Icons and Aliens: Law, Aesthetics, and Environmental Change

Abstract

John J. Costonis 1 critically examines the expanding field oflaw loosely termed the law of aesthetics. This area of law concerns governmental efforts to maintain environmental aesthetics by imposing limits upon the use of private property. 2 Costonis does not merely examine the status of the law, or rearticulate the policy concerns elucidated by courts. Rather, he advocates a fundamental change for the role of the law of aesthetics. He criticizes the development of the law to date for unduly focusing on the ''beauty" standard, wherein courts judge the aesthetic importance of environmental attributes in terms of how visually pleasing they are, and thereby decide whether or not to preserve or otherwise protect them (p. xv, 60-70). Costonis advocates a different standard, a dichotomous paradigm that pits "icons" against "aliens." He defines icons as those environmental attributes for which there is a substantial arµount of human attachment; aliens are intrusions that threaten such icons. Costonis' fundamental argument is that a properly focused law of aesthetics would seek not to preserve beauty, but to preserve icons, protecting them from harm threatened by the encroachment of aliens (pp. xv-xvi, 45-51). Centuries ago, aesthetic legal issues simply did not exist. Important cultural landmarks, for example, were simply designated by the King, Emperor, or Pope, without explanation, justification, or dispute (p. 13). Even in this country, institutional recognition of a law of aesthetics occurred only quite recently. Early formalist legal thinkers refused to recognize government's ability to infringe upon the rights of private property and free expression. 3 Not until 1926 did the Supreme Court legitimize public control of privately held land through zoning ordinances. 4 Later, in the watershed case Berman v. Parker, 5 the