‘Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph’. Haile Selassie, United Nations General Assembly, 4 October 1963.[1] Introduction The continuing suffering of the Sudanese people illustrates the futility of international policy-making in the absence of the political will necessary to enforce treaties. As worthy as conventions on human rights and genocide prevention are, without a robust enforcement architecture, the world’s dictators and war lords will continue to persecute and eliminate minority groups with impunity. In Sudan, the blame does not rest on the international community or the legacy of colonialism alone. Faced with human rights abuses, the African Union prioritises state sovereignty and leaders’ immunity from prosecution, and the Islamic world shows little concern for the systematic elimination of Muslims in Darfur. In addition, Khartoum skilfully manipulates American security concerns post-9/11, rendering humanitarian initiatives toothless. This article will draw on personal experience: interviewing survivors in Darfur in 2004, and founding Waging Peace, a charity supporting thousands of Sudanese refugees in the UK. Fig 1. The drawing shows Aishbarra village in Darfur, which was attacked by Janjaweed militia. Houses are set on fire by one of the attackers using a match. Villagers are shot and one person is shown with his left leg severed from the knee down. The villagers that were attacked are coloured in black pencil, while the attackers have lighter (orange) skin – showing the ethnic nature of the attacks (i.e. Arabs attacking ‘black Africans’ – in this case those from the Massaleit tribe). On the bottom right of the drawing are two young men, attached by the neck, led away by a Janjaweed fighter. These young men/boys could be taken into slavery, or may become child soldiers. The Islamist mission On 30 June 1989, the National Islamic Front (NIF) led by Field Marshall Omar Bashir overthrew the democratically elected government of Ja’afar Nimeiri, establishing the world’s second Islamist republic (after Iran). At the previous year’s election, the NIF polled less than 10%. Yet, Sudan specialist Gill Lusk says, the NIF secured power because its members had spent years rising through the ranks of Khartoum’s institutions, guided by their ideological leader, Hasan Turabi. ‘El Turabi and his colleagues had read their Lenin’, says Lusk. ‘The infiltration was patient and systematic and it included uncountable sleepers who revealed their beliefs after the 1989 coup’.[2] Lusk believes Bashir’s ‘detested regime’ stayed in power for 30 years thanks to a vast security system engineered to protect the regime and implement policy; a quarrelsome and inefficient opposition; and a divided international community. ‘A hand-stitched suit, a smile and a Western PhD go a long way with people who think Islamist fundamentalists dress only like the Taliban and shun “modernity”’.[3]

In the opening essay of Ways of Seeing , John Berger writes, ‘We only see what we look at. To look is an act of choice. As a result of this act, what we see is brought within our reach … we are always looking at the relation between things and ourselves’.[1]  Rereading the book recently, I was struck by the urgency of Berger’s writing—an urgency derived from his sense that art had undergone a process of ‘mystification’, fogging the vision of those, outside the cultural elite, who wished to see it clearly in culturally and historically legible terms.[2] Studying law, first as an undergraduate and then as a graduate student, I had the feeling that law, too, has been similarly mystified. If law in the world is the preserve of a professional class of solicitors, barristers, and judges, law in the university seemed the even more rarefied domain of an intellectual class of professors and academics.[3] How, then, is the ordinary citizen to see the law and (to borrow Berger’s words) bring it within reach, other than as its subject?   Our present socio-economico-political circumstances lay bare the consequences of law’s mystification. The use and abuse of law, to give some recent examples, in service of goals ranging from the protection of public health to the curtailment of protest rights, go under-scrutinised in public discourse if law and its domain remain concealed from view. This concealment is not only physically literal—the barred doors of the court—but, more troublingly, also intellectual. The lack of civic education in ‘legal literacy’, and the disciplinary narrowness of legal training, constrain, at the conceptual level, our capacity to imagine and reimagine law. To look at law without seeing it and to live with law without looking at it, is to be blind to a central feature of the relations between ourselves and each other—and the societies we live in. These concerns informed the themes upon which I invited contributors to reflect. What do we see when we consider law from diverse perspectives? How does law see itself? How should we characterise the relationship between law and the arts? How can interdisciplinarity expand or clarify our understandings of law? Finally, then, the set-up: an artist (Carey Young), an academic (Peter Goodrich), and a lawyer (Anthony Julius) walk into a bar[4] … this segment of the Journal  draws together their insights, ruminations, and varied voices in a fresh cocktail of ideas for your consumption.   Carey Young’s piece, ‘Justice Must Be Seen to Be Done’, explores and challenges the notion that the relationship between law and the arts must always be one of confinement and commodification.[5] She proposes instead that artists approach law as a ‘medium for them to work with, like paint’. Young draws attention to law’s many theatrical qualities—its theatre of judgement, its symbolic costumes, its ritual roles, all riddled with ‘gaps, elisions, and silences’—that make it a paradoxical and enigmatic subject, ripe for artistic investigation. Young’s piece, particularly her comments on blind justice and the legal spectator, should be considered in conjunction with her video installation Palais de Justice (2017), from which stills are included. Filmed without permission, Palais de Justice  juxtaposes carefully composed scenes of female   judges and advocates glimpsed at work through the porthole-like windows of the courtroom, against the vast, echoing, seemingly empty architecture of the Palais, the material incarnation of law’s patriarchal power. in camera —legal Latin for ‘private’ proceedings—takes on a tantalising double meaning. In the eye of the camera lens, the chamber is opened to a new audience. Law is presented as suitable subject matter for an artist’s enquiry. The legal spectator becomes (simultaneously?) an aesthetic witness. By drawing our attention to the many tensions—openness/closure, liberation/ oppression, text/image—inherent in law, Young offers us a fascinating and expansive artist’s account of law.   In characteristically zestful and erudite style, Peter Goodrich in ‘Remediation’ offers us a further examination of a Palais de Justice—not the one in Brussels, but rather the new Palais de Justice on the outskirts of Paris.[6] Describing it as a ‘faceless mausoleum of legal acts that effectuates the trompe-l’œil of being a window into invisible proceedings’, he argues that its ostensibly transparent glass façade operates in fact as an opaque reflective surface, deflecting scrutiny and refusing visibility. Goodrich expands this into a wider critique of ‘juridical optical desire … the rules that control looking and being viewed’ in the courtroom. He suggests that law’s strict control of its image reflects its anxieties about being seen and re-presented (‘remediated’) by its own subjects, and thus becoming vulnerable to critique and counternarratives. Using the case of Stephen Gough, ‘the Naked Rambler’, as a vivid illustration, Goodrich explores the critical ancillary question of ‘what cannot be seen and so is blinded from [juridical] vision’ through analysis of two courtroom sketches of Gough by artist Isobel Williams. He addresses the irony of a blind justice which oversteps its mandate—acts ultra vires —by refusing to look at even that which it ought to see and consider. The wordless eloquence of Williams’ drawings, and Goodrich’s readings of legal symbols and spaces, open a fresh, provocative interface between law and the visual, outside the hermetically and hermeneutically sealed world of the legal text.   In both Carey Young’s and Peter Goodrich’s contributions, we see the richness of the interdisciplinary imagination at work. In my interview with Anthony Julius,[7] we address the matter directly. Julius discusses ‘the unnaturalness of the disciplinary’, arguing that it is the ‘confining, not the unconfinement that needs to be justified’. Julius’ own teaching embodies this attitude strikingly: he offers undergraduate law students courses in Shakespeare’s sonnets and the nineteenth-century industrial novel. In them, literature is positioned as a pedagogical foil to the law, providing new interpretative methodologies, genres, and forms for students to examine and synthesise. Julius advocates interdisciplinarity as a commitment akin to friendship: wide-ranging, non-exclusive, but also serious, carrying with it its own duties and obligations. On the relationship between law and the arts (to return to where we began), Julius highlights its inherent tensions—‘art exasperates law, law oppresses art’—yet suggests that this is simultaneously a generative relationship, which stimulates even as it seeks to constrain. This dynamic of oppression and exasperation is realised most palpably in the issue of censorship, a topic on which Anthony Julius is preparing to publish a new book, Shameless Authors . Another manifestation of law’s divisions between openness/closure and liberation/oppression, censorship is a form of manufactured public blindness, a redaction that renders material unviewable beyond the controlled sphere of politico-legal decision-makers—we cannot see what we are prevented from looking at. Julius makes a powerful case for interdisciplinarity as the ground of intellectual enquiry and provides a brilliant example of how to integrate different disciplinary perspectives in one’s life and work.   That then, is my brief, biased, and bitty summary of the pieces that follow. I hope I have persuaded you that they are worth reading in full, and as a dialogue. Each arriving from a unique starting point, together they provide a diverse set of examples of the breadth and creativity of the interdisciplinary imagination. The texts demonstrate the myriad ways in which the creative energy generated by the friction between law and the arts can be harnessed to generate new frameworks and fresh perspectives with which to understand law. A final knot remains, however. If these critiques are to circulate more widely outside the Academy, we will also require different ways of communicating law—methods, perhaps, that move away from text and embrace the visual.[8] The motif of seeing / blindness which weaves through this segment shows that it matters where the law—through its agents and servants—chooses to cast its gaze, avert its eyes, or even block ours. Our response, in the face of this all-seeing ocular authority, should be to look right back, to subject the law to scrutiny, to interpret and reinterpret its symbols and images—but to do so we need more widely spread and more welcoming approaches to legal literacy. Taking the interdisciplinary imagination seriously is a start. Elizabeth Huang   Elizabeth Huang completed her undergraduate degree in Law at Trinity College, Cambridge, before reading for the BCL at Magdalen College, Oxford, where she was the Vinerian proxime accessit. She is particularly interested by the intersections of law, technology, society, and art (sometimes all four at once!) and has written elsewhere on the ‘audience as jury’ in Shakespearean theatre. Outside of her academic interests, she has edited several publications, including The Mays Anthology .   She would like to thank Anthony Julius, Peter Goodrich, and Carey Young for their unbounded generosity of time, ideas, and energy in contributing to our very first, fledgling issue. [1] John Berger, Ways of Seeing  (Penguin 1972) 8-9. [2] ibid 11. [3] I do not tread new ground here—a rich body of work exploring such themes can be found in socio-legal studies, feminist legal theory, and elsewhere, eg Erik Larson and Patrick Schmidt (eds), The Law and Society Reader II  (NYU Press 2014). [4] This is, of course, a gross oversimplification. Carey Young, whose work is held in public collections such as the Tate Gallery and Centre Pompidou, lectures widely and teaches as an Associate Professor at the Slade School of Fine Art. Peter Goodrich, Professor of Law at the Cardozo School of Law, is also an accomplished filmmaker. Anthony Julius, Deputy Chairman at Mishcon de Reya, is concurrently Professor of Law and the Arts at UCL. [5] Carey Young, ‘Justice Must Be Seen to be Done’ (2021) 1 CJLPA 307-9. [6] Peter Goodrich, ‘Remediation’ (2021) 1 CJLPA 310-4. [7] Elizabeth Huang, ‘Interdisciplinarity as a Way of Life: In Conversation with Anthony Julius’ (2021) 1 CJLPA 315-7. [8] Fascinating and innovative work is being done in this area by projects such as ‘The Less Textual Legal Gallery’, ‘a showcase for legal learning and communications focusing on alternative visual modalities’ (< https://tldr.legal/about-us.html >), and the Stanford Legal Design Lab (< https://www.legaltechdesign.com/our-projects/ >), which seeks to ‘advance legal innovation and access to justice’ through interdisciplinary, user-focussed design projects.

I. Introduction From atoms to bits, digital convergence has made science fictions come true.[1] Web, mobile applications, smart homes, and increasingly more digital products have changed the way people interact with the world time and again. However, no matter how much technologies evolve, the ‘agree’ or ‘consent’ button is following like a shadow. From the start of this century to date, the ‘notice-and-consent’ model, as one of the most fundamental methods to protect the users’ privacy, still dominates the virtual world.[2] There are conflicting attitudes towards this long-established ‘consent’ model. Criticisms towards the consent model are prevalent, while the legislators seem to ignore them.[3] Academics claim the people today can no longer provide a meaningful form of consent,[4] some even say that the current model offers no choice at all.[5] However, this consent model is still at the heart of many data-protection legislations today worldwide,[6] such as the California Consumer Privacy Act 2018 and China’s Personal Information Protection Law 2021. This essay assesses the status quo of the consent model through the lens of this conflict. It aims to answer two questions: whether the consent model is still a reliable method for privacy protection today? If not, what can be done to bring it back on track? Section II of the essay analyses the two sides of the conflict. Section III then offers suggestions as to how to address problems of the current model summarised in Section II. II. The Two Sides of the Coin This section unfolds in two parts. The first part discusses the criticisms of the consent model which are primarily based on the definition of ‘valid consent’. The definition, provided by Kim, includes three essential elements: intentional manifestation of consent , knowledge , and volition/voluntariness .[7] The second part then considers the causes why, despite the criticisms, legislators still uphold the consent model enthusiastically. Intentional manifestation of consent ‘Intentional manifestation of consent’ means the ‘reason or purpose for the manifestation of consent is to communicate consent to the act’.[8] However, in the context of online consent, the constantly appearing cookie pop-up windows and agree buttons result in an end-user ‘consent fatigue’.[9] This consent fatigue, with the long-winded privacy notices, undermines the original purpose of consent; it only makes people more likely to ignore it.[10] Thus, can clicking the agree button be understood as a well-informed privacy trade-off? Knowledge Knowledge to consent means the person must understand what they are consenting to.[11] To conform to this principle, it is necessary that the information is clear and the person has the ability to understand.[12] Nevertheless, the majority of privacy policies today are filled with legal jargon deliberated word by word. They are not something that the average end-user could figure out.[13] More ironically, thanks to the rising complexity of the algorithm, the drafter of the statement or developer of the product even sometimes does not understand the real impacts behind the data processing activities they engaged.[14] The developers in commercial companies may be clear about the input and expected output of those algorithms, but they probably do not know how things are worked inside of the algorithm and what kinds of implications the algorithm may bring. Without accessible information, it is impossible that the users can make meaningful consent. Volition/Voluntariness Digital services are tempting people to trade off their privacy for de facto benefits. Nowadays, it would sound like nonsense if an email service charged a fee or Facebook and Twitter sent an invoice. It becomes so natural to have a pizza delivered to the door or have a ride ready in minutes by just clicking on a smartphone. These benefits make the consent seem to have voluntariness . Nevertheless, is that a real free choice? Voluntariness requires consideration of the cost of rejection. The wide adoption of the ‘take-it-or-leave-it’ model results in an either/or situation.[15] Rejecting the contemporary digital service means not merely refusing the convenience it brings but isolating oneself from the digital community and one’s generation. Moreover, taking a smart city as an example, refusing to give consent means removing oneself from the entire society.[16] The pressure and coercion[17] of exclusivity only leaves people a ‘free’ Hobson’s choice.[18] The above criticisms suggest an interim conclusion that the online consent model today fails to achieve all essential elements that could make consent meaningful; in other words, in practice, there is no valid consent at all. However, the reasons why legislators around the world still advocate the consent model are worth considering. The intuitive reason is that governments themselves also benefit from the consent model to realise projects such as smart cities and state surveillance. However, Susser’s work effectively summarises the deeper reasons: ‘it’s cheap, encourages innovation, and appeals to individual choice ’.[19] It means that such a ‘free-market’ approach[20] could help stimulate the economy at a minimal cost and simultaneously create an illusion of respect to individual choices.[21] This is the allure of the consent model, which sounds fair as an acceptable privacy trade-off appearing in the age of digital technology explosion.[22] Is the consent model still a reliable way to protect individuals’ privacy today? Yes and no. It is worth pointing out that the core rationale of the consent model still stands; both advocates and critics of the current model acknowledge the free-market approach that the consent model brings.[23] Even looking back at the criticisms, almost no one is attacking the rationale of the notice-and-consent model; the critics always go after the actual practice. The critics argue that it is impossible to make meaningful consent under information and power asymmetry.[24] III. Recommendation for a Way Out Given that the underlying rationale of the current consent model should be upheld, it is necessary to address the problems arising from the actual practice. I propose a solution which consists of three different levels of actions that would fulfil all three essential elements of consent in practice. Informational Norms Ben-Shahar and Schneider argue the simplest way to solve the knowledge issue is to give people more information.[25] This approach does not aim to train people as legal or computer experts, but to familiarise people with the context.[26] Sloan and Warner’s solution, called the ‘informational norms’, is an efficient way to achieve this. This proposal advocates establishing norms to govern data processing behaviours, so that people would have a reasonable expectation about what parts of their privacy they would trade off for the services, and in what contexts this trade-off scenario is taking place.[27] They used the analogy that it is very natural to understand ‘why your pharmacist may inquire about the drugs you are taking, but not about whether you are happy in your marriage’ to illustrate the importance of specific contextual knowledge.[28] Through the informational norms, an individual is equipped with the essential contextual knowledge to make such decisions regarding the use of their personal data. I suggest that the data protection authority coordinate with sector associations and non-profit organisations to establish such norms. They should then continue to run awareness campaigns to ensure that the users are well informed and companies to follow the new norms. Raising the Bar for Consent In practice, more and more companies are inclined to implement the consent model even if another lawful basis is available to choose. Susser’s study points out an important observation that the notice-and-consent model may be adopted as just ‘notice-and-waiver’.[29] This enables the companies to shield themselves from liability but reserve the inexhaustible potential of the data.[30]A report released by the President's Council of Advisors on Science and Technology of the Obama government states that ‘notice and consent fundamentally places the burden of privacy protection on the individual—exactly the opposite of what is usually meant by a “right”’.[31] Furthermore, it leads to consent fatigue. Thus, the second action in the portfolio is to raise the bar for consent usage. First of all, there should be a clear boycott against the current abuse of consent. For example, if the purpose is as simple as delivering a pizza order, the lawful basis shall simply be ‘contract’ rather than asking for ‘consent’.[32] Second, with establishing of the informational norms, a clearer sector-based legitimate interest justification could be formed. For instance, why not have personalised advertisements to be legitimate interests for those free services (e.g. Gmail)? If one worries about the level of personal data used in the advertisement, this should be addressed by advertising regulations such as the Committee of Advertising Practice code. Such efforts can restore the manifestation of consent : this significantly reduces the times of consent scenario the people face, and makes the people aware that if consent is required, it must be something they should pay special attention to. Meanwhile, these efforts also offer higher certainty for the companies to engage lawful basis of data processing activities other than the consent model, and the companies’ legitimate interests can be protected by the sector norms. Therefore, there is no more excuse for the take-it-or-leave-it model to continue to be adopted in so many data processing scenarios. Fundamental Safety Guard The last action is a fundamental safety guard. Zuboff,[33] Yeung,[34] and others[35] warn people against other risks of privacy infringement embedded in the current consent model, such as fake news, echo chambers, and data breaches. Thus, two related actions may be implemented to help form a fundamental safety guard. First, it should be similar to food safety regulations; there should be ‘hard boundaries’ for data processing activities that protect people from obvious harms.[36] One possible way would be to ban data processing activities, such as targeted political campaigns, which could cause obvious harms to public safety. Setting up a specific standard may be another choice. For example, China's Cybersecurity Law requires all systems which process personal data above a certain amount to pass a mandatory third-party cybersecurity audit.[37] Second, for those potentially high-risk activities, such as processing special categories of personal data, even with explicit consent, the system should log all activities associated and provide justifications of the output. These records would make retrospective/future investigations possible and deter unnecessary activities. Even though the scope of logging function is limited in the Section 62 of the UK Data Protection Act 2018,[38] this function was an example in which such a requirement to log can be implemented. The ultimate goal for the fundamental safety guard is to further shift the privacy protection burden back to companies and governments. However, there might be one last flaw in the foregoing three-levels solution, which is that it seems only applicable to private sectors. Indeed, it would be hard for any actions in the solution to restrict the power of the state. In that case, I suggest introducing a data trust[39] to deal with state-level data processing. An independent data trust which represents the collective citizens, authorised by the people, could be an efficient channel to fill the gap in the information and power asymmetry between an individual citizen and the state.[40] The pilot projects conducted by the Open Data Institute are excellent examples.[41] IV. Conclusion It is worth emphasising that the core rationale of the consent model is still valid. The issue today is that the people’s knowledge can no longer catch up with the explosive growth in technology. Meanwhile, the organisations and governments are circumventing their due responsibilities by abusing the consent model. The solution proposed in Section III restores the validity of the three essential consent elements. For the private sector, the core strategy is to reduce the unnecessary use of consent by diversifying its legal instruments. The informational norms establish the knowledge of the public and facilitate the public’s understanding of different sectors’ legal interests. Raising the bar of consent mitigates fatigue to reinforce the intentional manifestation of consent . These two actions are more effective alternatives to the take-it-or-leave-it model, which makes real voluntariness possible. Moreover, this combination could also help address the new emerging challenges such as the Internet-of-Things, which does not offer the chance for privacy statements to be presented in advance. Finally, the fundamental safety guard offers an extra protection to reassure the public that they are protected from obvious harms, which plays a crucial role in re-establishing public trust and confidence in the data protection legislation. For the public sector, an independent data trust could draw the power asymmetries back into balance. The solution to the dilemma is not a full abandonment of the consent model; this would not help. Instead, the real way out is to fully realise the advantages of the consent model through concrete and realistic implementation pathways and thereby make consent meaningful again. Jialiang Zhang Jialiang Zhang is a cyber security and data privacy professional who has worked in consulting and in-house roles for over a decade. After an LLM in Technology Law at Queen’s University Belfast, he is reading for an MAcc degree at Downing College, Cambridge. Benefiting from his interdisciplinary background, Jialiang is experienced in realising regulatory requirements in IT architecture design and is interested in quantifying cyber risks. [1] Andrew Murray, Information Technology Law: The Law and Society (4th edn, Oxford University Press 2019). [2] Alessandro Mantelero, ‘The Future of Consumer Data Protection in the E.U. Re-thinking the “Notice and Consent” Paradigm in the New Era of Predictive Analytics’ (2014) 30 Computer Law and Security Review 643. [3] Anne Josephine Flanagan, Jen King, and Sheila Warren, ‘Redesigning Data Privacy: Reimagining Notice and Consent for Human Technology Interaction’ ( World Economic Forum , 2020) < https://www.weforum.org/reports/redesigning-data-privacy-reimagining-notice-consent-for-humantechnology-interaction > accessed 29 November 2020. [4] ibid. [5] Lord Sales, ‘Algorithms, Artificial Intelligence and the Law’ (2020) 25 Judicial Review 46. [6] Flanagan, King, and Warren (n 3). [7] Nancy S. Kim, Consentability: Consent and Its Limits (Cambridge University Press 2019) 10. [8] ibid. [9] Daniel Susser, ‘Notice after Notice-and-Consent: Why Privacy Disclosures Are Valuable Even If Consent Frameworks Aren’t’ (2019) 9 Journal of Information Policy 37. [10] Flanagan, King, and Warren (n 3). [11] Kim (n 7). [12] ibid. [13] Helen Nissenbaum, ‘A Contextual Approach to Privacy Online’ (2011) 140 Daedalus 32. [14] Susser (n 9). [15] Robert H Sloan and Richard Warner, ‘Beyond Notice and Choice: Privacy, Norms, and Consent’ (2013) Suffolk University Journal of High Technology Law < https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2239099_code364457.pdf?abstractid=2239099&mirid=1 > accessed 28 November 2020. [16] Jennifer Cobbe and John Morison, ‘Understanding the Smart City: Framing the Challenges for Law and Good Governance’ in E Slautsky (ed), The Conclusions of the Chaire Mutations de l’Action Publique et du Droit Public (Sciences Po 2018). [17] Flanagan, King, and Warren (n 3). [18] Sloan and Warner (n 15). [19] Susser (n 9), my emphasis. [20] Sloan and Warner (n 15). [21] Flanagan, King, and Warren (n 3). [22] Sloan and Warner (n 15). [23] Susser (n 9). [24] ibid. [25] Omri Ben-Shahar and Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton University Press 2014). [26] ibid. [27] ibid. [28] ibid. [29] Susser (n 9). [30] ibid. [31] PCAST, Report to The President – Big Data and Privacy: A Technological Perspective (PCAST 2014) 38. [32] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (hereinafter referred as ‘GDPR’). [33] Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (PublicAffairs 2019). [34] Karen Yeung, ‘Five Fears About Mass Predictive Personalisation in an Age of Surveillance Capitalism’ (2018) 8(3) International Data Privacy Law. [35] See e.g. Kathleen M Kuehn and Leon A Salter, ’Assessing Digital Threats to Democracy, and Workable Solutions’ (2020) 14 International Journal of Communication 2589. [36] Susser (n 9). [37] China Cybersecurity Law 2017, art 21. [38] Data Protection Act 2018, s 62(1). [39] Bianca Wylie and Sean McDonald, ‘What Is a Data Trust?’ ( Centre for International Governance Innovation, 2018) accessed 28 November 2020. [40] Anouk Ruhaak, ‘Data Trusts: What Are They and How Do They Work?’ ( RSA 2020) < https://www.thersa.org/blog/2020/06/data-trusts-protection?gclid=Cj0KCQiAh4j-BRCsARIsAGeV12CL1qnJPUAxOHc7ROKhlid5xQHrgKbQSAtS6XdINfwadAkjAeScWf4aAuz0EALw_wcB > accessed 23 November 2020. [41] The ODI, Data trusts: Lessons from Three Pilots (ODI 2019).

