76    AQUINAS, THOMAS
AQUINAS, THOMAS 77
have infringed on that ground alone—without having caused much damage to the value of the copyright in the original—a court might choose to exercise the extraordinary remedy the Supreme Court hinted at. It might find an infringement, award the original artist some damages for the copying, but not enjoin the display, reproduction, or distribution of the new work. It would, in effect, be granting the second artist a compulsory license for the derivative use. It cannot be assumed that this license will be used routinely; not only does it deprive a copyright owner of the long-cherished right not to authorize derivative works, but, if used excessively, it would foster infringements by those who would risk the infringement in the hope of being granted the compulsory license, thereby gutting the copyright owner's right altogether.
The potential compulsory license was probably the Supreme Court's effort to mitigate the harsh result of destroying a derivative work that had failed, however slightly, to satisfy the fair-use factors. But one can sec that such a dispensation could be misused.The Supreme Court offered no guidance about the circumstances that would warrant granting such a license. It is not hard to imagine that such a resolution might be manipulated in the same way that courts formerly manipulated their evaluation of the commercial nature of the work, withholding the compulsory license from those works (and artists) that displease the courts, regardless of how transformative the derivative work is and how little likely it is to interfere with the value of the copyright in the original artist's work, One can hope that courts will invoke this compulsory license carefully, but vigilance is necessary to see that they do.
[See also Law and Art.]
BIBLIOGRAPHY
Constitution and Statutes
U.S. Constitution, Article T, § 8, cl. 8 17 U.S.C. §§ 101 etseq.
Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429 (6th Cir. 1992). Campbellv.Acuff-Rose Music,Inc., 114 S, Cl. 1164 (1994), Campbell v. Koons, 1993 \VT. 97381, 1993 U.S. Dist. LEXIS 3957 (S.D.N.Y. iyy3).
Feist Publico lions, Inc. v. Rural Telephone Service Co., 499 US. 340 (1991).
Rogers v. Koons, 751 1'" Supp. 474 (1970), amended, 777 E Supp. 1
(S.D.N.Y. 1991). Rogers v. Koons, 960 Ead 301 (2d Cir. 1992).
United Feature Syndicate, Inc. v. Koom, 817 F. Supp. 370 (S.D.N.Y. Other Sources
"Beyond Rogers v. Koons: A Fair Use Standard for Appropriation.''
Columbia law Review 93 (1993). Buskirkj Martha. "Commudincation as Censor: Copyrights and Fair
Use." October 60 (Spring 1992): 82-109.
Carlin, John. "Culture Vultures; Artistic Appropriation and Intellectual Property Law." Columbia-VLA Journal of law and the Arts 67 (1988).
Gastineau, John. "Bent Fish: Issues of Ownership and Infringement in
Digitally Processed Images." Indiana 1'jxw Journal 95 (1991). Ginsbnrg, Jane C. "Exploiting the Artist's Commercial Identity: The
Merchandizing of Art Images." Columbia-VLA Journal of Law and
theAm 19 (1995). Greenbergj Lynne A. "The Art of Appropriation: Puppies, Piracy, and
Post-Moderiiism." Cardozo Arts and Entertainment Law Journal 11
(1992)-
Hamilton, Marci A. "Appropriation Art and the Imminent Decline of Authorial ConU'ol over CopynghtedWorks."^owj"»fl/y/'ike Copyright Society of the U.S.A. 42 (1994).
Leval, Pierre, "'toward a Fair Use Standard." Harvard Law Review 103 (1990).
Patry, William, and Shira Perlmutter, "Fair Use Misconstrued: Profit, Presumptions, and Parody." Cardozo Arts and Entertainment Law Journal 11 (1993).
Wang, Elizabeth H. "(Re)Productive Rights: Copyright and the Postmodern Artist." Columbia-VLA Journal of Lazo and the Arts 14 (1990).
Gloria Phares
AQUINAS, THOMAS (1225-1274), medieval Italian philosopher and theologian. Aquinas was a Dominican friar and studied with Albertus Magnus in Cologne, and subsequently taught in Paris and Rome, among other places. Summa Theologiae (1266-1273), his major work, was still uncompleted at his death but contains his mature thought in systematic form. He was canonized in 1323.
