus questions and opposes the established order of things and is ultimately directed at the actualization of equality.
The arguments made by Chantal Mouffe, and, to a lesser extent, Ernesto Laclau, draw nearest to the vantage point of this article; in a number of publications, they also contend that political spaces are essentially sites of antagonistic encounter.Footnote 19 One can think of societal conflicts such as the fight against capitalism or racism, but the authors connect them to a broad range of discourses, practices, and institutions in which political struggles also enter other domains of experience. As for artistic practices, Mouffe states that they “play a role in the constitution and maintenance of a given symbolic order or in its challenging and this is why they necessarily have a political dimension.”Footnote 20 For the purpose of this contribution, it is especially valuable to follow Mouffe’s contention that democratic institutions should not seek to neutralize political tension by focusing – as liberal theorists tend to – on consensus or rule of law. Recognizing that attempts to wholly end antagonistic confrontations only result in their (temporary) displacement, democratic institutions ought to provide spaces to let such confrontations play out in a controlled manner. Remembering the ancient Greek recognition of respectful competition as a path toward growth, today’s theory of agonism thus seeks to civilize political hostility. Mouffe captures this idea exactly when she highlights the possibility of transforming enemies into adversaries. Instead of aiming for the destruction of the other, opponents should be allowed to challenge their respective hegemonic ambitions, though with a sense of mutual recognition.Footnote 21
The artistic integrity right: A mandate to claim cultural space
If we conceive of art as an inherently antagonistic form of space taking, then the recognition of an artistic integrity right can be seen as a governmental intervention in an area of social conflict. Rather than letting the debate about whether an artwork is worthy of preservation play out freely – which seems to be the agonistic ideal – producers of art are granted a mandate to claim an unmodifiable place for their work in cultural space. Before further analyzing the debate about the desirability of this governmental intervention, this section will first elucidate how the intervention itself aspires to serve certain interests.
Prior research tends to trace this aspiration back to the artistic practice of Michelangelo Buonarroti. At the time when artists still carried the burden of church- and patron-imposed delimitations, Michelangelo started executing commissioned works in a very distinctive manner, thereby realizing works of art that were clear marks of his artistic individuality and talent.Footnote 22 Whilst he was in the midst of painting the Sistine Chapel and annoyed by Pope Julius II’s efforts to intervene in his progress, Michelangelo explicitly asserted his creative independence when he threw planks down to bar the pope’s way and, more importantly, stated that he would finish the work according to his own vision. This is commonly held to be the first instance in which an artist has insisted on obtaining rights over a work of art that even its commissioner was unable to curtail.Footnote 23 In other words, Michelangelo’s struggle and achievement to free himself from the artistic control of his papal patron can be regarded as the first appeal to what today has come to be termed a moral right. Michelangelo has thereby been formative of the idea of the archetypical artist as someone who expresses originality and demands to remain unfettered by outsiders so as to produce works of art that are true reflections of his creative genius.Footnote 24
This conception of authorship plays a role in the two main rationales that underlie the legal protection of moral rights as it originated in France and Germany in the late nineteenth century.Footnote 25 Also referred to as the “orthodox” theory of moral rights, one of these rationales is founded on the idea that artistic creations should be considered extensions of the artist’s personality and be treated accordingly – that is, they ought to be recognizable as such in order to preclude impairment of the artist’s personality.Footnote 26 As such, this first rationale can also be understood to serve the idealization of artistic passions that is often associated with Romanticism.Footnote 27 By prohibiting the alteration or distortion of works of art, the moral right of integrity protects the author’s intention and thereby the creative mind.Footnote 28 In practice, this means that the owner of a copyrighted artwork cannot do all the things to which a property right would normally entitle them because they are not the author. They can physically control their work of art, sell it, and lend it, but they would violate its integrity if they were to give it, for instance, a new color or configuration. The underlying rationale has everything to do with what has previously been said about Michelangelo because his creations are not mere products of anonymous craftsmanship; they supposedly possess an authentic imprint of his creative genius.