Motive is traditionally considered to be an unwelcome guest in criminal trials, a bête noire that should only appear at a sentencing. The common law draws an important distinction between mens rea and motive in criminal proceedings. The principle of mens rea, meaning ‘guilty mind’, provides that ‘criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences, it may have’.[1] Motive refers to personal reasons, such as vengeance or financial gain, from which criminal intent may be inferred. While most offences require mens rea to be proven beyond reasonable doubt, the motive is traditionally considered irrelevant to criminal liability.[2] The inclusion of a ‘political, religious or ideological cause’[3] element in the definition of ‘a terrorist act’ in Australia has invited the concept of motive back into criminal liability. In addition to the evidential issues of proving motive beyond reasonable doubt, defining terrorism is commonly regarded as a Sisyphean task due to the political, ideological and jurisprudential questions it raises about the legitimate exercise of violence and the role of criminal law. Rather than viewing anti-terrorism laws as a vanguard in a broader trend towards the inclusion of motive in criminal liability, this article asserts that the unique nature of terrorism as strategically targeted violence necessitates a motive element. Whilst the physical elements of terrorist acts can be covered by existing criminal offences, such as murder or conspiracy, the underlying motive to influence socio-political outcomes through the use of violence adds a distinct layer of criminality. Hacker describes terrorism offences as ‘triadic’[4] because it involves not only the offender and the victim but also the general public through the targeted perpetuation of fear. Premised on the notion that the motive behind terrorism is what creates a moral distinction from other criminal offences, this article presents three central arguments. Firstly, a discrete category of terrorism offences is necessary in accordance with community expectations that political, religious and ideologically oriented violence warrants distinct classification under criminal law as an affront to the democratic process. Secondly, that terrorism offences should be fairly labelled with reference to a motive element in the definition of a ‘terrorist act’ to adequately reflect the nature and extent of an offender’s criminality, particularly when many terrorist offences are inchoate. Thirdly, the inclusion of a motive element in terrorism offences substantially broadens the scope of admissible evidence at trial and thereby heightens the importance of safeguards in criminal procedure to protect the fairness of criminal proceedings. II. The Legal Definition of ‘A Terrorist Act’ The Australian definition of ‘a terrorist act’ under Section 100.1 of the Commonwealth Criminal Code was introduced by the Security Legislation Amendment (Terrorism) Act 2002 (Cth) as part of a legislative response to the September 11 attacks. The anti-terrorism laws include a wide range of offences that can only be enlivened once the three limbs of the definition of ‘a terrorist act’ are proven beyond reasonable doubt: ‘the action is done, or the threat is made with the intention of advancing a political, religious or ideological cause’ (‘the motive element’);[5] ‘the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public’[6]; and the ‘action’ falls within subsection (2) and does not fall within subsection (3). Subsection (2) includes actions such as causing a person’s death, serious damage to property and endangering a person’s life. Subsection (3) provides that advocacy, protest, dissent or industrial action are not terrorist acts.[7] This definition blurs the legal distinction between intention and motive by focusing on the reasons why the accused engaged in the prohibited conduct (for advancing a political, religious, or ideological cause) rather than an intention to commit the act itself. Thus, the ‘motive element’ under subsection (1)(b) presents a departure from intent as the cornerstone of criminal liability[8] and ventures into the hearts and minds of the accused. III. The Role of Motive in Criminal Responsibility Criminal offences ordinarily comprise a physical element ( actus reus ) and subjective fault element ( mens rea ). The fault element is based on intention, whereby criminal liability is restricted to ‘those who, from a subjective perspective, intended, knew or at least were aware of the risk of a particular harm occurring’.[9] However, what is the difference between motive and intention? In Hyam v Director of Public Prosecutions (Cth) [1974] UKHL 2 , Lord Halisham explained that ‘motive is entirely distinct from intention or purpose. It is the emotion that gives rise to an intention, and it is the latter and not the former which converts an actus reus into a criminal act’.[10] By considering the emotional and subjective reasons why someone intended to commit an offence, criminal liability becomes perilously intermixed with moral and political judgments. Norrie argues that it is the link between social conflicts and individual motives that drives the exclusion of motive from criminal responsibility.[11] For example, the mental element of larceny is the intention to steal rather than motivating factors or emotions such as hunger or poverty. The primacy of intent over motivation protects the criminal law from ‘moral infection’[12] and attributes fault to the autonomous individual rather than the broader structural and societal issues that contribute to crime. Notwithstanding this, Horder claims that a ‘privileged class’ of offences permit motive into criminal liability.[13] For example, the motive is important for offences where there is no prima facie wrong.[14] In the case of terrorism, a significant portion of terrorist offences are constituted by preparatory acts whereby the criminality of the offence is unclear without the motive. Furthermore, it is the motivation behind the intention—to advance a political, religious or ideological cause through coercion or intimidation—that captures the ‘wrongfulness’ of the offence. For example, terrorism prosecutions in Australia have included the possession of a magazine published by Al-Qaeda[15] and attempting to seek a fatwa against an army base.[16] In these cases, the criminality of possessing a magazine or seeking a religious declaration is not adequately understood until the motive behind these acts is established. There is indeed merit to the longstanding view that motive should be excluded from criminal liability to keep the offender’s political, religious, or ideological orientations outside of the courtroom and thereby reducing the risk of bias. However, in the case of terrorism, it is these very motivations that differentiate terrorism from other serious offences. As noted by former Attorney-General Phillip Ruddock, ‘it would be short signed to divorce these motivational contexts from the crimes themselves when they directly inform the gravity of the conduct’.[17] The incorporation of a motive element to advance political, religious, or ideological causes into the statutory definition of a ‘terrorist act’ ensures that the essential characteristics and criminality of terrorism is sufficiently particularised within the legislation. IV. The Moral Distinction between Terrorism and Other Offences ‘Terrorism’ is a politically and ideologically contentious term that incites extreme moral outrage and public indignation. But what makes terrorism distinct from other offences which are also considered morally wrong? Offences that are violent, indiscriminate, or otherwise evoke widespread terror will inevitably provoke media attention and emotive public response. However, on a deeper level, terrorism is an attack on the fundamental principles of a peaceful and democratic society. It was expressed by the United Nations Commission on Human Rights that ‘terrorism poses a severe challenge to democracy, civil society and the rule of law’.[18] While arguably all criminal offending may inadvertently undermine the rule of law, Ben Saul asserts that terrorism ‘should be specifically criminalised because it strikes at the constitutional framework of deliberative public institutions which make the existence of all other human rights possible’.[19] By replacing politics and dialogue with intimidation and violence, terrorism represents an affront to the Western liberal ideal of the peaceful democratic process. Ultimately, it is the public-oriented motive that most clearly reflects the core normative judgments about the wrongfulness of terrorism and distinguishes it from other offences. One of the main criticisms of the inclusion of a motive in the definition of ‘a terrorist act’ is that terrorist offences can be prohibited through existing criminal offences. Roach argues that ‘although anti-terrorism laws have been enacted on the basis that existing criminal law is inadequate, we should not lightly assume that the existing criminal law is not up to the task’.[20] Roach asserts that offences of murder, conspiracy, incitement and attempt can be applied to apprehended acts of terrorist violence and ‘from the perspective of public safety, it should not matter why someone explodes a bomb’.[21] In contrast, the Parliamentary Joint Committee on Intelligence and Security stated that ‘terrorism is qualitatively different from other types of serious crime’ because it is typically directed toward the public to create fear and promote political, religious or ideological goals.[22] This distinction between public and private motives is illustrated in the case of R v Mallah .[23] Mallah was indicted on two counts of preparation for a terrorist act and a third count of recklessly making a threat to cause serious harm to a Commonwealth public official . [24] The alleged facts were that Mallah applied for a passport which was subsequently refused by the Department of Foreign Affairs and Trade (DFAT). Following an appeal to the Administrative Appeals Tribunal, police executed a search warrant in his house and located a rifle, ammunition, a document entitled ‘ How can I prepare myself for Jihad ’, and a manifesto setting out his grievances and identifying DFAT as his target. During a covert phone call, Mallah admitted to an undercover operative that he was planning an attack on a government building and made threats to kill ASIO and DFAT officers. After a trial by jury, he was acquitted of Counts 1 and 2 and convicted of Count 3. Despite the facts of the case having the hallmarks of a terrorist offence, such as the targeting a government institution, possession of religious manuscripts and references to ‘jihad’, the sentencing Judge remarked that ‘by its verdict, it is clear that the jury was not satisfied beyond reasonable doubt…having regard to the definition of a “terrorist act”’.[25] Chief Justice Wood found that Mallah did not possess a publicly-oriented motive to advance a political, religious or ideological cause but rather was an ‘embittered young man’ who ‘personally felt that he had been the subject of an injustice’ as a result of his passport refusal.[26] While the physical elements of the charge appeared to be terrorist in nature, Mallah’s motive was considered to be a personal one. This case illustrates the important distinction between public and private motives in signifying the unique wrongfulness of terrorism, whereby a threat to a government institution out of personal frustration cannot be considered a terrorist attack. V. Terrorism and the Declaratory Function of the Law Ashworth outlines the three key functions of criminal law: to declare that certain conduct is a public wrong, to institute the threat of punishment as a deterrent, and to censure those who nevertheless commit the offence.[27] These three functions are not equally applicable to every offence. In the case of terrorism, it is unlikely that criminalisation and the risk of censure will significantly deter terrorists from committing a terrorist act. Anti-terrorism laws have ‘marginal deterrent value’[28] because criminal sanctions are not believed to dissuade terrorists from their political, religious or ideological cause, particularly if they are willing to die in pursuit of their motive or reject the legitimacy of the legal system, to begin with. Adopting this view, the enactment of anti-terrorism laws serves a declaratory rather than punitive function to publicly condemn acts of terrorism, satisfy public indignation and placate demands for justice. The declaratory function of anti-terrorism laws is supported by the Sheller Committee’s Parliamentary Review of Security Legislation. The Committee noted that ‘Parliament intended that the definition of a ‘terrorist act’ reflect contemporary use of that term in political and public discourse to stigmatise certain political acts…’ and that the motive element under subsection (1)(b) ‘appropriately emphases a publicly understood quality of terrorism’.[29] From this review, it is apparent that Parliament’s primary focus on the motive element in the definition of ‘a terrorist act’ is an alignment with community expectations and popular understandings of terrorism. However, there is a fine balance between legitimating criminal laws by aligning offences with community standards and moral values and exercising penal populism to satisfy public demands for vengeance. VI. The Terrorist Label and Fair Labelling Despite its evolving definition, the concept of terrorism has retained significant political and moral currency. From the ‘Reign of Terror’ during the French Revolution to radical Islamic terrorism after the September 11 attacks, the ‘terrorist’ label has endured a longstanding capacity to stigmatise and de-humanise those upon whom the label is imposed. The moral potency of the terrorist label beyond its legal signification has rendered the term ‘slippery and much-abused’.[30] It has been deployed to censure various manifestations of violence, from revolutions, and political protests to State terrorism. This debate over how violence is represented and defined becomes a struggle over its legitimacy.[31] In the absence of a clear definition, the label of terrorism becomes more vulnerable to misappropriation. Borradori argues that this ‘semantic instability’ and ‘conceptual chaos in public or political language’ privileges dominant powers to de-legitimise or criminalise conduct according to prevailing political interests.[32] Given the strong moral and political stigma attached to the term ‘terrorist’, careful attention must be given to the principle of fair labelling when defining terrorism offences. Labelling, in its literal sense, as the process of classifying, describing, and identifying, plays a significant role in criminal law. Criminal offences are defined and categorised into a statutory framework that demarcates degrees of wrongdoing and sentencing options depending on the seriousness of the offence. Chalmers and Leverick argue that labels are important in describing the offences to the general public and differentiating the offending behaviour for those working within the criminal justice system.[33] This process of labelling is a declaratory enterprise whereby the label of an offence communicates the nature of a crime and the degree of condemnation that should be attributed to an offender by the general public and criminal justice system. Ashworth notes that one of the primary aims of criminal law is to ensure a proportionate response to law-breaking and that fairness demands that offenders be labelled and punished commensurate with their wrongdoing.[34] In the context of terrorism, it must first be asked who the intended audience of the label is? The legal definition of terrorism is intended for the offender, operatives of the criminal justice system and the community at large. In terms of the offender, labelling is important in communicating what constitutes a terrorist offence and how the commission of such an offence will impact findings of guilt, sentencing, and the offender’s criminal record. While it is argued that anti-terrorism laws have a minimal deterrent effect, it remains essential that acts of terrorism are clearly defined due to the harsh penalties involved (maximum penalty of life imprisonment) and strong social stigma. This is particularly pertinent in the prosecution of inchoate offences, such as the possession of documents or financing of groups with terrorist affiliations. These preparatory acts carry heavy sanctions and stigma under the wide umbrella of ‘terrorism’. Agents of the criminal justice system, such as judges, lawyers and parole officers, also rely on the labelling of offences. Prior to conviction, the labelling of offences dictates the elements that need to be proven beyond a reasonable doubt, plea negotiations and jurisdiction of the court. After conviction, labels also affect the sentencing outcome, notations on criminal records and classifications within prisons. The labelling of an offence as an act of terrorism can have a significant impact on an offender’s prospects of bail, procedural implications such as control orders and the length of detention without charge, as well as the level of media and political attention. In addition to the practical implications of labelling, offence labels also convey to the community the seriousness of an offence and the extent of the offender’s wrongdoing. Labels may draw upon existing social values and signify the degree of moral condemnation and ‘othering’ to be imposed on an offender. Accepting that labels play an essential role in criminal law, consideration must then turn to how terrorism offences can be fairly labelled. Ashworth notes that fair labelling has a more direct connection with common patterns of thought in society, and ‘where people generally regard two types of conduct as different, the law should try and reflect that difference’.[35] The distinguishing feature of a terrorist act (as opposed to existing offences such as murder or conspiracy) is the motive element to advance a political, religious or ideological cause. Simester and Sullivan note that ‘the criminal law speaks to society as well as the wrongdoers when it convicts them, and it should communicate its judgement with precision, by accurately naming the crime of which they are convicted’.[36] Under the Australian Commonwealth Criminal Code Act 1995 , the category of terrorism offences is far-reaching, ranging from large-scale terrorist acts causing significant casualties[37] to ‘possessing things connected with terrorist acts’.[38] Despite the significant variation of harm caused by such actions, the strong stigma of the ‘terrorist’ label remains constant. In light of the severe moral stigma attached to terrorism, liberal use of the term would dilute its declaratory function and cause unfairness to an accused due to the lack of certainty regarding what constitutes a terrorist offence. Given the broad ambit of conduct that may be considered terrorist in nature, the inclusion of a motive element under statute provides greater legal clarity to criminal justice practitioners and accused persons. From a declaratory standpoint, the legislature has defined a terrorist motive to publicly declare that the use or threatened use of violence for a political, religious or ideological cause is considered distinctly wrongful and will attract distinct legal sanctions. The inclusion of a motive element ensures that the ‘terrorist’ label is appropriately directed towards offenders who intend to use violence to advance their political, religious or ideological causes and safeguards offenders who do not harbour such public-oriented motives, as in the case of Mallah above.[39] Terrorism offences often attract media attention that draws upon popular preconceptions of terrorism rather than its legal definition. As a result, many accused persons are branded with the ‘terrorist’ label without being proven to have committed ‘a terrorist act’ to the requisite legal standard. An example is the ‘2019 Sydney CBD Stabbings’, which was initially reported in the media as a terrorist attack but was ultimately prosecuted under non-terrorism offences. In this case, Mert Ney stabbed one woman to death, stabbed a second woman indiscriminately and then proceeded to run through the Sydney CBD yelling ‘ Allahu Akbar ’. The Supreme Court ultimately ruled that the offender possessed the requisite intent to kill, partly informed by his mental disorder, but did not have a terrorist motive: ‘The evidence indicates that the Offender had no commitment to any faith and was not a religious zealot. He had become obsessed with the Christchurch massacre, but not because he was adherent to radical and extremist beliefs himself. On 13 August 2019, he took on the trappings, gestures and language of a terrorist in the apartment after murdering Ms Dunn and in the streets of Sydney. All who saw him would be forgiven for concluding that he was a fixated person with a commitment to a terrorist cause involving violent jihad. However, the evidence does not support such a conclusion’.[40] Bhatia notes that ‘rarely is the combatant’s decision attributed to a complex array of factors and events’[41], such as mental illness or discrimination, and media outlets often focus solely on the terrorist motive ‘in the belief that simplicity is a stronger pull than context’.[42] This gives rise to the argument that a statutory distinction between terrorism and non-terrorism offences through a motive element does not necessarily translate into a practical distinction. Conduct which bears the hallmarks of a terrorist offence, such as indiscriminate public violence, may result in a person being labelled a terrorist without possessing a legally defined motive. VII. Proving Motive at Law: Prejudice, Evidential Difficulties, and the Importance of Procedural Safeguards The inclusion of a ‘political, religious or ideological cause’ in the definition of ‘a terrorist act’ raises evidential difficulties and a risk of prejudice against the accused. Accordingly, evidence of motive in proving an element of the offence must be adduced cautiously in criminal trials and longstanding procedural safeguards, such as the exclusion of unfairly prejudicial evidence under section 137 of the Evidence Act 1995 (NSW) , carries great importance. This section will consider the practical application of the ‘motive element’ in a number of terrorism prosecutions and analyse the evidential implications of proving a political, religious or ideological motive beyond a reasonable doubt. Counter-terrorism policies have placed a strong emphasis on preventative strategies and the containment of risk.[43] This is understandable given the threat of large-scale casualties and destruction inflicted by previous terrorist attacks. Section 137 of the Evidence Act 1995 provides that a court must refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice against the defendant. Unfair prejudice refers to the risk that evidence may be used to make a decision on an improper, perhaps emotional, basis, such that it ‘appeals to the fact-finder’s sympathies, arouses a sense of horror, or provokes an instinct to punish’.[44] This can present difficulties in the prosecution of terrorism offences where proving that an accused sought to advance a political, religious or ideological cause can require the admission of prejudicial or highly subjective evidence, such as extremist religious views or anti-nationalistic sentiments. The use of prejudicial evidence to prove the mental element of a terrorist act was considered by the NSW Supreme Court of Criminal Appeal (CCA) in the case of Elomar .[45] Five co-offenders were convicted of conspiracy to do an act in preparation for a terrorist act. One ground of appeal was that the trial judge erred in admitting evidence that the co-offenders were associated with a group of Islamic fundamentalists who were convicted of terrorism offences in Melbourne. It was argued that there was a real risk that the appellants would be prejudiced by the evidence of their association with the Melbourne group, and the jury would conflate their criminality with that of the Islamic fundamentalist group. The CCA ruled that the expressed attitudes of the leader of a terrorist group with whom the appellants associated and allegedly took religious guidance ‘had the capacity to significantly affect the assessment of the probability of the existence of that fact. The evidence, therefore, had probative value to a significant degree’.[46] Whilst it is peculiar to tender the violent extremist views of one person to evince the state of mind of another, the legal threshold of the probative value outweighing the prejudicial effect means that such evidence is often admissible in terrorism trials. In Elomar , there was also an objection to the tendering of ‘gruesome imagery’, including video footage of beheadings, photographs depicting dead bodies and footage of the September 11 attacks.[47] The trial judge permitted the admission of this evidence due to its high probative value, stating ‘it will enable the jury to see, according to the Crown case, that the state of mind of the accused, both individually and as a group, has gone well beyond mere anger and outrage, beyond jubilation at the success of the 2001 destruction, to a point where it exults in the cruel humiliation and gross murder of innocent persons’.[48] While the inclusion of a motive element significantly increases the probative value of evidence which would have otherwise been excluded, the Courts retain an important discretion to mitigate the prejudicial effect of admissible evidence through procedural rulings and judicial directions. In this case, the quantity of material was restricted to playing only one of six executions, without the actual beheading and audio track to minimise unfair prejudice contrary to s.137 of the Evidence Act 1995 and distress to the jury.[49] Furthermore, the judge gave directions to the jury as to how this evidence could be appropriately used in their deliberations and that its relevance was contained to assessing the state of mind of the accused. In the case of Fattal ,[50] the appellant was convicted of conspiring to do acts in preparation for a terrorist act. The proposed terrorist act was to attack the Holsworthy Army Barracks by shooting as many soldiers as possible, and Fattal’s involvement was to assess the susceptibility of the target. In support of the motive element, there was a substantial body of evidence, mostly intercepted telephone calls, proving that Fattal possessed a hatred for Australian ‘kuffars’ (non-believers) and institutions, particularly Australia’s military involvement in the Middle East. Generally, the admission of evidence indicating an accused’s hatred for a country and its citizens would be highly prejudicial as it can evoke an emotional response from the jury or sentencing judge. However, for terrorism offences, the evidence goes directly to an element of the offence. As with the Elomar case, the inclusion of this evidence is indeed prejudicial; however, not unfairly, so it warrants exclusion under Section 137 due to its high probative value in proving motive. It is argued that the addition of a motive element to the definition of ‘a terrorist act’ creates a further hurdle for the prosecution, which can be difficult to prove because of its subjective nature. In the case of AB [51], the accused faced two charges of doing an act in preparation for a terrorist act and using a telecommunications network with the intention to commit an offence. The accused was seventeen years of age and was diagnosed with an intellectual disability and Asperger’s syndrome. The Crown alleged that AB published a series of posts on a website stating he intended to kill members of the public with a knife in a suicidal attack in a crowded area in Sydney. The Crown did not allege that AB planned his attack in association with any religious or political affiliation but rather wanted to make a statement about the mistreatment of persons with mental illness. In AB’s bail application, Justice Beech-Jones considered the Crown case, noting, ‘I have great difficulty in accepting that that material is capable of demonstrating an intention to advance a ‘political, religious or ideological cause’.[52] While AB’s plan displayed the physical hallmarks of a terrorist act, namely indiscriminate violence on members of the public to advance a cause, it did not meet the legislative requirement that the cause is ‘political, religious or ideological’. Whilst it may be arguable that raising awareness of mental health issues is a political issue, a broad interpretation of the motive element carries inherent dangers in the misuse of terrorism offences and disproportionate labelling, as discussed above. VIII. Constitutional Challenges The constitutional validity of the inclusion of a ‘political, religious or ideological cause’ in the definition of ‘a terrorist act’ has been challenged in Australia and abroad. Returning to the Fattal case, one ground of appeal was that the appellant El-Sayed had a constitutional right to freedom of religion under s.116 of the Commonwealth Constitution and thus was free to seek an Islamic fatwa to carry out a planned attack on the Holsworthy Army Barracks. It was held by the Victorian Supreme Court that s.116 of the Constitution does not confer absolute freedom of religion, and Parliament is acting within its constitutional authority to enact laws prohibiting the violent practice of religion if reasonably necessary for the protection of the community and the interests of social order.[53] This reasoning is echoed by the Canadian Supreme Court in the case of Khawaja .[54] Under the Canadian Criminal Code , section 83.01(1)(b)(i)(A) provides that terrorist activity must be ‘for a political, religious, ideological purpose, objective or cause’.[55] It was argued that this motive clause was an infringement of the freedom of expression encoded in s.2(b) of the Canadian Charter of Rights and Freedoms . The Supreme Court upheld the constitutional validity of the motive clause ruling that, while the prohibited terrorist activities are in a sense expressive, threats and acts of violence fall outside the protection of s.2(b) of the Charter.[56] A purposive interpretation of the actus reus and mens rea requirements of the terrorism legislation excludes liability for non-violent conduct that a reasonable person would view as capable of facilitating terrorist activity.[57] Furthermore, the secondary argument that the motive clause would encourage unfair profiling on the basis of ethnicity or religious belief was rejected by the Court. It was held that improper conduct by State actors and law enforcement agencies ‘cannot render what is otherwise constitutional legislation unconstitutional’,[58] and the provision is clearly drafted in a manner respectful of diversity, allowing for the non-violent expression of political, religious, or ideological views. IX. Conclusion This article presents a discussion on the role of motive in terrorism offences and whether the definition of a ‘terrorist act’ under section 100.1 of the Criminal Code should include the intention to advance a political, religious or ideological cause. Contrary to the longstanding principle that motive is irrelevant in criminal liability, it is argued that the motive element behind terrorism offences is what makes it distinctly wrongful. By delineating a moral distinction between terrorism offences and other crimes which share the same actus reus (such as murder), it is argued that the exclusion of motive would defeat the declaratory function of the criminal law to signify the use of violence for political, religious or ideological purposes as a discrete public wrong. However, in light of the strong social stigma and legal sanctions attached to the terrorist label, careful consideration must be given to the principle of fair labelling when defining ‘a terrorist act’. Fair labelling demands that offenders be labelled and punished in proportion to the degree of wrongdoing. In order to fairly label terrorism offences, the inclusion of a motive provides a clear indication of the degree of wrongdoing and, consequently, the level of legal and social sanctions which should be imposed on the offender. Furthermore, the strong political and moral judgment attached to the ‘terrorist’ label means that the term can be subject to misuse. The added specificity of a motive element in the definition of a terrorist act can prevent the misappropriation of the label. Whilst this article ultimately supports the inclusion of a motive in the definition of ‘a terrorist attack’, there are clear evidential issues arising from the onus on the prosecution to prove the accused intended to advance a political, religious or ideological cause beyond a reasonable doubt. The motive element significantly broadens the scope of admissible evidence that would otherwise be impermissible, such as the accused’s religious beliefs or hatred for their country. Consequently, the admission of evidence to establish motive must be balanced against conventional safeguards in criminal procedure to protect the fairness of the trial and integrity of the criminal trial, such as the exclusion of prejudicial evidence under Section 137 of the Evidence Act . Finally, the motive element under section 100.1 is constitutionally valid as it does not violate the freedom of religion under section 116 of the Commonwealth Constitution and only prohibits the advancement of a religious cause through violent means. Ultimately, it is imperative that terrorism is carefully defined with reference to a clear motive element to accurately distinguish it from other types of offences and serve the criminal law’s declaratory function of communicating to offenders and society what makes terrorism distinctively wrongful. Deborah White Deborah White is a criminal prosecutor from New South Wales, Australia. She completed an MPhil in Criminological Research from the Cambridge Institute of Criminology and served as President of the Cambridge Graduate Law Society. Deborah holds a Bachelor of Law and International Relations from the University of Sydney. [1] Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (Oxford University Press 2013) 155. [2] De Gruchy v The Queen [2002] HCA 33 [28] per Gaudron J, McHugh J and Hayne J. [3] Criminal Code 1995, (Cth) s. 100.1. [4] Frederick J Hacker, ‘Terror and Terrorism: Modern Growth Industry and Mass Entertainment’ (1980) 4 Terrorism: An International Journal 143. [5] Criminal Code (n 3) 100.1(1)(b). [6] ibid 100.1(1)(c). [7] ibid 100.1(1)(a). [8] The requirement for proof of mens rea is described by the Commonwealth Attorney-General’s Department as ‘one of the most fundamental protections in criminal law’ (Attorney-General’s Department (Cth), A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011) [2.26]). The principle of mens rea is confirmed in the Australian High Court case of He Kaw The v The Queen (1985) 157 CLR 523, 582. [9] Bernadette McSherry, ‘Terrorism Offences in the Criminal Code: Broadening the Boundaries of Australian Criminal Laws’ (2004) 27 UNSW Law Journal 354, 360. [10] Hyam v Director of Public Prosecutions (Cth) [1974] UKHL 2 [73]. [11] Alan Norrie, Law and the Beautiful Soul (The Glasshouse Press 2005) 37. [12] ibid 67. [13] Jeremy Horder, ‘On the Irrelevance of Motive in Criminal Law’ in Jeremy Horder (ed), Oxford Essays in Jurisprudence, (4th edn, Oxford University Press 2000) 114. [14] ibid. [15] DPP v Karabegovic (2013) 41 VR 319. [16] Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276. [17] Phillip Ruddock, ‘Law as a Preventative Weapon Against Terrorism’ in Andrew Lynch, Edwina MacDonald, and George Williams (eds) Law and Libery in the War on Terror (The Federation Press 2007) 5. [18] United Nations Human Rights Commission, UNComHR Res 2001/37: Human Rights and Terrorism (2001) Preamble. [19] Ben Saul, Defining Terrorism in International Law (Oxford University Press 2006) 36. [20] Kent Roach, ‘The Case for Defining Terrorism with Restraint and Without Reference to Political or Religious Motive’ in Lynch, MacDonald, and Williams (n 17) 39. [21] ibid. [22] Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter Terror Legislation (December 2006) 5.25. [23] R v Mallah [2005] NSWSC 317. [24] Criminal Code (n 3) s. 147.2. [25] Mallah [2005] NSWSC 317 [26]. [26] ibid 317 [38]. [27] Ashworth and Horder (n 1) 22. [28] Saul (n 19) 16. [29] Security Legislation Review Committee (Sheller Committee), Parliament of Australia, Report of the Security Legislation Review Committee (Australian Parliament House, 2006) 6.22. [30] Paul Wilkinson, Terrorism and the Liberal State (Macmillan 1977) 47. [31] Michael V Bhatia, ‘Fighting Words: Naming Terrorists, Rebels and Other Violent Actors’ (2005) 26(1) The World Quarterly 13. [32] Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jurgen Habermas and Jacques Derrida (University of Chicago Press 2013) 105. [33] James Chalmers and Fiona Leverick , ‘Fair Labelling in Criminal Law’ (2008) 71(2) MLR 217-46. [34] Ashworth and Horder (n 1) 77. [35] ibid 79. [36] Andrew Simester and G R Sullivan, Criminal Law: Theory and Doctrine (3rd edn, Hart Publishing 2007) 30. [37] Criminal Code (n 3) s. 101.1. [38] ibid s. 101.4. [39] Saul (n 19) 5. [40] R v Ney [2021] NSWSC 529[166-167] per Johnson J. [41] Bhatia (n 31) 18. [42] ibid 19. [43] Commonwealth of Australia, National Counter-Terrorism Plan (4th edn, Australia and New Zealand Counter-Terrorism Committee, 2017) 10. [44] Papakosmas v The Queen (1999) 196 CLR 297[97]. [45] Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303. [46] ibid 248. [47] ibid 156. [48] ibid 419. [49] ibid 409. [50] Fattal [2013] VSCA 276. [51] AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042. [52] AB [2016] NSWSC 104 [226]. [53] Fattal [2013] VSCA 276 [126] – [127]. [54] Khawaja v The Queen, 2012 SCC 69. [55] Criminal Code (Canada), RSC 1985, s. 83.01(1)(b)(i)(A). [56] Khawaja (n 54) 7. [57] ibid 6. [58] ibid 47.

