At the heart of the metaverse stands the vision of an immersive Internet—a gigantic, unified, persistent, and shared realm.[1] To the jewellery industry, it remains to be seen as to whether this enormous virtual cyberspace is a blessing, or, in fact, as curse. Since the expansion of the Internet in the 1990s, the cyberspace has kept evolving. We have created various computer-based environments including social networks, video conferencing, virtual 3D worlds (VR HoloLens), augmented reality applications (Pokémon Go), and Non-Fungible Token (NFT) Games (Upland). Such virtual environments have bought us various degrees of digital transformation and the term ‘metaverse’ has been coined to further reflect the digital transformation occurring in every aspect of our physical lives. For some, there is a sense of vigilance in engaging with the metaverse and are wary of the disruption it could cause for the community.[2] In the virtual world there are many examples of altruism and Samaritanism, but these come with the constant presence of players bent on distraction, disruption (or even destruction) that the digital community has to deal with. Boellstorff describes this phenomenon as the dark side of the disinhibition that many people find in virtual worlds.[3] Another aspect in this fluid nature of going between real and a virtual life, is that some people reside in more than one virtual world, sometimes as similar personalities, sometimes different. Sometimes they give up on one world and migrate to another.[4] Developments in electronic communications are drastically changing what it means to be human, interacting with other humans, and for our idea of creation.[5] Others have considered this world to have brought unprecedented opportunities for artists to blend every facet of our physical surroundings with digital creativity.[6] The value of recent technological developments for artists is more than being able to become more efficient and more productive. It is also the ability to ‘highlight and elevate humanness in new ways through art, even by appearing to replace the real with the virtual’.[7] New tools don’t simply replace humans, they allow human creators to shift into new realms of creation: creating dynamic systems and worlds instead of static products.[8] This piece will challenge such perspectives, showing that the digital and physical can simultaneously work together to maintain creative freedom in both spheres. This article will consider three different types of interactions that emerge from these digital immersive platforms in relation to the jewellery industry and explore the remarkable types of novel creations in the expanded horizons of metaverse cyberspace. Firstly, I consider the ways we can interact and experiment within this digital world. The discussion will then turn to issues of digital privacy and safety for metaverse artists and companies, bringing to light the questions around ownership of digital artworks. Then, the piece will reflect upon the origin of the metaverse itself and the effects this has on the creative freedom of artists, drawing together the material and immaterial worlds we live in. At the outset, we consider our world to be tactile, touchable, and have a physical presence. Yet is this actually the case today, and will this be so in the near future? After all, as of January 2021, there were more than 4.5 billion active internet users worldwide, and 92.6% of them accessed this digital world via mobile devices.[9] As such, there is an ever-growing overlap between our digital and physical lives, as we can socialise, create, and entertain ourselves through virtual reality (VR), augmented reality (AR), or simply through an alternate realm on-screen. Whilst terms such as ‘internet’, ‘online’, and, perhaps, ‘virtual reality’ are widely disseminated through society, what about the word ‘metaverse’? The term has become a buzzword within the last year, and, to put it simply, it is a shared three-dimensional state in virtual reality where people can interact. To enter this digital world, you have to put on a pair of augmented or virtual reality headsets, enabling you to interact and hang out with each other via avatars, just as you would in the real world.[10] What is so innovative in this computer-generated world, is that we are able to express and re-create ourselves with unparalleled creative freedom, not governed by the rules of reality. This is especially revolutionary in the jewellery space, which has already begun to intersect the physical world’s real-time, spatially oriented content with this emerging and immersive digital environment. In this context, let us first consider the ways artists can interact in this digital world. The metaverse offers the opportunity for the creation and virtual styling of digital jewellery across a variety of devices and platforms. This could be in gaming, for example, when the heritage Japanese pearl jeweller, Tasaki, collaborated with Animal Crossing to produce a collection for game avatars; to e-commerce, like Dress X’s digital accessories designed by the 3D designer Alejandro Delgado. Indeed, the metaverse has become a new space for design, as creators, artists, and consumers are able to exchange and make use of different models and creations, without any restrictions, across platforms. In this immersive world, it seems that 2021 was the year for the breakthrough of non-fungible tokens (NFTs).[11] This NFT market has surged exponentially, as a new study by NonFungible and L’Atelier BNP Paribas recorded sales reaching $17.7 billion in 2021, up from $82.5 million in 2020—a jump of more than 200 times.[12] Being able to sell NFTs within the metaverse acts as a massive incentive for digital jewellery to be produced. Some of the biggest releases of NFTs have stemmed from digital jewellery collaborations between celebrities, including Lil Pump’s ‘Esskeetit Diamond VVS’ collection. Available to purchase through the platform ‘Sweet’ in March 2021, Pump minted a total of five NFTs, each retailed for $10,000, possible to buy securely on a first-come-first-served basis.[13] The jewellery-themed sale, also, featured more affordable NFT cards at $10 each. The digital drop intended to emulate the American rapper’s physical jewellery, allowing fans and collectors to own a piece of his personal, multi-million-dollar jewellery collection in the digital world. According to Tom Mizzone, the CEO of NFT trading platform ‘Sweet’, ‘the future of rare, collectible merchandise is in the digital arena’, as evidenced by the growing interest in NFTs.