The writings of Thomas Aquinas figure prominently in almost all scholarly discussions of medieval aesthetics. In Gothic Architecture and Scholasticism (1951), for example, Erwin Panofsky invokes Thomas to ground the "genuine cause and effect relationship" he sees to obtain between the scholastic method and the architectural principles of the Gothic cathedral. Panofsky links cathedral architecture to certain general features of Aquinas's argumentative style. More philosophically minded writers on aesthetics, such as Umberto Eco and Francis J. Kovach, take Aquinas's writings in aesthetic theory as their points of departure. Both are convinced that one can speak meaningfully of Aquinas's "writings in aesthetics"—that they constitute a discrete and important unit of his thought. Thus, in the Foreword to the new edition of The Aesthetics of Thomas Aquinas (1988), Eco describes his goal as the presentation of the aesthetic theory of Thomas Aquinas as a constitutive, coherent, and self-contained element of his larger philosophical system.
When following the path of texts gathered by such authors, one notices immediately that beauty is nowhere neatly thematized in Aquinas's work; it is treated in passing, if at all. Chapter 4 of Aquinas's commentary on Pscudo-Dionysius's De divinis nominibus represents an exception. Of all Aquinas's writings, his commentary on this treatise by an enormously influential anonymous Neoplatonist of the
sixth century contains his most extensive remarks on the beautiful. His commentary on the De divinis nominibus is generally not invoked in attempts to reconstruct his philosophical aesthetics but is treated as something of a special case in the pertinent literature.
Theoreticians of Aquinas's aesthetics make much out of his "formal definition of the beautiful"—his effort to characterize beauty in its "objectivity," with reference to its "autonomous appearance." A thing is called beautiful, according to Aquinas, when it delights its beholder (pulchra enim dicuntitr, quae visa placent [S.th. T q. 5 a. 4 ad 1]). A glance at the larger hermcneutical context of this description—that is, Aquinas's teaching about the nature of God and of the good (bonum) in the Samma theologiae—points to the incomplete character of this definition, and thereby calls into question certain standard approaches to his aesthetics. Following the view of Pseudo-Dionysius that the good, on account of its relation to the beautiful, has the character of a formal cause, Aquinas speaks of good in its proper sense as an object of the appetitive power of the soul. The beautiful, however, is an object of the rational power, when one considers its attractiveness qua object of knowledge. It is in this context that one finds Aquinas's remark about the beautiful as that whose vision "delights its beholder." Aquinas is clearly denning the concept in a very special sense. The beautiful is, to a certain extent, defined a posteriori, through an analogy to the good. Just as it belongs to the notion of the good, that in it all desire finds rest, so it belongs to the notion of the beautiful, that in being regarded or thought (in eius aspectu seu cognitione), intellectual desire finds rest. Aquinas begins by asking what, at the level of sense (sen-sas)—at the level of being struck and attracted in an initial and unmediatcd way by an object of knowledge—draws the cognitive power (vis cognoscitiva) to an object of knowledge. Being "struck" and "attracted" by a thing is seen as constituting the initial form of knowledge (cognitio) of that thing. The senses are drawn by the well-prop onioned character (debila proportio) of an object of knowledge, for in this deb-ita proportio, a kind of likeness (simililudo) is recognized (S.th. I q. 5 a. 4 ad 1). Aquinas thus first speaks of the beautiful and its modes of expression at the level of sensitive knowledge—that is, well before it acquires the character of a judgment, much less of an aesthetic judgment. In effect, he expands the cognitive power in general, by incorporating both the cognitive (visa) and the appetitive (placent) elements of the definition iti his own account. Every act of knowledge occurs by means of assimilation (per assimila-tioneni). Every similarity, however, is in reference to form. By means of this analysis, Aquinas confirms the Dionysian claim that the beautiful is related in a certain way to the formal cause.
