THE CONCEPT OF PUBLIC AESTHETICS FROM ENVIRONMENTAL LAW

Yıl 2022, Cilt: 6 Sayı: 2, 93 - 112, 26.12.2022

Selman Sacit Boz

Öz

According to modern understanding, public aesthetics, which takes its place among the elements of public order, is a concept encountered in many areas related to environmental law such as urbanism, zoning, planning, and architecture. In a field that is also considered the new human rights, it is extremely important to ensure regular urbanization. With the concept of public aesthetics, modern city planning is aimed at preserving the natural beauty, and historical and cultural texture of public spaces. It is important to see how aesthetics, which includes certain deficiencies and ambiguities in terms of content, transform into a legal concept from the branch of science it belongs to, to reveal the application of the concept in the field of law, to examine the way it is handled in foreign countries, and to determine possible negative and positive results in advance.

Anahtar Kelimeler

Environmental law, Administrative law enforcement, Public aesthetics, Urban aesthetics, Public order

Kaynakça

• REFERENCES
• [1] TUNALI, İsmail, Estetik, İstanbul, 2012, p. 14; VICHNAR, David-ARMAND, Louis, “Aisthēsis”, Oxford Research Encyclopedia of Literature, 27.02.2017; https://oxfordre.com/literature/view/10.1093/acrefore/9780190201098.001.0001/acrefore-9780190201098-e-104, accessed 15.09.2022.
• [2] BOZ, Selman Sacit-ÖZDEMİR, Yücel-NACAK, Mehmet-BÖLÜKBAŞI, Mustafa Oğuzhan-ÖNDİN, Hasan Burak-ULUSOY, Sümeyye, İdare Hukuku Açısından Kamu Düzeni Unsurları, Ankara, 2020, p. 199-200.
• [3] BERNARD, Paul, “La Notion D’ordre Puclic En Droit Administratif”, LGDJ, Paris, 1962, quoted from p. 28 OKAY TEKİNSOY, Özge, İdare Hukukunda Kamu Düzeni Kavramı, İstanbul, 2011, p. 142.
• [4] DOUZINAS, Costas-NEAD, Lynda, “Law and Aesthetics”, in Law and the Image, Chicago, 1999, p. 4.
• [5] MORAND-DEVILLER, Jacqueline, “Esthétique et Patrimonine”, AJDA, 1993, quoted from p. 93 OKAY TEKİNSOY, p. 142; For detailed information about the place of the concept of aesthetics in law, see ZEIDLER Kamil, Aesthetics of Law, Gdańsk-Warsaw, 2020; About the appearance of the concept of aesthetics in different fields of law and its judicial review, see SOUCEK, Brian, “Aesthetic Judgment In Law”, Alabama Law Review, Vol. 69:2, 2017, p. 381-467.
• [6] MENTHE, Darrel C., “Aesthetic Regulation and the Development of First Amendment Jurisprudence”, Public Interest Law Journal, Vol. 19:225, 2010, p. 225-226.
• [7] BOZ-ÖZDEMİR-NACAK-BÖLÜKBAŞI-ÖNDİN-ULUSOY, p. 202.
• [8] AKKAYA, Fethiye Nur, Kent Estetiğini Koruma Amaçlı İdari Kolluk Faaliyeti, İstanbul, 2016, p. 94.
• [9] YAYLA, Yıldızhan, İdare Hukuku, İstanbul, 2010, p. 37-38.
• [10] The decision of the 6th Chamber of the Council of State, dated 20.11.1989 and numbered E. 1989/2562, K. 1989/2187.
• [11] OKAY TEKİNSOY, p. 141; Even the preservation of the landscape is part of the public order, KIRATLI, Metin, Koruyucu İdari Hizmetler, Ankara, 1973, p. 29.
• [12] KALABALIK, Halil, İmar Hukuku Dersleri, Ankara, 2021, p. 549-550.
• [13] For detailed information, see MENTHE, p. 229-235.
• [14] For detailed information, see MUNDHER, Riyadh-ABU BAKAR, Shamsul-MAULAN Suhardi, MOHD YUSOF, Mohd Johari-OSMAN, Syuhaily, AL-SHARAA, Ammar-GAO Hangyu, “Exploring Awareness and Public Perception towards the Importance of Visual Aesthetics for Preservation of Permanent Forest Reserve (PFR) in Malaysia”, Land 2022, 11, p. 1280.
