King's Student Law Review

“We are our choices”, declared Jean-Paul Sartre. Attractive as that may seem, Joseph Raz would alter this aphorism to read: we are our choices if we have arrived at them autonomously – requiring minimum rationality, independence from coercion, and importantly, an adequate range of options to choose from.[1] Admittedly a mouthful, this redefinition is crucial in understanding the relationship between a citizen’s autonomy and the government subsidizing cultural institutions with taxpayers’ money. According to Raz, “[t]he government has an obligation to create an environment providing individuals with an adequate range of options and the opportunities to choose them”.[2] In a pluralist society, there will never be consensus about what such a range of options should include, or what choices should be made available by the government. This lack of consensus stems from a convergence of opinion regarding what the role of the government should be.

Cultural institutions like symphonies, opera houses and museums depend overwhelmingly on state support. While there is much to recommend in support of the arts, the question remains: is such public funding justified if taxpayers are coerced into paying for institutions that they either do not support or do not have access to?

This article will consider (I) the theoretical problems arising from coercing the citizenry into funding cultural institutions as well as (II) the practical problems before (III) suggesting a balance to this infringement of individuals’ autonomy.

(I) Cracks in the theoretical foundation: the trouble with pluralism

Any form of taxation is at its core coercive, and provides the perfect example of John Austin’s “commands backed by sanctions” model.[3] We as a society have accepted taxation as a limit on our autonomy. Society has accepted, like Socrates and Jean-Jacques Rousseau did, that our freedom must be given up in exchange for the protection and benefit provided by the government in a form of social contract. What remains open to debate is to what use tax money should be put. Given that we live in a value pluralist society, how can we decide which causes to support generally? As Benn and Weinstein put it, “[o]ur conception of Freedom is bounded by our notions of what might be worthwhile”.[4] Consider members of society who do not consider symphonies and opera houses to be worthwhile. To them, funding cultural institutions through sanction-backed taxation is clearly power exercised over a citizen against his will, and is a long way removed from the Millian harm principle, which states, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others[5]”.

As Raz admits, “[n]ot every tax can be justified by [the provision of adequate options] argument”.[6] The social argument for publicly funded cultural institutions suggests at its core that the government should fund the arts because our participation in and interaction with the arts are good for the citizenry. This paternal perspective, however, remains at odds with the argument for autonomy.

(II) Practical realities: the trouble with accessibility

According to a report from the European Agenda of Culture, “[c]ultural participation is recognised as a human right”.[7] This characterisation would transform the funding of cultural institutions into more than just an “adequate option”, but a positive obligation on the government to fulfil a second generation constitutional right. In human rights parlance, there is a crucial distinction to be made between first generation rights and second generation rights. The former is often typified as “freedoms from”, i.e. freedom from torture, freedom from arbitrary arrest, freedom of expression, etc. and is characterized by non-interference by the State. The latter are also called “rights to”, i.e. the right to education, the right to housing, etc. and becomes more complex because it creates an obligation on the part of the State to provide something.

Although it is true that culture is a public service, it is incontestably lower in the hierarchy than the police force and emergency medical services, for example. Categorising cultural participation as a human right is highly problematic. As Johann van der Westhuizen pointed out, the inclusion of positive rights in a constitutional framework might relativize civil and political fundamental rights. The fulfilment of second generation rights is dependent on infrastructure and availability of resources. He cautions that if a government can refuse to build houses, it follows that it could also suspend free speech or elections in view of unfavourable political or economic circumstances. “One should be careful not to interpret the term ‘human rights’ too widely, and to apply it to all laudable causes.”[8]

The benefits to public funding of cultural institutions may be divided into two categories: economic and social. From an economic perspective, arguments include the preservation of national cultural heritage and the bolstering of the tourism trade. The social perspective argues that such funding is beneficial per se, in terms of enriching experiences, broadening education, overcoming social division and perhaps the more abstract goal of inspiration.

The French experience in recent months provides a good example of ‘the cultural provision offered by institutions receiving public funding [benefiting] only a reduced segment of the population’.[9] The French minister of culture, Aurélie Filippetti, declared in December 2012 that culture is an indispensable weapon in the fight against inequality. She launched a project that would broaden access to museums and cultural institutions for underprivileged groups, that they would be accompanied to exhibitions at the Louvre, the centre Pompidou, the Musée d’Orsay, amongst others.[10] However noble such ideals might be, it contrasts sharply with the social divisions that remain ingrained in such institutions. On the 29 January, it was reported that a couple and their son, accompanied by a volunteer in the exercise of just such a scheme, were thrown out of the Musée d’Orsay in Paris because other visitors had complained of their smell.[11]

(III) Moving away from state organised culture

Taxation, despite its inherently coercive nature, is justified by the fact that it provides society with essential services, like roads, hospitals, the police force and the fire brigade. The difficulty lies in the more subjective cultural realm, largely because in a pluralist society people differ on which projects (if any) should receive funding. While it is true that cultural provision can be beneficial to society, it is unlikely that there will ever be consensus on how best to spend tax money. This, in turn, makes public funding of these endeavours problematic.

It has been shown that there is a problem with the accessibility of cultural institutions for certain social groups. Autonomy can be reconciled with the notion of taxation, but it is nothing short of hypocrisy to publicly fund institutions that cater to the upper crust of society under the guise of traversing socio-economic barriers. As Raz notes, ‘[w]hile autonomy requires the availability of an adequate range of options it does not require the presence of any particular option among them’.[12] Publicly funding cultural institutions is not the only way for the government to discharge its obligation to provide adequate options to the citizenry. However laudable cultural institutions may be, however beneficial, their provision should not be elevated to human rights status. Not only does it fail to deliver on its promise, but it also relativizes the importance of civil and political rights and their rightful place in constitutional law.

Perhaps the solution lies in ensuring effective access to publicly funded institutions on a case-by-case basis before advocating for expansive funding of cultural institutions in pursuit of higher ideals while leaving taxpayers at the door.