Abstract
Natural beauty has been the central legal criterion for the designation of ‘protected landscapes’ in England and Wales for over 70 years. This approach is subject to criticism that natural beauty is an outdated and subjective notion. Yet, there is surely merit in celebrating the beauty in nature that exists in these areas. Nevertheless, the legal approach necessitates some interrogation of the notion of natural beauty, its relationship to the landscape and the nature of the aesthetic exercise required to underline a regulatory system for the designation of protected landscapes. This article draws on literature in both aesthetic philosophy and landscape studies to provide such an analysis, arguing that an aesthetic observation of natural beauty can form the basis of a reasoned, robust and transparent process for the designation of protected landscapes and account for natural and cultural heritage concerns.
Introduction
Protected landscapes exist across the globe, framed by laws that seek to conserve the value of these spaces to the nation. The International Union on the Conservation of Nature (IUCN) has led the global movement in support of protected areas.
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It defines protected landscapes as follows: A protected area where the interaction of people and nature over time has produced an area of distinct character with significant ecological, biological, cultural, and scenic value: and where safeguarding the integrity of this interaction is vital to protecting and sustaining the area and its associated nature conservation and other values.
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Protected landscapes in England and Wales take the form of National Parks and Areas of Outstanding Natural Beauty (AONBs). 4 The legal framework for these protected landscapes dates back to the National Parks and Access to the Countryside Act 1949. 5 As the name suggests, the legal criterion for the designation of an AONB is that the area provides an outstanding example of natural beauty. 6 The law in relation to the designation of National Parks refers to both the natural beauty of the area and the opportunities it affords for access to recreation. 7 However, given that the latter is more relevant to the ‘place’ of National Parks than their special qualities, it is fair to say that the main criterion in law for the designation of National Parks is also natural beauty. Since 2006, the law on National Parks has also specifically referred to the possibility of taking into account the wildlife and cultural heritage of an area in assessing its natural beauty for the purpose of designation. 8
If protected landscapes are to exist at all, they must reflect some ‘special qualities’ that allow them to be distinguished from other ‘local landscapes’. 9 To view those ‘special qualities’ purely in terms of beauty is understandably controversial. Beauty may appear frivolous in comparison to other societal values; and, in the context of the landscape, it often appears in direct confrontation to concerns for our natural and cultural heritage. Yet to appreciate beauty is surely one of the greatest privileges of being human and the beauty in our everyday surroundings is an issue that still resonates with today’s society. 10 It is certainly the desire to ‘enjoy the landscape’ that motivates many millions of tourists visiting protected landscapes in England and Wales. 11 Thus, beauty is wedded to the public understanding of the significance of these landscapes. Yet, beauty is also a difficult value to attach to the legal status of landscapes. Beauty is popularly conceived to be a subjective notion, epitomised by the idea that ‘beauty lies in the eye of the beholder’. If we ascribe to this notion of beauty, it appears absurd to suggest that ‘standards of beauty are ontologically based and hence exist “out there” ready to be plucked by aesthetic experts and transformed into legal ukases by policy makers’. 12 Aestheticians have already recognised this challenge and begun to contemplate the way forward, but it falls to lawyers to consider how an ‘aesthetic observation’ can underline a regulatory framework for the designation of protected landscapes.
This article provides a defence of natural beauty as the central legal criterion for the designation of protected landscapes in England and Wales but seeks to understand how, as a matter of aesthetic observation, this might reflect broader concerns to protect the natural and cultural heritage of those landscapes. It argues that natural beauty can form the basis of a reasoned, robust and transparent process of the designation that can account for all the values of a protected landscape – as nature, culture and in terms of its beauty. It does so by drawing on the literature in aesthetic philosophy and landscape studies. This approach is essential because although it falls to lawyers to consider how aesthetic obligation might take shape in law we cannot do so in isolation of the scholarship in related fields. The necessity of cross-disciplinary endeavour is gaining increasing recognition given the complexity of problems facing society. Continuing to recognise the natural beauty of the landscape, particularly in the face of pressing environmental concerns, is clearly such an issue.
The argument presented in this article will be challenging for those who might instinctively deny the significance of beauty in this context and those who view legal scholarship to include only detailed accounts of law in theory or practice. The reality is that academics, especially law academics, need to be bolder in their scholarship and recognise the value of a broad range of contributions. 13 Nevertheless, engaging with other disciplines to the satisfaction of experts in the area is not easy. Thus, the significance of this article lies in its ability to create a starting point for discussion of the designation of protected landscapes between lawyers and other relevant disciplines.