Another rationale for the legal protection of moral rights relates to this yearning for authenticity but pertains not solely to the author. In the last few decades, this rationale has gained prominence in the context of the moral rights doctrine and is based upon the idea that the public, too, has an interest in the preservation of art. This idea in turn is based on the belief that art is the embodiment of a historical moment, either as a critique or materialization of the culture that surrounds it. It is thereby not only the artwork itself but also its authentic origin that counts. The destruction of a work by a prominent artist would therefore imply the destruction of part of the cultural and historical moment that this artist is associated with. To preserve the integrity of an artwork, then, is to preserve the integrity of a culture. Henry Hansmann and Marina Santilli describe this public interest in the integrity right from an economic viewpoint – namely, as a means to preserve an accurate account of a culture for future generations: “[W]orks of art often become important elements in a community’s culture: other works of art are created in response to them and become common reference points. … The loss or alteration of such works would therefore be costly to the community at large, depriving that community … of a widely used part of its previously shared vocabulary.”Footnote 29 By granting artists a state-backed mandate to claim an unmodified place for their work in cultural space, the integrity right thus seeks to protect two interests: the interest of the artist in maintaining an exclusive relationship between their work and their creative personality and the public interest in preserving and upholding the value of cultural property.
The plea against moral rights as a counter-hegemonic response
From an agonistic perspective, an interest-oriented and rights-based governmental intervention in an area of social conflict is bound to evoke resistance. Bonnie Honig states that one should not be fooled by the “foundationally secured foundations” offered by political practice and (liberal) theory alike.Footnote 30 She argues that these foundations represent attempts to foreclose conflict in the public sphere and neutralize its inherent tension, which may be temporarily successful, but, ultimately, such settlements will be contested and become the very focus of unsettlement.Footnote 31 In a related manner, Ernesto Laclau and Chantal Mouffe conceive of hegemony as a local discursive dominance that comes about by first challenging another hegemony, then transforming it, and then controlling it until a new counter-hegemony calls for further transformation.Footnote 32 Focusing on law, Sally Engle Merry contends that legal ordering comes with its own patchwork of hegemonies: “parts of law that are more fundamental and unquestioned, parts which are becoming challenged, parts which authorize the dominant culture, parts which offer liberation to the subordinate.”Footnote 33
Against this background, the plea against the legal protection of moral rights can be seen as a counter-hegemonic response. Liberating itself from the Romantic idea of authorship that emphasizes a spiritual and almost sacred connection between artists and their work, it criticizes the state-backed mandate to claim an unmodifiable place in cultural space. Jessica Lewis states that “[t]he evolution of the social conception of authorship, significant technological advances related to creative expression, and the emergence of unique contemporary art forms have rendered moral rights archaic.”Footnote 34 She substantiates this by arguing that the interests of the artist and the public do not always align. An artist may want to destruct their work, for example, whilst (parts of) the public desire for it to be kept for posterity.Footnote 35 In other cases, destruction or alteration of art may not be in the interest of the artist but may be important to a culture at large. Moreover, the essence of much of popular culture and its art forms, such as music sampling and graffiti, lies in the appropriation or reuse of the work of others.Footnote 36 This leads Lewis to adopt Foucault’s image of a new creative world in which works of art come into being independent of the author’s intention and control and to state that “there is a growing consensus among cultural theorists that the concept of authorship cannot coexist with current artistic practices.”Footnote 37
The following discussion of the case of Richard Serra’s Tilted Arc will further concretize this consensus. The Tilted Arc was an artwork commissioned by the General Services Administration (GSA) that was realized on the Federal Plaza in Lower Manhattan in 1981.Footnote 38 It consisted of a 37-meter-long and almost four-meter-tall slightly curved steel plate that cut the square in half diagonally. Immediately upon its installation, the sculpture became the object of intense public outcry, causing the GSA to receive around 4,500 letters, both from people defending the Tilted Arc as well as from those demanding that the sculpture be removed from its site.Footnote 39 Initially, the GSA was of the opinion that opponents should give the work time to gain public acceptance. When the outcry had not abated after four years, a three-day public hearing was held where 122 people spoke in favor of the Tilted Arc and 58 in opposition to it. These persons represented a wide range of the public, from community residents and employees at the Federal Plaza complex – complaining about the “rusted steel barrier” and the “intellectual mumbo-jumbo” that was being said in defense of it – to well-known artists, such as Claes Oldenburg who argued that “an effort to … please all … groups” would lead to “mediocrity and decoration instead of integrity.”Footnote 40 Interestingly, both sides agreed on the appearance of the Tilted Arc as being unsettling and defying a majority of tastes, but, whereas its opponents condemned this quality, proponents saw it as the fulfillment of public art’s ultimate task. The opponents eventually convinced the panel, which decided that the GSA was to relocate the sculpture.Footnote 41 Serra went to court to block this decision, but because this occurred before the enactment of moral rights in the United States, his invocation of the integrity right failed. As a result, the Tilted Arc was removed in 1989.Footnote 42