Pseudo-Dionysius's claims about the beautiful also figure prominently in a second classic text traditionally invoked in reconstructions of Aquinas's aesthetics. In the Summa the-
ologiae3 in the midst of Iris discussion of the Trinity, Aquinas lists three sets of "notes of the beautiful": first, "integrity" (integritas) or "perfection" (perfectio); second, "right proportion" (debita proportio) or "harmony" (consonantid)— both terms are taken from Pseudo-Dionysius, as are their parallels, "commensurate character" (commensumtio) and "convenience" (convenientia); and third, "clarity" (claritas) (S.th. I q. 39 a. 8 c). Clarity (claritas) and harmony (consonantid), which come together in the notions of the beautiful (pulchrum) and the honorable (honestum), are traced by Aquinas, with reference to book 4 of De divinis nominibus, to the notion of God as cause of the beautiful (S.th.ll-Kq. 145 a. 2 c; In de div. nom. IV, lect. 5, 339). God is called beautiful insofar as God is the cause of the harmony and clarity of all being. A body is called beautiful when it has well-proportioned members and a "clear" (i.e., healthy) color. A soul is called beautiful that makes well-ordered use of its spiritual gifts, in accord with the spiritual clarity of reason. In the same context, Aquinas undertakes to exposit the two definitions of "comeliness or beauty" (species sive pulchritudo)— attributed to the Son by Hilary of Poitiers—and of "beauty or perfection" (pidchntitdo sive perfectio) to illustrate how the Son truly and perfectly possesses the nature of the Father. Both definitions express Hilary's intended affirmation, by means of the concept of the image (species sive imago sive pulchritudo) > of the perfect agreement in essence shared by Father and Son. Their close association to the systematic context of Aquinas's teaching on the divine nature, which itself finds confirmation in similar associations within the tradition, renders suspect the claim that this definition can be treated as a "material" definition of beauty divorced from its larger context.
The teaching of beauty as transcendental offers another starting point for the reconstruction of a medieval aesthetics (sec Aertsen, 1991). With the help of this teaching, one might hope for a systematic comparison, on the metaphysical level, of beauty with other goods. As Aertsen notes, however, beauty is missing from Aquinas's most complete enumeration of die transccndentals; it is missing from his list of the most common attributes of being (Quaestianes dispu-tatae de veritate. 1,1), and thus apparently holds no special place among transcendentals. It is only in connection with his teaching about the divine nature that Aquinas speaks of the beautiful alongside the good. The beautiful adds something to the notion of the good—a certain orderedness to the intellectual powers. It adds nothing to the concept of being. The good and the beautiful are really identical because both are grounded in the form qua common subject of predication. On this point, Aquinas upholds the Dionysian formula of their identity—"tire good is praised as beauty" (bonurn laudatur ut pulchrum)—although he modifies it in the sense mentioned above, through his extension of the good to the true, reiterating that tire beautiful adds to the good a certain orderedness to the intellectual powers.
78    AQUINAS, THOMAS
ARAB AESTHETICS 79
In a similar vein, we may question the assumption that artistic beaulyy art, and artist correspond neatly in meaning to the Latin terms pukhrumlpulchriuido, an, and artifex, respectively. The argument for a neat parallelism between both conceptual fields assumes that the same sorts of objects be characterized as "art" and as "beautiful" that the medievals spoke of with their terms ars and putchrum. The differences between modern and medieval aesthetic sensibilities manifest themselves with particular acuity with respect to the understanding of ars and artifex. The nearest equivalents of these terms within our modern vocabulary designate, first and foremost, an individual creative subjectivity that (x) is conscious of itself as such; and that (2) understands artistic beauty as autonomous.
Should one seek an equivalent in Thomas Aquinas for this creative and autonomous kind of production, one will find that such activity is reserved to God alone; only the divine will is capable of creation out of nothingness (creatio ex nihilo). On Aquinas's view, this unique way of "bringing forth" is to be distinguished from two other ways: (r) the work of nature, which, in a way that is bound to matter, generates substantial forms; and (2) bringing forth as making in general,facere (S.th.I q. 45 a. 2 c). Aquinas explicates this second notion by appealing to the example of the artifex who is constrained by the limits both of his matter and of substantial form in general. He is constrained, one might say, by the limits of nature; by the matter and form of the thing to be made, which for the artifex assume the character of principles (S.th. I q, 45 a. 2 c, Tn II Phys., lect. 1, 145). This is actually the systematic context in which Aquinas makes his well-known remarks about ars as the imitation of nature (imitatio naturae). The artifex remains bound to the conditions of creaturely being—it is in this sense that he "imitates" nature. Stated more precisely, ars is the application of right reason to something makable (applicatio ratio-nis rectae ad aliquidfactibile [S. th. I~II q. 47 a. 2 ad 3]). Consequently, as a habit of action (habitus operativus), it applies its powers, in conformity with its design and with the laws of production, to the task to be accomplished alone, and not on the uses of the thing produced or the intentions of its uscr(s). Accordingly, ars encompasses, in accordance with the Aristotelian distinction between praxis and poiesis, a knowledge of making but not of use/doing. Ars is thus, for Aquinas, primarily of a productive/technical nature, as in building or operating (S.th. I—II q. 57 a. 4 c). It is, then, of a necessarily particular nature, ordered to a certain defined and thus particular end, namely, the work to be realized, and employing certain limited means (determinata media) to reach this end. Ars only rises above its concrete, technical domain through its association with the wider horizon of human goal setting.