This article begins by considering how natural beauty emerged as the central legal criterion for the designation of protected landscapes in England and Wales and provides some contemplation as to why this may have had lasting appeal in this context. The first section also explains the background to the changes to law on the designation of National Parks that were introduced to reflect concerns to protect broader landscape values. The intention is not, however, to posit a detailed review of current approaches to the designation. Nor, indeed, is there room for in-depth discussion of how the law on the designation of protected landscapes relates to the legal framework for identifying the purposes of these areas (which may be broader than the reasons for the designation). Furthermore, it does not discuss how landscape values are taken into account in wider land-use decision-making (either specifically in designated areas or with reference to the relationship with more local landscapes). 14
The main body of this article is devoted to the development of an argument based on aesthetic philosophy that it is possible to provide an aesthetic observation of the natural beauty of the landscape that can take account of wildlife and cultural heritage concerns. The argument is based on three essential propositions, which are explored in the central section of this article. First, natural beauty should be viewed as a term of art distinct from the idea of scenic value, that is, it is focused on understanding the beauty in nature not just assessing its value as a ‘picture’. As part of this analysis, other values of the landscape, such as its natural and cultural heritage, form an important context in which the aesthetic observation of natural beauty takes place.
The second proposition is that the regulatory context is essential to the form of aesthetic observation. It is argued that in this context, the aesthetic observation should take the form of aesthetic interpretation that is focused on eliciting the public meaning of the natural beauty of the landscape. An act of aesthetic interpretation can be distinguished from most aesthetic observations, which take the form of aesthetic appreciation with the objective of providing a qualitative judgment about an object. 15 Finally, it is posited that an act of aesthetic interpretation should be viewed as a matter of practice/expertise separate from the value-laden process of judging ‘significance’. Furthermore, the significance of the natural beauty of the landscape for the purpose of designating protected landscapes in England and Wales will rest upon the extent of its public meaning at a national level.
This article concludes with an outline of the design of a designation process that will reflect the essential propositions made. It is important to note, however, that there is insufficient room to explore the relationship between the model proposed and the detailed process in the existing regimes for the designation of AONBs and National Parks.
Natural beauty and current approaches to the designation of protected landscapes in England and Wales
Protected landscapes take many different forms from vast state-owned areas of ‘wilderness’ to the ‘living landscapes’ or more populated rural areas of Western Europe. 16 In more populated areas, processes of human interaction are particularly important in shaping and reshaping landscapes, alongside natural forces. Thus, the designation of protected landscapes in Western Europe differs according to a country’s geography, history, social structures, political organisation and planning culture. 17 A focus on beauty was common to many of these countries in the past but has not always endured. 18 Yet, the ‘natural beauty’ of the landscape has remained the central legal criterion for the designation in England and Wales for 70 years.
Although the origins of the phrase ‘natural beauty’ in the National Parks and Access to the Countryside Act 1949 are uncertain, there is evidence that the Romantic view of nature and the ‘picturesque’ in the landscape were significant. 19 The ‘picturesque’ – meaning simply ‘like a picture’ – is perhaps one of the most widely known aesthetic concepts that have inspired the work of English Romantic poets and landscape artists since the 18th century. 20 The focus on the idea of the landscape as a ‘pleasant view’, or of scenic value, has fuelled a strong tradition of landscape tourism since Gilpin first undertook his tours of Britain during this period. 21 Once closely associated with the bourgeoisie, the beauty of the landscape has become a matter of interest to the broader population, epitomised by Wordsworth’s description of the Lake District as ‘a sort of national property in which every man has a right and interest, who has an eye to perceive and a heart to enjoy’. 22 Beauty has thus become rooted in the public understanding of protected landscapes in England and Wales. Nevertheless, it must be acknowledged that the values of these areas clearly extend beyond their artistic properties.
