TOPLUMCA BEĞENİLENİ KORUMAK: ESTETİK YAKLAŞIMLAR VE BU YAKLAŞIMLARIN YASAL ÇERÇEVEDEKİ ÖNEMLERİ

The demands of American society to preserve certain environments, because they provide aesthetic appreciation, has been increasingly referred as supportive evidence by the courts to sustain aesthetic regulations in the United States. However, in spite of the increasing collective demands of people for aesthetic preservation, and in spite of the increasing amount of such regulations, the courts still have problems to justify the validity of preservation oriented aesthetic regulations, i.e., the courts are still troubled in providing a justification that these regulations are valid and legitimate forms of governmental control over private property for public purposes. Although the U. S. Supreme Court and the majority of the courts of States have recognized a broadened definition of public purpose which states that even the aesthetic purposes alone can be the basis of police power use, the courts are still struggling with finding a sound definition of aesthetics. In many court cases, even if the aesthetic purpose alone is accepted as the sufficient basis for the enforcement of a regulation, the general language used in justifications still include references to secondary non-aesthetic reasons, such as protecting the property values (in especially design review cases), maintaining the tourists' interests (in especially historical preservation cases), or protecting public safety (in especially billboard cases) (Linder 1990, Rowlett 1981, Williams 1977). Many design scholars, regulators and judges deal with the question of defining aesthetic concerns. It is crucial for the courts to understand and scrutinize the motives behind the collective demands to preserve, for example, certain landmarks, or to protect the visual character of a neighborhood, or a scenic vista or to reserve an untouched natural area. Where do these collective interests or sentiments come from and what do they really want in terms of planning and design? Is it really because of the financial interests that people of New Orleans want to keep French Quarter's architectural character? Is it because of safety issues that many communities do not want to see billboards around the highways? A sound person's answer would be: 'These concerns are important but not so important to enforce historic preservation or billboard regulations. The real reasons are different and probably closely related with aesthetic concerns ...' Courts recognize and actually adapt this kind of reasoning but still are puzzled with the problem of defining these concerns. Why don't people like the billboards? Is it because they think they are not picturesque? If so, are there any other objects which are not picturesque, so that we can regulate them too? What is to be picturesque? To what degree people do not like them? In other words, are there some other people who like them? If yes, why do they like them? That is to say, on what aesthetic grounds do they appreciate them? Can there be a special kind of billboard design that most of the people like, or at least not be offended (so that we can require the use of that kind)? One can add tens of similar questions to these. These questions are questions with vital importance for the courts. Plausible answers can help the courts to test the constitutionality of regulations. Plausible answers are indeed necessary to be able to define government's interest in regulating the architectural style in a neighborhood and to address the freedom of speech issue. The answers are important to be able to balance the condemned private property and protected public interest. Unless some answers are provided, even though they recognize the validity of aesthetic purposes, the courts will continue to be puzzled and look for secondary non-aesthetic justifications to test the constitutionality of aesthetic regulations and to defend their validity. Although the above listed questions seem hard to answer because of their seemingly subjective and vague character, they are by no means untouched and unstudied questions. Different aesthetic theories have different answers. Some of them are quite reasonable and have been used in courts. The problem is that, most of the time, their usage in courts is mixed with non-aesthetic justifications, and therefore, they fail to provide a comprehensive understanding of the collective aesthetic sentiments. Furthermore, the analytical studies comparing different aesthetic approaches and explanations, in terms of their ability to scrutinize the aesthetic collective attitudes, are few in number and this line of study has not yet attracted the attention it deserves, This paper is an attempt to provide a framework to explore the interrelations between aesthetic judgments and aesthetic regulations and to review and compare different aesthetic approaches that courts generally refer to in the context of legal aesthetics in the United States. The next section of the paper provides a quick general historical background of aesthetic regulations in the United States. This review will point out that during the history of aesthetic regulations the number of the regulations has increased, the collective will to preserve certain environments has grown, and the courts' definition of public welfare has been broadened. The following section will provide a framework to explore the interrelations between aesthetic judgments and legitimation of aesthetic regulations. The argument will be that it- is not fair to consider the aesthetic regulations as restitutionary regulations where the pecuniary compensation is aimed. The aesthetic regulations are motivated by some collective sentiments or emotions, and therefore, they can be validated only by a plausible explanation of the motives of mentioned collective emotions. In this sense, the aesthetic judgments used in normative aesthetic theories can be important sources for legal legitimation of aesthetic theories. The next section of the paper will explore and compare four different aesthetic approaches and associated judgments. The historical backgrounds of these approaches will also be provided. These approaches are (a) subjective approach, (b) objective approach which sees nature as an object of beauty, (c) the objective approach which sees the experience in nature as uplifting, educating and aesthetically pleasing, and finally (d) the inter-subjective approach which defines the aesthetic experience referring to the symbolic meanings and values attached to the environment. The last section will conclude with the argument that the inter-subjective approach is the most promising one to provide a general framework to explore the aesthetic demands in many different cases. This approach is particularly suitable for courts in their efforts to test the constitutionality of aesthetic regulations and to justify their validity.