This understanding of ars derives from Aristotle and is itself an expression of that epochal turn in medieval intellectual history from Plato to Aristotle occasioned by the
thirteenth-century reception of the Aristotelian corpus in its entirety. Influenced by Aristotle, Aquinas lays emphasis on particular elements of the complex ars concept he inherits. Through its association with the ancient educational program of the septem artes liberales} ars had been understood as encompassing the entire spectrum of human knowledge. The differentiation of the complex ars concept undertaken in the thirteenth century understood the term as mediating, on the theoretical plain, between experience (experiential empeiria) and knowledge (scientialepisteme). Consequendy, an artifex became distinguished by his field-specific expertise, directed toward particular subjects. The differentiation of meanings within the ars concept known to Aquinas followed upon another epochal change; the loss of the notion of a theory of the sciences encompassing all human knowledge and activity, as well as of the speculative certainty, affirmed well into the twelfth century (most tellingly in the Didascali-con of I Iugh of St, Victor), of the deep unity of the technico-productive, scientifico-pWlosophical, and theological bodies of knowledge. On this older view, all human knowledge was seen as ordered unconditionally to the one highest wisdom. Beauty is in this respect an expression of the anagogic character of the artes of this period, as well as of their objects.
The relative autonomy of "artistic knowledge" (ars) with respect to scientific knowledge (scientia)> as it is articulated by Aquinas, led to the loss of the conception of beauty in this sense of an "anagogic way" (mos anagogicus). Nevertheless, a more restricted ars concept is one of the presuppositions of theoretical reflection within the specific domain of a particular art. With this reflection, which is of such a nature as to be capable of grounding its judgments, the meanings of aesthetic notions associated with individual arts began to grow. This development led finally to a modern scheme of the fine arts, which itself saw further theoretical elaboration in the Renaissance.
Such an understanding of aesthetics is not to be found in the Middle Ages; the statements of Thomas Aquinas about "art" and "beauty" must not be taken in this sense. Paul Os-kar Kristeller (1965) rightly suggests that the attempt to conceptualize an aesthetics in accord with scholastic principles is a modern projection. The multiple meanings of artistic activity in the Middle Ages, each deriving from particular and diverse conceptions of beauty, can only be understood when read with respect to a general hermeneu-tical reservation. This does not amount to a general denial of the category of the aesthetic, whose function certainly does not consist in the manifestation of supratemporal properties of being, but is rather heuristic; it consists of an encounter, across diverse horizons of understanding, which themselves are located in this diversity of interests. It is in this respect that the enterprise of developing an aesthetic paradigm that is faithful to the medieval understanding proves valid; the enterprise must proceed rcconstructively, guided by the following questions: How was that entity that
we identify within modern paradigms as "art" perceived and experienced by the people of the Middle Ages? Might that entity also have been the subject of theoretical reflection and interpretation? This, I submit, is the appropriate background against which to reconsider the contribution of Thomas Aquinas to a history of aesthetics.
[See also Aristotle; Augustine; Beauty, article on Medieval Concepts; and Maritain.]
BIBLIOGRAPHY
Works by Aquinas
In librum beati Dionysii De divinis nominibus expositio. Edited hy Geslai Pera. Turin, 1950.
Summa Theologiae. In S. TJiomae Aquinatis Doctoris Angelid Opera Omnia inssu impensaque Leonis XIII P. M, edita, vols. 5-12. Rome, 1889-1906. Translated by the Blackfriars in 60 Volumes. (New York, I964-I976)-
Other Sources
Aertscn Jan A. "Beauty in the Middle Ages: A ForgouenTranscendental." Medieval Philosophy and Theology 1 (i99i):68-97.
Aertsen, Jan A. "Die l;rage nach der Transzcndcntalttät der Schönheit im Mittelalter." In Historia Philosophiae Medii Aevi: Studien zur Geschichte der Philosophie des Mittelalters, edited by Burkhard Moj-sisch and Olaf Pluta, pp. 1-22. Amsterdam, 1991.
Binding, Günther, and Andreas Speer, eds. Mittelalterliches Kunsterleben nach Quellen des 11. bis 13.'Jahrhunderts. Stuttgart, 1993.