Landscape is a relatively new area of academic scholarship but one that has revealed the richness of this notion. 23 ‘Protected landscapes’ in England and Wales are predominantly rural landscapes, highlighting their value as a natural environment. Landscape also exists not just as a physical entity but in perspective. This has assisted geographers in distinguishing the features of landscape not just in terms of topography but in cultural perspective. 24 Such humanist perspectives also make links between the pictorial representation of the landscape with ‘ways of seeing’ from historical and cultural perspectives. 25 Landscapes are also dynamic and subject to constant transformation as a result not just of natural forces but human social and economic development pressures. In short, a landscape exists not just as a ‘pleasant view’ but as a reflection of our natural and cultural heritage. 26
In recognition of these concerns, the National Parks and Access to the Countryside Act 1949 was amended, in 1995, to include the conservation and enhancement of wildlife and cultural heritage, alongside that of ‘natural beauty’, as purposes of National Parks. 27 At this stage, the law relating to the designation process remained unchanged. It was, however, challenged in the case of Meyrick Estates Management, in 2005. 28 This case involved a challenge to the designation of a new area of land that formed part of a managed estate within the New Forest National Park. 29 Justice Sullivan took the opportunity in this case to discuss the notion of ‘natural beauty’. 30 He concluded that nature conservation concerns were not relevant to the legal interpretation of this term; and that the authorities had been wrong to refer to concerns such as ‘human influences on the landscape, including archaeological, historical, cultural, architectural and vernacular features’. 31 This approach, he espoused, would not be in line with the original intentions of the authors of the legislation, who, in his analysis, intended the concept to refer to scenic quality and not to encompass broader factors.
For Justice Sullivan, the natural and cultural heritage of the landscape was important in understanding the evolution of the landscape but not relevant to the decision as to whether the tract of land possessed the necessary quality of ‘natural beauty’ for the purpose of designation. 32 He also noted that the legal interpretation of the ‘natural beauty’ of the landscape, as it stood in 2005, was not in line with countryside and leisure planning in the 21st century; but, he opined, Parliament must intervene to address this. 33 Indeed, following the decision in Meyrick, the National Parks and Access to the Countryside Act 1949 was amended to allow those responsible for the designation of National Parks to take account of wildlife and cultural heritage in deciding whether to designate an area on the grounds of its ‘natural beauty’. 34 This was not extended to AONBs, where natural beauty remains the only legal criterion relevant to the designation. This has created a ‘split’ between issues of designation relating to the two forms of protected landscape that is difficult to justify.
The idea and purpose of ‘protected landscapes’ in England and Wales continue to attract controversy. The Welsh Government has recently undertaken a review of ‘protected landscapes’ in Wales with the express intention of bringing the law in line with its new legislation on the Well-Being of Future Generations and the Sustainable Management of Natural Resources.
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It identified the following vision for these areas: deliver both within and beyond their boundaries to enhance their social, economic, environmental and cultural resources; delivering the maximum well-being benefits for present and future generations whilst enhancing the very qualities that make them both distinctive and cherished.
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Despite the continued controversy regarding the purposes of protected landscapes, natural beauty remains the central legal criterion for the designation of protected landscapes. Given that the law has bestowed instrumental value on the ‘natural beauty’ of the landscape for more than 70 years, it may seem surprising that there has been little attention to this issue from legal academics. 39 This may be explained by the fact that there is little by way of aesthetic obligation in the law of England and Wales. Those references that do exist relate to the aesthetic properties in historical monuments and the ‘beauty’ of the countryside and there is no tradition of aesthetic nuisance. 40 In contrast, the notion of aesthetic obligation has attracted significant attention in the United States (US), where all US state courts have accepted aesthetic regulation. 41 More radical approaches include basing aesthetic regulation on a theory of cultural stability, while others believe that different theories of aesthetics can be reflected in regulatory decision-making. 42
Beauty also receives some attention in environmental law, where it is recognised that beauty can contribute to our ‘empathy and ethical commitment to environmental stewardship’ although ‘references to natural beauty risk importing an anthropocentric “special” versus ordinary dichotomy in environmental protection’. 43 Beauty may not be capable of providing a ‘lingua franca’ for environmental law; 44 but this does not mean it should not be possible for natural beauty to underline a system of protected status for certain landscape areas within a country. The significance of the particular circumstances in which aesthetic obligation exists in law has also been noted in US literature on landscape regulation. 45 Certainly, aesthetic obligation in law is complicated by the complex notion of the idea of landscape, which exists not just as a natural environment but in cultural perspective.