Adler ultimately boils this down to the question of who is legally entitled to control the meaning of an artwork.Footnote 43 Serra’s legal action was an attempt to preserve the original meaning of his creation within its original context. The fact that it was unsuccessful and that the Tilted Arc was subsequently removed signifies that the public was legally empowered to codetermine the meaning of this artwork. The piece has become a contested and removed work of art, and, as such, it has acquired a new and no less relevant significance, if only because it is now one of the most discussed cases in art law. Adler argues that this outcome respects the idea that works of art are, and ought to be, open to be reinfused with new meanings. Along the same line, Lindsey Mills stresses that, rather than emphasize the sacred connection between artworks and the creative intentions of their authors, “[a]rt’s ability to create social value should be measured … by … the extent to which it can be made to communicate new ideas.”Footnote 44 Where moral rights serve the interest of the artist and the public in preserving art in its original form, the plea against them thus seems to serve the interest of art itself. That is, art seen through a lens in which “the author is dead” and its social value comes to be determined through a contingent social process.Footnote 45
On the discursive behavior of rights
An agonistic analysis of the pleas for and against artistic moral rights brings into question under what circumstances law should be used to establish order in continually contested spaces, such as the appreciation and valuation of art. Opponents to these rights appear to have a convincing line of reasoning: given the unavailability of objective standards about what counts as art, given the democratic value of an unconstrained clash of opinions to that effect, and given the postmodern nature of contemporary production and recognition of artistic work, the law should not dictate the destination of artworks. Without subscribing to any judgment, however, it must be emphasized that this plea comes with its own imposition of order on cultural space. If artists have no right to protect the integrity of their work, other actors (such as the resistant citizens and the GSA in the case of the Tilted Arc) will instead obtain the power to determine its fate. The underlying concept of authorship may be more fluid and the empowered actors not predetermined, but, ultimately, legal systems and their courts will have to make decisions, and, in the absence of applicable rights, these decisions will be based on other criteria.Footnote 46
Moreover, the plea against moral rights could arguably deprive public discourse of a vehicle for the antagonistic struggle about the nature of art and authorship. Following Laclau and Mouffe, these rights can be conceived of as “nodal points”: discursive locations where meaning is temporarily fixed.Footnote 47 The authors contend that any discourse needs such fixations in order to cohere, but they also stress that discursive fixations are never complete and continually in flux due to ongoing contestation of temporarily fixed meaning.Footnote 48 In terms of law, Alan Hunt puts it succinctly: “To concede a rights-claim is to invite a counter-claim.”Footnote 49 According to Kathryn McNeilly, this contention implies that (human) rights should not be considered stable norm constructs that impose a certain consensus but, rather, contructs that are inherently contested in the sense of opening discussion on fundamental norms and values.Footnote 50 In brief, these authors help to show that not only the concepts of art and authorship, but also imperatives laid down in law, are open to be reinfused with new meaning.
Legal theory offers many accounts of this semantic flexibility. Andrei Marmor connects it to the so-called “interest theory,” according to which rights derive from certain interests and connect them to the imposition of duties.Footnote 51 In this way, the artistic integrity right connects the interest of authentic authorship to the imposition of the duty not to alter or destroy works of art. This phenomenon leads Marmor to ask why we need “this intermediary step cast in the form of ‘a right?’”Footnote 52 He begins to answer this question by contending that, although the statement that “X has a right” has an absolute normative connotation and rights thus seem to burden their environment with binding duties, in practice, rights are more flexible than they first appear. This is due to an essential asymmetry between rights and their corresponding duties: whilst having a duty entails having a reason for action, having a right does not.Footnote 53 One’s freedom of speech, for instance, does not provide a reason to say something, whereas the corresponding duty does give a reason for others to respect that freedom. According to Marmor, this explains why people with different and competing sets of fundamental values are bound to disagree about the duties they have but not necessarily about their rights. Because rights are only indirectly connected to duties “people can agree on the existence of a given right even if they actually disagree on the nature and scope of the duties that the right justifies.”Footnote 54
