by Caroline Levine. Malden, MA: Blackwell Publishing, 2007. 256pp. Cloth $79.95. ISBN: 9781495159265. Paper $29.95. ISBN: 9781405159272.

Reviewed by Paul Parker, Political Science, Truman State University. Email parker [at]


Since its development in the late 19th century, avant-garde art has challenged democratic sensibilities. As the title suggests, Levine argues that democracy is the better for it. From de Tocqueville to Sunstein, theorists have taught us that the democratic equality may produce a culture of the lowest common denominator (pp.13-17); avant-garde art subverts oppressive leveling tendencies of the mass culture to which it is by definition opposed (p.5; p.23). Her evidence is a series of cases studies, mostly from the US and England, on art that has challenged the status quo. An English professor at Wisconsin, Levine makes this argument in five chapters and a conclusion that comprise 200 pages of text. Chapters Four and Five most directly implicate law and courts, as judges and juries have had occasion to determine whether an artifact is art, or something else that subjects it to greater regulation. Before discussing that, I will introduce the foundation of the argument.

Chapter Two, THE PEOPLE v. THE ARTS, is organized to show the danger of democracies attempting to limit the avant-garde – perhaps a natural reaction given that the avant-garde is defined precisely by its challenge to majoritarian culture. Levine juxtaposes the outcry over two pieces of public art, a sculpted memorial in London’s Hyde Park in 1925, and Richard Serra’s TILTED ARC in New York in the early 1980s. While Jacob Epstein’s RIMA is now little noted, several times it was physically vandalized and the sculpture and its Jewish creator were accused of cultural vandalism. This case illustrates “the most fundamental question raised by democratic societies . . . What is the place of outsiders, dissidents, and foreigners in the democratic collective?” (p.45) Levine’s answer is that the avant-garde can be transformative, and that art exists for the public of the future: today RIMA is well accepted.

The contrast to Richard Serra’s TILTED ARC is dramatic: four years of public outcry led to its 1985 removal – its destruction, since it was created for a specific site. Levine titles this section “Majority Rule: Voting Art into Extinction” although the story told appears to be more bureaucratic than democratic decision making. Through this case Levine revisits the nature of majorities in a democracy: who counts (workers at Jacob Javitts Plaza? all Manhattan? the world, for whom art is made? our future selves, capable of being transformed – as with Epstein’s RIMA and Duchamp’s NUDE DESCENDING A STAIRCASE?). Levine does not discuss how public funding of the art might bear on the ability of democratic majorities to vote art into extinction. [*497]

In Chapter Three, “Propaganda For Democracy: The Avant Garde Goes To War,” Levine discusses how support of the arts – especially art that challenges democratic sensibilities – helps democracies to demonstrate their freedom. Two examples are the CIA’s support of artists such as Jackson Pollack (pp.91-96) and Richard Nixon’s expansion of the National Endowment of the Arts (pp.97-101). This is one of several times she bridges dualisms that she has created; indeed, rooted in her definition of the avant-garde is the thesis that the two camps structurally need each other.

The next two chapters involve law and courts directly. In Chapter Four, “Obscenity and the Democratization of Culture,” Levine traces the replacement of the restrictive HICKLIN RULE with the much more tolerant test of MILLER v. CALIFORNIA. Under the former, a published work could be banned if a portion of it offended those with delicate sensibilities. This rule was seriously undercut in the United States’ trial of James Joyce’s ULYSSES, which ruled the work to be considered as a whole, and which also introduced expert artistic opinion – two features that demonstrate how courts are countermajoritarian (p.116). Levine argues that this shifted the dualist tension from mass culture versus elites capable of discerning true art, to a tension between a democratic sensibility and expert opinion. The difference is that in the second dualism, the democratic majority can be educated into the value of a work, as occurred with a jury in the obscenity trial of Robert Mapplethorpe (p.145). Indeed, that 1990 trial usefully illustrates how the current constitutional standard announced in MILLER v. CALIFORNIA (1973) incorporates both democratic and expert opinion: the test demands satisfaction of both contemporary community standards and “serious artistic” value.