This article argues that it is possible to defend an approach to the assignation of ‘special status’ to a protected landscape on the grounds of natural beauty through a process that relies on aesthetic observation in a way that also accounts for the existence of landscape as both nature and culture. To achieve this, we must consider ‘natural beauty’ to be a term of art, distinct from scenic value so that understanding the beauty of the landscape is not confined to the pictorial. Thus, the starting point lies in an interrogation of natural beauty as an aesthetic concept. This concerns both the relationship between beauty and nature and between natural beauty and landscape. Before carrying out this investigation, it is important to note that the approach advocated is in sharp contrast to modern methods of assessing landscape value centred on Landscape Character Assessment (LCA).
LCA classifies landscapes according to differences in their physiographical formation but also includes other historical, spiritual, cultural and geological features. 46 It can provide a means of adopting a holistic perspective on distinctive features of a landscape as they relate to nature, culture and scenery. LCA is widely used in processes of the designation and, indeed, in land use planning both within and outside designated areas. There is no room here for a detailed comparative critique of these approaches. Suffice to say that this article focuses on the means of fulfilling the legal duty to designate protected landscapes on the grounds of natural beauty as a matter of aesthetic observation.
Natural beauty and landscape
Understanding the natural beauty of the landscape as an aesthetic observation requires some reference to aesthetic philosophy. Aesthetics is based on understanding the significance of ‘aesthesis’, or knowledge that arises from sensation. 47 According to Levinson, there are three essential foci of aesthetics: a certain kind of practice, activity or object; a certain kind of practice, activity or object; a certain kind of property, feature or aspect; and, a certain kind of attitude, perception or experience. 48 Experience is rooted in a personal observation of an object and much of aesthetic philosophy is focused on understanding the nature of ‘the various mental states that figure in response to art or nature, e.g. perceptions, imaginings, reasonings, feelings, memories, moods’. 49
The approach to the aesthetic observation of the natural beauty of the landscape is entirely dependent on the context. Thus, it is important to understand how to approach an observation of the beauty in nature and, subsequently, the way in which natural beauty is related to the landscape.
Beauty in nature
Beauty in nature was a prominent concern in aesthetic philosophy until the 19th century when, following Hegel’s assertion of the superiority of human artistic endeavour, the discipline began to focus on the aesthetics of art. 50 The study of beauty in nature resurfaced as a subject of contemplation in the late 20th century but remains a small branch of the discipline. 51 Nature is not art, and a central debate in nature aesthetics is whether the same techniques should be adopted in the aesthetic observation of art and nature. Although some authors argue that nature is not the foundational concept of natural beauty, 52 others believe strongly that the aesthetic appreciation of nature relies on the view of nature as nature and not art. 53 Furthermore, it may be argued that our aesthetic experience of nature is informed by our relationship to the natural environment; this being defined by our role not just as spectators but operating within and, indeed, forming a part of nature. 54 Finally, in contrast to art, nature appears frameless, in the sense that ‘natural things are not set apart from their environment as objects of aesthetic interest’. 55
Aestheticians in nature aesthetics are particularly concerned to find answers to the problems of indeterminacy in aesthetics because assessments of natural beauty are important to legal and political decision-making. Hepburn, for example, notes that: When we seem to defend AONBs against degradations it matters greatly what account we can give of the appreciation of that beauty: how its value can be set alongside competing and vociferously promoted values involved in industry, commerce and urban expansion.
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It is a common perception that among the encounters we have with natural objects that we are inclined to speak of as aesthetic experiences there is a certain quality of sameness. Or, at least that there seems to be enough alike in them to call these experiences by the same name.
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Carlson is a leading author in environmental aesthetics and proponent of cognitive approaches. He forms part of a movement within nature aesthetics that is particularly motivated by current ecological imperatives. He proposes an ‘environment model’ of nature aesthetics, which: [I]nvolves recognizing that nature is an environment and thus a setting within which we exist and which we normally experience with our complete range of senses as our unobtrusive background. But our experience being aesthetic requires unobtrusive background to be experienced as obtrusive foreground.
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One might assume that cognitive approaches to aesthetic observation such as this are irreconcilable with non-cognitive theories. However, avoiding the two extreme positions of ‘science and unfettered imagination’, Moore provides a syncretic theory of natural beauty that tries to make sense of the juxtapositions between these positions.