Oleg Tistol is one of Ukraine’s leading contemporary artists, who works with stereotypes associated with Ukrainian everyday life and current affairs. His artwork cleverly juxtaposes Ukraine’s historical past with current issues through day-to-day imagery. The results are alluring and provocative, yet playful. However, since the beginning of the Russian invasion into Ukraine, Tistol has sought safety from the bombs by living in his basement art studio with his wife, daughter, and a friend. His art production has been greatly affected by this war and his unique perspective on ‘freedom’ and the release of the oppressive shackles of the Russian imperialistic narrative has had a profound effect on the work he now creates. This interview was conducted on 14 April 2022. Fig 1. March-22. Self-Portrait (Tistol 2022, acrylic on canvas, 200 x 140cm). © Tistol. Oleg Tistol : My apologies, the air raid sirens are howling now. There is noise from the street. Constance Uzwyshyn, for CJLPA : Tell us about the painting for the Journal ’s back cover (fig. 1). OT : The shadow was a very important theme for me before the war. Actually, we have lived with this feeling…the war has now lasted eight years [a reference to the initial invasion by the Russians in Donbas and annexation of Crimea in 2014]. That is why somehow this shadow is from the distant past, so I created a big exhibition from it (figs. 2, 3 & 4). This was a premonition, a photo document, a painting more important and striking than a photo. If I was going to do a portrait now of Peter, for example, I would make a shadow, and this would be more of a document than some other vision. Fig 2. Mariana (Tistol 2021, acrylic on canvas, 200 x 140cm). from Exhibition Oleg Tistol; Europe. 14 September – 14 December 2021, UkrEXIM Bank, Kyiv. © Tistol. Fig 3. Constance (Tistol 2021, acrylic on canvas, 200 x 140cm). from Exhibition Oleg Tistol; Europe. 14 September – 14 December 2021, UkrEXIM Bank, Kyiv. © Tistol. Fig 4. EN (Tistol 2021, acrylic on canvas, 200 x 140cm). from Exhibition Oleg Tistol; Europe. 14 September – 14 December 2021, UkrEXIM Bank, Kyiv. © Tistol. Now, about this painting (fig. 1). To think about art was very difficult during this last month. I asked my daughter Nadiya to draw my portrait because self-portraits are a problem (fig. 5). Someone must draw the shadow. This was a difficult period, but it was positive in a sense as we had not spent much time together earlier. Nadiya and I were in one studio together all month and I understood that my shadows are not superfluous or arbitrary. This is something very important and serious to me; it is sort of a document. It was a very cold-blooded documentation and is the way I am today…it is how I stand. It’s very important this shadow was done by Nadiya because throughout the month it was about survival and saving your life and those of your dear ones. This was the problem that had to be resolved and this is what the painting is about. What kind of war? You either feel it or you don’t. I don’t want to say anything about the war to the viewer. Either it’s there or it isn’t. Right now, I don’t want to say anything about the ‘katsaps’ [a traditional Ukrainian derogatory term for Russians].[1] I don’t want to say anything about the war. This is an issue for writers, journalists, and most of all, for the military. Fig 5. Nadiya Drawing the Shadow of Tistol for the painting, (March-22. Self-Portrait). © Tistol. CU: How would you translate ‘katsap’ into English? Is its very specific terminology impossible to translate? OT : ‘Katsap’ is in reality a Turkic word that has the meaning of ‘butcher’. This is an ancient term. Even Solzhenitsyn[2] called them this. In this context, it is the most appropriate term. I know this word from birth. Ukrainian villagers know this term. We thought this term stems from ‘tsap’. That is, an animal, sheep. But no. It means a killer. It means butcher. In Turkey, the butcher shops are called ‘kasap’.[3] This is not slang, and this is not an insult. I like very accurate cultural designations. And if I call a person by what they truly are, then you better understand the cultural context. CU: I see in this painting you are standing on a crate, could you explain this? OT : This is a very old Soviet crate. Perhaps it was some military item. I have had this in my studio for a very long time. There are instruments inside. Tools for work. Why this crate? I intuitively felt that I needed this crate. On one hand this could be a pediment for a monument. This is ironic. I understand that I can’t be a monument. But on the other hand, it provides an unevenness, an unpredictability. I am small, standing on this big crate. This does not even reflect fear, but an attempt to find our place. You understand that you are very small, that you are not confident in your place in any context. This was very important for me. CU : This painting is evocative, so strong! Your palette presents the colours of the Ukrainian flag and your blue self-portrait, your shadow of Tistol, stands proud as you gaze into the golden horizon calmly holding a cigarette. I am very moved by the piece and for me it represents the spirit of Ukrainians. Peter Bejger, for CJLPA : How should one work today in light of present conditions? You have had a very long and successful career. How do you continue to work, or perhaps not work, during this time of war? OT : I have made the paintings we were discussing (Shadow Paintings) as also nine small canvases (figs. 6 & 7). Today I was in the studio, and I understood that on some of these canvases I will do something completely different. In the next month I want to redo them. My career, my life, has transpired over 31 years in the Soviet Union and now, this summer, will mark 31 years in an independent Ukraine. The 24 August, the Independence Day for Ukraine, is almost my 62nd birthday. I had an exhibition in Lutsk and Lviv in 2020 and it was called Sixty Years of Independence . I was born on 25 August. The Lutsk Museum staged a large exhibit for me, opening on my birthday, and I decided to call it that. My entire life has been a struggle for my own personal independence and an observation of the history of Ukrainian independence. This has always been a part of my art. My first known paintings were based on ‘unification’, Khmelnytsky, and the Battle of Poltava.[4] It is called Reunion (fig. 8), which is my first well known painting.[5] Fig 6. Ai – Petri 2022, No.1 (Tistol April, May 2022, oil, acrylic on canvas, 45 x 100cm). © Tistol. Fig 7. April 2022 (Tistol April, May 2022, oil, acrylic on canvas, 25 x 25cm). © Tistol. Fig 8. Reunion (Tistol 1988, oil on canvas, 270 x 240cm). © PinchukArtCentre, Kyiv. After this painting, my artwork changed and was reactive to current affairs. Perhaps it would be shadows, or palms, or mountains, or perhaps God willing I will paint Peter with a Cat .[6] (figs. 9, 10 & 11). Now, my paintings will be something different and I delight in this. I like cultural attributes! That is, thirty years ago when I was explaining the meaning of Reunion , and Ukraine’s independence, very few understood the history of Ukraine. Even twenty years ago only a few understood, or knew, the history of Ukraine. I like the current discussion about Ukraine because of the war. I like the international context because everyone understands what is happening. The word katsap[7] is not an insult. No emotions here. It is an enemy. This is an attempt to delineate major cultural positions. Now everyone understands that Ukraine is very close to Western Civilisation, though I think there is only one civilisation. The war is cultural. A war between culture and anti-culture. What we have in this context from Russia is really a great error on the part of the global community. That is, the error has been committed during the last 200 years on what they see is ‘the great Russian culture’. It is really a cargo cult culture process.[8] It imitates cultural processes, but it is done from completely different motivations. Fig 9.Peter with Erik (Tistol 1997, oil on canvas, 90 x 75cm). © Peter Bejger. Fig 10. Roma Kusznir with Nestor (Tistol 1997, oil on canvas, 140 x 55cm). © Roma Kusznir Hunter. Fig 11. Konstanzia Yu with Sushi: A Fragment from the Project for Money (Tistol 1995, oil on canvas, 80 x 60cm). Private Collection. PB: I would like to ask you about identity. Ukrainian identity, and Russian identity. Perhaps you can explain your views on identity and the growth of Ukrainian identity since Ukraine’s independence. OT : This is my personal interpretation: Ukrainian identity is not ethnic. It is about territory and cultural identity. On the Maidan in 2014,[9] there was a huge banner that proclaimed, ‘Freedom is our Religion’. Everybody immediately understood that the first trait for Ukrainians is the striving for individual freedom. And thus, I am now against Ukraine joining the EU. I don’t want to end up in a union with the French, Hungarians, and Germans. I want to be in one union with the British, the Canadians, and Americans. We have one mentality. I name these countries as those of personal freedom and individualism, the weight of the individual is very important. I don’t like these bureaucratic countries. I am from Kozak[10] roots. This is an identity, striving for personal freedom, and that is why I speak sternly about civilization. As for Ukrainian identity, this was understood very clearly during the war. There were very few people in Kyiv during the first month of the war and we all became very cognizant of one another, just like we did during the Maidan. People immediately asked each other, ‘How can I help you?’. People were very solicitous to one another. All these volunteer services were very well organised, and we all looked after each other. This is the behaviour of free people. These are very straightforward values, and we have a union of people for whom these values are common. Somebody who has different values becomes a collaborator or leaves. This is an ancient village culture. And what is Ukrainian culture? A pursuit for more interaction and a beautiful, joyful life. I now identify myself as a folkloric artist. Not by coincidence, we chatted earlier about the group DakhaBrakha.[11] This is folk music, ethno. Nadiya began her career as an ethno singer. I now feel that I am a very straightforward, let us say, ethno folkloric artist. What I do is folk, which has a relationship to European civilisation, to American. I am interested in these cultures, these cultural processes. Why do we need art? So, life would be beautiful. Fig 12. Wine, from Series of Food (Tistol 1988, mixed medium, 55 x 53cm). Private Collection. PB: In the future, after this war, what is to be done with Russia? Russia is a neighbour. How do you live with this? OT : Seriously, over the last 100 years, there were four names for Russia. First there was the Russian Empire to 1917. Then it was called the RSFR, then SSSR, then the RF. Four names in just over 100 years. Geographic boundaries changed. Doctrines changed. But all in all, it remained the same. In the future, we can’t talk about a country called ‘Russia’. We don’t know how many countries will emerge from it. What their relations will be. I am certain of this, because I am a very big specialist on katsaps. From 1984 to 1986, I was in the Soviet Army in a special unit in the nuclear forces. Yes, a specialised nuclear unit. It didn’t even have a name, just a number: 31600. This number was on my military document. Nothing else was noted, and there were no references to aviation or rocket forces, only the number. They only took people from the deepest and middle part of Russia. I ended up there because I was an artist with higher education. They needed a specialist. All the other thousands of personnel were from the Urals, or Siberia, the same people who recently did what they did in Bucha.[12] I lived with them for two years in one barrack. I left from there a conscious Ukrainian. This did not happen after art school in Kyiv, nor after the art academy in Lviv, but after the Soviet army. I lived with them in close quarters, these katsaps, for two years in one setting, I understood we were aliens from different planets and two completely different cultural worlds. This is why I easily prognosticate their behaviour and their future. They will have many problems and will battle among each other. And for us geographically in Ukraine, we will have to control all this. They will be killing each other for quite a long time. Someone will call himself a chief or a leader and they will be battling each other. They will be battling for resources, food, or anything, and we will have to control this. I don’t see any other variant. This can’t be considered bad or frightening. God gave us this kind of neighbour. This is how it will end. There is no other variant. What is most important is to drive them away from us and not interfere. I think our war will end in Chechnya. It all started in Chechnya[13] and will end there. They [the Russians] strongly dislike Ukrainians, but they hate the Chechens more. Whether they want it or not, it will end there. They will have to resolve their internal problems and I am absolutely sure of that. There are already the first signs of this. After Ukraine, the weakest link is the Caucasus. This is why for many years I painted the canvas Kazbek (fig. 13), and why I gave explanatory texts to that from the Kobzar by [Taras] Shevchenko[14], from the poem ‘Kavkaz’ (The Caucasus).[15] Fig 13. Caucasus-12 (Tistol 2001, oil on canvas, 100 x 100cm). © Zenko Foundation. Everything is written there. Now Shevchenko is better understood in a broader sense. I was reading Shevchenko every day in the army. This book was like a Bible to me, and I read the entire library of his work. Every day a little Shevchenko was psychotherapy for me. This is why I consider myself an autochthone, not considering my complex ethnic background. I am a typical Ukrainian because culturally this is the most important book for me and now everybody understands this. CU: In your opinion, what is the identity of a Ukrainian? OT : To be Ukrainian is a conscious choice. If you want to live on this territory, with the rules we live by and with, you quickly become a Ukrainian. For example, the first guy who died on the Maidan was Serhiy Nigoyan,[16] an Armenian. He read Shevchenko. He was born into an Armenian family in Ukraine. He simply was Ukrainian: by mentality, behaviour, and the cultural code. You see this in 2014 in the Revolution of Dignity, known as the Maidan. This is dignity. This is not honour. Every Ukrainian has this feeling of dignity because otherwise you couldn’t live with yourself among your own. Dignity unites us. This is reflected in behaviour by me and Nadiya. I very much like to engage with my equals, that is people who have similar values. This is a characteristic trait, something that is passed from one person to another, and you find this very much in Shevchenko. There is everything there about human dignity. This is a key Ukrainian term. This Revolution of Dignity, this is very important to study. We now have to carry it forward. PB: We talked about Ukraine and Russia, now I would like to discuss the international community. You know that in the West now there are assertions we are in a post-national phase. We also search for identity, but it is often not built on national principles. This is a question about the role of nationalism and international relations. How can the international community support your struggle in Ukraine? There are very complex processes happening now in the West regarding nationalism and identity. I would like to hear your thoughts on what you see in the West and the international community. OT : First of all, there is not one fascist in the Ukrainian parliament. Not one communist. So, the problem of nationalism: we don’t have ethnic problems here. What can you say about a country whose president is Jewish? Our Ukrainian nationalism is geographically cultural. There is a problem here in terminology. This word ‘nationalism’ in the Western world is very negative and I understand this. If this is about racism, then this is frightening but we don’t have this problem. I mean this is a very minor problem that is almost not discernible. Now after 30 years when someone calls themselves a nationalist, this refers to a battle with a foreign enemy. One enemy. There is one enemy. You have to be very clear here with terminology. Ukrainian nationalism is not ethnic. It is absolutely not ethnic. I understand that American problem. I understand French historical problems. Here it is completely different. We are forming a cultural nation, and what other term can we choose but nation? I like the American project, an artificial nation. A group of wise people gathered together to create a nation of the future. This is the project of the United States. This is not a technical dream, but a cultural dream. This is the same for Ukraine’s battle for national identity. This has an American sense in the national. When the national anthem is played, people of all colours stand. They are united for a way of life. This is the American dream. The Ukrainian dream is freedom and dignity. Period. Fig 14. Vita Brevis (Tistol 2021, oil, acrylic on canvas, 260 x 200cm). © Tistol. CU: How would you define who Ukrainians are? OT : Exotic! We are all exotic. I accept this. I know who I am, and from where I originate, and this is interesting for me and informs my creativity. However, this exoticism is very important within the civilizational process. That is, the rules of behaviour among people and cultural exchanges. Culture is simply the exchange of beauty. For what? For peaceful and fortunate co-existence. How does the so-called Russian culture differ? It is an instrument of expansion. In the beginning they bring you Dostoyevsky, and later a tank will arrive. Absolutely! Look at the map of this war. Look at where the katsaps have fathered and then where they are fighting. This is in the Russian-language territories. They are there where they thought they would be greeted. The Russians are not being greeted; they are being killed. But they came to where Russian is spoken. As for the Ukrainian cultural process, Ukrainians dissolve into the world and know themselves from the inside that they are Ukrainian. This is for the children, the family, the parents. This is very important. When you are on the street you should be like everyone else, you respect those among who you live. This is a very important cultural trait, for a true culture. This is when you offer people some sort of beauty and you accept their beauty. Something very important happened during this war. I have long felt this and so have many others also. Perhaps this doesn’t sound very polite, but many Ukrainians absolutely don’t care what the world thinks of them. Thirty years ago, when I was in Switzerland, I was addressed, ‘Oh you’re Russian’. I quietly listened and then said, ‘Oh, you are German’. They were offended. I asked why you are offended. ‘You write in German, speak in German. You are German’. It is different now. If, after thirty years of Ukrainian existence, and the war, somebody in Switzerland doesn’t know about Ukraine, I wouldn’t bother to explain. I will not speak. I am not interested. Now about the world context of Ukrainian culture, for example, for me, my favourite writers are Hemingway and Shakespeare, and my favourite music from my youth was by the Rolling Stones, Genesis, and Led Zeppelin. I was formed by all this. Well, I may be considered ‘exotic’, but for me all people are exotic. The more exotic the persona, the more interesting they are. If there is a trait in a person that I do not have, that is interesting for me (fig. 15). Fig 15. Alien-25 (Tistol 20, acrylic on canvas, 140 x 120cm). © Zenko Foundation. PB: I have a last question…a question on trauma. Ukraine is experiencing a tremendous trauma now with the war. Every nation has their own trauma. How does art deal with trauma? How can Ukrainian artists deal with this trauma? OT : It’s actually the reverse. We have had 300 years of frightening trauma living one way or another within Russia. What is happening now: this trauma is like cutting off diseased parts. We are removing the trauma. The issue is sin. For example, I served in the Soviet army. If someone asks me about this time, I say I was a collaborator. Forty years ago, I was a collaborator and there was no other alternative. The issue is that these ‘Russian’ ‘victories’ from the past were done by the hands of Ukrainians and they were the best components of the ‘Russian’ army. Now, this trauma, meaning Russification…I am delighted is no more. A year ago, I got into a taxi and Russian ‘chanson’ music would have been playing.[17] I no longer hear that. The trauma will not be with Ukrainians, it will be with the Russians. Those who call themselves Russian, will have a horrible trauma. It will be similar to what the Germans experienced in 1945. For Ukrainians, we will be exiting a trauma. It will never be necessary to explain why it’s not worth reading Tolstoy or Dostoyevsky. We no longer have to participate in the propagandistic lie of the ‘Great Russian Narrative’. Now everything has become clear. This problem of trauma: I no longer want to paint canvases of ‘unification’ or Russians. I am no longer interested. There are very many people from my circle, and my family, who now have to decide what to do with all those books of katsap classical literature. What should we do with these books? It is not necessary to just carry them out to the garbage. We need to tear off the covers so children will no longer read them. This is escaping the trauma. No matter how horrible this may sound…for eight years we couldn’t throw out the books, because books are a treasure. But you have to understand that this is a horrible thing. It traumatises the mind. You can’t give children Mein Kampf to read. You can’t do that. It’s the same here. This cultural cleansing is already being felt. There will be no need to pass legislation on language. Speak any language you want. It’s just important you don’t carry these ideas of slavery. So, this would no longer be the case. We have transcended the trauma. You can see this in people on the streets. You see this in social media, everywhere. Done! No more trauma. No more doubts. Nobody will no longer wonder if we are Europe, or not Europe. It’s obvious we are Europe. This is geography. I would like to add a summary. This is very important. You may think this sounds horrible and cynical, but this war is very useful. This war had to happen. You don’t want war, you absolutely don’t want it, but it had to happen. We have to await the end, and there may be more frightening events, but this addresses the issue of cleansing. We have to win in this cleansing. And we will win, definitely. Fig 16. Europe (Tistol 2012, oil, acrylic on canvas, 200 x 200cm). © Tistol. In an informal discussion after the interview Tistol described the current mood in Kyiv. OT : Well, it is more intensive now…there is a curfew and I have to still get to my mother. As for life here now, every day it’s getting better and more peaceful. Cafes are reopening. People are coming out. There are still fewer people or children on the streets. But it is somehow better. The first month (after the start of the war) was very scary. But I understand how much we all love Kyiv. It was an absolutely empty Kyiv then, with the anti-tank barricades. I was very happy we didn’t leave. There was a very important feeling that we had to live through all this here. I am now almost a Kyivite. I never before felt I was a Kyivite. I was from Vradievka. From Mykolaiv. I always felt I was a Southerner, now I feel that I am a Kyivan artist. Fig 17. Europe - 2 (Tistol 2020, oil, acrylic on canvas, 200 x 200cm). © Tistol. This interview was conducted by Constance Uzwyshyn and Peter Bejger. Constance Uzwyshyn is an expert on Ukrainian contemporary art. She founded Ukraine’s first foreign-owned professional art gallery, the ARTEast Gallery, in Kyiv. Having written a masters dissertation entitled The Emergence of the Ukrainian Contemporary Art Market , she is currently a PhD candidate at the University of Cambridge researching Ukrainian contemporary art. She is also CJLPA 2’s Executive Editor and the Ukrainian Institute of London’s Creative Industries Advisor. Peter Bejger is an editor, filmmaker, and writer based in San Francisco. He was a Fulbright Research Scholar in Ukraine, where he wrote and produced a documentary film on Secession-era architecture of the city of Lviv. Previously, he lived in Kyiv for several years, where he worked as a journalist, media consultant, and cultural critic. [1] Regarding issues of Ukrainian versus Russian identity, the reign of Russian Tsar Peter I is considered by historians a crucial phase in the development of Russian imperial narratives and the appropriation of Ukrainian history, heritage, and culture by a centralising colonial power. See < http://www.encyclopediaofukraine.com/display.asp?linkpath=pages%5CP%5CE%5CPeterI.htm > accessed 22 May 2022; Orest Subtelny, Ukraine: A History , (2nd ed, University of Toronto Press 1994) 160-7. [2] Aleksandr Solzhenitsyn was a notable Soviet dissident and spoke out against communism. He raised awareness of the brutality of the repressive Soviet Union, particularly the Gulag system. He was imprisoned in the Lubyanka prison and then was sentenced to an eight-year term in a hard labour camp. [3] Turkish word ‘Kasap’ noun means killer, slaughterer, meatman. [4] Cf. Serhii Plokhy (ed), Poltava 1709: The Battle and the Myth (Harvard University Press 2012). [5] Cf. Kristian Gerner, ‘The Battle of Poltava as a Realm of Memory and a Bone of Contention’ (2009) 31(1/4) 679-693. [6] In the mid-1990s, Tistol created Ukrainian Money Project . This project coincided with Ukraine producing its own currency: a reference to Ukraine’s independence and the step away from Russian domination. Tistol’s money project embodies Ukrainian contemporary stereotypes and historical references. He specifically plays with intaglio printing to achieve a subtle offset print and cleverly adds vignettes, numerals, and lettering to create his own version of money art. [7] This is a play on the terms Fascism and Russia. Cf. Timothy Snyder, ‘The War in Ukraine has Unleashed a New Word: Ruscism’ The New York Times Magazine (New York, 22 April 2022) < https://www.nytimes.com/2022/04/22/magazine/ruscism-ukraine-russia-war.html > accessed 6 May 2022. [8] In another interview, Tistol elaborates on the cargo cult cultural process, stating that ‘I think the majority of people now sadly realised that one is a culture and a cultural process and the other a cargo cult operation to abolish Mariupol in truth. All people finally understood this’. See ‘КИЇВ. МАЙСТЕРНЯ ОЛЕГА ТІСТОЛА, БЕРЕЗЕНЬ, 2022’ ( YouTube , 30 March 2022) < https://www.youtube.com/watch?v=H3RfiIRUxmI > accessed 30 March 2022. [9] The Maidan, also known as the ‘Revolution of Dignity’, was a mass political protest in late 2013 and into 2014 in Kyiv that overturned a pro-Russian government and set Ukraine on a pro-European course. [10] Alternative spelling of Cossack. [11] DakhaBrakha is a world-music quartet from Kyiv that tours extensively and has a achieved a global audience with their unique ‘ethno-chaos’ style.. [12] Flora Drury, ‘Ukraine launches hunt for Russian soldiers accused of Bucha war Crimes’ ( BBC News ,29 April 2022) < https://www.bbc.co.uk/news/world-europe-61269480 > accessed 2 May 2022. [13] See Andrew Higgins, ‘the War that Continues to Shape Russia, 25 Years Later’ New York Times (New York, 10 December 2009) < https://www.nytimes.com/2019/12/10/world/europe/photos-chechen-war-russia.html > accessed 6 May 2022; Anna Politkovskaya, A Small Corner of Hell: Dispatches from Chechnya (University of Chicago Press 2007). [14] Taras Shevchenko is Ukraine’s national poet, an artist, and a seminal figure in the development of Ukrainian national consciousness. Kobzar is Shevchenko’s first collection of poems and a powerful expression of Ukrainian cultural rebirth.. [15] Rory Finnin. ‘Mountains, Masks, Metre, Meaning: Taras Shevchenko’s ‘Kavkaz’’ (2005) 83(3) The Slavonic and East European Review 396-439. [16] See ‘Remembering Heroes of Euromaidan: Serhiy Nigoyan’ ( YouTube , 25 January 2019) < https://www.youtube.com/watch?v=dYUIB0s1YJI > accessed 1 May 2022. [17] Russian chanson music derives its ballad-like music by using prison slang and references to criminal life and hardship; it appeals to emotional sentiment to a loved one.

As a field of scholarship and practice, Transitional Justice (TJ) has become the dominant framework through which to consider ‘justice’ in periods of political transition ever since the end of the Cold War.[1] Understood here as ‘the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’,[2] TJ systems are founded on the premise that attaining justice for past atrocities is a fundamental pillar to building lasting peace in societies emerging from conflict.[3] This logic, largely disseminated by liberal peace proponents, is relatively persuasive. However, the literature on TJ and peacebuilding too often takes the meaning of ‘justice’ for granted, focusing instead on other areas of contestation, such as the ‘amnesty versus punishment’ or the ‘peace versus justice’ debates, which presume a standardised and narrow conceptualisation of justice as individual accountability for Human Rights (HR) violations.[4] For this, it is useful to situate the global surge of TJ systems within the broader process of judicialization in international relations, a trend Subotic terms ‘global legalism’.[5] This unquestioning adherence to law not only fails to respond adequately to the complex realities of conflict and peace, but also confines the potential of ‘justice’ to alter oppressive power structures to the boundaries of a technocratic, legalistic tradition. A Galtungian distinction between positive and negative peace is thus an appropriate theoretical frame to explore the limitations of the law in delivering far-reaching and holistic transformation to conflict-affected societies. Accordingly, it is argued that in practice, justice often constrains the production of positive peace frameworks by reinforcing the application of seemingly apolitical legal principles to guide and inform political transitions, which may reproduce patterns of direct and indirect violence. An assessment of the role of law in shaping notions of justice in South Africa’s Truth and Reconciliation Commission (TRC) and the International Criminal Tribunal for the former Yugoslavia (ICTY) serves to illustrate this argument. The paper proceeds as follows. First, it locates ‘justice’ within the liberal peace paradigm, elucidates the distinction between positive and negative peace, and offers a brief background of the ICTY and the TRC, justifying the selection of these cases. It then focuses on three basic legal principles underpinning TJ processes and mechanisms in South Africa and the former Yugoslavia: i) the notion of individual accountability; ii) the emphasis on HR abuses; and iii) a statist ontology, highlighting the ways in which each of these norms limit the potential contribution of ‘justice’ towards fostering a meaningful peace in both contexts. The conclusion reiterates the critique against depoliticised notions of law and justice.