Avant-garde art and the judiciary thus are both countermajoritarian institutions that help to save democracy from its own worst impulses. Both are simultaneously rooted in the past and open to future possibilities. This is best illustrated by a tax law case judging whether a Brancusi’s artifact was in fact art, or merely craft: at stake was a hefty tariff or duty-free import into the U.S. (pp.150-165). While the taxman argued that the sculpture lacked representational form (‘that’s not a bird’), expert testimony identified other artistic ‘not-birds’ dating back 3000 years. Using the language and the traditions of the old, the court allowed the boundaries of the new to be pushed, even overturning the precedent. Art and the law are not so forgiving, however, if we refuse to speak their language. Jeff Koons’ commissioned sculpture was judged a violation of copyright; its close copying of a note-card photograph, offered as a post-modern reference to the banality of mass culture, did not exempt it from judgment of infringement Indeed, it appears Koon’s status as artist was his central defense: whatever an artist creates is art and therefore not subject to the legal niceties of the copyright law. Levine argues Koons lost in part because he did not argue within the logic of the avant-garde, which aims to challenge majoritarian culture. He was dismissive of the photograph and culture that he copied (pp.165-190). Despite his argument, the law does not exempt all that artists do. [*498]

Levine ends with a short conclusion on artists and academics – elites who are criticized for being above and beyond authentic people who eat at Applebee’s. Levine argues that academics have two audiences, their professional colleagues and their students; translating the language of the (by definition) elite for the masses is central to academics’ professional success. This parallels the argument of the rest of the book, the aspirational view that democracy is best when we are open to new ideas, new peoples, new ways, and successful artists push the boundaries in ways that include rather than exclude. The avant-garde art world, the countermajoritarian courts, and now in a brief 10 pages, academics, are institutions that make democracy better.

Levine privileges the minority over the majority, and in doing so does not explore how the opposition to majoritarian tastes that defines the avant-garde can readily slide into transgressiveness that amounts to a poke in the collective eye. Consider two works not discussed in this book, PISS CHRIST, a photograph of a crucifix in the artist’s urine, and THE HOLY VIRGIN MARY, a painting involving elephant dung. Far from promising transformation, such work may divide us into communities of the targeted religion or the thin-skinned majority, versus the cultural elite that expects us to pay for the creation and display of their work: Andres Serrano received National Endowment for the Arts funds for PISS CHRIST, and Mayor Rudy Giuliani threatened to defund the Brooklyn museum that displayed THE HOLY VIRGIN MARY (another offended Catholic defaced the artwork (Broughton, 1999)). Is the democratic majority better off for having a debate about the nature of art? Does the provocation involved in these examples disrupt the comparison she draws between the majority’s tyranny of artists and of ethnic or religious minorities? One book cannot cover everything, and perhaps that I engage such questions substantiates her thesis.

Finally, while Levine cites several legal scholars, this is not a book about law and courts. Several court cases are discussed, but not at a level of sophistication to which most Review readers are accustomed. Indeed, the citation for the tax law case – an excellent illustration of her thesis – is not to be found in the book. Like the Serra and Koons controversies, her discussion of this case depends on earlier book treatments. Courts are assumed and asserted to be a countermajoritarian institution, with a brief discussion of the Carolene Products footnote (p.107) – although discussion of the Koons’ case leads her to conclude that “courts have increasingly favored a ‘bloated’ copyright that is bad for both art AND democracy” (p.171, emphasis in original). This discussion of legal interpretation of law is context-less and unconvincing: might it be more accurate to state copyright is the province of legislators, and the courts continue to be deferential to legislators? A more nuanced consideration of law (constitutional law of obscenity versus the legislative law of copyright) would not fit nearly so well into the thesis however, that courts and avant-garde artists check majorities. [*499]

Broughton, Philip Delves. 1999. “Catholic defaces 'Virgin',” TELEGRAPH (December 18).

De Tocqueville, Alexis. 2000 (1835). DEMOCRACY IN AMERICA. Many editions available. Trans. Harvey C. Mansfield and Debra Winthrop. University of Chicago Press, 2000.

Joyce, James. 1960 (1922). ULYSSES. New York: Random House.

Lawrence, D.H. 1993 (1928). LADY CHATTERLY’S LOVER. New York: Cambridge University Press.

Sunstein, Cass. 2001. REPUBLIC.COM. Princeton: Princeton University Press.

MILLER v. CALIFORNIA 413 U.S. 15 (1973).

REGINA v. HICKLIN LR 3 QB 360 (1868).


© Copyright 2008 by the author, Paul Parker.