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His theory centres on the ‘experience’ of natural beauty but also draws upon other theories by ‘taking stock of the many disparate factors observers report as playing into this experience’.
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He also highlights the importance of the knowledge of the observer to the aesthetic exercise: Just as participants – insiders – in the artworld are those who have a stake in art and are appropriately equipped with background knowledge, to make aesthetic judgements regarding artworks, so insiders in the nature world are those who have an aesthetic stake in the non-artifactiral world, and who with a different appropriate range of background knowledge make aesthetic judgements regarding natural objects.
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Natural beauty and landscape
Nature, environment, the natural environment and landscape are often conflated in nature aesthetics or at least not clearly defined. 69 Nevertheless, recourse to the work of Carlson on nature and landscape, alongside the literature in landscape studies, can illuminate some of the key issues that arise in understanding aesthetic observation of natural beauty, specifically as it relates to the landscape. 70 These issues will be discussed with reference to the idea of the landscape as scenery, nature and culture.
Scenic value is the dominant view of the landscape according to the Romantic idea of the picturesque that ‘frames nature as it were, and deposits it in galleries – the national parks’. 71 This approach is closely associated with the idea that nature can be viewed as art rather than its existence as nature. 72 Seeking beauty in nature can appear to be a hedonistic pursuit of pleasure that is incompatible with the conservation of the natural environment. 73 On the other hand, to deny the importance of the beauty of natural landscapes is also to deny the real benefits, such recognition can provide.
Recognising the beauty in nature is often where the relationship between humans and concern for their environment begins. Natural beauty can have the effect of drawing people into the natural environment. This can assist in nurturing public interest in environmental issues and provide routes for public education in this regard. 74 Recreation in the natural environment can also benefit people’s physical health and mental well-being and that this may be associated with the enjoyment of the beauty in nature. 75 Meanwhile, a fascination with ‘beauty’ and the ways in which beauty takes shape in society is essential to our culture and includes the ‘natural world’ as much as the ‘art world’. 76 Nevertheless, focusing on scenic value clearly provides a narrow means of identifying the cultural value of the landscape.
Some scholars in nature aesthetics would agree that to see nature as it exists in the landscape as a set of ‘ready-made standard views’ is to trivialize it. 77 The focus on ‘framing’ is, in particular, at odds with the idea that nature is frameless, that is, that natural things cannot be set apart from their environment. 78 Carlson’s thesis of nature and landscape rejects the disinterested observation of picturesque landscapes or formal approaches that ‘characterize the beautiful as small, smooth, subtly varied, delicate, and “clean and fair”…of colour’. 79 Indeed, Carlson has been keen to relate the aesthetics of the landscape to their existence as both a product of nature and in cultural perspective.
Landscapes exist as a product of nature and a repository of the natural resources on which future human development depends. A landscape can be viewed as an area within which networks of ‘ecosystems’ operate and interact with one another and the broader natural environment. Landscape ecologists are, therefore, interested in the landscape as a perspective from which to seek to understand the ‘flow’ of organisms or nutrients and spatial distributions of species or populations. 80 Landscape ecology is also important to the protection of biodiversity; 81 and modern ecological studies highlight the need for connectivity, which is more appropriate to the landscape scale. 82
Recognising that nature is not art provides a means of aligning natural beauty with modern concerns for the ecological condition of landscapes. Carlson’s ‘environment model’ can be informative in considering the way in which the boundaries of the landscape, arising from the natural environment, can provide the frame for aesthetic observation. 83 Relating an act of aesthetic observation to the process of nature, of which the observer is a part, is also important in considering the beauty of the landscape as a product of nature. 84 For example, an aesthetic observation of upland moorland would take into account the fact that this is, ecologically, a relatively destitute landscape.