As a key European Union (EU) foreign relations instrument, the European Neighbourhood Policy (ENP) governs the relations between the Union and sixteen countries to the east and south of EU territory.[1] These countries are primarily countries which aspire to become an EU member, or to pursue closer integration policies with the EU in general.[2] The key focus of the ENP is that of stabilising the EU neighbourhood in terms of economy, politics, and security.[3] In exchange for EU financial assistance, countries must meet strict conditions for governance and economic reforms, as articulated in the EU Association Agreements between its own government and Brussels.[4] Association Agreements concluded between the EU and partner countries typically stipulate commitments to economic and human rights reforms to be carried out, in exchange for tariff-free access to parts of the single market, and various forms of technical assistance. In 2011, the European Commission (EC) articulated in its ‘Review of The European Neighbourhood Policy’ that the ENP’s focus was to build ‘deep and sustainable democracy and inclusive economic development’.[5] The Joint Communication issued the same year conceptualised the ENP as a guardian of the ‘stability, prosperity and resilience of the EU’s neighbourhood’, rather than a custodian of democratic advancement, suggesting a slight shift from the original focus on promoting democracy as one of the ENP’s foreign policy initiatives to an emphasis on promoting the EU’s security interests.[6] Nilsson and Silander argue that the paradigm change from promoting democracy to enhancing regional security manifestly confirms the EU’s implicit admission of the ENP’s inadequacies in fulfilling the former endeavour.[7] I argue that the ENP has largely been effective in promoting formal democratic reform, in terms of setting up electoral institutions and legislative infrastructure in the Eastern Neighbourhood,[8] but has failed in promoting democratic values and adopting principles of good governance, for example by implementing anti-corruption policies or empowering civil society. In addition, I suggest that the limited progress of democratic advancement in the EU’s neighbourhood is a result of the ENP’s intergovernmental organisational logic; the existing institutional structure enables elites to strategically adopt an ostensibly democratic apparatus while neglecting the promotion of normative democratic principles. This essay draws on quantitative and qualitative evidence and focuses its discussion on the Eastern Neighbourhood. Conventional literature on the EU’s democratising impact has highlighted conditionality as one of the main causal modes.[9] It assumes that EU target states are rational actors in the international system, motivated to maximise their economic and security interests, and that strategic exchange between actors is conditional upon their relative bargaining power.[10] It follows that the larger the gains target states perceive from adopting the EU’s conditionality requirements, the greater the likelihood of reforming their internal governance structures.[11] While the EU does not initiate coercive intervention under this model, the domestic adoption costs may upset the target state’s internal status quo, particularly if presiding governments are soft authoritarian regimes.[12] Throughout the years, the Southern Neighbours have struggled to gain EU membership; Turkey’s progress has been tumultuous and uncertain, and Morocco’s application was rejected in 1987. Considered against the later enshrinement of the geographic membership criterion, scholars have asserted that the Eastern Neighbours generally have more incentive to adopt democratic reforms as compared to the Southern Neighbours.[13] The Southern Neighbours vary widely in terms of the depth of their economic links to the Union; Scazzieri’s study is illuminative regarding the lesser economic gain these countries perceive from potential EU membership, particularly in view of the substantial government reforms needed to adhere to EU conditionality requirements.[14] The regional strife and political turmoil following the Arab Spring in 2011 has also rendered many of these states hesitant to adopt institutional democratic reforms. The causal mechanism between conditionality and the relative success of formal democracy over substantive democracy has not been addressed thoroughly enough in existing literature and warrants further discussion. To this end, this paper illustrates how conditionality under the ENP is effective in promoting democracy among the Eastern Neighbours, only to the extent that their governments have been able to perceive economic benefits from instituting reforms. I begin by surveying the organisational logic of the ENP and the Eastern Partnership, after which I examine the skewed progress of democratic advancement among the Eastern Neighbours in relation to indicators of formal democracy and substantive democracy. I then discuss how elites have abused the ENP’s top-down operational practices and manifestly slanted the democratic advancement of the Eastern Neighbourhood towards the formal adoption of democratic apparatus, and at the expense of substantive democracy. I conclude by refuting the purported significance of Russian influence as inhibitory towards democratic advancement in the region. The ENP was originally conceptualised as a catalyst of ‘ democracy, rule of law, respect for human rights and social cohesion ’ for states without EU membership prospects.[15] Ever since its official establishment in 2004, this foreign policy initiative has run in tandem with the EU’s policy aim of enlargement.[16] Under this framework, the EU formulates bilateral Association Agreements which set tangible goals for democratic governance. Fulfilment of such conditionalities allow target countries access to economic and technological rewards.[17] Critics have often described the relationship as ‘coercive’ and ‘asymmetrical’; nevertheless, it is largely the EU’s attempt at transforming its neighbourhood through soft, ideational power as opposed to military intervention.[18] The Eastern Partnership (EaP) was launched in 2009 as an Eastern dimension of the ENP; with a particular focus on the Eastern Neighbourhood including Caucasian and former Soviet states.[19] While formal democracy is contingent upon electoral practices and mechanisms, substantive democracy is based not only on ‘citizens’ [participation] in the making of decisions that concern them, but also that decisions must not be served wrapped in a shroud of ignorance’.[20] Measurement of substantive democracy therefore requires an examination of the outcomes of democratic governance and practice, with a focus on fairness, equality, and justice. Insofar as democratic procedures alone cannot overcome inequalities between individuals by mobilising political resources to their benefit, certain democratic principles must be incorporated into governance structures and policies.[21] Addink further operationalises the definition of substantive democracy to encapsulate ‘good governance’ principles such as establishing strong democratic norms, accountability systems, independent anti-corruption institutions, and legal-rational guarantees of media freedom and independence.[22] Building on this, Pridham conceptualises the ENP’s promotion of democracy as a two-track model.[23] Under this model, the ENP promotes both formal and substantive elements, but in a disjointed manner. As a result, a country may succeed in the former while completely neglecting the latter. This is apparent in Moldova’s electoral development: in the early 2000s, Moldova’s parliament required at least 6% share of the primary vote for political parties to be represented in the legislature, 9% for two-member electoral blocks, and 2% for three and more member-coalitions.[24] This arrangement severely undermined pluralism in the Moldovan parliament, as measured by the number of parties as an indicator for formal democracy. In 2005, the European Parliament Resolution on Parliamentary Elections in Moldova directed the country to reduce this threshold to 4% for political parties and 8% for electoral blocks, so that smaller parties could have greater representation in civic discourse. [25] Furthermore, the EU-Moldova Action Plan (2005) exemplifies the formal aspects of democracy by prioritising the ‘the stability and effectiveness of institutions guaranteeing democracy [and] ensuring the democratic conduct of parliamentary elections…in accordance with European standards’.[26] Moldova’s significant degree of adherence to formal democratic reform has not, however, been matched by attention to aspects of substantive democracy. Despite recommendations on the empowerment of civil society, media transparency, and attempts at combating corruption, official descriptions of such initiatives have been equivocal and rarely been scaled against a quantitative benchmark.[27] The stark contrast as observed between indicators of formal democracy and substantive democracy is indicative of how the Moldovan government has pursued the two tracks of democracy with different degrees of commitment. As per this two-track model, it is evident that while the ENP has successfully influenced Eastern Neighbours into adopting formal aspects of democracy through electoral mechanism reform, the latter have not undergone further development in terms of substantive democracy. Inhibitors of substantive democracy and good governance such as corruption and elite nepotism, media repression, and poor political representation of civil society have not been eradicated. As will be explained in the following sections, this two-track model results in the consistently poor scores of Eastern Neighbours in various democracy indicators. In particular, negative trends have been reported, based on heavily-weighted substantive democracy factors. Ukraine’s case further demonstrates the uneven development and entrenchment of formal democracy and substantive democracy. Having consistently improved its electoral integrity per the EU directive, the International Election Observation Mission concluded that ‘ voters [were able to make] informed choices between distinct alternatives and to freely and fairly express their will’ in Ukraine’s 2006 parliamentary elections.[28] In July 2019, the Parliament approved a new Electoral Code that had begun being drafted in 2015, providing for a proportional representation system which combined an open and closed party list system, as well as a new system for local elections.[29] The EU-Ukraine Association Agreement established the primary reform objectives in the country, and following these developments, Ukraine held open and democratic presidential and legislative elections in 2019, marking the country’s first peaceful shift of power since the events of Euromaidan.[30] These examples demonstrate how EU directives have substantially improved formal democracy in Ukraine. Nevertheless, factionalism continues to account for conflictual relationships between elites, at times even leading to constitutional crises; power struggles over anti-corruption reforms between the Constitutional Court of Ukraine, the Ukrainian Parliament, and the President have gripped the country since October 2020.[31] As for media freedom, Ukraine has consistently ranked around 90th out of 180 countries from 2006 to 2020; its Freedom House score of 62 in 2020 only puts it in the ‘partly free’ range.[32]Ukraine’s EIU democracy index has dropped from 6.94 in 2006 to 5.81 in 2020, further demonstrating the dearth of substantive democratic norms in the country.[33] Prevailing corruption problems also remain a contentious issue. Although Ukraine revamped its anti-corruption legislation in 2011 and 2014, selective law enforcement severely hampers its operation.[34] In 2019, Zelensky’s presidency even commenced with the pursuit of a corruption investigation against his predecessor.[35] Although the country’s Corruption Perceptions Index (CPI) score has incrementally improved from 2.8 in 2006 to 3.3 in 2020, anti-corruption campaigns still emphasise form over substance. In Moldova and other Eastern Neighbours, there is a similar trend of unequal development between official (formal) democracy and genuine (substantive) democracy. The EU-Moldova Action Plan established a framework for Moldova’s domestic institutions and foreign policy that was compatible with EU membership standards; the Law on Whistleblowers was implemented in November 2018, following major democracy-related aspects of the EU Action Plan.[36] New regulations provide legal protection for anyone ready to testify about wrongdoings and irregularities, as well as a specialised reporting mechanism.[37] Moldova held its first parliamentary elections in February 2019, adopting a mixed electoral system of one national constituency in which fifty one legislators were elected by first-past-the-post in single-member constituencies and fifty were elected by proportional representation from closed party lists.[38] Nevertheless, while Moldova’s Bertelsmann Transformation Index (BTI) score—which sheds light on the quality of substantive democracy—has seen incremental improvement from 5.40 in 2006 to 5.80 in 2020,[39] this trend is often attributed to the protests in 2009, 2015, and most recently, in 2019.[40] In 2009, in the wake of an allegedly fraudulent election in which the governing Party of Communists of the Republic of Moldova (PCRM) won a majority of seats, civic unrest rocked several Moldovan cities.[41] The movement represented a turning point in contemporary Moldovan politics. Having held snap elections after Parliament was dissolved, the Alliance for European Integration, a centre-right anti-communist ruling coalition, was created in response to the PCRM’s victory in the July 2009 polls, paving the way for closer Moldovan-EU relations and a greater drive to fulfil EU conditionality requirements in the years to follow.[42] After the fall of the PCRM in 2009, the unfulfilled hopes that Moldova may institute governmental reforms of transparency and accountability ultimately paved the way for the 2015 protests, far exceeding the scale of their predecessor. Finally, in 2019, a constitutional crisis and subsequent attempts to form a new government culminated in the positions of President, Prime Minister, and Speaker of the Parliament being contested by competing claims.[43] This unleashed a movement of protests in which opposing factions rallied their support for different candidates. Apart from calls for the government’s resignation and the annulment of recently approved laws, the protests have illuminated how Moldovan-EU relations have transcended the institutional level by galvanising democratic advancement, having socialised the Moldovan polity to expect higher standards of transparency and accountability from their government. With the internalisation of democratic values and good governance principles, these examples demonstrate the inextricability of Moldovan-EU relations from democratic progress and political awakening in the country on the level of both institutions and the citizenry. In comparison, Belarus’ BTI score remained the same at 4.38 throughout 2006 to 2020.[44] It is worth noting that while Belarus did experience protests against President Alexander Lukashenko in 2005, followed by a subsidiary movement in 2006, these were quickly and heavily suppressed by the police.[45] Similarly, Azerbaijan’s BTI score has even noted a 0.37 fall from 3.80 in 2006 to 3.43 in 2020.[46] Although protests against an alleged government fraud in parliamentary elections erupted in Azerbaijan in mid-2005, the movement subsided after five months when the police eventually suppressed riots with tear gas and water cannons.[47] These examples illustrate that progress in various democracy changes remains negligible, if not regressing, among certain states of the Eastern Neighbourhood. I will now consider the reasons for the incongruence between formal and substantive democratic norms as brought about by the institutional framework under the ENP. An examination of the causal mechanism necessitates a dual consideration of the role played by elites as well as the EU policy net. The ENP imposes rigid conditionality requirements on partner countries. As elites in target states fail to perceive reasonable prospects for EU membership, they also believe that there is little to gain from adopting substantive democratic reforms in their countries, since the economic benefits of EU membership are closed off to them. They are also wary of potential domestic costs, as they are likely to bear the largest costs of political instability. Elites therefore strategically adopt formal forms of democratisation (for which benefits from the EU are more easily achieved) while neglecting the development of good governance principles. This problem is exacerbated by the lack of organisational guidelines through which the European Commission may review the progress of substantive reforms in partner countries and adopt signalling measures. As EU-EaP cooperation initiatives have largely adopted a top-down approach, I argue that incumbent EaP government office-bearers strategically adopt formal forms of democratisation while neglecting the promotion of normative democratic and good governance principles. Caiser similarly attributes the phenomenon to elite perception of unlikely EU-membership prospects, as well as a fear of losing power.[48] This discussion warrants a closer examination of the role of elites in hindering democratic advancement. Given the inequality of bargaining power between the two actors, democratisation conditions are imposed by the EU upon EaP states as a crucial criterion to receive economic rewards.[49] The adoption of EU legislation, legal acts, and court decisions in Moldova serves as a prime example—having repeatedly demanded Moldova adopt EU electoral standards and laws, the ENP has demonstrated its leverage over EaP governments via potential economic incentives.[50] Elites seek both to legitimise their regimes and to extract economic benefits from the EU; thus, they strategically adopt democratic reforms, such as legislative overhauls, which are most perceptible to their EU partners.[51] In contrast, improvements in substantive democracy, such as establishing independent anti-corruption agencies, safeguarding media freedom, and empowering civil society, are not only less quantifiable and recognisable indicators of democracy to EU partners, but are also perceived to be potentially disruptive towards the hierarchical entrenchment of the incumbent regime.[52] Civic society in former Soviet states such as Moldova often lacks channels of political representation and participation. Coupled with failed authoritarianism, the circumstances give rise to a political pluralism that renders substantive governance reforms extremely precarious to elites seeking to preserve their power.[53]Furthermore, elites interpret the ENP’s rigid policy conditionality and its reluctance to offer a reasonable prospect of EU membership as indicative of the minimal economic benefits to be gained by adopting substantive democratic reforms.[54] Given that these reforms also create possibilities of upsetting vested interests and decrease support for the governing administration, which may directly threaten elites’ hold on power, their cost-benefit analysis produces an incongruence between formal and substantive democratic norms in these countries. Office-bearers must be convinced of the value of abandoning the old equilibrium—as elites are primarily concerned with preserving their power and vested interests, the incentives towards instituting substantive democracy must, to some extent, benefit them also. In this respect, a parallel may be drawn between EaP states and the Southern Neighbours: as the latter’s geographical location preemptively refutes the possibility of EU membership, they are also less incentivised towards improving the quality of democracy.[55] The 2017 EU-EaP Summit Joint Declaration has negated any possibility for EU membership entry for at least the coming decade.[56] Given that EU membership prospects are expected to be confined within the Association Agreements, elites are understandably deterred from abandoning the current equilibrium to institute substantive democratic reforms.[57] Here, Ukraine again serves as an apt illustration. In keeping with EU recommendations, Ukraine has introduced proportional representation to improve electoral inclusivity.[58] This development did not, however, resolve entrenched issues of factionalism, selective law enforcement, and large-scale electoral fraud, and largely failed to clarify the power distribution between the Prime Minister and the President.[59] Zelensky’s administration has continued to stifle media freedom by banning opposition news outlets such as Yandex and RosBiznes Consulting (RBC), despite EU recommendations.[60] Although an independent High Anti-Corruption Court of Ukraine (HACC) was established in April 2019, the vested interests of the judicial elite continue to threaten the rule of law.[61] During mid-2020, members of the Constitutional Court made a series of decisions which threatened to destroy the HACC.[62] The following August saw the Constitutional Court declaring Artem Sytnyk’s appointment as director of the National Anti-Corruption Bureau (NABU) in 2015 as unconstitutional, a move that was deemed ‘politically motivated’ by officers of the NABU.[63] By autumn, the blockage of a judicial reform initiative was backed by the Parliament, the President, and by twenty members of the High Council of Justice, some of whom face corruption charges. This marks the culmination of democratic backsliding; attempts to adopt transparency reforms are being reversed.[64] Although contemporary Ukrainian elites reportedly identified the institution of democratic reforms as a prerequisite for EU candidacy, they also contended that only formal democratic measures should be implemented.[65] These examples not only demonstrate the endorsement of formal democracy over substantive democracy, but also illuminate the extent to which vested interests have subsumed attempts at improving the transparency and accountability of the government, particularly in view of the low EU membership prospects. The model is also evident in other EaP states. Following EU recommendations, Georgia introduced proportional representation in its 2004 constitutional reform.[66] Although the initiative purportedly promotes pluralism, critics have pointed out that the demarcation of electoral districts do not reflect geographical distribution of voter density.[67] Georgia is yet one more example where the advancement of substantive democracy has been considered subsidiary to that of formal democratic apparatus. The lack of precise organisational guidance is one of the principal shortcomings of this top-down strategy, as it provides elites with substantial flexibility to circumvent the adoption of substantive democratic reforms, and deprives the European Commission of the ability to follow up with countermeasures, should elites fail to meet the original commitments.[68] Although the European Commission can in principle sanction regressions by withdrawing the conditional EU economic benefits, this watchdog function is greatly hampered by the fact that democratic backsliding or stagnation itself is not reflected in the current indicators. To the extent that top-down EU policies neglect the quantification and appraisal of procedural democratic elements, the European Commission remains powerless in closing this policy loophole. This limitation creates an especially undesirable effect for the EU’s normative power: elites interpret it as a sign of weakness or general apathy, creating a positive feedback loop which further encourages the incongruence of formal and substantive democratic reforms. To conclude this essay, I will refute the purported inhibitory effect of Russian influence upon democratic advancement in the Eastern Neighbourhood. Such arguments assert that the Russian administration has interfered with democratic and governance reforms of EaP states to hamper their chances at EU membership.[69] Scholars have argued that geopolitical interests have characterised the Russian administration’s perception of Eastern Europe, meaning that Moscow will seek to frustrate EaP states’ attempts at building harmonious relations with the EU.[70] There is, however, insufficient evidence to suppose a clear relationship between Russia’s autocratic influence and the stagnant democratic development among EaP states. While theoretical predictions associate geographical proximity to Russia with democratic foreclosure, Armenia demonstrates that the success of democratic advancement is also largely dependent on strategic policy formulation. While Armenia abandoned the Association Agreement for membership in the Russian-led Eurasian Union in 2013,[71] the country has articulated plans for judicial reform pursuant to the EU-Armenia justice policy dialogue and continued its partnership with the EU.[72] Alongside the installation of a pro-democracy government following the 2018 Armenian Revolution, these developments have holistically improved its EIU democracy index from 4.09 in 2012 to 5.35 in 2020.[73] It is apparent that the ENP has yielded skewed results in promoting formal democracy over substantive democracy, calling for a thorough understanding of the underlying causes to remedy this situation. This essay has argued that the top-down intergovernmental promotion of democracy has manifestly encouraged elites to adopt an asymmetrical approach towards democratic reforms. Ultimately, attempts to promote the EU’s democratic norms must go beyond the formal apparatus—they must focus on the operational logic of the ENP, and work towards empowering civil society from the level of the citizenry. Dilys Tam So Yin Dilys Tam reads Government and Laws at the University of Hong Kong and minors in Fine Arts. She holds a conditional offer for the HKU Presidential PhD Scholarship, and her forthcoming publication in Springer Law Books Series: Law and Visual Jurisprudence investigates how bilateral investment treaties can be used to facilitate international art repatriation. She is also a mooter, a creative writer, and an active painter. [1] The sixteen countries include Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine in the East, and Algeria, Morocco, Egypt, Israel, Jordan, Lebanon, Libya, Palestine, Syria, and Tunisia in the South. [2] Florian Carmona, Kirsten Jongberg and Christos Trapouzanlis, ‘The European Neighbourhood Policy | Fact Sheets on the European Union | European Parliament’ (2021) < https://www.europarl.europa.eu/factsheets/en/sheet/170/the-european-neighbourhood-policy > accessed 18 April 2022. [3] ibid. [4] ibid. [5] European Commission, ‘Review of the European Neighbourhood Policy’ (European Commission 2011) < https://www.europarl.europa.eu/doceo/document/A-7-2011-0400_EN.html > accessed 6 June 2022. [6] European Commission, High Representative of the Union, ‘Joint Communication to The European Parliament, The Council, The European Economic and Social Committee and The Committee of the Regions. A New Response to a Changing Neighbourhood’ (European Commission 2011) < https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:52011DC0303 > accessed 6 June 2022. [7]Martin Nilsson and Daniel Silander, ‘Democracy and Security in the EU’s Eastern Neighbourhood? Assessing the ENP in Georgia, Moldova, and Ukraine’ (2016) 12 Democracy and Security 44-61. [8] The Eastern Neighbourhood comprises Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine. [9] Frank Schimmelfennig and Hanno Scholtz, ‘Legacies and Leverage: EU Political Conditionality and Democracy Promotion in Historical Perspective’ (2010) 62 Europe-Asia Studies 443-460. [10] ibid. [11] ibid. [12] Naim Mathlouthi, ‘The EU Democratisation of The Southern Neighbours Since the ‘Arab Spring’: An Inherently Inadequate Approach’ (2021) 4 International Journal of Social Science Research and Review. [13] Schimmelfennig and Scholtz, (n 9) 2. [14] Luigi Scazzieri, ‘Rethinking The EU’S Approach Towards Its Southern Neighbours’ (Centre for European Reform 2020) < https://www.cer.eu/publications/archive/policy-brief/2020/rethinking-eus-approach-towards-its-southern-neighbours > accessed 22 April 2022. [15] European Commission, ‘Wider Europe - Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’ (Office for Official Publications of the European Communities 2003) 11-12 < https://www.europarl.europa.eu/sides/getDoc.do?objRefId=31192&language=EN > accessed 18 April 2022. [16]Mor Sobol, ‘It’s the Member States, stupid! The deadlock which bedevils the European Neighbourhood Policy’ (2015) 68 Studia Diplomatica 63-76. [17]ibid. [18] Ondřej Horký-Hlucháň and Petr Kratochvíl, ‘‘Nothing Is Imposed in This Policy!’: The Construction and Constriction of the European Neighbourhood’ (2014) 39 Alternatives: Global, Local, Political 252-70. [19] Frank Schimmelfennig, ‘Europeanisation Beyond the Member States’ (2010) 8 Zeitschrift für Staats- und Europawissenschaften 319-39. [20] Manuel Couret Branco, Political Economy for Human Rights (Routledge 2020) 88. [21] Johanna Severinsson, ‘Defining Democracy in The European Union: Assessing the Procedure and the Substance’ (PhD, Lund University Department of Political Science 2022) 4-22. [22] Henk Addink, Democracy and Good Governance (Oxford University Press 2019) 91–96. [23] Nilsson and Silander, (n 7) 1. [24] The European Commission for Democracy Through Law (Venice Commission, Council Of Europe), The Office for Democratic Institutions and Human Rights of the OSCE, ‘Joint Recommendations on the Election Law and the Election Administration in Moldova’ (Organization for Security and Co-operation in Europe 2004) < https://www.osce.org/odihr/elections/moldova/41959 > accessed 6 June 2022. [25] Nilsson and Silander (n 7) 1. [26] European Commission. (2005). EU-Moldova Action Plan (Office for Official Publications of the European Communities) 4 < https://eeas.europa.eu/archives/docs/enp/pdf/pdf/action_plans/moldova_enp_ap_final_en.pdf > accessed 6 June 2022. [27] ibid. [28] Yhiah Information Agency, ‘Ambassador Maasikas: IMF, EU financial aid, visa-free travel depend on fighting corruption’ (2020) < https://www.unian.info/politics/ambassador-maasikas-imf-eu-financial-aid-visa-free-travel-depend-on-fighting-corruption-11218355.html > accessed 22 April 2022. [29] Oksana Huss and Oleksandra Keudel, ‘Ukraine: Nations in Transit 2021 Country Report’ (Freedom House, 2021) < https://freedomhouse.org/country/ukraine/nations-transit/2021 > accessed 18 April 2022. [30] ibid. [31] Emily Channell-Justice, ‘Can the High Anti-Corruption Court Fix Ukraine’s Corruption Problem? Q&A with REECA Grad Ivanna Kuz’ < https://huri.harvard.edu/high-anti-corruption-court-ivanna-kuz > accessed 20 April 2022. [32] The Economist Intelligence Unit, ‘Democracy Index 2020: In Sickness and in Health?’ (The Economist 2020) < https://www.eiu.com/n/campaigns/democracy-index-2020/ > accessed 18 April 2022. [33] ibid. [34] Andrew McDevitt, ‘The State of Corruption: Armenia, Azerbaijan, Georgia, Moldova and Ukraine’ (Transparency International 2015) 8-11 < https://www.transparency.org/en/publications/the-state-of-corruption-armenia-azerbaijan-georgia-moldova-and-ukraine > accessed 18 April 2022. [35] Al Jazeera, ‘Ukraine probes ex-leader Petro Poroshenko in intelligence case’ (2010) < https://www.aljazeera.com/news/2020/6/10/ukraine-probes-ex-leader-petro-poroshenko-in-intelligence-case > accessed 18 April 2022. [36] Victor Gotisan, ‘Moldova: Nations in Transit 2021 Country Report’ (Freedom House, 2021) < https://freedomhouse.org/country/moldova/nations-transit/2021 > accessed 18 April 2022. [37] ibid. [38] ibid. [39] The Economist Intelligence Unit, (n 33) 6. [40] Cristian Cantir and Ryan Kennedy, ‘Balancing on the Shoulders of Giants: Moldova’s Foreign Policy toward Russia and the European Union’ (2014) 11 Foreign Policy Analysis 397-416. [41] Ellen Barry, ‘Protests in Moldova Explode, With Help of Twitter’ The New York Times (New York, 7 April 2009) < https://www.nytimes.com/2009/04/08/world/europe/08moldova.html > accessed 18 April 2022. [42] ibid. [43] Patrick Kingsley, ‘Moldova Had Two Governments One Has Finally Resigned’ The New York Times (New York, 14 June 2019) < https://www.nytimes.com/2019/06/14/world/europe/moldova-new-government.html > accessed 18 April 2022. [44] ‘BTI Index. Political Transformation’ < https://bti-project.org/en/ > accessed 6 June 2022. [45]ibid. [46]ibid. [47] OECD, ‘Anti-Corruption Reforms in Azerbaijan: Pilot 5th Round of Monitoring Under the OECD Istanbul Anti-Corruption Action Plan’ (2022) < https://www.oecd-ilibrary.org/content/publication/3ae2406b-en > accessed 6 June 2022. [48] Tom Casier, ‘The EU’s two-track approach to democracy promotion: the case of Ukraine’ (2011) 18 Democratization 956–77. [49] Sonja Grimm, ‘Democracy Promotion and the European Union’ in Peace Research Institute Frankfurt / Leibniz-Institut Hessische Stiftung Friedens- und Konfliktforschung, Democracy Promotion in Times of Uncertainty: Trends and Challenges (Peace Research Institute Frankfurt 2018) 16-19. [50] ibid. [51] ibid. [52] Schimmelfennig and Scholtz (n 9) [53] ibid. [54] Heather Grabbe, ‘European Union Conditionality and the Acquis Communautaire ’ (2002) 23(3) International Political Science Review 249-68. [55] Tanja Börzel and Frank Schimmelfennig, ‘Coming Together or Drifting Apart? The EU’s Political Integration Capacity in Eastern Europe’ (2017) 24 Journal of European Public Policy 122–40. [56] Petra Kuchyňková and Juraj Hajko, ‘Ten years of EaP: successes but also new challenges’ (2019) 28 International Issues & Slovak Foreign Policy Affairs 73-83. [57] ibid. [58] ibid. [59] Kenneth Geers, Alliance Power for Cybersecurity (Atlantic Council 2020) 11-16. [60] ‘Russian Media Organisations Banned for Three Years in Ukraine’ (Safety of Journalists Platform, 31 July 2018) < https://fom.coe.int/en/alerte/detail/36211014 > accessed 6 June 2022. [61] Diane Francis, ‘Ukraine’s reforms remain hostage to corrupt courts’ (Atlantic Council, 15 September 2020) < https://www.atlanticcouncil.org/blogs/ukrainealert/ukraines-reforms-remain-hostage-to-corrupt-courts/ > accessed 22 April 2022. [62] Channell-Justice (n 32) 5. [63] ibid. [64] ibid. [65] Geers (n 64) 10. [66] Neil MacFarlane, ‘Afterword’ in Stephen Jones and Neil MacFarlane (eds), Georgia: From Autocracy to Democracy (University of Toronto Press 2020) 229-36. [67] ibid. [68] Morten Broberg, ‘Furthering Democracy through the European Community’s Development Policy: Legal Limitations and Possibilities’ (International IDEA 2010) < https://www.idea.int/sites/default/files/publications/chapters/the-role-of-the-european-union-in-democracy-building/eu-democracy-building-discussion-paper-12.pdf > accessed 6 June 2022. [69] ibid . [70] Jean Crombois, ‘Conflicting Narratives? Geopolitical and Normative Power Narratives in the EU Eastern Partnership’ (2017) 49 Politeja 109-26. [71] Stanislav Secrieru and Sinikukka Saari (eds) The Eastern Partnership a Decade On (European Union Institute for Security Studies 2019) 84-95 < https://www.iss.europa.eu/sites/default/files/EUISSFiles/cp153_EaP.pdf > accessed 22 April 2022. [72] ibid. [73] The Economist Intelligence Unit, (n 33) 6.

Each year, The Economist publishes a Democracy Index. The 2022 edition listed 167 countries ranked on metrics of five dimensions: electoral process and pluralism, the functioning of government, political participation, democratic political culture, and civil liberties. The US ranked 26th in the world. At the top of the list were Norway, New Zealand, Finland, and Sweden. At the bottom were North Korea, Myanmar, and Afghanistan. No real surprises there, but Taiwan (8), Uruguay (13), South Korea (16), UK (18), and Costa Rica (21) all outranked the US. The US had slipped over the past six years from a full democracy to a flawed democracy.[1] All democracies have flaws. They are human creations after all. But the US has more flaws than many of its democratic peers. The insurrection of 6 January 2021 revealed a disturbing refusal by some to accept the results of democratic elections. On that day, protestors gathered at the Capital to overturn the result of the 2020 Presidential election. The insurrectionists sought to stop the ceremonial congressional confirmation of Joe Biden as the 46th President of the US. In this essay, I want to explore some of the reasons behind this democratic slippage. I focus on electoral issues, rather than the deep-seated socio-economic context of the insurrection. I will draw on some of my previous work.[2] It is important to begin with the realization that the US was founded as a republic, not as a democracy. The founders were distrustful of the raw political energy of the people. In 1787, James Madison, the 4th US President, described democracies as spectacles of turbulence and contention; incompatible with personal security or the rights of property.[3] Thus, the government in the US was structured to insulate political elites from popular opinion. The Congress, the executive, and the judicial–a nine-member oligarchy of lifetime political appointees whose guiding ideology always seems half a century behind the general public–limit and blunt the expression of the popular will. The hallmarks of a healthy democracy are that each vote should be counted and each one should count equally. This is not the case in the USA, where the difference between popular will and political representation is growing. Let’s look at four sources for the growing deficits of US democracy.