• [15] ÇOLAK, Nusret İlker, İmar Hukuku, İstanbul, 2010, p. 9; The protection and development of cities with high cultural values that were formed before it, as well as the determining, guiding, prohibitive and sanctioning functions in the establishment of new cities, are possible with the correct evaluation of the understanding of "urban planning and law", GÜLAN, Aydın, “Şehircilik Sorunlarının Ağırlaşmasında Hukukun Rolü Hakkında Düşünceler”, Sosyoloji Dergisi, 3/22, 2011, p. 297.
• [16] AKKOYUNLU ERTAN, Kıvılcım-ERTAN, Birol, "Kentli Hakları: Kent ve İnsan Hakları Bağlamında Kentsel Hizmetlere Erişim Hakkı", Kentsel Dönüşüm ve İnsan Hakları, İstanbul, 2013, p. 45-71.
• [17] VINCENT-LEGOUX, Marie-Caroline, “L’Ordre Public: Etude de Droit Comparé Intern”, PUF, Paris, 2001, quoted from p. 485 OKAY TEKİNSOY, p. 143-145.
• [18] KHEDHRI, Shekoofah, “Aesthetic Regulation”, p. 14-15, www.shakstudio.com/downloads/AestheticRegulation.pdf, accessed 25.10.2022.
• [19] https://casetext.com/case/st-louis-poster-adv-co-v-st-louis/how-cited?citingPage=1&sort=relevance, accessed 25.10.2022.
• [20] RICE, Shawn G., "Zoning Law: Architectural Appearance Ordinance and The First Amendments", Marqette Law Review, Vol. 76, Iss. 2, 1996, p. 440.
• [21] RICE, p. 440; In a famous 1954 passage in Berman v. Parker, the Supreme Court spoke to these: “The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, wellbalanced as well as carefully patrolled.”, Berman v. Parker, 348 U.S. 26, 33 (1954). https://supreme.justia.com/cases/federal/us/348/26/#33, accessed 28.10.2022.
• [22] People v. Stover, 191 N.E.2d 272, 273 (N.Y. 1963), T“Aesthetics and the First Amendment Source”, Columbia Law Review, Vol. 64, No. 1 (Jan., 1964), pp. 81-108.
• [23] LARREMORE, Wilbur, Public Aesthetics, The Harvard Law Review, Vol. 20, No. 1, 1906, p. 35
• [24] To preserve the value of property on which signs are located and from which signs may be viewed”, Atlanta, Ga., Code Of Ordinances, Vol II § 16-28A.003 (1995), www.atlantaga.gov/home/showdocument?id=20253, accessed 28.10.2022.
• [25] https://library.qcode.us/lib/west_hollywood_ca/pub/municipal_code/item/title_19-article_19_3- chapter_19_34-19_34_080 (F-1), accessed 30.10.2022
• [26] During the Great Depression, unemployed people tried to sleep in the Like Bryant Park and during World War II, soldiers and visitors to the city used the park for illicit trysts and meetings. It is stated that thanks to the aesthetic program, the park has been made more civilized, ZUKIN Sharon, “Politics and Aesthetics of Public Space: The "American" Model”, https://www.publicspace.org/multimedia/-/post/politics-and-aesthetics-of-public-space-the-american-model, accessed 30.10.2022.
• [27] LARREMORE, p. 35
• [28] e "City Beautiful" era in America, and which has survived better in the US than in the UK”, DELAFONS, John, Aesthetic Control: A Report on Methods Used in the USA to Control the Design of Buildings, University of California at Berkeley Institute of Urban and Regional Development, December 1990, p. 5, 38.
• [29] https://www.legislation.gov.uk/ukpga/1990/8/part/VIII/chapter/II, accessed 30.10.2022