Landscapes are not only a product of nature but of human transformation. Neither is landscape simply a physical entity but exists as a social construct. 85 Thus, landscapes can be viewed as something that forms an essential element of our culture. The relationship between culture and landscape is often conceptualised with reference to cultural heritage. This relates not just to the physical formation of the landscape or other tangible assets within it, such as ancient monuments, but ‘intangible’ heritage, such as the myths and legends that arise in this context. 86 In more recent years, the notion of the cultural landscape has become a powerful concept that has increasing relevance in modern society. 87 The cultural landscape can be interrogated from many different perspectives ranging from its historical relevance to the way landscape provides an expression of cultural, political and economic power. 88 The ‘cultural landscape’ can also be identified with more metaphysical notions of ‘cultural identity’ 89 and highlights the importance of the broad spectrum of temporality to the landscape, focusing not just on the heritage of the past but the response of present and future generations. 90
It is arguable that the cultural context is important to aesthetic observation of natural beauty and the way this relates to the landscape. First, Moore’s theory suggests that the ‘layers of response’ to natural beauty include measuring our pleased reaction to a natural object and reflective awareness of it to ‘prevailing ideas or standards of beauty in a given cultural community’. 91 Thus, a ‘mature’ response to natural beauty can ‘link individuals and their communities in a creative way, advancing the normative interests of both’. 92
Furthermore, Moore asserts that this can reflect ‘past traditions of sensory awareness, currently evolving cultural views and aspirations for the trajectory of values toward future generations’.
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Thus, he suggests that the aesthetic observer of natural beauty should have achieved ‘cultural maturity’: Cultural maturity…is marked by the conscious adoption of cognitive principles and responsive styles as one’s own, after the growing up process of examining and sampling the principles and styles of others and after having positioned oneself in relation to a given normative heritage.
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Life values involve a wide range of characteristics associated with objects such that they are felt or perceived to be qualities of the object themselves. They are connected with objects by deep-seated and commonly held beliefs and thus depend on what is in general taken to be the ‘true’ nature of the objects said to express them.
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This account of aesthetic observation of the natural beauty of the landscape relates the broad scholarship in landscape studies to the work of Moore and Carlson in nature and landscape aesthetics. Again, the discussion of both is necessarily limited but is useful in considering how the relationship between landscape and nature might take shape as a matter of aesthetic observation. Once more it is possible to elicit some essential propositions. First, natural beauty is not akin to scenic value. Secondly, the natural beauty of the landscape should be viewed as a product of nature. Thirdly, the cultural context of aesthetic observation of the natural beauty of the landscape is essential in recognising the natural beauty of the landscape. Fourthly, the practice and skill of the aesthetic observer is important and must relate to its value as both nature and culture.
Moore makes some comment on the issue of practice and skill in aesthetic observation, but Carlson is explicit that cognitive approaches are essential. For Carlson, the ‘correct’ way to aesthetically appreciate landscape is to be educated in relevant ways. 97 According to Carlson, the key areas of the ‘curriculum’ would be scientific knowledge related to the natural environment but also matters of form, common knowledge and information about the histories of production of the landscape. 98 This would need to be supplemented where appropriate with knowledge of mythical, symbolic and artistic uses. 99 Carlson’s reference to common knowledge and myths associated with the landscape reminds us that, to gain a full picture of the cultural heritage of a landscape, it is important not just to rely on scholarly endeavour or expert opinion but to connect with local people who will have relevant experience. Indeed, public participation is widely recognised to be essential in establishing systems of landscape protection, as evidenced by the focus in this respect in the European Landscape Convention. 100
Having established some essential propositions to help illuminate the notion of the natural beauty of the landscape as a matter of aesthetic observation, it is necessary to consider the relevance of the regulatory context in which that observation takes place. Aesthetic observation takes many different forms with a variety of objectives. There is a significant difference between the individual observer who considers the beauty of a particular flower to the person charged with observing the natural beauty of a landscape as part of a legal process for the designation. In a regulatory context, it is arguable that the aesthetic observation should be viewed as a matter of aesthetic interpretation that seeks to elicit the ‘public meaning’ of the natural beauty of the landscape.
Aesthetic interpretation of the natural beauty of the landscape
The starting point is that aesthetic objects which form the subject of a regulatory regime should have meaning, aesthetically, to the public. Thus, it is posited that the aesthetic exercise at the first stage of decision-making should take the form of an aesthetic interpretation of the landscape that aims to elicit its ‘public meaning’. This approach is based on Raz’s view of interpretation. Indeed, the idea of aesthetic interpretation is best explained by reference to Raz’s examination of interpretation as an autonomous notion, especially as it relates to the comparison between acts of interpretation in law and the arts. 101 The purpose of legal interpretation is to reveal the original intention of its author because this is the root of its authority. 102 In the context of the natural beauty of the landscape, the idea of the importance of the intention of a creator is absurd. Landscape is a product of nature, but, absent of a belief in a Divine creator, it is impossible to identify an author in this respect. Where interpretation is not carried out in pursuit of the retrieval of the author’s intention, Raz suggests that the meaning of an object can arise from its existence as a cultural object. 103
Raz asserts that an artwork can be viewed as a cultural object because ‘it is part of its nature to be a mirror to our lives and the world…’.