This observation leads the author to assert that rights are particularly suited to function as common ground in social conflict. More precisely, it can be argued that rights offer the common ground that can turn antagonism into agonism, due to their semantic flexibility. It is no coincidence, Marmor writes, that homogenous societies tend to produce little rights discourse, whilst this discourse is vehement in pluralistic societies: “If rights discourse is prevalent in a given society, it is mostly because there is little agreement on anything else, in particular, on the ultimate values people cherish.”Footnote 55 This line of reasoning implies that the continually contested field of artistic production could be equally well served with a right functioning as a vehicle for the regulation of antagonism. A right combines the same paradoxical, though useful, traits that were previously ascribed to political space. First, it organizes a divided discourse around one and the same indivisible legal entitlement, thereby creating a space for communication. However, the moment the limits of this entitlement are placed under scrutiny, and its relative weight compared to other rights and underlying interests is determined, it is bound to become the subject of controversy and contestation. Bonnie Honig seems to have a similar idea in mind when she writes about “the mistaken belief that the law can settle issues without remainder.”Footnote 56 Although she contends that rights discourses can have a disempowering effect (to be addressed in the next section), she commits to a view of rights as “points of stabilization”:
To affirm the perpetuity of contest is not to celebrate a world without points of stabilization; it is to affirm the reality of perpetual contest, even within an ordered setting, and to identify the affirmative dimensions of contestation. It is to see that the always imperfect closure of political space tends to engender remainders and that, if those remainders are not engaged, they may return to haunt and destabilize the very closures that deny their existence. It is to treat rights and law as part of political contest rather than as the instruments of its closure.Footnote 57
What gets lost in (moral) rights discourses
Although rights can play an important role in turning antagonistic struggle into agonistic struggle, their entrenchment has disadvantages too. The critique of rights to that effect manifests in varied forms. Focusing on the efficacy of the legal system itself, some argue that the aforementioned interest theory leads to a proliferation and inflation of rights. As Eric Boot remarks, it makes it very easy to speak of this entitlement – namely, whenever something deserves our attention or consideration in normative reasoning. As a result, rights lose their exclusive status in public deliberation:
Rights simply indicate important interests that are to be taken into account along with a plethora of other competing interest. Rights do thus no longer logically entail duties. Rather, they are taken into consideration in an intricate process of balancing multiple interests, at the end of which the right might come out on top, or it might not. In this manner, the peremptory force that sets rights apart in normative discourse is steadily eroded by the interest theory.Footnote 58
Mary Ann Glendon argues that this excessive use of rights can also impoverish the political content of public deliberation. In Rights Talk, she signals “an increasing tendency to speak of what is most important to us in terms of rights, and to frame nearly every social controversy as a clash of rights.”Footnote 59 Influenced by the American civil rights movement of the 1950s and 1960s, by the global recognition of human rights, as well as by the growing practice of judicial review, rights discourse has now spread across the globe.Footnote 60 Although Glendon recognizes that rights discourse has brought about significant social progress, she argues that it has thereby also undermined political discourse. When conflict takes the form of individuals seeking to uphold their rights vis-à-vis an environment that is claimed to have certain duties, the political contest tends to revolve around “lone rights bearers” who use absolute language to express wants and desires without taking any responsibility.Footnote 61 Apart from a negative effect on citizenship, Glendon claims that this scenario can hinder a controversy’s visibility. In the famous flag-burning case in the United States, for instance, flag burners claimed to be protected by the First Amendment, while their opponents protested against desecration of a national symbol. Because limitation of a civil right is generally only accepted so as to prevent immediate harm to specified others, the legal as well as the public debate failed to capture the underlying cultural conflict: the “contest over the fundamental understandings of what kind of society we are, and the role of common moral institutions in contributing to those understandings.”Footnote 62 In this sense, rights can be considered to foreclose meaningful discussion.
The aforementioned failure of rights discourse to capture a more fundamental debate indicates that moral rights can have a depoliticizing effect because they evoke a discourse in which the real issue of contestation – how to conceive of art and its preservation – becomes obscured by legalese. Rather than allowing a scenario to freely develop, as happened in the case of the Tilted Arc, debates surrounding contested works of art will be framed, from the outset, in terms of the integrity to which artists are entitled and what legal ways there may be to limit that right. This keeps the discussion away from fundamental societal dissensus. The political theory of agonism offers a variety of ways to further analyze the negative social effects of rights discourse. Building on its neo-Marxist variant, this specialized rights discourse arguably ultimately only serves the powers that be – that is, the allegedly still hegemonic Romantic notions of authorship and cultural preservation. Opponents of these notions may be free to reinterpret the integrity right and plead for its limitation or even its complete abolition, but this does not change the reality that their contribution to the debate must employ the terminology of the opposition. In other words, their ambition to (re)claim cultural space is hindered by the legal language that they are forced to use.