Iqan Shahidi is a PhD candidate in Intellectual History at the University of Cambridge. He completed his undergraduate studies in Sociology at the Bahai Institute of Higher education and was arrested in 2010 because of his activities in support of the universal right to access education. After he was released from a five-year prison sentence, he continued his studies in the UK with a Master’s in Social and Political Thought at the University of Sussex, and an MPhil in Intellectual History and Political Thought at the University of Cambridge. CJLPA : Iqan, where did you grow up, and what did you study before arriving in Cambridge? Iqan Shahidi : I grew up in a city in the west of Iran called Kermanshah. When I turned 18, I took the national university entrance exam. I was informed that I couldn’t attend university because my file was incomplete. That’s a common error encountered by members of the Baha’i faith. After being turned down, I wanted to explore the issue and to access my right to higher education. So, I started corresponding with a number of authorities: from various commissions of the parliament, the Islamic Commission on Human Rights, various NGOs defending civic rights, religious and political authorities in our region and at the national level, to courts of justice. But the result was the same. I was not allowed to go to university because I was a Baha’i. CJLPA : So, wherever you went they just said: ‘Sorry, that’s not possible’? IS : It wasn’t fully clear in all the cases. Some of them said they would investigate, but I never heard anything back. It was interesting because the agency that was responsible for the national exam said: ‘You can’t go to university because of a memorandum that was signed in 1991 by Ali Khamenei, the Supreme Leader of the Islamic Republic of Iran’.[1] In that memorandum, it is mentioned that Baha’is must not be permitted to attend university, and that any paths towards their economic or cultural progress should be blocked. That’s the reason why Baha’is can’t access higher education, hold governmental jobs, or be teachers, for example. I started studying at an institution founded in 1987 by the Baha’i community itself: the Baha’i Institute for Higher Education (BIHE). It was an active and constructive response to the systematic deprivation of their right to education. They hired all the Baha’i professors who had been expelled after the Islamic revolution, taking advantage of this wide pool of human resources and putting it to good use. I studied sociology at the BIHE and was arrested during the last semester of my studies because of my human rights activities. Whilst I was studying, I collaborated with an increasing number of lawyers, human rights defenders and social activists that were trying to follow legal paths for acquiring the right to education for those who had been deprived of it. CJLPA : So, you were very much making connections and exploring the options there. Did you then hold protests? IS : No, we didn’t hold protests. The Baha’i faith recommends that Baha’is obey the government, and if they face discrimination or persecution, they are encouraged to focus on attaining their legal rights through legal means at the local and national level. If that doesn’t resolve the issue, like in Iran, they are urged to simultaneously explore every international legal avenue in order to acquire these rights. CJLPA : Would you say the Baha’i approach to obtain social rights—through legal pathways—is a humanistic approach? Is it in line with Baha’i beliefs? IS : Yes, Baha’is actively try to promote these kinds of values, because they believe that humans hold the utmost responsibility to bring injustice to a standstill. They have tried to promote these ideas in peaceful ways, to share these principles, to promote them at all times, in all possible spaces. The original Baha’i population of Iran was a mixture of different communities from various backgrounds: Zoroastrians, Jews, Christians, Muslims (both Sunni and Shia), and atheists. They tried to embody these principles within that community so that people could hold the same rights and respect for each other. CJLPA : How would you describe the Baha’i faith? It’s quite modern, but has it been persecuted for a long time in Iran, or is that something that arose with the Islamic Revolution? IS : The Baha’i faith, as you mentioned, is a relatively new religion. It was born in Iran, but it’s now a global community. There are Baha’is in every country and in most cities in the world. Baha’is believe in the oneness of humankind, freedom of opinion, in the equality of men and women, and in the harmony of science and religion. Baha’is also believe that divine educators or manifestations of God—Abraham, Krishna, Zoroaster, Moses, Buddha, Jesus, Muhammad, and Baha’u’llah (whom Baha’is believe is the latest of these messengers so far)—come from the same source. In essence, these religions are different manifestations of one truth and are all from God. The Baha’i community in Iran has been persecuted since its birth—mainly because of their convictions. Originally, persecution against the Baha’i community arose from their belief in oneness and gender equality, for example. Their ideas weren’t acceptable to the religious understanding of the era, or of that specific geography. Over time, the persecution of Baha’is took various forms. After the Islamic Revolution it intensified: over 200 Baha’is were executed over false accusations such as spying for Israel or promoting corruption on Earth. CJLPA : What has been the main reason for persecution of the Baha’is in Iran? IS : This persecution is still religious in its nature, but, for example, Baha’is have long been accused of being Israeli spies, because their holiest shrine is in Israel. If someone knows the history, however, they would know that the Baha’i faith was born in Iran, about a century before the existence of Israel and that Baha’u’llah was exiled to Palestine by two Muslim rulers—the Qajar rulers of Iran and the Sultan of the Ottoman Empire. This was decades before the establishment of Israel. A finite number who had followed Baha’u’llah into exile remained there and later the Baha’i World Centre was established there to assist in the management of Baha’i community affairs. The accusation of spying for Israel arises from ignorance and the fact that Baha’is have never had freedom of the press in Iran. They aren’t able to defend themselves or to raise awareness of their own ideas or principles. In the public sphere, many Iranians think that Baha’is do not believe in chastity, but this is a slanderous lie promoted by the clerics to incite hatred and justify persecuting the Baha’is. Anti-Baha’i organisations in Iran hold the freedom to promote these false accusations through national TV, radio, or newspapers, but Baha’is were never granted the opportunity to respond. Instead, they were imprisoned or exiled. But I think the situation has changed in the last few decades. Baha’is now have access to global media, where they can share the true principles and values of Baha’i Faith. Now, more of the Iranian people know that the Baha’i Faith has millions of followers all over the world. However, in Iran, Baha’is still don’t have access to the national media or the press and unfortunately, lots of hate speech still takes place every day in Iran against them. CJLPA : When you started campaigning for equal education rights, had you heard about these issues facing Baha’is before experiencing them first-hand? Was it something you knew about, or was it your experience that led you to take action? IS : I had heard about it—my mother was expelled from university in the early years of the revolution, so I knew that Baha’is weren’t allowed to access higher education. Although the Baha’is are the largest community deprived from education in Iran, there are others who have also been denied a right to education. In 2006, however, when my application to university was unsuccessful, there were 600 Baha’is turned down, just in that year. CJLPA : How does that take place? Does the government have records of who is Baha’i? Do you have to state it when you take the national exam? IS : I don’t know how the government finds out. It’s not difficult, really, because if you ask a Baha’i if they are Baha’i or not, of course they would say: ‘Yes, I’m Baha’i’. One of the principles of the Baha’i Faith is truthfulness, because it fosters social capital and is the foundation of all human virtues. CJLPA : When you took the exam, did you suspect that you would be barred? IS : Yes, but I wanted to try my absolute best. I dedicated a full year and a half to studying intensely all day and night before the exam, on the off chance that things would go differently this year and I would be allowed to go to university. I had very good grades. But it didn’t happen. CJLPA : Clearly it paid off somehow, since you’re now doing your PhD! Was it difficult to transfer to Sussex University for your Masters? IS : It was difficult because the BIHE is not recognised by the Iranian Education Department or Ministry. When you apply for higher education in other countries, in most cases, you are asked to provide the name of your previous university. As a Baha’i from Iran, you have to explain in depth to the institution that you are applying to that although the BIHE isn’t recognised as an official university, it functions just like one. I don’t know of any other such university or higher educational institution in the world. CJLPA : It is a very unique concept. There are universities that don’t even exist in some countries, where you can pay to receive a degree, but they don’t even have lecturers. It’s funny that this can exist, but you can’t have recognition of the BIHE as a legitimate educational institution. IS : Exactly. Luckily, nowadays, there are a growing number of prestigious universities that have accepted Baha’i students from BIHE. On the website of the BIHE there is a list compiling these, with universities such as Harvard, Yale, the University of California, Columbia, the University of Chicago, and so on—and that’s just in the United States. CJLPA : How many Baha’i citizens do you think have been deprived of higher education overall? IS : That’s very difficult to estimate. Not everyone speaks about it. Every year though, hundreds of Baha’i students are turned down from university and now this is a multi-generational problem, so it is fair to say thousands and thousands of the Baha’is have been deprived of higher education. CJLPA : When you started campaigning for the universal right to education in Iran, you went to all of these institutions, all of these public services—was there any one event that led to your arrest in 2010, or was it something that built up gradually? IS : We were a group of Baha’i students actively asking for our rights. In 2010, as you mentioned, a number of us were arrested along with some other non-Baha’i human rights activists. This happened very suddenly, and I never anticipated anything like it because every single thing we were doing was completely legal. CJLPA : Your measured attempt to obtain equal education rights was met with aggression and violence . IS : It was, and not just towards us. In the next couple of years, many other Baha’i students were threatened with intimidating messages, or arrested. I was arrested in 2010 and interrogated for 72 days. They kept me in solitary confinement, all day, for that entire period. It was very difficult. I was even tortured physically and psychologically. I was just 21 years old. The conditions in which we were kept were horrifying. It was neither a formal nor a peaceful detention. When we were arrested, it felt like a kidnapping. It took place in the middle of the night in a dark street, and I wasn’t told why I was being arrested. My parents had no idea where I was, and for the next 10 days they were searching everywhere for me. CJLPA : That’s terrifying. IS : I didn’t even know where I was, because I was taken to Tehran, a considerable distance from the city where I lived. One night, after the interrogations started, I was beaten extensively and forced to wear a blindfold. I never actually saw my interrogator’s face, or the people who were beating me. I didn’t even know what objects they were beating me with. I remember the first day they started the beatings—it was eleven in the morning and it continued until sunset. When I was returned to solitary confinement, I felt immense pain in my entire body. My main question was: ‘What have I done?’. The pain subsided after a few days, but the question never left my mind. At the time, they were attempting to get a video confession out of us: that, for example, we had participated in various demonstrations. They wanted us to confess that we were ordered by Baha’i institutions to be present at protests against the government. This was when the Green Movement[2] was taking place. But it was all false. We resisted the confession, despite the pain. To have agreed to the interview would have meant an admission of guilt, for something we had never done. Following the 72 days of interrogation, I was released and taken to court. When I informed the general prosecutor that I had been tortured in detention, he just laughed in my face. It was shocking, and extremely embarrassing because he represented the final authority that I could have turned to for justice. I think this kind of attitude has become systematic in various kinds of persecution against a wide variety of citizens in Iran. In court, it was like another interrogation. The judge was questioning me and insulting me—he was completely biased. He sentenced me to five years of imprisonment. I was accused of being a member of a ‘misled Baha’i sect’, and an illegal group. It was just a made-up charge. I was 22 when I was brought to court. I couldn’t believe that I was going to be sentenced for five years of prison for absolutely nothing. CJLPA : When you should have been at university. IS : Exactly. I was asking to go to university and they sentenced me to jail. When I was granted an appeal but the verdict was reiterated, it was an even greater shock. The second court hadn’t even read my file. They just confirmed it. I was in prison from 2012-2017. It was a very difficult time. It was tough, but I learned a lot in those years because I was in prison with many other political prisoners and prisoners of conscience from different backgrounds. Funnily enough, the relative majority of the prisoners were Baha’i. Baha’is were no longer a minority in prison! CJLPA : Did you find a sense of community? Did you make any good friends? IS : In that particular sense, it was a good time. Of course, it was tough, the sanitary conditions were awful and the food was terrible. We didn’t have access to a phone. We couldn’t call our families or friends. Added to the pressure of living in a very, very small place with many people—all male—it was hard. I tell my friends that when you love someone and have chosen to live together, you may have disagreements from time to time, but you always have the possibility of getting a coffee or having a walk in the park. But in prison we hadn’t chosen each other, we weren’t in love with each other, and we didn’t have any opportunities to leave. We had to stay in each other’s company for 24 hours a day, seven days a week, 52 weeks a year, for five years. Many prisoners had much longer sentences than mine: some were there for 10 or 15 years. I was living in a room with two friends who had been given execution sentences. You can probably understand how difficult it would be to have that death sentence hanging over you and to be summoned one day… Everyone was going through a very hard time. But even in that space, you had to be kind, to serve them, and to listen to them. Although we were all very distressed, I tried to be as friendly and helpful as possible to my friends who were in there. Unfortunately, both of my roommates were executed in 2018. CJLPA : I’m so sorry to hear that. IS : You can begin to understand the pressure that everyone was under: this was the negative and difficult aspect of prison. And though it’s ironic to talk about the positive side of prison, we could talk to people from different backgrounds, with people who had never associated with Baha’is. Some of them were political activists, but had never had met any Baha’is. Some didn’t even know that Baha’is had been deprived of a right to education. Can you believe it? They were political commentators and they hadn’t heard of that fact. Earlier I discussed how the Iranian government had been trying to maintain people’s ignorance about Baha’i ideas and the Baha’i situation in Iran. They were somehow successful, because these political activists knew absolutely nothing about it. Anyway, we had a unique opportunity to talk amongst ourselves. Some of them felt estranged in the early days. But after that, the feeling evaporated, because we were living together and they could see my life, my attitude towards various things, and my love for them. We tried to help them correct their misunderstandings, to bring us closer together. It wasn’t as if they were just learning from us, either. We tried to go beyond an idea of ‘us and them’, and there was a lot that we, as Baha’is, learned from these different political activists in prison. Baha’is learned that they ought to be even more active in various civil spheres which Baha’is had previously thought inaccessible. We are now all close friends, and have the amazing privilege of being able to call each other whenever it’s necessary. I think it was a big step for the Baha’i community in Iran, actually, to have been able to meet these people and to have had the opportunity to exchange so many ideas about Iran’s future. How could we engender a more diverse and inclusive society? How could we be more united, since Iran is made up of so many different ethnicities, ideas, and religions? The fact that we were stuck together also represented an amazing opportunity to reflect on these cardinal subjects. CJLPA : It may be difficult to talk about this, but what was your daily routine like? IS : It’s not difficult. It’s still part of my life, unfortunately, because many of my friends remain in prison. Everyone had his own schedule. You could sleep during the day and work at midnight. The important thing was to respect the privacy of others, because it was so hard to find. Not having a room to yourself, everyone had to respect each other. I tried to get up early in the morning and to study. We sometimes struggled to get books brought into the prison, since each one had to be reviewed by the director, who often vetoed them. You can understand why the head of the prison didn’t exactly want us to be happy there. It was difficult, because we wanted to read, to study, to walk even. We only had two or three hours a day in the yard where we were allowed to get some fresh air. You could run, if you had shoes, but no-one was actually allowed to have them inside the prison. That was an added challenge. It was a very small yard, with only one tree at its centre and no grass. They even cut down the tree after two or three years. As a service to prisoners, I distributed the prison meals twice a day. I was so ashamed during lunch and dinner because the food was absolutely terrible. I had to convince people to come each time, to encourage them to eat, and they were always disappointed. But someone had to do it. CJLPA : In terms of facilities, did you have a library, or a reading room? IS : Actually, the books were all kept in various rooms. For example, when I managed to import some books for myself, I kept them in mine. You had to keep up to date with which books were in whose room. It was also, of course, dependent on your relationship with people. If you knew them, you could borrow a book from them. We didn’t have many books and our options were really limited. But they were from different contexts, so if you wanted to you could read across a wide array of subjects. CJLPA : You’re now doing your PhD at Cambridge, with almost limitless access to any book that you like. What did you choose to write about? IS : I’m writing on the concept of decline in the writings of Iranian intellectuals of the 20th century. If someone in prison had told me that I would be doing my PhD at Cambridge in three years’ time, I wouldn’t have believed it. One day you’re in prison because of your struggles for the universal right to higher education, and then three years later you find yourself at one of the most famous universities in the world. CJLPA : How do you remain in contact with the Baha’i community in the UK? IS : The UK has a strong Baha’i community. They organise different community-building activities that aim to build capacity in people to become protagonists of the wellbeing of their community and society. These activities are open to everyone. Baha’is welcome members of the public, so that they can consult and reflect together on how best to promote justice in society, to build unified communities, to apply the principles of gender equality in different settings of family, work and so on. There is a focus at the grassroots level on community-building and social activities, in order to empower people, but the Baha’i community in the UK is also trying to contribute to different discourses such as social cohesion, the role of the media, freedom of religion and belief and so on, and to collaborate with various actors of civil society. CJLPA : If there were one thing that people reading this interview should walk away with, what would you like them to share with other people, to raise awareness of? IS : I think the most important thing is the concept of universal participation, to understand that every human being has a potential that should be released through education, and that it is our duty to help everyone access that right. In a healthy body, all the cells are involved in the body’s well-being. The body itself supports all cells by feeding them, so it’s also a mutual relationship. In our society, if you want to have a healthy society, all the cells, the different citizens of the world should be educated and empowered, so that their potential can materialise and they can work in promotion of the public good. That’s how I perceive the main role of education and it is probably the ultimate goal of my activities. CJLPA : I wanted to ask you one last personal question. Being away from home is an important theme in Iranian popular music, for example in LA and other exile communities. Is there a song that that you particularly associate with Iran, that makes you think of home? IS : There is a very famous song by Shajarian, called Morgh-e Sahar. The main idea expressed in the song is one of optimism for the future and taking steps towards overcoming the barriers in our way. I think that’s something we should always keep in mind. There are many difficulties or challenges in our lives, and I think we need to nurture this optimism. We should also be systematic, of course, with evolving conceptual frameworks that are fostered both by spiritual principles and scientific knowledge. CJLPA : You remain hopeful about the future of Baha’is in Iran, and their education. You have to, in a way, don’t you? IS : Yes, that’s an indispensable part of any kind of desire for change. We need to keep going on, and I think this song fosters both hope and action, so that we can all take part in the betterment of the world, and build a brighter future. This interview was conducted by Casper Alexander Sanderson. Casper has received an MA (Hons) in Arabic, Persian and Russian at the University of St Andrews, as well as an MPhil in Modern Middle Eastern Studies at the University of Cambridge, for which he was awarded the Prince Alwaleed Bin Talal Studentship Grant. [1] The memorandum is available online at < https://www.humanrights.bic.org/iran >. [2] The Green Movement, or Green Wave, was a political movement that arose after the 2009 Iranian presidential elections, demanding the removal of Ahmadinejad from office.

I. Introduction The rise of family-owned businesses has resulted in the clustering of several companies and their subsidiaries under the control of one family or shareholder.[1] Such concentration of companies, in one hand, has the potential to cause conflicts of interest between promoter entities and minority investors.[2] If the company were to profit, the same would be shared with the minority investors. But if the director/controlling shareholder syphons off the profits to themself or their relative, or to a company where they are a controlling shareholder, they would be able to consume a larger share of the profits. This is undertaken by shifting value from one company to another through self-dealing transactions within the company management.[3] An atmosphere where RPTs are imbued could be challenging even when they are undertaken in good faith.[4] The corporate governance structure could be negatively impacted by the existence of relationships amongst companies which could impact transactions and disclosure obligations.[5] The existence of such an atmosphere could warrant the presence of expropriation, which means that the profits of a company are either in a position of or are actually being accrued by another entity.[6] For real expropriation to occur, the assets, profits or property should be owned by an entity, but another person or entity would be in possession of them or would be unjustly benefited by them.[7] Such expropriation has the potential to cause huge losses to shareholders, management and beneficiaries of the entity and can also negatively impact the capital market regime of the industry.[8] However, mere appearance or the presence of conditions that enable expropriation could cause damage even without the actual harm, as it would affect inter-personal relationships in the governance structure. These negative perceptions could also negatively impact the country’s capital markets regime and further the deterioration of equity markets.[9] Therefore, it is imperative to enforce strong disclosure regulations and transparency requirements to avoid even the pre-supposition of abuse. The Securities and Exchange Board of India (‘SEBI’) issued the Sixth Amendment in the LODR Regulations,[10] which has been discussed in the paper. The paper illustrates how the partial transplantation of the English corporate regulation regime in India[11] has resulted in dissonance and inconsistencies, which could cause disinvestment and challenges in the cross-border transactional market. Through the analysis presented herein, the author intends to demonstrate how the current RPT regulation could prove to be insufficient in entrapping RPTs even after the expansion of the scope of related parties and an increase in the materiality threshold. The article examines the genus of RPTs by traversing through the fiduciary duty of directors in both jurisdictions and unjust enrichment whilst presenting the need for the inclusion of more variables whilst computing the materiality threshold of RPTs in India. II. Tracing the History of Related Party Transactions The English law on RPTs emerged through equitable precedents, which aligned with the modern statutory rules for company incorporation in the 1840s and 1850s.[12] These principles were instilled only in 2006 when the Companies Act was enforced based on a ‘high level’ restatement of the precedents which had evolved through history.[13] These precedential rules were based on three essential concepts through which the equitable principles on RPTs evolved: conflict of interest, consent of the beneficiary,[14] and procedural management of the conflict.[15] The concept of conflict of interest helped identify the risk involved in RPTs and transactions between the company and a director directly or indirectly.[16] The genesis of this doctrine rests in the duty to avoid conflicts of interest due to a fiduciary duty that one party owes to the other.[17] English law emphasised the director’s fiduciary duty towards the company.[18] However, the duties of shareholders and directors who were also shareholders were regulated later.[19] Secondly, the beneficiary in such transactions, which is the company, could provide consent to such transactions. This would help in discharging the liability of the director.[20] The board members could give this consent through the procedure laid down in the articles of the company prior to the transaction being effectuated.[21] This feature is inter-linked with the last feature, i.e., procedural management of the conflict.[22] In case the procedure laid in the articles was not followed, the claimant need not bother about the favourability of the terms. However, if the procedure was followed, the court wouldn’t interfere with the terms of the transaction.[23] The requirement for voting was also inherent in the Indian Company laws on RPTs, which were modelled in response to the accounting fraud revealed at Satyam Computer Services[24] in an attempt to acquire two companies that were related to the company’s founder chairman.[25] The old Indian Companies Act of 1956, which was replaced by the new Companies Act of 2013, provided for restrictions on RPTs where transactions were directly or indirectly related to the director of a company. [26] It is essential to traverse through the scheme of the old Act in order to truly understand the progress in RPT regulations and the bedrock on which they reside. Further, such analysis demonstrates the presence of loopholes that haven’t been satisfactorily rectified in the new scheme. Section 299 of the 1956 Act required the disclosure of the director’s interest to the board of directors,[27] and Section 300 required the director to abstain from voting on such a transaction.[28] However, the requirements in the Act allowed significant loopholes. For example, Section 300 was not applicable on a contract with a public company or its subsidiary if the director was only related to the company in the capacity of a director but did not hold any shares, which made him eligible for a directorship,[29] or he held not more than 2% of its paid-up share capital.[30] Hence, these provisions essentially exempted some transactions where the director or his family had a significant stake due to complicated ownership structures. Further, Section 295, 301 and 297 also included provisions on RPTs alongside Accounting Standard 18 (‘AS 18’) issued by the Institute of Chartered Accountants of India.[31] RPTs were defined in AS 18, but they were limited to relationships where one party was controlled by the other.[32] Hence, the disclosure requirements under Clause 49 of the Disclosure and Investor Protection Guidelines, 2000 were not applicable on several RPTs occurring amongst sibling companies within the promoter entity.[33] However, the scope of RPTs has significantly expanded both in India and the UK after the introduction of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) (Sixth Amendment) Regulations, 2021[34] and Financial Conduct Authority’s Policy Statement PS19/13.[35] III. Extent of Fiduciary Duty in India and UK The director’s fiduciary duty in both jurisdictions has been to avoid situations where their duty towards the company conflicted with their personal interests.[36] For example, Lord Cranworth in Aberdeen Railway v. Blaikie Bros [37] stated, ‘no one, having [fiduciary] duties to discharge, shall be allowed to enter into engagements in which he has, or even can have, a personal interest conflicting, or which possibly may conflict, with the interests those whom he is bound to protect’. Similarly, in the case of Newgate Stud Co. v. Penfold ,[38] it was observed that the self-dealing rule wouldn’t apply if the purchase of a corporate asset were made without full disclosure by the director’s relative, in their own name and not as a nominee of the director. However, the fair-dealing rule would be applicable. The director would have to demonstrate that the transaction furthered the company’s success, and this test wouldn’t be complete just by ‘equating it with the lowest non-negligent valuation’[39]. This duty is enshrined within Section 117 of the 2006 Act, where the director is supposed to disclose to the board if he is in any way interested in a transaction with the company.[40] The consequences of breaching the fiduciary duty are that the contract would become binding on the company only if it is ratified by the shareholders ex ante or ex post.[41] Further, the director is supposed to account for all the profits accrued by him through the transaction and compensate the company for the damages caused.[42] The Report of the Expert Committee on Company Law in India effectively relayed the fiduciary duties of the directors with respect to RPTs.[43] They include the duty of good faith, fair dealing, and no conflict.[44] The duties include the duty to abstain from voting on conflicted transactions and require adherence to the LODR Regulations, which specify the time and manner of disclosure.[45] The duty to disclose shareholdings in all companies are mentioned under Section 184 of the Companies Act, 2013.[46] Considering that the directors’ fiduciary duties in India correspond to those in the UK, the effective fulfilment of this duty would require effective identification and approval of RPTs. However, the gaps in the Indian framework make identification of such transactions difficult, which in turn causes a disadvantage to the company. IV. The Ambit of RPTs in Both Jurisdictions The recent amendments in the Indian LODR Regulations have vastly increased the scope of transactions that are now considered RPTs and have come closure to those in the UK. After the sixth amendment in the LODR Regulations, related parties in India include the following: ‘(a) any person or entity forming a part of the promoter or promoter group of the listed entity; or (b) any person or any entity, holding equity shares: (i) of twenty per cent or more; or (ii) of ten per cent or more, with effect from April 1, 2023; in the listed entity either directly or on a beneficial interest basis as provided under Section 89 of the Companies Act, 2013, at any time, during the immediate preceding financial year; shall be deemed to be a related party:’[47] Further, related parties are also defined under Section 2(76) of the Companies Act, 2013, which include the director’s relatives, key managerial person and their relative, firms where the director, manager or their relatives are partner(s), companies where director, manager or their relatives hold positions or own more than 2% of its paid-up share capital.[48] Lastly, any company which is influenced by the directions of said director, manager or relative.[49] However, the definition of related parties as mentioned in DTR 7.3 and LR 11.1.4, in addition to the above-mentioned categories, also includes a person who was a substantial shareholder,[50] director, shadow director of a listed company within 12 months before the transaction,[51] associates of related parties and persons exercising significant control.[52] Further, these guidelines also mention who qualifies as a ‘relative’ and detail several human relationships.[53] The laxity that can be noticed in the Indian framework is inherent in the aspect of ‘control’. The English concept of Persons with Significant Control[54] is a better tool for assessing which entity exercises control over the body corporate instead of the Indian concept of a promoter and controlling shareholder.[55] This is because a promoter is usually labelled as a person exercising control over the company in the prospectus irrespective of their shareholding as against the role of a promoter in the UK, which is company incorporation.[56] Due to this labelling, persons who aren’t in actual control could be held liable for omissions and non-compliance with SEBI LODR Regulations.[57] Therefore, promoters were allowed to re-classify themselves after adhering to the conditions mentioned under Regulation 31A of LODR Regulations, which requires having at least more than 10% of voting rights in the listed company.[58] This condition prevents the successful reclassification of promoters who have absolutely no control over the body corporate, making them liable for acts that should be attributed to controlling shareholders.[59] Section 2 (oo) (ii) of the ICDR Regulations states that control exercised by a director is also considered to be actual control, as against the English Company Statutory Guidance for PSC where directors aren’t considered PSCs just because of their role.[60] Therefore, due to the regulatory gap in the Indian concept of ‘control’, the sieve of RPT Regulations becomes narrow by encompassing a limited number of people as related parties. V. Challenges Posed by the Threshold of materiality The latest amendment to the LODR Regulations includes a change in the threshold of material related party transactions.[61] Material transactions require shareholder approval to go forward in both Indian and English jurisdictions.[62] Now, transactions exceeding Rs. 1000 Crore or 10% of the annual consolidated turnover (whichever turns out to be lesser) will have to obtain shareholder approval in India.[63] The amendment has been based upon the Working Group Report on RPTs.[64] The Report had recommended the threshold to be 5% of the turnover; however, SEBI increased it to 10%, which would result in the entrapment of lesser transactions as compared to what was originally suggested. Rule 15 of Meetings of Board and its Powers Rules read with Section 188 of the Companies Act, 2013 propose a test based on a company’s ‘net worth’.[65] However, Regulation 23(1) of the LODR Regulations did not contain this test post the amendment. The author argues that a test that fails to factor in the net worth, gross assets or profits might fail to provide apt results and, in turn, entrap transactions that either wouldn’t have been considered material due to these factors or wouldn’t include some transactions which are essentially material. Hence, a transaction is considered material in the UK if the percentage ratio is 5% or more when one applies the tests detailed in Annex 1 DTR 7 of the Disclosure Guidance and Transparency Rules.[66] There are essentially four tests: the gross assets test, profits test, consideration test, and the gross capital test.[67] These tests are formulas that equip variables like the gross assets of the issuer, profits attributable to the assets, the aggregate market value of all the ordinary shares and the gross capital of the company. The Indian regime only utilises the turnover and the 1000 Crore limit as thresholds for analysing the company’s financial standing with respect to the RPT.[68] However, analysis of terms like profitability, sales turnover, asset base, and capital are some of the essentials without which financial capability cannot be aptly assessed.[69] Utilising only one of the factors will not effectively determine the company’s performance; hence, at least some of these factors need to be considered whilst computing the materiality threshold in India.[70] Therefore, for an effective and holistic financial analysis, the English related party tests involve variables such as gross assets, indemnities and similar arrangements (which help in comprehending the size of the transaction and using correct data during calculations)[71], the market value of securities,[72] current capital ratio (current liabilities over current assets)[73] amongst others. These variables aid in understanding the capability of a company to meet its financial targets and its general solvency. The importance of factoring in such variables is amply evident in the empirical study conducted by Bărbută-Misu, Madaleno, and Ilie, where they demonstrate how swaying financial ratios, could be possible indications of a crisis. For example, the authors analyse the mortgage loan crisis that began in 2006 in the United States and later penetrated into banking networks of the US and European large-credit institutions.[74] Earlier, the Financial Conduct Authority had proposed to keep the materiality percentage ratio at 25% or more.[75] However, the threshold was lowered due to apparent disagreement in the investment market.[76] This is because FCA concurred with the argument that the issuer’s listing category shouldn’t adjudicate materiality; rather, it would be better to apply a single formula to all RPTs. Now, the 5% percentage ratio is set, which is consistent with LR 11 for premium listed issuers.[77] Further, the rules also provide for aggregation of all transactions which were effectuated within a twelve-month period of the RPT whilst assessing materiality.[78] When a material RPT undergoes a significant change after getting approved, the change will have to be approved by the board.[79] It will have to comply with disclosure and approval obligations separately. The FCA would regard a 10% increase in the consideration payable as a material change.