The French Council of State stated, on at least one occasion, that aesthetics was one of the most legally “uncomfortable” concepts. In Spanish law, as is normal in all advanced laws, the prescriptions of the public authority on aesthetics depend (in order to be in accordance with the law) on a provision in an applicable rule, be it a plan, an ordinance, a town planning catalog, etc. We would say that aesthetics does not function as an indeterminate legal concept. At least, in general, apart from the criterion of the adaptation of the buildings to the environment of the place (in this context, Supreme Court ruling of December 9, 1986 and Supreme Court ruling of December 15, 2003). In Bavaria, where historically there are special cultural conditions, it has been able to function – aesthetics – as such a concept. This would be the challenge for the future, which entails a special evolution of the concept.
In these statements that have just been made, very ancient phenomena are present (of conflict between the rule of law and the rule of culture); in our modern societies it is understood that both principles are expressed in perfect compatibility. However, the question is not so easy. The potentialities of culture, or the achievements that could be reached from this perspective, are tempered by the law, which, in the end, imposes limits. In some books prior to this publication I have highlighted the possibility of going deeper into the State of Culture and therefore into aesthetics (mainly in volume four of my treatise on administrative law, published by Civitas-Aranzadi fourth edition 2021 and in El estado de la cultura published by Tirant lo Blanch; but also in the recent literary essay entitled “Soberanía pop” with the publisher Colex).
The State of culture fits better with the police state, which is the opposite of the rule of law, and certainly in aesthetics it is like that. If one starts from the State of culture or the Rule of Law, the results are ultimately different. One ends up doubting (perhaps because of the skepticism typical of somewhat advanced ages) the goodness of this urban planning based on “numbers” dominated by economists and architects and based on “regulations” dominated by jurists. That is to say, although it sounds “barbaric”, one ends up thinking if it would not be better to give priority to aesthetics directly, as an evolved concept. We can see, many times, the poor results that are produced nowadays, not to mention social housing (where aesthetics are totally disregarded) and the laudable aesthetic results of the cities of the past (or of the towns). Perhaps it is not so relevant that there is a house in the countryside, or that there is no longer one, or that it has a certain height or another, but that the building improves reality, improves nature, improves the landscape, improves the habitat, as an expression of culture in the background.
These ideas sound debatable today, but perhaps in the future they will be less so. Perhaps in the future urban planning could be directed by fine arts and not by city councils. It is better to have people trained in aesthetics than people who know precepts. Of course, the efforts that are sometimes made are healthy, such as, for example, that (in more recent times than the historical ones) landscape adaptation reports, etc., are carried out. There is also a certain social conscience that tends to value the aesthetic sometimes, for example in the highways are built “viewpoints” that move towards the interior of the valleys, from the height. And this effort of the public administration is to be applauded. In the end, this is what counts.