In addition to this imposition of legal language, other theories of agonism maintain that rights discourses can erode political agency more generally. Bonnie Honig contends that they can “displace” politics, by which she means that legal and administrative processes tend to conceal or deny the effects of power under the guise of professional knowledge and rationality.Footnote 63 If the debate about what is considered preservation-worthy art is relocated to the courtroom, thereby forcing the discord to be phrased in terms of rights and their limitations, then all stakeholders sacrifice part of their control over cultural space to the law and legal actors. Arguably, this is ultimately at the expense of art; not because it necessarily imposes a particular view of authorship but, rather, because artistic practice as well as the agonistic debate regarding its value and meaning can no longer freely develop.
Conclusion
The political theory of agonism does not provide a conclusive reason to argue either for or against the legal protection of moral rights. However, it does create a better understanding of what the debate is truly about and thereby allows for some useful conclusions to be made. First, an agonistic perspective helps to see that the debate revolves around the role of the state, and, by extension, the law, and its ability to manage an inevitably contested domain of social life – namely, cultural space. More specifically, the point in question is whether the state should entrench a right that entitles artists to claim an inviolable place for their work in cultural space, notwithstanding that the valuation of artworks based on their degree of originality and authenticity is in itself a point of controversy.
Opponents of legal intervention insist that moral rights are founded on the archaic idea that the value of art lies in its expression of the artist’s innermost being. As such, the integrity right would impose a Romantic notion of authorship that neither aligns with contemporary artistic practices nor with the belief that the value of art is continually redefined by a contingent social process that could include even the alteration or destruction of artworks. However, this plea itself seems to be based on an archaic notion of rights. It presupposes that rights can prescribe a particular conception of authorship and impose it beyond dispute. Insights gained from agonistic and legal theory demonstrate that the contrary might actually be the case. Rights may be claimed in an absolute and undisputable manner, but this is only a point of departure for an open-ended deliberative process in which their content and normative force is continually redefined and adapted to competing claims and societal developments. Rather than instruments to foreclose disputes about the valuation and preservation of art, artistic moral rights should be viewed as vehicles for discussion.
This different conception of rights calls for a twofold reformulation of the question of whether the integrity right should be entrenched. First, from a moral perspective, the question should not be whether the artist or other stakeholders should be entitled to have absolute control over the integrity of an artwork. Knowing that their claim will likely be confronted with counterclaims and competing interests that also demand recognition, the question should be whether an artistic integrity claim deserves to be taken into account in this debate. The Tilted Arc case has demonstrated that public interests and practical considerations can outweigh the interest that an artist has in protecting the original form of his or her creation. It seems a strained suggestion that, because of the outcome of that particular weighing process, artists generally should have no legitimate moral claim in the first place. In each case, it remains to be seen if such a claim can withstand the challenge of competing claims that also deserve to be heard, but to deny the moral validity of artistic integrity claims altogether would undoubtedly give rise to other complications.
If the prima facie moral validity of these claims is recognized, then the ensuing question should not be whether it is desirable to entrench an integrity right so as to categorically settle the issue of arts preservation for an indefinite number of future cases. Rather, the question should be whether it is desirable to entrench an integrity right with the consequence that the confrontation between claims and counterclaims, as well as the diverging views on arts preservation pertaining to them, continues to take place via the legal concept of a “right.” This question cannot be answered with certainty by defending either the interest of the artist, of (parts of) the public, or of art itself. From an agonistic perspective, such advocacy is only another attempt to hegemonize a part of cultural space that will likely meet a (neutralizing) counter-hegemonic response. Rather, what is needed is a reflection on the arguments for and against juridification in view of how it affects this confrontation between diverging views. In other words, the nature and quality of the conflict itself should be the point of concern. Resisting the hegemonic temptation, it can only be impartially observed that things are gained and lost in rights discourses and that their desirability is bound to be the subject of another antagonistic confrontation.
Acknowledgments
For their valuable feedback and inspiring thoughts, we would like to express our gratitude to Marco de Waard, Anja Novak, Bertjan Wolthuis, Rob Schwitters, Laura Prins, Faith Hardman, Connor Loeven, and the anonymous reviewers.