[80] The problem of the non-inclusion of different financial factors whilst deciding on the materiality of RPTs works against the principles of unjust enrichment and corrective justice. Furthermore, this results in ignorance of the repercussions of breaching the requirement of gaining shareholder approval under the fiduciary duty. Hence, in essence, the director would be liable to return the profits made in the course of an RPT and indemnify the company but would go undetected. Instead, the profit accrued should be returned due to principles of corrective justice which influences the transactions between individuals and requires the fulfilment of the duty of restitution.[81] Corrective justice exists without external rules of dissemination of equality.[82] It proposes the existence of equality between parties to a transaction.[83] Unjust enrichment in both jurisdictions involves the term ‘unjust’ to be supplemented by an act of duress, undue influence, coercion, mistake, or lack of consideration.[84] This essentially means that the lack of the plaintiff’s consent or vitiation of the same is the primary contributing factor in the principle of unjust enrichment.[85] Hence, ignorance could also be interpreted as a contributing factor because it depicts the absence and not just vitiation of consent. Therefore, considering the failure to disclose material RPTs, either intentionally or due to regulatory gaps, aids the director or manager or profit on account of the corporate entity, the lack of consent of shareholders fulfils the requirement for unjust enrichment. According to Weinrib,[86] the defendant should undo the unjust transaction and obey the defendant’s duty of restitution, which has also been modelled into the Indian and English Laws. This can only be done by creating an effective sieve to filter out material transactions by considering the various financial factors whilst computing materiality. The number of listed companies trading in the National Stock Exchange in India was 2005 in September 2021,[87] whilst those trading in the London Stock Exchange were 2009 in November 2021.[88] Therefore, the number of companies subjected to RPT regulations in both jurisdictions is approximately similar, making the assessment goal comparable. Hence, the sieve of regulation that would strain out material RPTs should be of a common nature. However, due to the ignorance of various financial factors highlighted above, the orifices in the sieve seem comparably larger, resulting in the non-entrapment of certain material RPTs. VI. Ramifications of the Indian Amendment Apart from the inconsistencies related to materiality, there are some concerns that can be attributed to the sixth amendment in the Indian LODR Regulations. The amendment now includes transactions undertaken between the listed company and related parties of its subsidiary or related parties of the listed company and the subsidiary, which will come into effect from April 2023.[89] However, there could be ramifications on ongoing transactions, which will now have to be re-classified as material or non-material and would have to repeat the process of prior shareholder approval. Hence, Regulation 23(8) of the LODR Regulations causes the concern of retrospective application of the materiality threshold as it states that, ‘All existing material related party contracts or arrangements entered into prior to the date of notification of these regulations and which may continue beyond such date shall be placed for approval of the shareholders in the first General Meeting subsequent to notification of these regulations’.[90] The consequences of this retrospectivity might cause an excess monetary burden to the company as in cases where the shareholders would withhold their approval; the company will have to terminate the transaction. Hence, the agreement which would have given rise to the transaction might penalise the company for breaching the terms of the agreement. Related party transactions occurring between a listed entity/its subsidiaries and any other entity will have to qualify the purpose and effect test from April 1, 2023.[91] The test states that whichever transaction between the above-mentioned entities has the purpose and effect of causing benefit to the related party will be construed as an RPT.[92] Even though the UK Premium Listing Rules have influenced this provision, the threshold for determining the ‘purpose and effect’ has not been elucidated by SEBI. Hence, SEBI should purposefully clarify this threshold to avoid practical obstacles. Additionally, the amendment requires obtaining the approval of the Audit Committee of the listed company to approve transactions between subsidiaries of the company which exceed or equal the Indian materiality threshold.[93] However, as per Section 2(87) of the Companies Act, 2013, these subsidiaries will include foreign subsidiaries.[94] Hence, a problem would arise when the approval of the Indian holding company is needed for effectuating a transaction between several overseas subsidiaries. For example, suppose two English subsidiaries of a company incorporated in India wish to transact, and the deal exceeds the 10% threshold. In that case, the transaction cannot be legally effectuated without the Audit Committee of the holding company’s approval. Further, there would arise a situation of conflict with the English laws if legal rules were to be imposed which are inconsistent with the Indian regime. Hence, complying with the fiduciary duty under Sections 173 and 174 of the English Companies Act, 2006 wouldn’t be sufficient. The directors will also have to adhere to the Indian guidelines and the Audit Committee’s approval. Therefore, they might lose their independence when their decisions are contrary to the approval/disapproval of the Committee. This, in turn, would stand contrary to the independent legal existence of the English subsidiary who would have a separate board of directors from the holding company, and those directors would have a duty towards the subsidiary only and not the holding company.[95] Further, in the case of Vodafone International Holdings v. Union of India , it was highlighted that ‘the legal position of any company incorporated abroad is that its powers, functions and responsibilities are governed by the law of its incorporation’.[96] The Court also clarified that the control of the parent company’s shareholders could not overpower the subsidiary’s board of directors as the board owes a fiduciary duty towards the subsidiary only and not the holding company.[97] Therefore, this inconsistency in the application of the Audit Committee’s approval would stand contrary to the precedent established in both jurisdictions and might expose Regulation 23 of the LODR Regulations to judicial review due to its extraterritorial application.[98] The same far-reaching effects on foreign subsidiaries will also be noticed in case of material modifications which will have to be approved by the Committee. Considering SEBI has not clearly defined what would constitute material modifications in RPTs,[99] the Audit Committee might exercise their opinion on the same and reject the material modifications approved in the English jurisdiction, creating another inconsistency. Moreover, SEBI has not excluded transactions that might be the customary business for certain companies and transactions done at an arm’s length from the ambit of Regulation 23,[100] increasing the burden on the foreign subsidiary. VII. Conclusion Construing the sixth amendment in the LODR Regulations to be applicable only on future contracts and not existing ones could provide a loophole to controlling shareholders who might unjustly enrich themselves before the amendment is enforced. Treating transactions under future contracts and those under pre-existing contracts differently might lead to inequality and discrepancies. Hence, the obligation to gain approval should be applicable on all contracts after the amendment is enforced. The amendment also goes on to include the promoter entity into the ambit of ‘related parties’.[101] However, this might prove burdensome for promoters who have been subjugated by this ‘permanent labelling’ and are not actually influencing investment decisions.[102] Even though this problem of labelling still subsists, the ambit of related parties has now been expanded. It governs persons holding equity shares amounting to 20% or more (with effect from April 1, 2022) or 10% or more (from April 1, 2023). These include shares held directly or on a beneficial interest basis as per Section 89 of the Companies Act, 2013 and might prove to be a positive step towards inculcating the ‘Persons with Significant Control’ regime and defining bright lines of control in India. However, the analysis undertaken delves into the cervices of RPT disclosure obligations that are analogous to a sieve. When strained through the sieve, some of these transactions would easily pass without shareholder approval due to gaps in regulations. Therefore, there is a need to reduce the sieve size and ensure adequate filtering and transparency to avoid illegitimate expropriation and unjust enrichment. Varda Saxena Varda Saxena is a final year law student pursuing the five-year BA LLB (Hons) programme from Jindal Global Law School, India. She is immensely interested in commercial law and has published articles on various academic platforms such as the International Company and Commercial Law Review Journal . She has also served as an Editor-in-Chief at various law-based academic blogs and loves to read about gender and decolonisation studies. This article was originally written in January 2022. The sixth amendment to SEBI LODR Guidelines has now been enforced. [1] Marianne Bertrand, Paras Mehta, and Sendhil Mullainathan, ‘Ferreting Out Tunnelling: An Application to Indian Business Groups’ (2002) 117 Q. J. Eco. N. 121, 126. [2] Ami Galani & Nathan Rehn, ‘Related Party Transactions: Empowering Boards and Minority Shareholders to Prevent Abuses’ (2010) 22 Nat’l L Sch India Rev 29, 32. [3] See Lucian A. Bebchuk & Assaf Hamdani, ‘The Elusive Quest for Global Governance Standards’ (2009) 157 U. PA. L. REV. 1263, 1307. [4] Zohar Goshen, ‘The Efficiency of Controlling Corporate Self-Dealing: Theory Meets Reality’ (2003) 91 Cal L Rev 393, 402. [5] Indian Accounting Standard 18: Related Party Disclosures [17]. [6] K. S. Thorburn, ‘Corporate Governance and Financial Distress’ in Hans Sjögren and Göran Skogh (eds), New Perspectives on Economic Crime (Edward Elgar 2004). [7] ibid. [8] ibid. [9] OECD, Guide on Fighting Abusive Related Party Transactions in Asia (2009) 11-12. [10] Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) (Sixth Amendment) Regulations, 2021 < https://www.sebi.gov.in/legal/regulations/nov-2021/securities-and-exchange-board-of-india-listing-obligations-and-disclosure-requirements-sixth-amendment-regulations-2021_53851.html >. [11] Afra Asharipour, ‘Corporate Governance Convergence: Lessons from the Indian Experience’ (2009) 29 Nw. J. INT’L L. & Bus. 335, 354. [12] Paul Davies, ‘Related Party Transactions: UK Model’ in Luca Enriques and Tobias Tröger (eds), The Law and Finance of Related Party Transactions (Cambridge University Press 2018) 361-399. [13] ibid. [14] John H. Farrar and Susan Watson, ‘Self-Dealing, Fair Dealing and Related Party Transactions—History, Policy and Reform’ (2011) 11(2) Journal of Corporate Law Studies 506. [15] Davies (n 12) 362-3. [16] Elizabeth A. Gordon, Elaine Henry and Darius Palia, ‘Related Party Transactions and Corporate Governance’ (2004) 9 Advances in Financial Economics 1. [17] Robert Flannigan, ‘The Adulteration of Fiduciary Doctrine in Corporate Law’ (2006) 122 Law Quarterly Review 449, 453. [18] See Aberdeen Railway Co v. Blaikie Brothers (1854) 1 Macq. 461; [1843-60] All ER Rep 249. [19] Companies Act, 2006, ch. 2. [20] Blair Leahy and Andrew Feld, ‘Directors’ Liabilities: Exemption, Indemnification, and Ratification’ in Company Directors: Duties, Liabilities, and Remedies (OUP 2017). [21] The National Archives, Relationship Between the Duties and the Detailed Rules Requiring Member Approval of Conflicts of Interest, Companies Act 2006 (Explanatory Notes) < https://www.legislation.gov.uk/ukpga/2006/46/notes >. [22] ibid. [23] Davies (n 12) 368. [24] Ajaz Ul. Islam, ‘Do Shareholder Activism Effect Corporate Governance and Related Party Transactions: Evidences from India?’ (2020) 13(2) Indian Journal of Corporate Governance 173. [25] P. C. Rasheed and T. Mallikarjunappa, ‘Related Party Transactions and Earnings Management: An Empirical Examination of Selected Companies in India’ (2018) 17(2) IUP Journal of Accounting Research & Audit Practices. [26] The Companies Act, 1956, No. 1 of 1956, s. 299-300. [27] ibid s. 299. [28] ibid s. 300. [29] ibid s. 300(d)(i). [30] ibid s. 300(d)(ii). [31] Bombay Securities Exchange, Listing Agreement Clause 49, § II(D), Explanation (ii). [32] Accounting Standard 18 (n 5) para 10-11. [33] SEBI (DIP) Guidelines of 2000, s. 6.8.3.2, Explanation I. [34] SEBI LODR (n 10). [35] Financial Conduct Authority, Improving Shareholder Engagement and Increasing Transparency around Stewardship, Policy Statement PS19/13. [36] Companies Act, 2006 (n 19) s. 175 (for United Kingdom) and Companies Act, 2013, s. 184 (for India). [37] (1854) 1 Macq 461 (HL). [38] [2008] 1 BCLC 46. [39] ibid 244. [40] Companies Act, 2006 (n 19) s. 117. [41] Benson v. Heathorn (1842) Younge & Coll. Ch. 326; Great Luxembourg Railway Company v. Magnay (No. 2) (1858) 25 Beavan 586. [42] J. J. Harrison (Properties) Ltd v. Harrison [2002] 1 BCLC 163 (CA). [43] Ministry of Corporate Affairs: India, Report of the Expert Committee on Company Law < http://reports.mca.gov.in/MinistryV2/related+party+transactions.html >. [44] ibid 1. [45] Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015, No. SEBI/LAD-NRO/GN/2015-16/013, reg. 4(2) (f). [46] Companies Act, 2013, s. 184. [47] SEBI LODR (n 10) s. 3 (I) a. (a). [48] Companies Act, 2013 (n 46) s. 2(76). [49] Companies Act, 2013 (n 46) s. 2(76)(vii). [50] Related Party Transactions: Premium Listing Rules, Release 14, 2021, r. LR 11.1.4 (1) < https://www.handbook.fca.org.uk/handbook/LR/11/1.html >. [51] ibid r. LR 11.1.4 (2). [52] ibid r. LR 11.1.4 (4). [53] Disclosure Guidance and Transparency Rules, Corporate Governance, DTR 7, s. 7.3.2 < https://www.handbook.fca.org.uk/handbook/DTR/7/3.html?date=2022-01-14#D50025 >. [54] Companies House, Guidance: People with Significant Control, Department for Business, Energy, and Industrial Strategy < https://www.gov.uk/guidance/people-with-significant-control-pscs >. [55] Securities and Exchange Board of India, Review of the regulatory framework of promoter, promoter group and group companies as per Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018 < https://www.sebi.gov.in/reports-and-statistics/reports/may-2021/consultation-paper-on-review-of-the-regulatory-framework-of-promoter-promoter-group-and-group-companies-as-per-securities-and-exchange-board-of-india-issue-of-capital-and-disclosure-requirements-re-_50099.html >. [56] Emma Silver Mining Co. v. Lewis (1879) 4 C. P. D. 396. [57] SEBI LODR (n 45) reg. 5. [58] ibid. reg . 31A (3)(b)(i). [59] Rukshad Davar, Kritika Agarwal and Rahul Datta, ‘Should Indian securities law shift focus from promoters to persons in control?’ < https://www.majmudarindia.com/insight/indian-securities-law-shift-focus-promoters-persons-in-control/ >. [60] Companies House, Statutory Guidance on the Meaning of ‘Significant Influence or Control’ Over Companies in the Context of the Register of People with Significant Control (2017) r 4.6, 4.10 < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/675104/psc-statutory-guidance-companies.pdf >. [61] SEBI LODR (n 10) reg. 3(II)(b) 6th. [62] SEBI LODR (n 10) reg. 3(II)(c) for India and DTR (n 53) s. DTR 7.3.8 (2) for UK. [63] SEBI LODR (n 58). [64] Securities and Exchange Board of India, Report of the Working Group on Related Party Transactions (2020) < https://www.sebi.gov.in/reports-and-statistics/reports/jan-2020/report-of-the-working-group-on-related-party-transactions_45805.html >. [65] Companies (Meetings of Board and its Powers) Rules, 2014, r. 15(3)(a)(ii) (India). [66] DTR (n 53) Annex 1 DTR 7. [67] ibid. [68] SEBI (Listing Obligations and Disclosure Requirements) (Sixth Amendment) Regulations, 2021, w.e.f. 1.4.2022. [69] Panagiotis Liargovas and Konstantinos Skandalis, Factors affecting Firms’ Financial Performance: The Case of Greece (University of Peloponnese Press 2008). [70] Willy Muturi and Maleya M. Omondi ‘Factors affecting the financial performance of listed companies at the Nairobi Securities Exchange in Kenya’ (2013) 4(15) Research journal of finance and accounting 99-104. [71] DTR 7 (n 53) Annex 3 DTR 7. [72] DTR 7 (n 53) Annex 6. [73] DTR 7 (n 53) Annex 8. [74] Nicoleta Bărbuță-Mișu, Mara Madaleno, and Vasile Ilie, ‘Analysis of risk factors affecting firms’ financial performance—Support for managerial decision-making’ (2019) 11(18) Sustainability 4838. [75] Financial Conduct Authority, Proposals to Promote Shareholder Engagement: Feedback to CP19/7 and Final Rules , Policy Statement PS19/13 (2019) [1.37] < https://www.fca.org.uk/publication/policy/ps19-13.pdf >. [76] ibid. [77] LR (n 50) r. LR 11.1.10. [78] ibid. r. LR 11.1.11. [79] ibid. r. LR 11.1.7. [80] ibid. r. LR 10.5.3. [81] Andrew Botterell, ‘Property, Corrective Justice and the Nature of the Cause of Action in Unjust Enrichment’ (2007) 20 Canadian J L & Jurisprudence 275. [82] Zoë Sinel, ‘Through Thick and Thin: The Place of Corrective Justice in Unjust Enrichment’ (2011) 31(3) Oxford Journal of Legal Studies 553-554. [83] Peter Benson, ‘The Basis of Corrective Justice and Its Relation to Distributive Justice’ (1992) 77 Iowa L Rev 515, 540–41. [84] Lipkin Gorman v. Karpnale Ltd. [1988] UKHL 12; Indian Contract Act, 1872, s. 68-72. [85] Sinel (n 82) 555. [86] Ernest Weinrib, ‘The Normative Structure of Unjust Enrichment’ in Ross Grantham and Charles Rickett (eds), Structure and Justification in Private Law: Essays for Peter Birks (Hart Publishing 2008) 42. [87] ‘Business Growth in CM Segment’ ( National Stock Exchange ) < https://www1.nseindia.com/products/content/equities/equities/historical_equity_businessgrowth.htm >. [88] Number of companies on London Stock Exchange 2015-2021 ( Statista Research Department , 11 Jan 2022) < https://www.statista.com/statistics/324547/uk-number-of-companies-lse/ >. [89] SEBI LODR (n 10). [90] SEBI LODR (n 45) reg. 23(8). [91] SEBI LODR (n 10). [92] SEBI LODR (n 10) reg. 3(I)(b)(ii). [93] ibid reg. 3(II)(c)(b). [94] Companies Act, 2013 (n 46) s. 2(87). [95] A Guide to Directors’ Responsibilities under the Companies Act 2006 [2.15] < https://www.accaglobal.com/content/dam/acca/global/PDF-technical/business-law/tech-tp-cdd.pdf >. [96] Vodafone International Holdings v. Union of India (2012) 6 SCC 613. [97] ibid. [98] GVK Industries v. Income Tax Officer (2011) 4 SCC 36. [99] SEBI LODR (n 45) part C, schedule II, cl. 8. [100] SEBI LODR (n 45) reg. 23(5). [101] SEBI LODR (n 10) reg. 3(I)(a)(a). [102] Twenty First Report of the Standing Committee on Finance (2009-2010) on the Companies Bill, 2009, presented to the Lok Sabha and Rajya Sabha (31 August 2010).

Introduction No one knows about Amir Tataloo. Bahman Ghobadi’s film No One Knows About Persian Cats (2009) could be seen as a dynamic and thrilling introduction to Iranian popular music: two rock musicians form a band and run around Tehran, desperately looking for a way to leave the country. Many Iranian musicians, however, criticised the film’s sensationalist representation of the popular music scene, stating that it greatly exaggerated the danger they face in order to depict them as victims of an oppressive regime.[1] The rapper Amir Tataloo, too, has been subject to an overly politicised portrayal, failing to be considered as a complex figure by the media and in scholarship. I first became aware of Tataloo’s music when I came across his video Energy Hasteei [Nuclear Energy], in which he sings in support of the Iranian nuclear program on board a navy ship. At the time, I was interested in the intersections between rap and politics in Iran, and had never before heard any rap songs in support of the government. I was intrigued as to what led Tataloo to produce the music video—was he coerced into making it, or perhaps rewarded with a small fortune? My further research did not provide answers to these questions. His story only became increasingly confusing: in May 2017, he appeared in a high-profile meeting with current president Ebrahim Raisi, but only three years later, in January 2020, Iranian judicial authorities requested that Interpol issue a ‘red alert’ for his arrest in Turkey ‘for spreading corruption’.[2] With each article, whether from news outlets or academic journals, it was difficult to gain any real sense of who Amir Tataloo was. It appeared that Tataloo the person, the rapper, could not be disentangled from his relations to the Iranian government. Writers seemed only able to view him through the distorted lenses of resistance or propaganda: he has generally been portrayed either as an illegal party rapper, fighting against the autocratic government, or as a mere pawn of the Iranian regime’s propaganda centres. In this article, I aim to look beyond the reductionist binaries that often dominate discussions of popular music and power in Iran (anti- vs. pro-regime, liberal vs. hardliner) and present a more multifaceted perspective of rap music’s significance in Iranian politics. Looking at this music scene through the figure of Tataloo provides a deeper understanding of its evolution in the last few years, how social media has impacted the genre, and the ways in which rap’s legality is constantly under negotiation. The main body of this paper is divided into two sections. The first section explores the evolution of Tataloo’s image and artistry through three music videos: Energy Hasteei [Nuclear Energy], Shohadā [Martyrs], and Jahanam [Hell]. The stark contrast between each video’s discourse and artistic choices highlights the need for more complex portrayals of Tataloo, depictions that consider the significance of these works for the rapper and his career. In addition, I argue that scholars and journalists, in their focus on the political messages in the first and second videos, funded by the Revolutionary Guard, have omitted an important perspective. An analysis of these videos’ aesthetic elements reveals two noteworthy processes taking place: an appropriation and sanitisation of conventional hip-hop tropes for the purpose of propaganda, as well as a clear improvement in the artistry of rap music videos. The second section considers what Tataloo’s career and interactions with several branches of the Iranian government can reveal about the legitimisation of rap music in Iran. I explore the main arenas on which the negotiation of rap’s legality can play out, and identify the principal stakeholders and agents of influence in this process. Amir Tataloo—background Amir Tataloo is the stage name chosen by Amirhossein Maghsoudloo; a popular but controversial Iranian rapper considered part of the first generation of the Iranian underground hip-hop scene. The musician was born in Tehran on September 21, 1987. He started singing pop music at the age of 17 in 1998 and, in 2003, set up a blog where he would publish his compositions.[3] Tataloo’s career began as an illegal ‘underground’ rapper, directly criticising the government for not providing him with a legal outlet for his music. He has repeatedly sought to obtain official licenses for the release of his music from the Ministry of Culture and Islamic Guidance, but to no avail. Indeed, to this day, very few rap albums have ever been approved by the Ministry for official release.[4] For this reason, Tataloo chose to publish all his music online.[5] On three separate occasions, the rapper has been detained at the orders of Iranian authorities: 2013, 2016 and 2020. In December 2013, Tataloo was briefly arrested by the Iranian gasht-e ershād [morality police] on charges of cooperating with foreign satellite news channels[6]. The rapper was arrested for a second time in 2016 on charges of ‘ tashviq be fesād u fahshā ’ [encouraging corruption and prostitution].[7] It was later revealed that the cause of his arrest was an audio file posted to his Instagram, which lead to Tataloo being charged with several crimes, such as insulting a government official, qazf [accusing someone of adultery or sodomy], and inciting threats.[8] Finally, in January 2020, Tataloo was arrested for a third time by Turkish authorities in Istanbul, who stated that Interpol had issued a ‘red notice’ for him. This notice was reportedly issued by Iranian judicial authorities who accused him of ‘encouraging citizens, especially young people, to use drugs, especially psychotropic drugs, and for spreading corruption’.[9] Having once held the most followed account on Instagram, Tataloo also broke several other records on social media, such as the most comments on a single Instagram post: 18 million[10], and the most viewed live broadcast on Instagram: 626,000 views.[11] The rapper, in the court session during his first arrest, suddenly stood up and stated: ‘ nemi tavānid harkāri mi khāhid bā man bekonid; man milionhā havadār dāram ’ [You can’t do whatever you want with me; I have millions of fans].[12] After his arrest in 2016, his fans took to social media to defend him and demand his release, posting 700,000 comments on Instagram, including on the accounts of the Supreme Leader Ayatollah Ali Khamenei, saying that musicians do not belong in jail. According to the data recorded by the users themselves on Twitter, these reactions came from two age groups: 13 to 17 years old and 18 to 24 years old.[13] The rapper’s immense popularity on social media has allowed him to explore a space in which he can express himself freely, uninhibited by most of the cultural and political restrictions facing musicians living in Iran. Tataloo’s unofficial online releases, which have been published and shared endlessly on social media apps such as Telegram and Instagram, essentially sidestep the state’s official cultural institutions. The public forums and comment sections which surround these releases represent a worryingly opaque space for hardline Iranian authorities, where fiery young people could possibly gather to chat about subversive beliefs or to ‘spread corruption’. Overall, Tataloo occupies a highly contested position in Iranian society. The rapper’s most ardent fans refer to themselves as ‘ tatāliti ’ [Tatalites], and have written a 500-page fan book compiling his biography, transcribed interviews and his complete lyrics. They follow certain rituals inspired by their idol, such as the ‘ dure-ye pāki ’ [period of purity]: fourteen days in which fans should not eat or smoke, sin or have relationships with the opposite sex, and should exercise daily. Tataloo even designed a flag for his fans.[14] As a result of the near-zealotry of his fans, he has been perceived as a cult leader or as a fraudster who exploits the vulnerability of adolescents.[15] Literature Review Popular music and politics in Iran The relationship between music and politics in Iran is a complex tapestry, in which several interweaving power structures have varying degrees of influence over music’s permissibility, making the latter exist in a constant state of negotiation. Rap music, which is the focus of this article, stands in marked contrast to other genres of popular music: rappers are very rarely granted a license from the Ministry of Culture and Islamic Guidance, without which it is illegal for any musician to record or release music. Tataloo’s pigeonholing in scholarship as either a protest rapper or a pawn of Iran’s propaganda centres prevents us from understanding the implications of his unique position in Iranian society. Both Nooshin[16] and Semati[17] have drawn attention to the reductionist binaries which dominate discussions of popular music and power in Iran, with overly simplistic conceptions of hegemony and resistance, reformists and hardliners, modernity and tradition, etc. Indeed, in their haste to view music through the lens of politics, scholars have missed something fundamental about music: its aesthetic value. Street[18] and Steward[19] stress the danger of looking at music purely through a political lens when, for many, it functions primarily as a source of aesthetic pleasure. Within the context of Persian cultural studies, this sentiment is echoed by Nooshin, who discusses the romanticisation of ‘resistance’ in representations of Iranian popular music.[20] In over-politicising music scenes in Iran, she argues that scholars disregard or push other equally important aspects of musical activities to the margins, and that this portrayal is more representative of the author’s beliefs than the motivations of the musicians. The political fetishisation of musicians from the Middle East has also been discussed by Swedenburg[21] in relation to Palestinian musicians, who finds that their music is only appreciated if it fits within a narrative of Palestinian resistance. The necessity of stepping beyond reductionist narratives of hegemony and resistance in interpretations of popular music is crucial to the analysis of Tataloo’s music, motivations, and persona. Laachir and Talajooy’s book, though centred around Resistance in Middle Eastern Cultures , compiles several convincing examples of how to surpass oversimplification in analyses of resistance.[22] Mozafari, for example, succeeds in conveying the resistance of solo female vocalists, a marginalised group in Iran, whilst still granting them agency.[23] By focusing on the social and professional implications of these musicians’ strategies to resist censorship, Mozafari provides a multifaceted perspective of the significance of this form of resistance. The works cited above stand as the exception that proves the rule, revealing the gap in current scholarship of accounts of popular music that examine the differing motivations of musicians beyond the purely political. Iranian rap music Beyond its subversive potential, there are several more aspects of rap music worthy of scholarly investigation. Ranjbar insists that all rap music in Iran should be considered oppositional due to its unofficial and highly contested nature, regardless of whether the lyrics of songs are political, however this assertion rests on the idea that rap music is entirely ‘underground’.[24] This is a misleading and reductionist term which fails to account for the several occasions on which rap albums have been licensed by the Islamic Republic’s Ministry of Culture, as early as 2003,[25] or on which rappers have collaborated with the state’s media centres.[26] Although such examples are as of yet relatively uncommon, they problematise Ranjbar’s clear-cut model of resistance and hegemony. Few English-language works in scholarship supersede this binary in their analysis of rap lyrics. In Persian, however, some scholars treat the oppositional lyrics of rappers with more nuance. Goudarzi and Alvandi, whilst focusing on counter-hegemonic themes, reveal the numerous socio-economic topics tackled by rappers beyond the purely political: widespread poverty, unemployment, corruption, or addiction.[27] Similarly, Kowsari and Mowlaei emphasise how Iranian rap music, in addition to being a marginal discourse in society, itself contains several dominant and marginal discourses; radical protest only constituting one of the nine discourses they identified. These discourses indicate several other lyrical themes worthy of scholarly investigation, notably feminism and hedonism.[28] Tataloo is acknowledged as one of the main rappers in the latter discourse, stressing the need to consider his position in Iranian society with an aesthetic angle, and from the perspective of his audience. It is relevant to consider how Iranian rappers have been classified in scholarship, and whether Tataloo fits neatly into these categories. As I have already mentioned, Kowsari and Mowlaei grouped rappers into certain themes of discourse, based on an analysis of their song lyrics. The consensus, however, is that categorisation based on the goals and motivations of rappers is the most useful.[29] Johnston and Ranjbar divide these musicians into three categories: aggressive ‘gangsta’ rappers who break taboos, moralistic rappers who strive for social awareness and commercial ‘pop’ rappers. As Golpushnezhad[30] and Johnston28 point out, however, the traditional distinction between ‘political’ and ‘party’ rappers is of limited use: many artists known for poppy, superficial songs became outspoken critics of President Ahmadinejad during the 2009 Green Movement, including Amir Tataloo.[31] Whereas rap remains essentially unauthorised and unofficial in Iran, several genres, like pop and rock, have now become legalised and accepted following a period of illegality in the wake of the Islamic Revolution. Nooshin argues that whereas in the 1980s the Islamic Republic essentially gave pop music its subversive power by banning it, in the following decade, the government appropriated this genre and embedded it into official establishment institutions in order to render it safe, controllable and docile.[32] She later discussed the recurrence of this trend with the genre of rock music.[33] Siamdoust points out that the Islamic Republic would rather bring certain music under its control and express a vacuous joy through it, than permit musicians to freely express real, potentially subversive feelings.[34] Only Golpushnezhad has specifically focused on this trend of appropriation in rap. By dividing an analysis of Iranian rap music into three chronological phases, she argues that it has evolved from being completely marginal and unauthorised, to a genre partially supported and funded by the IRGC.[35] New nationalist propaganda There is general agreement in scholarship that Iran’s youth is the demographic that the Islamic Republic is most focussed on to preserve its political legitimacy and perpetuate its revolutionary values. Bobbio, Khatam, and Zimmt argue that the Islamic Republic’s lack of support from the youth arises from its failure to respond to their demands of economic and social freedoms. Their analysis of the political situation in Iran, however, tends to be overly reductionist; the broad assertions that young people are moving away from Islamic values towards a ‘Western’ (read ‘liberal’, ‘democratic’) lifestyle[36] and that Iran is essentially a ‘post-Islamist’ society[37] reveal more about the author’s political fantasies than those of the young Iranian population. In addition, Bobbio’s claim that Western-inspired music is forbidden in Iran betrays a rather superficial understanding of the Iranian cultural sphere: far from being banned, pop and rock music have gradually become endorsed by the Islamic Republic’s cultural centres.[38] Other scholars offer more nuanced and valuable perspectives, such as Varzi[39] with a wide focus on various forms of data (media, newspapers, interviews etc.) and Bajoghli, with detailed findings obtained through two years of participant observation. Propaganda producers in the Revolutionary Guard espouse a view that through their work, they have ‘distanced [them]selves from young people and that’s the real danger’. Alongside this perceived estrangement exists an acute awareness that the young population would be unlikely to defend the regime in times of crisis, as their fathers and grandfathers had done during the Iran-Iraq War: ‘we could turn into Syria!’[40] In addition, their argument that the regime’s cultural producers are redirecting propaganda away from a traditional Islamic conception of nationalism towards one that emphasises Iran’s uniqueness is highly significant, as it reveals the motives behind the production of new forms of nationalist propaganda in Iran, such as Tataloo’s music videos Energy Hasteei [Nuclear Energy] and Shohadā [Martyrs]. In examinations of this new form of propaganda, however, too much agency has been granted to the media producers of the IRGC, rather than the artists involved. In all accounts of Tataloo’s collaboration with conservative branches of government,[41] the rapper is never treated as anything more than a puppet of the regime’s propaganda centres. Bajoghli’s call for the need in scholarship to perceive regime media producers as ‘complex actors’ is not extended to the musicians and directors who actually create the nationalist promotional material—the question of who these artists are, and whether they are all fully supportive of the regime, remains wholly unexplored. In valuing the regime producers’ experience over that of the artists they employ, this scholarship has inadvertently reproduced the authoritarian and prescriptive dynamics between official cultural institutions (the Ministry of Islamic Culture and Guidance, the Islamic Propaganda Organisation) and Iranian artists; artists have been stripped of their agency and have failed to be considered beyond the gaze of the state and its intentions. An exploration of Tataloo’s unique status would encourage a multifaceted portrayal of the artists involved in regime-supported media, and help paint a fuller, more complex picture of all the actors involved. Sources and method The first two music videos by Tataloo selected for analysis, Energy Hasteei [Nuclear Energy] and Shohadā [Martyrs], were produced in collaboration with regime media producers and the third, Jahanam [Hell], was released independently. Together, they reveal the broad evolution in Tataloo’s beliefs, values, and aesthetics from 2015 to 2020. Since it is impossible for rappers to appear on state media and in concerts, the virtual space of these Internet-propagated mediums is the only concrete link between the rapper and his audience. Whereas most sources discussed above tend to primarily examine the messages found in the lyrical text of these music videos, their visual and musical form is also worthy of investigation. The first two videos do not merely convey the regime media producers’ nationalistic messages—they also entertain with aesthetic elements, and form a part of Tataloo’s artistic image. Further, the context of their production is highly significant— Jahanam [Hell] is all the more significant due to the stark contrast it draws with the relatively conservative aesthetics of Energy Hasteei [Nuclear Energy] and Shohadā [Martyrs]. Section 1: Propaganda, entertainment or more?—Amir Tataloo through his music videos Energy Hasteei [Nuclear Energy] ‘h ich qodrati nemi tavānad melat-e Irān rā az dāshtan-e energi-ye salah āmiz-e hasteei mahroum sāzad ’ [No power can deprive the Iranian nation of peaceful nuclear energy]. This Persian phrase, appearing at the beginning of Energy Hasteei [42] (0:01), is the most straightforward expression of the music video’s message. Most striking, however, is the sight of Tataloo, a rapper previously shunned by the Iranian regime, singing and dancing on the deck of the IRIS Damavand, the flagship of the Islamic Republic of Iran Navy’s northern fleet.[43] This image quickly captured the attention of international media, who, in conventionally sensationalist terms, noted the significance of such propaganda being released in the final stages of the Iran nuclear talks in Vienna.[44] It is clear why international journalists exclusively focused on the music video’s elements of propaganda—these are the most immediately apparent, and require only a basic knowledge of Iran’s nuclear policy to decode.[45] Visually, there is an evident involvement of the regime in the music video’s production, in the presence of soldiers, a navy frigate and a not-so-subtle portrait of Khamenei in the background.[46] The song’s lyrics (helpfully translated into English for the benefit of international audiences) condemn the hypocrisy of foreign powers in prohibiting Iran from developing nuclear energy whilst being in possession of nuclear weapons: ‘If it’s bad, then it’s bad for you too!’ Tataloo questions why critics have focused on the negative aspects of nuclear energy, when all things contain both ‘good’ and ‘bad’: the sky can provide ‘rain’ but also ‘hurricanes, lighting and hailing’, a fire can both ‘burn’ and be ‘warm’, and water can both ‘drown you’ and ‘save you from thirst’. There is a sudden escalation in analogies however, when the same judgement is applied to guns: they can ‘kill’ but also ‘protect your homeland’.[47] Here, firearms are posited as an extension of nature, hence making it seem perfectly natural for a nation like Iran to develop the capacity for nuclear energy. Released in the final moments of the JCPOA’s negotiation (an agreement on the Iranian nuclear program), this message reads as a nationalistic cry of victory. Bajoghli discusses a new tactic employed by regime media producers to make their propaganda less easily identifiable—they create small and unidentifiable production studios, still funded by the Revolutionary Guard and the government’s cultural budget, but not directly affiliated with them.