• [30] BIRD, Susan, “Aesthetics, Authority and The Outlaw of the Street, Public Space: The Journal of Law and Social Justice (2009) Vol 3, Art 3, p. 1.
• [31] LEFEBVRE, Henri, The Production of Space, Blackwell Oxford, 1991, p. 373.
• [32] HALSEY, Mark-YOUNG, Alison, “Our Desires are Ungovernable”, Theoretical Criminology, 10(3), 2006, p. 295.
• [33] CAUTER, Liven de, “The Capsular Civilization: On The City in the Age of Fear”, NAi Publishers, New York, 2004, quoted from p. 11 BIRD, p. 3.
• [34] “Kaogongji means “The records of handcrafts,” which is the earliest historical literature on handcrafts in ancient China. Its author and date can not be exactly identified. Historically, it was contained in one of the traditional Chinese classics, The Rites of Zhou Dynasty, and was viewed as one part of the whole book”; “The artificers, as they built the capital, demarcated it as a square with sides of nine li, each side having three gateways. Within the capital, there were nine north-south streets and nine east-west avenues, each of the former being nine chariot tracks wide”, CHENG, Xiangzhan, “Urban Image and Urban Aesthetics: Urban Aesthetics in Cross-Cultural Perspective”, Journal of Faculty of Letters, Vol.25/2, 2008, p. 64.
• [35] TEKELİ, İlhan, “Türkiye’nin Kentleşme Deneyiminden Öğrenebileceklerimiz”, 4. Merih Celasun’a Saygı Günü, Tepav, 2014, p. 5-6, https://www.tepav.org.tr/upload/files/1456398873-1.Turkiye_nin_Kentlesme_Deneyiminden_Ogrenebileceklerimiz.pdf, accessed 31.10.2022.
• [36] ÇEVRE VE ŞEHİRCİLİK BAKANLIĞI, Türk Mimarisinde İz Bırakanlar, Ankara, 2015, in ALTINIŞIK, Burak, "Henri Prost", p. 469 et al.
• [37] REZAFAR, Azadeh-SENCE TURK, Sevkiye, "History of Aesthetic Control and Management in the Planning System, The Case of Turkey", History Urbanism Resilience Scales and Systems, 2016, p. 168-169.
• [38] The principle decision of the High Council for the Protection of Cultural and Natural Heritage on the Grouping, Maintenance, and Repair of Immovable Cultural Heritage, dated 05.11.1999; "The buildings are divided into two groups as they carry a historical and aesthetic value on their own or as the elements of urban sites, streets, and silhouettes that form the historical identity of cities: 2nd Group Buildings: They are the structures that reflect the local lifestyle as cultural assets that contribute to the urban and environmental identity", https://kvmgm.ktb.gov.tr/TR-44311/ilke-karari--karar-no-660--karar-tarihi-05111999.html, accessed 31.10.2022.
• [39] TURKISH GRAND NATIONAL ASSEMBLY, Legislative Year 24, Legislative Year 2, Number of Rows: 180, Draft Law on Transformation of Areas Under Disaster Risk and Public Works, Zoning, Transport, and Tourism Commission Report (1/569), p. 5
• [40] For example, Recreational Areas Regulation (Number of Official Gazette: 28578, Date of Official Gazette: 05.03.2013), Istanbul Zoning Regulation (Number of Official Gazette: 30426, Date of Official Gazette: 20.05.2018), Ankara Metropolitan Municipality Zoning Regulation (Number of Official Gazette: 30445, Date of Official Gazette: 08.06.2018), Bursa Metropolitan Municipality Such as the Zoning Regulation Number of Official Gazette: 30433, Date of Official Gazette: 27.05.2018), Gaziantep Metropolitan Municipality Zoning Regulation (Number of Official Gazette: 30582, Date of Official Gazette: 01.11.2018).