A brush with blasphemy and crime

The Legal Concept of Art gives nothing away in its title. With a cover like the fliers for Yasmin Reza's play Art, it looks as if it could be an anecdotal romp through the sexier cases involving works of art - the sculptor who was recently imprisoned for stealing corpses for his work or the legal wrangles over the export of The Three Graces . But it is not. Nor is it a "law made easy" reference book for auction houses and art dealers. In fact it is difficult to imagine who would choose to read this book.

The dust-jacket plugs it as "the first monograph on the holistic treatment of Art Law in the United Kingdom". No surprises there. Paul Kearns himself is at great pains to point out that the law does not cater properly for the needs of art. In fact there is no such thing as "art law". The Legal Concept of Art takes a number of disparate areas of law, ranging from copyright and obscenity to import-export duty and the law of trusts, and comments on how they relate to art.

The book raises some interesting points about the outdated blasphemy laws that protect Christian beliefs but not those of Hinduism, Buddhism or Islam, and the sluggishness of constitutional change to accommodate societal and cultural change. And Kearns has a point when he complains that by allowing art to be silenced in order to enforce Christian beliefs (he cites The Last Temptation of Christ and Visions of Ecstasy , a video about the mystical visions of a 16th-century Spanish nun banned under blasphemy laws), the English legal system is inherently undemocratic. As Kearns puts it, blasphemy law "disfavours art (which is more universally participated in) in favour of what is in practice a small censoring lobby (which happens to be religious in its justification)".

But at the root of the author's presumptions about art is his view of art as passively aesthetic - all Monet waterlilies rather than K-Foundation cash bonfires. He says that "art, per se , is incapable of being obscene." and that "art improves (it is a beneficial cultural experience, usually pleasurable) and is provided for contemplation, inner digestion unintended to spur outer negative impacts". Kearns argues that art should be exempt from public morality doctrines because it is incapable of inciting negativity in an audience unless the audience is itself dysfunctional.

For someone who appears to champion art over and above pretty much all other social mores and human rights, Kearns has an extraordinarily low opinion of art's capacity to affect. He says that "the basis of the crime of seditious libel, ie the tendency to excite public mischief, cannot be achieved without an inappropriate relation to the artwork on the part of the reader or viewer. If treated appropriately, ie meditatively, by him or her no mischief can result. Any offence for which art is the alleged stimulus is the result of an incorrect psychic approach on the part of the reader or viewer".

Imagine the reaction of artists from Goya to the Chapman brothers to the suggestion that the audiences of their art should just stand about feeling meditative and then go home quietly.

The central point of The Legal Concept of Art appears to be that our society would be better off and more civilised if art stood outside the law. It does not appear to cross the author's mind that if art were not subject to the legal system, in the same way that the individuals who make up our society are, art would be cast outside the human dynamic. The interdependence of law and the rest of society means that if art is to continue to have the power to affect and to contribute to the human experience, or simply to be looked at or read or listened to, it has to remain within the law.

In his chapter on "The concept of art in defamation law", Kearns's argument becomes still more preposterous. He suggests that art is not capable of damaging a person's reputation because, he says, if an individual is not named in a work of art but is nonetheless identifiable, the portrayal of him must be a good enough likeness to be true. This is not of much comfort to the ex-girlfriend of a jilted novelist who creates a character so thinly veiled in physical description and circumstantial detail as to be identifiable but who is involved in exploits in the novel that shock the girl's acquaintances into changing their opinion of her.

In a world in which Kearns's ideas were put into practice, newspapers would be able to publish any number of defamatory untruths about anyone they chose under cover of a pseudonym. But, argues, Kearns, this does not matter. People should not be so selfish and shallow as to seek to protect their reputations at the expense of art.

The Legal Concept of Art is more credible where it addresses the distinctly unexciting areas of trusts law (dramatic conclusion: leaving money in an artistic-purpose trust is a good thing) and import-export regulations. Kearns appears to be more at home in these areas. His chapter on trusts sets out the law clearly - something he fails to do in the other chapters. But overall the book is inaccessible to readers without legal training and is ruefully inadequate in its understanding of the law for those with it.

Kate Orr is a solicitor at Theodore Goddard.