[48] Indeed, nothing in the music video nor the ‘behind-the-scenes’ footage published alongside it suggests that this video was funded by these organisations—besides one small detail. In its final frame, acknowledgements of all the military divisions who assisted with the music video’s production are followed by a reference to ‘ shabake-ye interneti-ye nasr ’ [Nasr Internet Network].[49] The ‘ darbāre-ye mā ’ [About Us] section of this production studio’s website reveals that it was founded in order to combat the domination of the ‘ mafiyā-ye resāne-ye sihonisti ’ [Zionist media mafia],[50] betraying some of the Revolutionary Guard’s harsh anti-Israeli zeal.[51] There are several elements of Energy Hasteei , however, that journalists and scholars alike have omitted in their focus on its nationalistic propaganda—who the video is addressing and how the video addresses this audience. The populist message in Tataloo’s lyrics, portraying him as a simple, everyday Iranian who is unaware of ‘what is happening in [his] country’ but who senses ‘a scent of exhaustion’[52] is not only meant for an audience in Iran. The fact that this was Tataloo’s first music video to come with English subtitles is not a mere coincidence: the video was clearly intended to have a global reach. At regular intervals, images of ‘normal’ Iranian citizens holding posters with English slogans appear, urging viewers not to ‘let the media fool [them]’, and declaring that Iran is a ‘peacful’ (sic) nation who has ‘never invaded a country’.[53] Behind these citizens are some of the most popular Tehrani sites that any tourist would recognise: the Azadi and Milad towers (0:42, 1:48), the Darabad quarter leading up to the Alborz mountains (0:34) and the capital’s train station (0:16).[54] Tataloo’s assertion that ‘silence is for statues’[55] also gives the impression that he is a courageous hero speaking out against injustice, a narrative that is easily digestible for foreign viewers who only have a superficial knowledge of Iranian politics. Beyond this political narrative, however, there is also something else at play. Conventional aesthetic elements of hip-hop music videos are appropriated and sanitised in Energy Hasteei , in order to instinctively appeal to Iran’s young population, without crossing any of the government’s cultural red lines. The standard rap trope of backup dancers, usually a troupe of attractive women or members of the rapper’s clique, is here replaced by stone-faced soldiers in uniform performing a drill with their rifles in hand. These servicemen can even be seen singing along to the song’s chorus.[56] Considering dance’s position as the most vilified art form in Iran,[57] the use of a military drill as a substitute for backup dancing allows the video’s producers to preserve the form of a hip-hop trope whilst avoiding any problematic display of immodesty. Similarly, the fog machine typically employed in music videos for atmospheric effect is here replaced by smoke grenades and the navy ship’s funnels.[58] A parallel process of the militarisation and sanitisation of hip-hop tropes is also audible in the music of Energy Hasteei . Several conventional elements of rap music are present, such as a groovy, hip-hop style break being played on the drums, as well as floaty arpeggiated melodies from a keyboard in the verses. In the chorus, however, a noticeable shift takes place.[59] Monotone, choir-like backing vocals, short staccato notes on the strings, and intermittent shouts all imbue the music with an element of tension, more typical of military parades or anthems than rap songs. Shohadā [Martyrs] The music video for Amir Tataloo’s song Shohadā [Martyrs] was released on September 23 2015, during Sacred Defence Week, Iran’s most important annual commemoration of the Iran-Iraq war, for which the government schedules public events, television and radio shows. The narrative of martyrdom has its origins in the Battle of Karbala (680 AD) during which the grandson of the prophet Muhammad, Hussain ibn Ali, was killed and beheaded. In fact, virtually all Shi’i imams excluding the 12th are conventionally believed to have been killed in their youth by their opponents. Consequently, shahādat [martyrdom] is intrinsically linked to the ideal of heroism in Shi’ism. In Hamid Dabashi’s words: ‘the only hero is a dead hero’.[60] When Iraq invaded Iran in September 1980, Ayatollah Khomeini was provided an ideal opportunity to strengthen his authority as a religious leader. The largest mobilisation of the Iranian population was essentially achieved by embracing martyrdom as ‘state policy’.[61] The phrases jang-e tahmili [imposed war] and defā’e muqaddas [sacred defence] became common in public discourse, due to their implication that fighting on the front, more than a protection of the nation, constituted a heroic religious act.[62] Released only two months after Energy Hasteei , the music video for Shohadā similarly represents the desire of regime media producers to move away from traditional Islamic conceptions of nationalism towards those that will resonate with Iran’s youth. Much like the Museum of Sacred Defence, opened in 2012 in Tehran, Shohadā redirects the narrative of martyrdom: instead of being seen as a heroic deed or a path to heaven, dying for one’s country is portrayed as being brutal, but necessary. Shohadā opens with a dedication in Persian: ‘ be khānevādehā-ye shohadā-ye jang-e tahmili va hasteei ’ [to the families of the martyrs of the imposed and nuclear war].[63] The video is essentially comprised of three perspectives: soldiers dying at the front, the assassinations of nuclear scientists, and Amir Tataloo paying tribute by singing and rapping. Throughout the music video, the casualties of the ‘imposed’ Iran-Iraq war are visually equated with the assassinations of nuclear scientists, which the state claims were orchestrated by Israeli spies.[64] This parallelism allows regime producers to renew the narrative of martyrdom for a new generation by presenting scenes that young people will be familiar with, since the assassinations portrayed are seemingly based on real events: the first[65], on Mostafa Ahmadi Roshan’s killing by car bomb[66] and the second,[67] on the drive-by shooting of Darioush Rezaeinejad in 2011.[68] The core message here, that all those who die for the state are martyrs, is expressed in several ways which aim to appeal to young people. Firstly, the emotional impact of the assassinations is increased by portraying the victims as ‘ sāde va ‘āsheq ’ [simple and in love]: the first is shown buying a teddy bear, presumably for his love interest, moments before his death, and the second is shown laughing with his wife on the doorstep of their home.[69] Secondly, the image of such a popular celebrity as Tataloo standing in front of coffins draped with the Iranian flag presents a role model for young people to follow in the expression of their nationalistic grief. Furthermore, Tataloo’s singing and rapping conveys grief through a medium that the youth will be able to relate to: ‘ bazi harf-hā geriye dārand ’ [some words cry]. Finally, his assertion that anybody can give their life for their country, ‘ farq nadāre ke jensi, ke rangi, ke qomi ’ [no matter what gender, colour or ethnicity], reads as a rather unusual attempt to appeal to the more liberal tendencies of Iran’s youth.[70] Amir Tataloo, though taking centre stage in Energy Hasteei and Shohadā , has failed to have been considered as a complex character. Any investigation of his motivations, actions and goals in the context of the music videos has been omitted in favour of what he represents: a shocking symbol of the regime’s desperation to appeal to young people, or of rap’s appropriation for the purposes of propaganda. It is no less important to ask what Energy Hasteei and Shohadā mean for Tataloo, lest he be treated as a mere pawn of the regime’s media producers. Though the rapper claims ‘No, I am not involved in political games’,[71] for over a decade he has either been directly associated with politicians, sung about political issues, or taken a public stance on contemporary political issues. In 2009, Tataloo sang in support of the reformist politician Mir Hossein Mousavi during the Iranian parliamentary elections, with the song Irān-e Sabz [Green Iran]. Keeping in mind also that Tataloo was arrested in 2013 for appearing on unauthorised satellite channels, such high-profile, state-supported productions as Energy Hasteei and Shohadā could be seen as providing the rapper with an opportunity to reinvent himself, and wipe his slate clean in the eyes of the Ministry of Culture and Islamic Guidance. Certainly, his attire in the music videos suggests as much: the understated tones of his clothing, his beard and the Islamic prayer beads around his neck would seem far more tolerable to government officials than his trademark long hair, exposed chest, arm tattoos and cross necklace. Jahanam [Hell] Tataloo’s music video for Jahanam , released independently in 2020, is far more ambitious than Energy Hasteei and Shohadā , both conceptually and in terms of production value. In duration alone, Jahanam has a longer runtime than both of the state-funded projects combined. Where Energy Hasteei and Shohadā were both literal and realistic in their narratives, Jahanam stands as a multi-layered symbolic exploration of hell through themes of depression, betrayal and political injustice. Three scenarios are juxtaposed in Jahanam , all of which end in Tataloo’s death. The first shows the rapper walking to the edge of a rooftop, looking down at a city, only to turn around and be pushed off by his double.[72] This marks the culmination of his character’s increasingly deteriorating mental state, reflected in the song’s lyrics: ‘az hamishe ghamgin taram’ [more depressed than ever], ‘ chizi namunde azam’ [there’s nothing left of me] and ‘ jahanam mirize tu tanam’ [hell is pouring into me].[73] Here, hell is used as a symbolic representation of a dark mental state, from which there is no escape. In the second narrative, Amir Tataloo depicts a passionate love affair which ends in heartbreak. This hell—the pain of his lover’s betrayal—is expressed visually through Tataloo’s second death: moments after being resuscitated by a doctor, his partner plants a kiss on his lips and proceeds to stab him in the heart.[74] The third narrative portrayed in Jahanam is arguably the most intricate: Tataloo’s tale of incarceration and torture functions on both a symbolic and a literal level. Jahanam opens with a scene of Tataloo on trial—he is seen standing in the defendant’s podium in a prison uniform and handcuffs. Following this trial, Tataloo is violently thrown into a prison cell[75]. It quickly becomes clear, however, that this tale of imprisonment is more than just a metaphor for his vilification and ostracization by society. The song’s lyrics suddenly become very literal: ‘bāyad jelo bāzpors chet furan barge ru pureh kossher konam’ [I have to fill the paper with a bunch of bullshit in front of the interrogator] and ‘mige bas ni bāzam benevis be ki vasli martike olāq?’ [he orders me to write more and asks me: who are you working for, you prick?].[76] The tendency of the Iranian criminal justice system to crack down on artists for ludicrous charges is well documented[77], and here Tataloo reveals another face of hell, a country where his fate is either ‘a’dām ya qafs’ [execution or a cage][78] (‘ Jahanam’ 5:12). The injustice of this system is not only expressed through the very direct portrayal of abuse in an interrogation cell, but the image of a prison guard psychotically attempting to stab a bird with a screwdriver through the bars of its cage.[79] Whether or not one enjoys Tataloo’s character or music, it is undeniable that Jahanam uncovers an artistry which transcends the rapper’s one-dimensional portrayal in scholarship and media as a mere party rapper or a puppet of the Revolutionary Guard’s media centres. In addition, it is hard to think of a greater change of lifestyle than Tataloo’s in between Energy Hasteei and Jahanam . Whereas the rapper appears as a model Islamic citizen in the former, his self-portrayal in Jahanam deliberately crosses the regime’s cultural red lines, as if he is keen on provoking officials at every turn. The music video shows Tataloo drinking whisky, cracking a whip whilst staring at a woman’s derriere and smoking cannabis.[80] Tataloo’s lyrics, too, in addition to being sexually explicit, also contain numerous examples of profanity. With Janaham , Tataloo consciously crosses the point of no return in attempting to appeal to the Iranian authorities—the values espoused in Jahanam are the polar opposite of regime-friendly. Energy Hasteei and Shohadā stood out upon their release in 2015 due to their impressive visuals, and seemed to suggest that regime-funded music videos were far superior in production value to those independently released by rappers. The video for Tataloo’s Jahanam , however, reveals that such a large contrast no longer exists in 2020: unofficial rappers are now able to release productions which rival the quality of state-supported projects. A small sign in one frame of Jahanam reveals that the music video was filmed in Turkey: ‘ hasta hizmetleri ’ [patient services],[81] where Tataloo currently lives. The new trend of Iranian rappers releasing immensely popular tracks and music videos from abroad— Jahanam has 3.5 million views, and the LA-produced Tehran Tokyo by Tataloo’s friend Sasy has 5 million—is reminiscent of Iranian expatriate music releases in the 80s and 90s. So-called Tehrangelesi [a portmanteau of Tehran and Los Angeles] musicians were able to reach Iranian audiences on the black market through cassettes—a new technology far harder for authorities to confiscate and which listeners could copy with ease.[82] It would seem that for this recent wave of rappers, who have also left Iran and are taking advantage of the possibilities of a novel medium, social media is the new cassette. Section 2: The legitimisation of rap in Iran Whether rap music is to become fully sanctioned in Iran remains in question. However, it is clear that a process of co-option and sanitisation has begun in relation to rappers, their music, and aesthetics. If this trend were to continue, rap would join both pop and rock as genres which were once entirely subversive, but gradually became adopted into official state framework in order to rid them of any disruptive potential. The figure of Amir Tataloo, as the most noteworthy and infamous rap musician involved in politics, provides a valuable angle from which it is possible to consider on what arenas the legalisation of rap music could play out, and who could contribute to its unfolding. As explored in the first chapter, music videos funded by the Revolutionary Guard’s media centres such as Energy Hasteei and Shohadā mark the beginning of a co-option of rappers and the aesthetics of their music for the purpose of making nationalist propaganda more appealing to young people. As such, they constitute an important arena through which rappers could gain a higher profile, and their music could gradually become more acceptable. If, like the Chinese government,[83] the propaganda centres of the Islamic Republic such as the IRGC or the Islamic Propaganda Organisation continue to fund and produce music videos to further their message, this would undoubtedly improve rap’s reputation amongst even the most hardline branches of the state—as it would demonstrate that even the vilified rap music can be used to promote the values of the Islamic Republic. Social media provides a space both for famous rappers to gain official social recognition, and for the transmission of hardline political views. Tataloo has published several posts in support of the Ayatollah and the Revolutionary Guard, and has sought to legitimise himself through social media in other ways, such as appearing alongside celebrities that are accepted in the official sphere. As an example, the rapper attended a Persepolis F.C. training session in April 2020 and was photographed alongside famous footballers such as Payam Sadeghian and Mohsen Bengar.[84] Such photoshoots are beneficial for both parties involved: footballers are able to gain publicity through Tataloo’s countless social media followers, and the rapper, by association with figures that are legally recognised by the government’s cultural system, acquires an air of legitimacy and greater cultural influence. The presence of unlicensed yet popular musicians at official events and conferences is an additional site for the negotiation of rap’s legitimacy: much like with footballers, appearing alongside eminent politicians allows rappers to seem endorsed by the regime, whereas politicians can extend their sphere of influence to the musicians’ young fanbase. The principlist politician Hamid Rasaee, prior to denouncing Tataloo for his ‘heretic’ views on Instagram, was seen shaking the rapper’s hand and gifting him a ‘prize’ caricature at a Fars News ceremony in July 2017.[85] Fars News is the ‘semi-official’ news agency of the Iranian government, associated with the Revolutionary Guard[86]—suggesting that Tataloo’s relationship with the latter extended beyond the production of music videos or the publishing of conservative opinions on his social media. Undoubtedly the most significant of these encounters between rappers and hardline politicians remains Tataloo’s meeting with Iranian president Ebrahim Raisi in May 2017. This ‘Elvis Meets Nixon’ moment came as a shock to many Iranians, not least for the sheer absurdity of seeing the two figures sitting side by side: the rapper’s tattoos, visible on his bare forearms, strongly juxtapose with Raisi’s sombre black cleric robes.[87] Beyond their appearance, Tataloo’s career path and past arrests for ‘encouraging prostitution and corruption’ appear wholly irreconcilable with Raisi’s exceptionally conservative politics: the latter was named as one of the four figures who led the 1988 executions of Iranian political prisoners, in which over 5,000 political dissidents were imprisoned, interrogated and killed because of their opinions or non-violent campaigning[88] (‘Blood-Soaked Secrets: Why Iran’s 1988 Prison Massacres Are Ongoing Crimes Against Humanity’). In a video of the meeting, Raisi is noticeably uncomfortable as they discuss Imam Reza, the eighth Imam in Twelver Shi’ism, and his national significance: Tataloo asserts that Imam Reza is not just for clerics but ‘ barā-ye hame-ye Irān-e’ [but for all Iranians!].[89] Indeed, Raisi is also the custodian for the Imam Reza shrine in Mashhad, and the son-in-law of Ahmad Alamolhoda, the prayer leader and Grand Imam of the shrine who, incidentally, banned all music performances in the city of Mashhad.[90] Raisi was in the midst of his presidential bid when the video of his meeting with Tataloo was released in May 2017, and many joked that the rapper cost him the election, as Rouhani was re-elected.[91] The implications of this encounter, however, between hardline cleric and unauthorised musician, are quite serious. The fact that such a conservative politician would even consider meeting a rapper, let alone release a video of their encounter, is a testament to the hardliners’ sheer desperation to appeal to young people. It also suggests that similar compromises in the future could pave the way to the legitimisation of unauthorised musicians. Despite the fact that Tataloo emigrated to Turkey, and spoke out against the regime and Islam in Instagram posts and his music video Jahanam , his popularity on social media continues to be exploited to spread conservative political messages. In December 2020, a video recorded from Instagram Live was posted on Youtube by the channel ‘Amir Tataloo Original Fan’. In the video, an older woman discusses sexual topics with a teenager in order to encourage him to delete Instagram.[92] Iran’s Communications and Information Technology Minister, Mohammad Javad Azari-Jahromi, stated that a ‘certain hardline thinktank’ was responsible for the widespread distribution of the video, which reached half a million views on Youtube.[93] What is unusual about this video, however, is the appearance of the woman, Mina Namdari. She appears without a hijab (compulsory in Iran) and with visible cleavage and a bottle of wine in her hands (though she fails to actually drink from it during the video). It is difficult to understand why a hardline think tank would promote such a video that is blatantly in transgression of Iran’s modesty laws, unless one considers the Revolutionary Guard’s tendency in recent years to attempt to conceal their role in the production of certain propaganda videos.[94] IRGC producers often include profanity and anti-regime messages in their media in order to mask the fact that it is propaganda. With this video, it seems as if hardline producers are hiding their involvement by employing a woman who superficially appears to be breaking the Islamic Republic’s modesty laws. There exist several stakeholders which negotiate the legality and legitimacy of rap music through the arenas outlined above. Media producers in the Islamic Revolutionary Guard Corps such as Reza Hosseini believe that they need to ‘tell better stories’[95] to young people through their content, so that they do not feel ostracised by nationalistic or revolutionary values; they recognise a need to speak ‘in the language of youth’. By pushing their sanitised and professionally-produced appropriation of rap into the limelight, they are also able to detract attention from its more subversive form, essentially silencing any voices of dissent. Their enduring interest in rap as a means to talk to young people, even after Amir Tataloo has turned against them, is clearly visible in the propaganda video published through a Tataloo fan page on Youtube. Hardline politicians too, such as Hamid Rasaee and Ebrahim Raisi, by appearing alongside Tataloo, essentially recognise rap music’s legitimacy and influence in Iranian society and bring it into an official framework. Politicians meeting such rappers displays this genre of music in the light of public attention, and suggests that their transgressive history can be overlooked on certain occasions –casting doubt on the legitimacy of rap’s illegality. Of course, the central factor in any question of rap’s possible legalisation in Iran remains the Ministry of Culture and Islamic Guidance, from which all musicians must obtain a license in order to perform and release any music legally. The ministry’s opposition to rap as a genre seemingly arises out of an aversion to its implications of Western influence, rather than out of any particular opposition to its musical aesthetics. It appears that it mostly fears the word ‘rap’, and its ‘European and American’ allusions, but recognises that there is potential for a legitimate form of the genre to be fully licensed in the future: the director of the ministry’s music department Pirooz Arjmand suggests that the term ‘ goft-avāz ’ [musical spoken word] be used to replace ‘rap’, which he asserts takes notice of a tradition of musical spoken word that existed far before rap arrived in Iran, called ‘ tartil khāni ’ [recitation].[96] Indeed, the arrest in March 2021 of producers associated with Sasy Mankan’s video Tehran Tokyo , in which he appears alongside American porn star Alexis Texas, reveals that combating the influence of these expatriate rappers still remains a matter of great concern to the Islamic Republic and its cultural centres. Several members of the Iranian parliament decried the video’s harmful influence, perceiving it as an issue of ‘ āsibha-ye rohāni [...] barāye kudakān-e bi dafā'e ’ [psychological harm to helpless children][97] or ‘ kudakān rā be tamāsha-ye pornogrāfi tashviq konad ’ [encouraging children to watch pornography].[98] The example of pop music’s legalisation, which partially arose from the government’s failure to quash the inflow of subversive expatriate pop in the 80s and 90s, suggests that the Ministry of Culture and Islamic Guidance would benefit from giving licenses to more rappers. Since they are unable to prevent the songs of expatriate rappers such as Amir Tataloo and Sasy Mankan from spreading through the internet, sanctioning a legitimate domestic rap scene would provide a viable alternative to the ‘obscene content’ these musicians freely release from abroad.[99] The IRGC as well as hardline politicians such as Hamid Rasaee and Ebrahim Raisi, perhaps inadvertently, provided Tataloo with a certain legitimacy and cultural standing by granting him an official stage. To a certain extent, propaganda posted through Tataloo’s fan pages reveals that the IRGC hardliners still recognise rap’s powerful influence. There is also the sense, however, that the compromise between hardline branches of the state and rappers such as Tataloo is no longer deemed beneficial to either party. Why would Raisi deem it necessary to resort to endorsing such controversial figures when presidential elections were rigged in his favour?[100] Furthermore, as Jahanam has shown, rappers no longer need to depend on the Revolutionary Guard’s media centres or the Ministry of Culture and Islamic Guidance in order to release professional music and video productions. The power of social media such as Instagram and Youtube has allowed certain rappers to create a ‘hyperground’ rap scene, which the Iranian government cannot censor and through which they can escape its restrictions. Though it is still uncertain whether rap music is to become fully legitimate in the next few years, the case of Tataloo suggests that rappers like himself hold immense influence over the future of the genre, and continues to stand as a strong symbol of rap’s persistence influence and significance in Iranian society. Conclusion If we are to know about Amir Tataloo, it is clear that a different approach is needed. Until researchers move beyond the overly simplistic narratives by which they define rappers, as either fighting against the regime or collaborating with it, they will fail to gain any real sense of rap music’s significance in Iran. In this article, I have attempted to provide several alternate perspectives which account for the multifaceted intersections between music and Iranian politics and paint a more complex picture of the status of rappers in Iranian society. Firstly, I have discussed how certain aesthetic aspects of Amir Tataloo’s music videos, which are taken for granted in favour of their immediate political messages, reveal deeper trends affecting rap music in Iran behind the scenes. In Energy Hasteei [Nuclear Energy] and Shohadā [Martyrs], certain tropes of hip-hop culture are co-opted and rendered ‘safe’: a troupe of backup dancers is replaced by a military parade, and smoke grenades become fog machines. Tataloo’s Jahanam [Hell] reveals that rappers no longer have to depend on funding from the Revolutionary Guard’s media centres in order to create visually impressive music videos. In addition, by juxtaposing the discourse between the videos funded by the IRGC and one which Tataloo released independently, I call for a more multifarious and subtle portrayal of the rapper: one which considers what these videos could represent from his perspective. Secondly, I have examined Amir Tataloo’s career and interactions with various branches of government in order to explore the negotiation of rap music’s legality in Iran. I have revealed how the IRGC and other conservative branches of government continue to recognise rap music’s influence, and the extent to which social media rappers from abroad constitute a threat to the strict guidelines of the Ministry of Culture and Islamic Guidance. It is worth considering whether such factors could lead to the emergence of an official form of rap music, vacuous and emptied of any potentially subversive meaning, as has occurred previously with the genres of pop and rock. Casper Alexander Sanderson Casper Alexander Sanderson has received an MA (Hons) in Arabic, Persian and Russian at the University of St Andrews, as well as an MPhil in Modern Middle Eastern Studies at the University of Cambridge, for which he was awarded the Prince Alwaleed Bin Talal Studentship Grant. [1] Theresa Parvin Steward, ‘I Am the Brave Hero and this Land is Mine’: Popular Music and Youth Identity in Post-revolutionary Iran (University of Edinburgh 2013) 22-130. [2] ‘Iranian Rapper Tataloo Reportedly Arrested in Turkey’ ( RFERL , 28 January 2020) < https://www.rferl.org/a/iranian-rapper-arrested-in-turkey-tehran-authorities-say/30402470.html > accessed 12 June 2022. [3] Mohammad Fowladi, Hell & Purgatory (Tatality.com, January 2020) 16-17. [4] Laudan Nooshin, ‘Hip-Hop Tehran: Migrating Styles, Musical Meanings, Marginalized Voices’ in Byron Dueck and Jason Toynbee (eds), Migrating Music (Routledge 2011) 99. [5] Fowladi (n 3) 16-17. [6] ‘ Amir Tataloo khānande-ye irāni bāzdāsht shod ’ [Iranian Singer Amir Tataloo Was Arrested] ( BBC Persian, 3 December 2013). [7] ‘ Amir Tataloo be etehām-e ‘tashviq be fesād u fahshā’ bāzdāsht shod ’ [Amir Tataloo Was Arrested on Charges of ‘Encouraging Corruption and Prostitution’] ( Voa News, 25 August 2016). [8] ‘ Barresi-ye hoquqi-ye anāvein-e etehami-ye Amir Tataloo ’ [Legal Investigation of the Accusatory Topics of Amir Tataloo] ( JameJamOnline , 3 September 2016). [9] RFERL (n 2). [10] ‘ Rekord-e tāze-ye Tataloo dar Instagrām ’ [Tataloo’s New Record on Instagram] ( Radio Farda, 4 September 2019). [11] Fern Taghizadeh, ‘ Live-e Instagrām dar qarantiye; az sargarmi va āmuzesh tā sokhanrāni va mosābehe ’ [Instagram Lives in Quarantine; From Entertainment and Education to Lectures and Interviews] ( BBC Persian , 13 April 2020). [12] ‘ Mored-e ajib-e Tataloo u tatalitihā ’ [The Strange Case of Tataloo and Tatalites] ( ISNA , 28 August 2016). [13] ‘ Talāsh-e tatalitihā ’ [The Endeavours of Tatalites] ( BBC Persian , 2 September 2016). [14] Fowladi (n 3) 17, 72. [15] ‘ Jomhouri-ye tatalitihā ’ [The Republic of Tatalites] ( Radio Zamaneh , 29 August 2016); ‘ Tasir-e tatalihā dar tartib-e nojavānān ’ [The Impact of Tatalites on Adolescents] ( Farhang News , 11 September 2016). [16] Laudan Nooshin, ‘Prelude: Power and the Play of Music’ in Laudan Nooshin (ed), Music and the Play of Power in the Middle East, North Africa and Central Asia (Routledge 2009) 1-31. [17] Mehdi Semati. ‘Sounds like Iran: On Popular Music of Iran’ (2017) 15(3) Popular Communication 155-62. [18] John Street, ‘‘Fight the Power’: The Politics of Music and the Music of Politics’ (2003) 38(1) Government and Opposition 113-30. [19] Steward (n 1). [20] Laudan Nooshin, ‘Whose Liberation? Iranian Popular Music and the Fetishization of Resistance’ (2017) 15(3) Popular Communication 163–91. [21] Ted Swedenburg, ‘Palestinian Rap: Against the Struggle Paradigm’ in Walid El Hamamsy and Mounira Soliman (eds), Popular Culture in the Middle East and North Africa: A Postcolonial Outlook (Routledge 2013) 17–32. [22] Karima Laachir and Saeed Talajooy (eds), Resistance in Contemporary Middle Eastern Cultures: Literature, Cinema and Music (Routledge 2013) 207-275. [23] Parmis Mozafari, ‘Female Solo Singing in Post-Revolution Iran’ (2013) in ibid 262-278. [24] Morvarid Ranjbar, ‘Emergent Culture: Iranian Rap Music as a Tool for Resistance’ (Wilfrid Laurier University 2016) 50-57. [25] Nooshin (n 4) 99. [26] Narges Bajoghli, Iran Reframed: Anxieties of Power in the Islamic Republic (Stanford University Press 2019) 99-106; Elham Golpushnezhad, ‘Untold Stories of DIY/Underground Iranian Rap Culture: The Legitimization of Iranian Hip-Hop and the Loss of Radical Potential’ (2018) 12(2) Cultural Sociology 271-73. [27] Mohsen Goudarzi and Alireza Alvandi, ‘ Musiqi be masabe-ye moqāvemat; mazamin-e kanterhezhemonik dar rap-e fārsi-irāni ’ [Music as Resistance; Counter-Hegemonic Themes in Persian-Iranian Rap] (2019) 8(30) Jām’e farhang resāne [Society Culture Media] 122–44. [28] Masoud Kowsari and Mohammad Mahdi Mowlaei, ‘ Gune-shenāsi-ye goftemānhā-ye musiqi-ye rap-e irāni-fārsi ’ [A Typology of the Discourses in Iranian-Persian Rap] (2013) 29(8) Motāle’āt farhang va ertebātāt [Cultural Studies and Communication] 91–116. [29] Sholeh Johnston, ‘Persian Rap: The Voice of Modern Iran’s Youth’ (2008) 1(1) Journal of Persianate Studies 102–19; Ranjibar (n 24) 50-54; Mahmood Shahabi and Elham Golpoush-Nezhad, ‘Rap Music and Youth Cultures in Iran: Serious or Light?’ (2016) 3 Youth, Space and Time 218–19. [30] Golpushnezhad (n 26) 268. [31] Nahid Siamdoust, Soundtrack of the Revolution: The Politics of Music in Iran (Stanford University Press 2017) 271-281. [32] Laudan Nooshin. ‘Subversion and Countersubversion: Power, Control, and Meaning in the New Iranian Pop Music’ in Annie Randall (ed), Music, Power, and Politics (Routledge 2005) 250-262. [33] Laudan Nooshin, ‘The Language of Rock: Iranian Youth, Popular Music, and National Identity’ in Mehdi Semati (ed), Media, Culture and Society in Iran: Living with Globalization and the Islamic State (Routledge 2008) 70; Laudan Nooshin, ‘‘Tomorrow Is Ours’: Re-Imagining Nation, Performing Youth in the New Iranian Pop Music’ in Nooshin (ed) (n 16) 246–249. [34] Golpushnezhad (n 26) 268. [35] ibid 262–73. [36] Raz Zimmt, ‘The Conservative Predicament in Iran’ ( Institute for National Security Studies , 2017) 2 < https://www.inss.org.il/wp-content/uploads/2017/06/No.-944.pdf > accessed 12 June 2022. [37] Azam Khatam, Struggles over Defining the Moral City: The Problem Called ‘Youth’ in Urban Iran (Oxford University Press 2010) 14. [38] Emanuele Bobbio, ‘Winning Back the “Left Behind”: Iran's New Nationalist Agenda’ (Istituto Affari Internazionali (IAI), 2018) 8 < https://www.iai.it/en/pubblicazioni/winning-back-left-behind-irans-new-nationalist-agenda > accessed 12 June 2022. [39] Roxanne Varzi, Warring Souls: Youth, Media, and Martyrdom in Post-Revolution Iran (Duke University Press 2006) 13-21. [40] Bajoghli (n 26) 15-22. [41] ibid 104-106; Bobbio (n 38) 8; Abbas Milani, ‘Iran’s 2017 Election: The Opposition Inches Forward’ (2017) 28(4) Journal of Democracy 30–37; Zimmt (n 36). [42] ‘ Energy Hasteei ’ [Nuclear Energy], ( Youtube , Amir Tataloo, 12 July 2015) 0:01 < https://www.youtube.com/watch?v=VywTiTVMHts > accessed 12 June 2022. [43] ibid 1:07-1:14 [44] Hanif Kashani, ‘Iranian Rapper Drops Bomb with Pro-Nuke Video’ ( Al-Monitor , 14 July 2015) < https://www.al-monitor.com/originals/2015/07/FOR%20WED%20iran-rapper-tataloo-video.html > accessed 12 June 2022. [45] Kay Armin Serjoie, ‘This Is the Surprising Way the Iranian Military Responded to the Nuclear Deal’ Time (New York, 16 July 2015) < https://time.com/3958928/amir-tataloo-iranian-military/ > accessed 12 June 2022; Ishaan Tharoor, ‘Watch: Iranian Rapper Celebrates Nuclear Power from the Deck of a Warship’ The Washington Post (Washington, 16 July 2015) < https://www.washingtonpost.com/news/worldviews/wp/2015/07/16/watch-iranian-rapper-celebrates-nuclear-power-from-the-deck-of-a-warship/ > accessed 12 June 2022. [46] Tataloo (n 42) 1:03, 1:06, 1:21. [47] ibid 0:04, 0:31-33, 0:42, 0:46, 0:59. [48] Bajoghli (n 26) 114. [49] Tataloo (n 42) 3:15. [50] NasrTV, ( NasrTV , 2021, fa.nasrtv.com/page/about). [51] Al-Monitor Staff, ‘IRGC Chief: Israel Could Be Blown up in a Single Operation’ ( Al-Monitor , 6 May 2021) < https://www.al-monitor.com/originals/2021/05/irgc-chief-israel-could-be-blown-single-operation > accessed 12 June 2022. [52] Tataloo (n 42) 1:38-41. [53] ibid 0:16, 0:36, 1:49. [54] ibid 0:42, 1:48, 0:34, 0:16. [55] ibid 2:44. [56] ibid 1:04, 1:19. [57] Parmis Mozafari, Negotiating a Position: Women Musicians and Dancers in Post-Revolution Iran (The University of Leeds 2011) 240. [58] Tataloo (n 42) 2:02, 1:38. [59] ibid 1:04-28. [60] Hamid Dabashi, Shi’ism: A Religion of Protest (Harvard University Press 2011) 82-4 [61] Roxanne Varzi, ‘Iran’s Pieta: Motherhood, Sacrifice and Film in the Aftermath of the Iran–Iraq War’ (2008) 88 Feminist Review 47. [62] Pedram Partovi, ‘Martyrdom and the “Good Life” in the Iranian Cinema of Sacred Defense’ (2008) 28(3) Comparative Studies of South Asia, Africa and the Middle East 522. [63] ‘ Shohadā ’ [Martyrs], ( Youtube , Amir Tataloo, 23 September 2015) 0:01 < https://www.youtube.com/watch?v=HK_A-tgM5C0 > accessed 12 June 2022. [64] Ian Black, ‘Bullet-Riddled Cars and Lush Gardens: Iran’s Memorial to Its ‘Nuclear Martyrs’’ The Guardian (London, 2 July 2015) < https://www.theguardian.com/world/2015/jul/02/iran-memorial-museum-nuclear-martyrs > accessed 12 June 2022. [65] Tataloo (n 63) 2:04-20. [66] Saeed Kamali Dehghan, ‘Iran Nuclear Scientist Killed in Tehran Motorbike Bomb Attack’ The Guardian (London, 11 January 2012) < https://www.theguardian.com/world/2012/jan/11/iran-nuclear-scientist-killed > accessed 12 June 2022. [67] Tataloo (n 63) 2:40-55. [68] Saeed Kamali Dehghan, ‘Iran Denies Assassinated Academic Worked on Nuclear Projects’ The Guardian (London, 25 July 2011) < https://www.theguardian.com/world/2011/jul/25/iran-denies-assassinated-academic-nuclear-connection > accessed 12 June 2022. [69] Tataloo (n 63) 2:02, 2:04, 2:43. [70] ibid 2:45, 2:30. [71] Tataloo (n 42) 2:02, 1:32. [72] ‘ Jahanam ’ [Hell], ( Youtube , Amir Tataloo, 15 Jan. 2020) 0:49, 3:22, 6:14 < https://www.youtube.com/watch?v=c1OELRZ0eOo > accessed 12 June 2022. [73] ibid 1:19, 6:11, 6:17. [74] ibid 5:42, 5:49, 5:57. [75] ibid 0:17, 1:10. [76] ibid 4:30, 4:45. [77] ‘Tortured Filmmakers and Musicians Face Imminent Arrest Amid Crackdown on Artists’, ( Amnesty International , 1 March 2016) < https://www.amnestyusa.org/press-releases/iran-tortured-filmmaker-and-musicians-face-imminent-arrest-amid-crackdown-on-artists > accessed 12 June 2022. [78] Tataloo (n 72) 5:12. [79] ibid 5:01, 5:35. [80] ibid 1:43, 1:44, 5:51. [81] ibid 3:39. [82] GJ Breyley and Sasan Fatemi, Iranian Music and Popular Entertainment from Motrebi to Losanjelesi and beyond (Routledge 2016) 141. [83] ‘Chinese Health Workers Dance and Sing in Music Video to Promote Covid Vaccine’, The Independent (London, May 2021) < https://www.independent.co.uk/tv/news/chinese-health-officials-dance-and-sing-in-music-video-to-promote-covid-vaccine-v68bb264d > accessed 12 June 2022. [84] ( Varzesh3 , 21 April 2020) < tinyurl.com/tataloofootball > accessed 12 June 2022. [85] Hossein Velayati, ‘Hamid Rasaee and Amir Tataloo’ (Wikimedia Commons, Fars News, 16 July 2017) < https://commons.wikimedia.org/wiki/File:Hamid_Rasaee_and_Amir_Tataloo_13960425001800636358248576455809_36810.jpg > accessed 12 June 2022. [86] Maryam Sinaiee, ‘Iranian News Agency Targeted by US Sanction Resorts to Hacking to Get Domain Back’ ( Radio Farda , 25 January 2020) < https://en.radiofarda.com/a/iranian-news-agency-targeted-by-us-sanction-resorts-to-hacking-to-get-domain-back-/30396680.html > accessed 12 June 2022. [87] ‘Jalase-ye Amir Tataloo bā Ebrahim-e Ra’isi’ [Amir Tataloo’s Meeting with Ebrahim Raisi], ( Aparat , amiromega, June 2020). [88] ‘Blood-Soaked Secrets: Why Iran’s 1988 Prison Massacres Are Ongoing Crimes Against Humanity’, ( Amnesty International , 2018) < https://www.amnesty.org/en/documents/mde13/9421/2018/en > accessed 12 June 2022. [89] (n 87) 0:50-5. [90] Rohollah Faghihi, ‘Senior Iran Cleric Faces down Culture Minister over Concerts’ ( Al-Monitor , 23 August 2016) < https://www.al-monitor.com/originals/2016/08/iran-mashhad-concerts-friday-prayer-leader-alamolhoda.html > accessed 12 June 2022. [91] Holly Dagres, ‘This Young Iranian Rapper May Have Cost Raisi the Presidency’ ( Al-Monitor , 31 May 2017) < https://www.al-monitor.com/originals/2017/05/iran-raisi-tataloo-tatalee-election-race-endorsement-rapper.html > accessed 12 June 2022. [92] ‘Amir Tataloo Original Fan’, ( YouTube , Amir Tataloo Original Fan, 17 December 2020) < https://www.youtube.com/watch?v=JMqe-B_1Ohc > accessed 12 June 2022. [93] ‘Iran Judiciary Prosecutes Communications Minister Over Internet Access’, ( Iran International , 20 January 2021) < https://old.iranintl.com/en/iran-politics/iran-judiciary-prosecutes-communications-minister-over-internet-access > accessed 12 June 2022. [94] Bajoghli (n 26) 114. [95] ibid 2, 100. [96] ‘Ayā vezārat-e ershād musiqi-ye rap rā be rasmiyat mi shenāsad?’ [Does the Ministry of Culture officially recognise rap music?] ( Tarāne Music , 13 May 2016). [97] Mojtaba Tavangar, ( Twitter, 2 March 2021) < https://twitter.com/motavangar/status/1366636303828340739 > accessed 12 June 2022. [98] Mohammad Sarshar, ( Twitter, 2 March 2021) < https://twitter.com/m_sarshar/status/1366637692038107137 > accessed 12 June 2022. [99] ‘Iranians Arrested Over Viral Video Featuring US Porn Star’, ( IranWire , 10 March 2021) < https://iranwire.com/en/features/69145 > accessed 12 June 2022. [100] Ali Vaez, ‘Iran’s Rigged Election’ ( Foreign Affairs , 16 June 2021) < https://www.foreignaffairs.com/articles/iran/2021-06-16/irans-rigged-election > accessed 12 June 2022.