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This is also true of landscapes. Following Raz
Interpretation is a matter of expertise; hence, legal interpretation is the preserve of lawyers and judges skilled in the practice. Similarly, the interpretation of artworks, arguably, requires not just practice in this exercise, as Hume proclaimed, but relevant skills in art history. This resonates with cognitive approaches in aesthetic philosophy, which suggest that an aesthetic observation focused on the experience of an object may require some element of cognitive skill. 108 Thus, an act of aesthetic interpretation may also be viewed as a matter of expertise. However, the aesthetic observer must also look beyond their own viewpoint to consider the ‘public meaning’ of a cultural object and this will necessitate a mechanism for public participation. In the context of the natural beauty of the landscape, the ‘public’ falls broadly into two categories: those that are geographically defined to fall within and outside the landscape and those that form communities of interest related to the landscape. It is important, therefore, to provide routes to public participation in the decision-making process to ensure the representation of those interests; and that these are taken into account by the observer.
An important consideration is whether the aesthetic interpretation of the natural beauty of the landscape should be carried out by a single individual or range of skilled practitioners. A broad range of skills has been identified as essential to an act of the aesthetic interpretation of the natural beauty of the landscape. Thus, one might question whether it is possible for anyone to reach the desired level of qualification to carry out the exercise described. Landscape architecture is a field that already combines expertise in the design aspects of the landscape with knowledge of ecological and cultural concerns. 109 Nevertheless, it might be argued that it is more desirable to involve a range of skilled practitioners in the process. 110 While compelling, this in sharp contrast to the kind of syncretic approaches in aesthetics that have been discussed here. For example, Carlson believes that a single aesthetic observer is best placed to adopt the kind of holistic or syncretic approach necessary to recognise the synergies between the values of the landscape as nature, culture and beauty.
The idea that there should be greater attention to expertise in aesthetic observation in the designation of protected landscapes appears to be quite apposite to the established position in environmental law scholarship that expert evidence is often given too much weight in land-use decision-making. 111 However, the focus here is on the designation process for protected landscapes not decision-making following designation. Furthermore, the argument that aesthetic interpretation is a matter of expertise that does not deny the importance of public participation in the process. Indeed, the process advocated is committed to ensuring that the views of the public are taken into account.
So far, the focus has been on how we might elicit evidence of the natural beauty of the landscape through aesthetic interpretation. The next stage in a process of the designation of a protected landscape is to establish whether on the basis of this evidence the landscape in question should attract ‘special status’ in law. Where the natural beauty of the landscape is based on an aesthetic interpretation that establishes its public meaning, it follows that the ‘special status’ of the landscape should rest upon its significance in providing such meaning to the public, rather than judgment regarding the level or extent of the natural beauty of the landscape.
Assessing the significance of an aesthetic interpretation of the natural beauty of a landscape
If protected landscapes are to exist at all, we must be able to clearly identify their ‘special qualities’. If those special qualities are referred to in terms of natural beauty, it might be assumed that the purpose of aesthetic observation is to decide upon the extent of its natural beauty, that is, by devising a means of stating that one landscape is more naturally beautiful than another. This necessitates some form of philosophical ordering of the natural beauty of the landscape. While some aestheticians believe this is possible, 112 the idea is instinctively controversial. Most importantly, it does not fit with the notion that the purpose of aesthetic observation in a regulatory context is to provide an aesthetic interpretation of the landscape. Aesthetic interpretation differs from most other acts of aesthetic observation because it aims to elicit the ‘public meaning’ of the landscape rather than to make a qualitative judgment in this respect. It follows that the significance of the natural beauty of the landscape will depend on the extent to which it conveys that public meaning.
