3 Pub. Space: J. L. & Soc. Just. 1 (2009)

handle is hein.journals/pubspac3 and id is 1 raw text is: ART, ACTUALLY! THE COURTS AND THE
Dr Marett Leiboff'
A prelude, in the form of two snapshots
How do we read art, at least in law? The traditional approach of the courts has been to
disavow, or at least avoid any discussion on matters of aesthetics or connoisseurship, or more
accurately assert such a disavowal. Because whether the courts acknowledge it or not, they
actively judge art, even when they say they don't. Judging art by judges, as we will see, is not
a particularly edifying spectacle, but is it better for the courts to avoid judging art? In this
article, I will explore what happens when the courts grapple with the problem of judging art,
but to begin, I would like to ask you to look at two snapshots of judicial entanglements with
art in the form of extracts from the case law.
Snapshot One: A mass ofjunk
Harcourt J in Re Pinion:
It was said that this is a matter of taste, and de gustibus non est
disputandum2 but here I agree with the judge that there is an accepted
canon of taste on which the court must rely, for it has itself no judicial
knowledge of such matters, and the unanimous verdict of the experts is as I
1 University of Wollongong.
2 There is no translation in the original judgment. The phrase translates as 'There can be no dispute about taste'.
Public Space: The , o ,,a  o Law aiid Social Justice (2009) Vol 3, Art 1, pp 1-23

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