Introduction

Freedom of expression, including artistic expression, is a fundamental right. The regulation of the legal aspects of cultural policies must respect this right. The implications of the legal system for this freedom varies from one country to the next. In some countries, the legal system is strict: artists, like any other citizen, are expected to serve their country or the common interest, and the audience can only enjoy state-approved productions. Elsewhere, artistic freedom reigns supreme. Most countries, however, have a mix of these approaches: the legal system protects the freedom of the arts, but only as far as necessary in a democratic state under the rule of law.

Ai Weiwei is an example of the first type. As an artist, he is confronted with a government that limits his personal artistic activities in a way he refuses to accept. China defines what cultural activities are permissible and what are not. In countries where freedom of expression is the norm, artistic freedom is codified as a right. Many constitutions and international treaties cite the freedom of expression while limiting it as well. Laws put limits on cultural expressions everywhere. The prohibition of racism, for instance, is generally accepted as a fundamental and universal rule, thus restricting the freedom of expression for artists. The assessment of what limits are admissible is subject to change over time and from one place to the next.

The Dutch legal system regarding cultural policy is an example of a legal regime that is imbued with the wish to respect freedom of the arts, specifically limiting the power of politicians to influence the making of art. Cultural producers are granted full freedom of choice. This is especially challenging in the context of a positive cultural policy: a policy that strives to give equal chances to all. This positive right can be seen as a necessary condition to ensure freedom of expression. People are entitled to the means for creating and enjoying the arts. They need education and access to cultural productions. In other words, freedom is not only a negative right (an obligation for the government not to intervene) but can be valued as a positive one as well. A state must facilitate a flourishing cultural climate, even when no legal obligation is stated.