Public meaning exists at different spatial scales and according to different communities of interest. Protected landscapes are identified on a national scale and, hence, the focus must be the extent to which the natural beauty of the landscape has relevance to the public at a national level. 113 This approach accords with other legal systems of the designation that are created at different spatial scales, such as wildlife and cultural heritage regimes. Wildlife laws exist, for example, to protect endangered species and habitats; but their significance is judged according to the ‘level’ of the relevant legal regime, that is, with respect to the European Union or in England and Wales. 114 Cultural heritage laws in England and Wales also list buildings or ancient monuments of architectural or historic interest of national significance. 115 Meanwhile, World Heritage Sites are designated for their global significance. 116
If a system of designation of protected landscapes is based on an aesthetic interpretation of the natural beauty of the landscape and assigning ‘special status’ relies on the extent of the public meaning of the landscape in this regard, it follows that the process will involve two stages. The first step will involve eliciting information about the natural beauty of the landscape, while at the second stage, this information will be used in evidence to inform the decision as to whether the natural beauty of the landscape is ‘significant’. Viewed in this way, the purpose of the aesthetic observation of the natural beauty of the landscape is not to make a qualitative judgment but to provide evidence to be used in judging the significance of the natural beauty of the landscape.
The approach advocated will not address the problem that by creating a system of protected landscapes, we necessarily devalue those that exist outside these areas. 117 Nor will it stop the socio-economic interests of those living within protected landscapes becoming contingent on the designation of a protected landscape. Any system of protected landscapes based on the identification of special qualities of the relevant area will require us to place some precedence on those qualities over more local considerations. Clearly, we need to find more sophisticated means of balancing these interests. Nevertheless, providing a reasoned, robust and transparent system for identifying the special qualities of the landscape for the purpose of the designation in terms of natural beauty will assist in engaging local people, as well as visitors, with the values of the protected landscape. The evidence resulting from the aesthetic interpretation of the landscape will be important in considering how our actions should be directed in helping to shape the landscape in the future. Nevertheless it is important to recognise that the purpose of protected landscapes, once designated, may extend beyond the legal criterion for the designation.
Conclusions
Landscapes exist in a contested space, reflecting the conflicts between our ecological imperatives, our concerns for our cultural heritage and our desire to delight in the beauty of nature. If we wish to continue to provide some areas with ‘special status’ in law, we must find a means of identifying the special qualities of those landscapes for the purpose of designation. Defending natural beauty in this respect will not be easy. Natural beauty appears to stand in stark contrast to the values of the landscape as both natural and cultural heritage. As an aesthetic concept, natural beauty also presents a significant challenge to law. To include natural beauty in the designation of protected landscapes also requires us to confront some of the most pressing problems of indeterminacy in aesthetics. Nevertheless, this article has sought to establish a means of ensuring that such an aesthetic observation may form the basis of a reasoned, robust and transparent system that can also account for natural and cultural heritage concerns.
The conclusions of this article would lead to the introduction of a procedural framework for the designation of protected landscapes that include four essential features. First, ensuring that an individual is appointed with the appropriate cognitive skills, evidenced by their qualifications and experience of practice. Secondly, requiring the observer to create a report setting out the method by which that person has adopted an aesthetic interpretation of the natural beauty of the landscape. This must account for the nature and culture of the landscape in ascribing public meaning to it and include a means of directly accounting for the views of the public in this respect. Thirdly, providing a process through which this report can be used to establish whether the aesthetic interpretation of the landscape is ‘significant’ by considering the extent to which it conveys ‘public meaning’ at a national level.
This approach will require us to dispense with popular conceptions of the landscape as scenery, that the recognition of natural beauty is directly opposed to efforts to address ecological imperatives, and aesthetics as the sole preserve of theoretical scholarship. It will also be necessary to view natural beauty as a term of art, capable of accounting for the natural and cultural heritage of the landscape. Furthermore, it must be acknowledged that a ‘correctly’ educated individual is capable of carrying out an aesthetic interpretation of the natural beauty of the landscape that can underline a decision-making process regarding the ‘national significance’ of that area.
The conclusions of this article may be controversial with scholars from different disciplines who highlight the limits of engagement with their particular specialism. Practitioners may also dispute the way that these conclusions relate to existing practice or the barriers that exist to the implementation of these ideas. These claims are not disputed, thus, this article should be viewed as a starting point for wider discussion across the relevant disciplines, and between academia and practice, in exploring aesthetic obligation in law, particularly as it relates to the landscape.
Footnotes
Acknowledgements
I would like to thank Alison Perry, Stuart Macdonald, Alex Latham-Gambi and the anonymous referrees for their helpful comments on earlier versions of this work.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