Bruync, Edgar de. &udes d'esth&tique medievale. 3 vols. Brugge, 1946.
Eco, Umberto, Art and Beauty in the Middle Ages. Translated by Hugh Bredin. New Haven, 1986.
Eco, Umberto, The Aesthetics of Thomas Aquinas. Translated by Hugh Bredin. Cambridge, Mass., 1988.
Kovach, Francis J. Die Ästhetik des Thomas von Aquin; Eine genetische und systematische Analyse. Berlin, 1961.
Kristeller, Paul Oskar. "The Modern System of the Arts." Journal of the History of Ideas 12.4 (October 195:0:496-527; 13.1 (January T952):i7-46. Reprinted in Renaissance ThoughtII:Papers on Humanism and the Arts. (New York, 1965), pp. 163-227.
Panofsky, Erwin. Gothic Architecture and Scholasticism. Latrobe, Pa., 1951.
Speer, Andreas. "Thomas von Aquin und die Kunst: Eine hermeneutisehe Anfrage zur mittelalterlichen Ästhetik." Archiv für Kulturgeschichte 72.2 (i99°):323~345-
Speer, Andreas. "Kunst and Schönheit: Kritische Überlegungen zur mittelalteriichen Ästhetik." In Scienüa und ars im Hoch- und Spätmit-telutter, edited by Ingrid Craemer-Ruegenberg and Andreas Speer, Miscellanea Mcdicvalia 22.2, pp. 945-966. Berlin and New York, 1994.
Tatarkiewicz, Wladyslaw. History of Aesthetics, vol. 2, Medieval Aesthetics. Edited by C. Barrett. The Hague, 1970.
Andreas Speer
ARAB AESTHETICS. In keeping with the traditional cxegetical and normative method of Quranic and philological sciences, early aesthetic thought in Islam pursued a validation that might be called "argument by example and illustration." These sciences justified the validity of particular examples by finding an original accepted model of excel-
lence and showing that the example bore significant analogies with that model. In this mode, literary critics advanced an account of the nature of poetry by examining the grammatical and philological rules present in works that were accepted as models of good poetry. Although these rules also refer to the different mental states of subjects, the play of different causal factors, or the play of imagination, they nonetheless remain dependent on linguistic factors where, in effect, if a work fails grammatically because it differs from accepted usage, lacks significant analogies with an accepted model, and fails to generate consensus through the responses of its audience, then it fails to be poetry at all.
In this context, the critics' analysis of the same examples provides a body of exemplary cases that establish what is good poetry. Analysis displays what their value consists in, why newer works are also good so far as they use these or analogous rules, and how members of the audience can appreciate the work and come to agree, by having for themselves, in response, feelings of calm and peace as factors that beautify. (See, for example, al QadT al-Jurjani, 1966, p. 320).
Poetry was arguably the premier art form in Arab Islamic culture, and among the concepts central to understanding and explaining the nature of poetry are mafaz or figurative language and isti'dra or metaphor. In al-Bayan wa'-l-tabyin (1948-1950), al-Jahrz explains isti'dra as calling one thing by the name of something else because of a similarity between two terms based on their contiguity and resemblance. He maintains that it concerns single words or stylistic devices, and warrants its legitimacy by analyzing its linguistic structure. Ibn Qutaybah proposes that majdz or figurative language underpins poetry, and in Ta'wll Mushkil al-Qur'dn (1959) explains the term through such linguistic terms as isti'dra, inversion, omission, and repetition.
Thaclab, in Qawdcid al-Skicr (1966), analyzes the transference of meaning in isticdra in terms of mental imagery, which he explains through the language poets use to articulate imagery. He argues that "the meaning borrows a mental representation" and constitutes isti^dra, for example, by borrowing "the mental image of the camel, and thus contains all the properties of the camel from which the appropriate ones can be selected to establish the [relevant] analogy." Similarly, when in Kitab al-Badi1 (1935) Ibn al-Muctazz sets out seventeen apparently new figures, his radical innovation is tempered by the fact that, first, earlier writers had already set out nine of these figures and in the other eight he proposes distinctions already present, if inadequately identified, in established and exemplary instances, and, second, he explains the figures by reference to the grammatical and philological rules governing their use.
In al-Mnwdzana bayn shifr Abu Tammdm wa-l-Buh\tun (1961-1965), al-Amidl argues that because the purpose of discourse is to communicate somcming, if the borrowed word or phrase is not useful it also lacks justification and