Had any of the players who competed for the inaugural tennis grand slam of 2022 in Melbourne been complete (i.e. sovereign, self-governing) individuals, they would have declared the ‘AO’ boycott before the tournament started.[1][2] Not only because of Djokovic, but also because of Renata Voráčová. Not only out of the camaraderie with the two fellow members of the traveling circus which professional tennis (along with all other professional ‘spectator’ sports) has become, courtesy of the ‘contemptible money economy’.[3] Nor because of supporting Djokovic’s undoubtedly hard and inevitably controversial choice not to get vaccinated. Not even because the famed AO had fallen easy prey to inconspicuous electioneering by the incumbent government. The principled individuals would have abandoned the tournament in light of what the cases of Djokovic and Voráčová inadvertently told us about what we have become. The boycott, however, was unthinkable. It could never happen, not in a million years. The inverse vision emphatically unfolded as part of a history adorned with the narratives of the ‘great success’, ‘uplifting finale’ and reignited ‘GOAT’ debates. To borrow the self-righteous assertion of Victorian Premier Dan Andrews, echoed by many, ‘the Australian Open was bigger than Djokovic, much bigger’.[4] No doubt they were right, although it is less clear whether any of them thought through the repercussions of their emotional and patriotic endorsement of the AO’s hyperbole. It is no secret that we have long since dispensed with the critical gift of unhurried and prolonged contemplation.[5] As a result, we tend to become too wrapped up in today’s multitude of political whirlwinds, whether big or small, brief or protracted. Nietzsche warned us about the perils of foregoing the ‘ vita contemplativa ’ and living, instead, ‘as if one always ‘might miss out on something’. When this happens, he argued, ‘hours in which honesty is permitted’ become rare, and even when they arrive, we have no energy left to for them.[6] Heeding Nietzsche’s warning, we might stop to ponder ‘why not?’. Why wouldn’t the boycott happen, why couldn’t it, should there have been one and, most importantly, what does the highly publicised scandal around Djokovic tell us about ourselves? Admittedly, it has always been a tall order to expect athletes to act as a barometer of collective conscience. It is, however, not without precedent. Sport often ends up caught in the crossfire of politics, which has in recent decades marred and brutalised the Olympic spirit, still vaguely synonymous with the few remaining pockets of uncommercialised athletic endeavour. Still, past athletes have, on occasion, shone an uncomfortable and uncompromising light on the perils of a situation the majority might passively sanction as ‘normal’. Jesse Owens did just that in 1936. Today, inside the fact that the boycott could never happen, hides a small but important secret. It binds us in a manner we prefer to pass over in silence even though we must speak about it. The secret is that we have firmly forgotten the original meaning of the word ‘idiot’. These days, when we casually throw around the term ‘Cov-idiot’, we refer to someone dangerously (almost offensively) weak in their mental and ethical faculties, unable to recognise the blindingly obvious benefits of getting vaccinated. In so doing, we habitually misuse the term or, to be more precise, we utilise its inverted meaning . An ‘idiot’ (from the Greek ἰδιώτης , or ‘ idiotes ’), however, is not at all a ‘fool’ or mentally incapacitated.[7] Neither Aristotle, nor Dostoyevsky, nor Nietzsche thought so.[8] The root adjective ἴδιος (‘ idios ’) denotes a state of affairs which is ‘not shared’ or an individual who, akin to a branch torn from the tree, is ‘disconnected’ from a larger whole, ie whose communitarian sensibility has been disabled. In other words, an ‘idiot’ is simply a ‘ private person ’.[9] That is, ‘idiot’ is a designation for an individual whose psychic cord—informing and enabling their sense of the ‘communal’ and the ‘collective’—has been irreparably severed, turning such fragmented human beings into ‘ dividuums ’. These dividuums are those who can be re-assembled as the meaningless (in and of themselves) and disposable (Marx would say ‘commoditised’) cogs of new socio-economic wholes—the vast religious, industrial, commercial, and ideological, forms of repressive machinery.[10] Much as in ancient Athens ‘idiot’ denoted a person positioned, by choice or fortune, outside of the polis (i.e. a form of disenfranchisement) and made weaker and more vulnerable on account of such externalisation, today the same term denotes the basis on which we are re-incorporated into society—i.e., as idiots.[11] Put slightly differently, we are incorporated into society as subjects who have internalised our own disenfranchisement from the community and from the communal, and therefore as inevitably of lesser value than individuals. Nietzsche would remind us that two other forms of reactive power, namely religion (meaning Christianity) and slave morality, operate according to exactly the same principle, the ‘reversal of the evaluating glance’, in terms of creating obsequious subjectivity.[12] Don’t get me wrong, today’s ‘private persons’ are invariably clever, educated, sophisticated and endowed with high morals. Yet, having been moulded into ‘idiots’, they have unwittingly become vulnerable and susceptible to being fooled and manipulated, without even realising this.[13] Private persons arranged into a ‘society’ serve as a powerful repellent of the few non-idiots from the new configuration of the polis .[14] The behaviour and the decision-making of idiots is different from that of individuals.[15] Idiots are powered and informed by a fundamentally different algorithm: one of constantly chasing after and maximising (but never fulfilling) the elusive personal marginal utility, in the form of the abstract notion of happiness, a ‘bubble’ that requires continual inflation. So much so, that ‘dividuums’ come to internalise and normalize their idiocy in much the same way, Nietzsche explains, as we have internalised the valuations of slave morality which inhibit individual autonomy and privilege the collective welfare of idiots as the ‘gold standard’ of good citizenship.[16] Tsitsipas, the Greek tennis ace, said that Djokovic made ‘the majority’ look like ‘fools’, and he was absolutely right.[17] ‘Fools’, however, in what sense? Did Tsitsipas inadvertently express the sentiment of the righteous idiotic majority that lacks an authentic collective identity which could extend beyond the mere slogans ‘expanded into a political theory’?[18] Echoing him, Martina Navratilova, a fellow idiot, suggested that Djokovic ‘should have taken one’ (i.e., the vaccine) ‘for the team’.[19] The embattled Australian government, justifying their decision to deport Djokovic after a protracted theatrical performance that all but revitalised the notion of the ‘kangaroo court’ and ended up dramatically invoking the ghosts of ‘civil unrest’, stated with unwavering confidence that they acted in the ‘public interest’.[20] The curious thing is that all of Navratilova, Tsitsipas and the Australian ministers genuinely believed that they spoke on behalf of a community: the tennis community, the Australian nation, humankind even. Using Covid as the new universal leveller, they believed they spoke on behalf of the ‘greater good’ in the firmly Benthamite/Millean sense. The kind of ‘good’ that extends beyond the notion of mechanical compliance with the rules. The kind of ‘good’ that should appeal to our ethical core notwithstanding that the chief functionality of the latter has long since been replaced with the plight of the idiot, powered by the totalising drive for equalisation intolerant of difference and thirsting for unanimity at any cost. Incidentally, Adam Smith thought that agents acting to further self-interest, without either ‘knowing it’ or ‘intending it’, helped to advance the ‘interest of society’.[21] One thing Smith overlooked and Nietzsche problematised was how the nature of collective interest may evolve following the reconfiguration of individuals into idiots and their subsequent re-incorporation into society. Nietzsche was weary that such ‘living for others in egoism’[22] would only ‘conceal knavery and harshness’[23] in the same way that ‘public opinions’ only serve to hide ‘private indolence’,[24] and by so doing aid in weaponizing the vindictive drives of the idiotic multitude.[25] Reinforcement of such ghostly yet militant collective identity, stitched together by exasperation and ressentiment , was on full display in the ‘no holds barred’ approach by the Aussie government in the pre-election fight for their idiots’ hearts and minds. Djokovic, in the wrong place at the wrong time, ended up being precisely the right person, offering a once in a lifetime gift to the politically fraught rhetoric of the ‘democracy of concepts [that] rules in every head—many together are master: a single concept that wanted to be master has crystallised in an ‘‘idee fixe”’.[26] Redolent though it may seem, even Smith would agree that ‘idiot’ does not necessarily designate someone of inferior intelligence.[27] Rather, it denotes someone who is (liable to be) manipulated on account of having been placed into and fully accepted the context (and the consequences) of acting only out of one’s—presumed autonomous and enlightened—self-interest, albeit one that is no longer informed by the authentic sense of the ‘communal’ or the ‘collective’ and, for that reason, unable to find fulfilment. The ‘collective’ now connotes an entirely abstract construct, hollow and lacking substance. It no longer allows for the possibility of ‘1+1 > 2’, where the ‘collective’ or ‘communal’ transcends the individual without trumping them. The present day ‘collective’ is a simple sum of private egoisms, each acting in their own self-interest. Crucially, however, each ‘private person’—a dividuum, or idiot—is a vastly diminished version of the ‘individual’, and the sum of ‘private persons’ invariably represents a far lesser magnitude than the fellowship of individuals. The ‘atomistic chaos’ of modern society lacks the ethos and material necessary for building the ‘new form of community’[28] (‘ Gemeinschaft ’) of truly ‘free individuals’,[29] which would be a ‘fellowship rather than the flock’.[30] As a result, Nietzsche argues, the collection of ‘atomistic individuals’[31] does not add up to a ‘collective individual’.[32] When we become incorporated as private persons, we trade individual autonomy for the collective welfare of idiots . Though we may be adorned with the labels of equality, freedom, and dignity, we effectively surrender the right to make principled choices. The latter, Nietzsche tells us, is not at all a ‘private matter’.[33] The assemblage of private persons is far weaker, more vulnerable, and politically impotent beyond the periodic hysterical outpourings of ressentiment, the ‘signs of the lowest and most absurd culture’.[34] The mass of ‘private persons’ will never win a war. It will never build anything worthwhile, let alone guarantee a stronger future. It will, however, happily submit itself to any coercion, just as long as this subjection is sublime enough and doesn’t hurt too much, allowing private persons to bask in the oblivious trinketry of the present moment.[35] Having undergone this transformative journey ‘at the freezing point of the will’,[36] private persons lackadaisically dwell in the ‘self-created world of opinions’,[37] no longer able to detect ‘the weight of the chains’.[38] Zarathustra forewarned that ‘even a prison’ of slave morality would ‘seem like bliss’ to the ‘restless people’, who can only ‘enjoy their new security’ in its inescapable nets.[39] The trouble is that any form of ‘mass idiocy’, by amplifying collective ‘moral effects’, invariably creates fertile ground for and becomes the conduit for the development of fascism and tyranny, which leverage ‘the power that lies in unity of popular sentiment, in the fact that everyone holds the same opinions’.[40] Nietzsche argues that the ‘private lazinesses’ hidden behind ‘popular sentiment’ come at an extremely high price: they turn the masses into the accomplices of the very crimes they think they help safeguard against.[41] The tyranny of words, idioms, ideas and opinions, once embraced by the multitude of idiots, soon becomes transformed into a real and potent weapon of reactive power: tyranny by the people, of the people and for the people.[42] Except that these people—akin to the Homeric ‘lotus eaters’—have lost, forgotten, or put to sleep their meaning as individuals.[43] They have traded their right to choose as autonomous individuals in exchange for the chimera of private citizenry, for the illusion of a social construct ‘in which everyone enjoys their own social ‘contract’.[44] They have effectively agreed to subordinate themselves to totalising oppressive drives, having squandered their ability and credibility to resist them. These idiots may occasionally develop a faint sense that they are being fooled and yet they are powerless ‘to not be fooled’, thus only exacerbating their predicament.[45] They have become the ‘fooled ones’, and we know well the sort of things the fooled can end up sanctioning and even eagerly participating in, believing all along that they are playing their part in bringing about the greater good.[46] Viewed in this context, Djokovic’s visa cancellation and his subsequent deportation were acts by the government acting ‘in the public interest’ of idiots: ensuring that idiots remain just as they are, and the bliss of idiocy remains unperturbed, for its veneer, concealing myriads of ‘subterranean demons and their knavery’, tends to be thin and fragile.[47] That is where the contradiction lies, inverting reality and distorting valuations. This, Nietzsche—following in Aristotle’s footsteps—suggests, is where we ought to start looking for answers. Many may argue that comparisons between the AO of 2022 and the Berlin Olympics of 1936 are misplaced. For the most part, I would agree. But in one important respect, namely that of the perilous complacency which has rendered us mere spectators in face of the pervasive rise of the repressive social control systems, the parallels could hardly be more merited. Make no mistake, ‘Let’s turn the world into one hospital or penitentiary’ (otherwise known as ‘build back better’) is a clever slogan. Unlike many others, it represents a realistic and achievable target.[48] It feeds on the energy we all, mostly unwittingly, lend it whilst we appear to be craving and beckoning it with nothing but the ‘good intentions’ of our hearts and minds. Alas, Nietzsche cautions that when individual sovereignty is made into a private affair ‘an abundance of dragon’s teeth are sown’ at the same time.[49] The more we demand that general security be guaranteed, ‘the more do new shoots of the ancient drives to domination assert themselves’.[50] We are no longer dealing with an isolated case of the ‘lunatics taking over the asylum’. Rather, the rapid and pervasive spread of idiotism resembles a situation in which the entire world, as though consumed by irredeemable guilt, has obsequiously agreed to place itself in the same woke asylum just so no idiot would any longer feel out of place. That is why the news of Djokovic’s deportation has caused many an idiot to experience an uplifting, if fleeting, sense of exaltation. Not being discriminating enough in what we wish for, not daring to be individuals (i.e. un-idiots and anti-idiots), we may sooner or later have our wish granted, if only to prove right either the gloomy prophet Silenus[51] or Plato, who warned that the penalty idiots end up paying is none other than to find themselves ruled by evil.[52] This is important because—and in this we can be certain—the machine will not stop harvesting our freedom in the name of ‘unanimity’, as long as we continue to submit ourselves to it ‘as material for heating’: Mankind mercilessly employs every individual as material for heating its great machines: but what then is the purpose of the machines if all individuals (that is to say mankind) are of no other use than as material for maintaining them? Machines that are an end in themselves - is that the umana commedia ?[53] However, ‘precisely because we are able to visualize this prospect, we are perhaps in a position to prevent it from occurring’.[54] For this reason, we need a Jesse Owens to emerge from the cirque macabre enveloping us. Not as a solution, not as an Übermensch , but as a flicker of light and an instant of ‘counter-reckoning’ informing the sense of our ‘counter-action’—to ‘put a stop to the injury by putting a stop to the machine’.[55] Dmitri Safronov Dmitri Safronov holds a PhD in Political Economy from the University of Cambridge for research on ‘Nietzsche’s Political Economy’ (2020). Dmitri received an M.Sc. from the London School of Economics, and Honors BA in Philosophy and Politics from Trent University. Prior to matriculating at Cambridge, he spent over 20 years in the City of London, working for the leading global investment banking franchises. Dmitri’s profile and list of recent publications can be found on < https://philpeople.org/profiles/dmitri-safronov >. [1] This article quotes extensively from Nietzsche’s unpublished notes. These are assembled in the Nachlass and accessed from < http://www.nietzschesource.org >. Notes in the Nachlass are organized according to the year, number of the notebook, and number of the notebook entry, e.g. NF-1885(year): 2(notebook) [179] (note). [2] The author is triple vaccinated, lost his beloved aunt to the virus, does not hold anti-vax views, and is not a Djokovic fan. [3] Friedrich Nietzsche, Untimely Meditations (first published 1873-76, Cambridge University Press 1997) ‘Schopenhauer as Educator’ §§4-6. [4] Crystal Wu, ‘Dan Andrews says Australian Open is “much bigger than any one person” as Novak Djokovic faces wait over visa stoush’ ( Sky News Australia , 16 January 2022) < https://www.skynews.com.au/australia-news/dan-andrews-says-australian-open-is-much-bigger-than-any-one-person-as-novak-djokovic-faces-wait-over-visa-stoush/news-story/c2a4a0388fc026bf6c28dcfcf97d31f6 > accessed 15 February 2022. [5] Cf. Nietzsche’s discussion in Nietzsche (n 3) ‘Schopenhauer as Educator’ §4; ‘David Strauss, the Confessor and the Writer’ §8. [6] Friedrich Nietzsche, The Gay Science (first published 1882, Vintage Books 1974) §329. [7] Only in English and only by the late 14th-early 15th century does ‘idiot’ become a designation for the ‘mentally deficient’ (Oxford English Dictionary). [8] Cf. Aristotle, The Politics and The Constitution of Athens (Cambridge University Press 1996) 1253[a]. His two main claims are that man is by nature social (or political) and that ‘the whole must necessarily be prior to the part; since when the whole body is destroyed, foot or hand will not exist except in an equivocal sense…’. Dostoyevsky presents a masterful exploration of this subject in The Idiot (1868-69) . Nietzsche echoes Aristotle’s logic, arguing that community is ‘a body on which no limb is allowed to be sick’ (NF-1888:15[1]) as well as exploring its permutations in modernity with recourse to Dostoyevsky’s psychological insights. Cf. also Friedrich Nietzsche, Human, All Too Human (first published 1878-80, Cambridge University Press 1996) ‘The Wanderer and His Shadow’ §33; Friedrich Nietzsche, The Antichrist (first published 1888) in The Portable Nietzsche (Walter Kaufmann ed, Penguin Classics 2008) §16. [9] Precisely this connotation of ‘idiot’ is used exclusively throughout the article. Should you find the usage of ‘idiot’ distressing, simply replace the offending term with the placating ‘private person’ as you feel necessary. However, it is recommended to take the cue from Nietzsche’s treatment of the similar semiotic challenge to modern sensibility as was posed by the discussion of the highly uncomfortable subject of ‘slavery’. Nietzsche, who was well aware that the modern world anxiously avoided the word ‘slave’ (cf. his 1871 essay ‘The Greek State’), nevertheless challenged our ability and willingness to do anything about the substance of ‘slavery’, when we cannot even handle the sound of the word (cf. NF-1871:10[1]). So, perhaps, see how much ‘offence’ you can take before boiling over with righteous indignation – one way or another, this exercise will tell you something about yourself. [10] Cf. Friedrich Nietzsche, Human, All Too Human (first published 1878-80, Cambridge University Press 1996) §57; NF-1885:2[179]; NF-1887:10[17]. Cf. also Richard Mulgan, ‘Aristotle and the Value of Political Participation’ (1990) 18(2) Political Theory 195-215; Julian Young, Individual and Community in Nietzsche’s Philosophy (Cambridge University Press 2015) 5-10; Raymond Geuss, A World Without Why (Princeton University Press 2014) 231. [11] Cf. Nietzsche (n 10) §§472, 481, ‘The Wanderer and His Shadow’ §33. [12] Cf. Friedrich Nietzsche, On the Genealogy of Morality (first published 1887, Cambridge University Press 1994) I §10; NF-1881:11[73]; NF-1887:10[135]; NF-1888:14[9]. [13] Cf. NF-1886:5[71]; NF-1888:15[42]. Cf. also the definition of ‘idiot’ in Brockhaus and Efron Encyclopedic Dictionary (Brockhaus-Efron 1890) < http://www.vehi.net/brokgauz/index.html > accessed 15 February 2022. [14] Cf. NF-1881:11[185]; NF-1888:14[91]. [15] For the purposes of this discussion, we leave out the possibility highlighted by Aristotle that an ‘idiot’ could also be a ‘god’; cf. Aristotle (n 8) 1253a 27–29. Nietzsche, likely echoing Dostoyevsky, strongly disagreed with this Aristotelean possibility when discussing Jesus; cf. NF-1888:14[38]. Dostoyevsky makes this point in The Idiot through the image of Prince Myshkin. [16] Cf. Nietzsche (n 10) §45, ‘The Wanderer and His Shadow’ §276; Nietzsche (n 12) I §§4-5. Nietzsche also suggests that ‘wherever slave morality predominates, language shows a propensity for the words “good” and “stupid” to edge closer together’; Friedrich Nietzsche, Beyond Good and Evil (first published 1886, Cambridge University Press 2001) §260. [17] Harry Latham Coyle, ‘“It makes the majority look like fools” – Stefanos Tsitsipas slams Novak Djokovic for “playing by his own rules”’ ( Eurosport , 13 January 2022) < https://www.eurosport.co.uk/tennis/australian-open/2022/it-makes-the-majority-looks-like-fools-stefanos-tsitsipas-slams-novak-djokovic-for-playing-by-his-ow_sto8707032/story.shtml > accessed 15 February 2022. [18] Friedrich Nietzsche, Nietzsche Contra Wagner (first published 1888) in The Portable Nietzsche (Walter Kaufmann ed, Penguin Classics 2008) §7. [19] Tom Parsons, ‘Novak Djokovic told to “take one for the team” as Martina Navratilova weighs in on debacle’ Daily Express (London, 10 January 2022) < https://www.express.co.uk/sport/tennis/1547560/Novak-Djokovic-visa-Martina-Navratilova-Australian-Open-Roger-Federer-Rafael-Nadal > accessed 15 February 2022. [20] Ben Doherty, ‘Novak Djokovic visa: Australian minister Alex Hawke says risk of ‘civil unrest’ behind cancellation’ The Guardian (London, 15 January 2022) < https://www.theguardian.com/sport/2022/jan/15/novak-djokovic-visa-australian-minister-alex-hawke-says-risk-of-civil-unrest-behind-cancellation > accessed 24 June 2022. [21] Adam Smith, The Theory of Moral Sentiments (first published 1759, Oxford University Press 1976) 183. [22] Nietzsche (n 10) §1. [23] ibid §443. [24] ibid §482. [25] Cf. ibid ‘The Wanderer and His Shadow’ §33; NF-1887:10[113]. [26] ibid ‘The Wanderer and His Shadow’ §230. [27] Cf. Smith (n 20) Ch. 3, Section 3, ‘Of Self-Command’. [28] NF-1883:16[50]. [29] NF-1880:8[61]. [30] NF-1882:4[48]. Cf. the excellent discussion on this point by Vanessa Lemm, Homo Natura (Edinburgh University Press 2020) 176-177. [31] NF-1882:4[83]. [32] Nietzsche (n 10) §94. [33] Friedrich Nietzsche, Daybreak (first published 1881, Cambridge University Press 1997) §9; Nietzsche (n 3) ‘Schopenhauer as Educator’ §§1-2. [34] NF-1888:14[38]. [35] Cf. Nietzsche’s discussion in Nietzsche (n 3) ‘Schopenhauer as Educator’ §4; Nietzsche (n 10) ‘The Wanderer and His Shadow’ §286; Nietzsche (n 12) ‘Preface’ §6; Friedrich Nietzsche, Ecce Homo (first published 1888) in Basic Writings of Nietzsche (Walter Kaufmann ed, Modern Library 2000) ‘Why I Am a Destiny’ §5. [36] Nietzsche (n 10) §349. [37] NF-1887:11[341]. [38] Nietzsche (n 10) ‘The Wanderer and His Shadow’ §10. [39] Friedrich Nietzsche, Thus Spoke Zarathustra (first published 1883-5, Random House 1954) IV ‘The Shadow’. [40] Nietzsche (n 10) §472. [41] ibid §482. [42] Cf. Victor Klemperer, The Language of the Third Reich (first published 1947, Bloomsbury Academic 2013) 43-5. Cf. also Plato’s discussion on the creation of ‘the fiercest extremes of servitude’ from ‘the height of liberty’; Plato, The Republic (Penguin Books 1905) 563[a]-564[a]. [43] The image of the ‘Lotus eaters’ is used by Plato in his discussion of the ‘democratic man’ – i.e. private person lacking in willpower and judgement – in Plato (n 41) 561[e]-562[d]. Plato’s reference is to Book IX of Homer’s Odyssey . [44] NF-1888:14[197]. [45] NF-1886:5[71]. [46] Cf. Adam Smith on the ‘invisible hand’ – a euphemism for the magic wand that transforms individuals into idiots; Smith (n 20) 183. Nietzsche’s assertion that it is always ‘the invisible hands that torment and bend us the worst’ (Z: I, Tree ) appears imminently more accurate; Nietzsche (n 38) I ‘The Tree on the Hill’. [47] Nietzsche (n 10) §111; NF-1887:10[113]. [48] Cf. the discussion in Nietzsche (n 6) §329; NF-1886:4[7]; NF-1888:14[182]. [49] Nietzsche (n 10) §472. [50] Nietzsche (n 10) ‘The Wanderer and His Shadow’ §30. [51] Cf. Friedrich Nietzsche, The Birth of Tragedy (first published 1872, Vintage Books 1967) §§3-4. Leonard writes beautifully about this ‘frightening wisdom’ of Silenus in Miriam Leonard, Tragic Modernities (Harvard University Press 2015). [52] Plato (n 41) 347c. [53] Nietzsche (n 10) §585. Consider the latest cynical attempt to shame Djokovic into vaccination by the UK’s Health Secretary, Mr. Sajid David, who suggested that it is only the millions of vaccinated spectators who make it possible for Djokovic to ‘get back to play the sport in front of them and earn millions again, it’s ok for him to have them take the vaccine, but the vaccine is not OK for him ’ (author’s emphasis); Jennifer Meierhans, ‘Novak Djokovic is urged by the UK health secretary to reflect on his Covid jab refusal’ ( BBC News , 15 February 2022) < https://www.bbc.co.uk/news/uk-60391876 > accessed 21 February 2022. [54] Nietzsche (n 10) §247. [55] ibid ‘The Wanderer and His Shadow’ §33.