[14] Some experts even consider NFTs could become the jeweller’s best friend in the near future, as it allows them to earn money via selling NFTs for digital jewellery. Asprey’s executive chairman, John Rigas, believes NFTs and jewellery are, ‘a perfect match’ as they ‘capture everything about the product, forever, when the information is part of the blockchain’, in turn bolstering the authenticity of these luxury goods.[15] As such, there are increasing deliberations across the sector regarding the technological benefits of the metaverse as designers can create captivating pieces of jewellery that draw inspiration from both the physical and digital realm. Thus, the digital world has opened the door to new types of interactions and considerations of what jewellery can be. Market experimentation within the metaverse offers solutions to some of the biggest spectres haunting the world of jewellery. The digital space offers jewellery companies a solution to two issues: the safety of transactions and devaluation of real jewellery. The security of the digital transaction in the current financial market is enabled by blockchain technology that backs digital assets, in turn, providing a tamper-proof, digital ledger of all the information on any product. This is becoming an appealing method for securing transactions as we live in an age where hacking, spyware, and digital fraud are an ever-present threat. The second aspect that metaverse assists with is devaluation of jewellery and diamonds occurring due to fluctuation on the market. Shockingly, as soon as they leave the jeweller’s shop, diamonds tend to lose value, depreciating by as much as 30-35% if they are re-sold.[16] The blockchain-based diamond marketplace, Icecap, offers a solution to this issue, developing a new way of online trading as it allows the trading of NFT tokens ‘without friction’ while the diamonds are vaulted and insured.[17] According to Icecap’s CEO, Jacques Voorhees, unlike liquid assets of gold and silver, purchasing diamonds through the online platform protects these valuable assets from the long-term problem of devaluation faced in the diamond industry.[18] Astonishingly, trading diamonds virtually, through platforms such as Icecap, allows their value to be retained, with investments retaining much more value. Prices of rare pieces, also, are more likely to preserve their investment price, such as the one-hundred-carat diamond necklace ‘Desert Wind’ which featured as part of Icecap’s inaugural line of collector-quality gems in the world’s first NFT diamond and jewellery collection, in May 2021.[19] Even Christie’s, the noted auction house, is paying close attention to the capabilities of digital assets in the metaverse. Their resident specialist Noah Davis has said, ‘blockchain is on the cusp of being integrated into every single creative industry’, alluding to the strong commercial interest attached to the evolving sphere of digital jewellery.[20] It must be recognised, however, that there are currently no laws that govern existing trademark registrations of physical goods in the metaverse. What does this all mean for traditional Intellectual Property (IP), such as trademarks and copyrights? There are some new instances, including the lawsuit that Hermès filed against the digital artist Mason Rothschild for creating, selling, and using ‘MetaBirkin’ in January 2022. The ‘MetaBirkin’ NFTs featured the Hermès Birkin handbag design, which was allegedly used without permission and in violation of its trademark rights. The luxury fashion retailer described Rothschild as ‘a digital spectator who is seeking to get rich quick’ by appropriating the brand ‘MetaBirkins’ for the exchange of digital assets NFTs.[21] Having said this, such cases have not yet been heard by courts. It may be that the disputed NFTs experience drastic fluctuations in value due to negative publicity and uncertainty over the courts’ decisions, but it is highly improbable for these cases to trigger a collapse of the general NFT market.[22] A simple reason for this is that more big-name brands are taking their first steps into the digital realm, and for these companies, the risk of their NFTs becoming the subjects of legal actions is extremely low as they own all the IP rights related to the underlying works. No doubt, IP practitioners, legal analysts and NFT traders alike will be avidly anticipating the decisions from the U.S. courts as these judgments will help determine how these online creations will interact with long-standing intellectual property rights, such as copyrights and trademarks. Thus, if a company is thinking of expanding into the metaverse, it would be worth their while to consider filing for relevant trademarks in order to have legal protection.[23] Still, there are great possibilities for the creative industries in the metaverse. Rather than a space for division, the metaverse will make jewellery appreciation and creation more accessible. Craftsmen, designers, and clients will be able to interact in a globally immersive world without the need to journey from gemmological mines, to workshops, and commercial stores. The metaverse will, also, make for better opportunities for self-expression: we will be able to communicate our individuality by designing and later re-designing jewellery to suit our current interests, interweaving inspiration from literature, art, and even our political beliefs. Indeed, for a considerable number of artists, the metaverse creates unending possibilities in the evolution of art and design. That said, preserving this digital blossoming of creativity is not always as straightforward as it first seems, as it has also become a stage for the expansion of corporate domination. One such artist providing insight and campaigning for the protection of public ownership in the digital sphere is Sebastian ErraZuriz. Blurring the boundaries between contemporary culture, art and technology, ErraZuriz has previously reworked Jeff Koons’ augmented reality (AR) sculpture in a political stance against the ‘imminent augmented reality (AR) corporate invasion’, which could ultimately fuel a version of the metaverse that is limited by corporate powers of intervention and business models. This piece was titled ‘Vandalized Balloon Dog’, intending to act as a direct criticism of Koons Partnership with Snapchat ‘which saw digital 3D versions of the artist's best-known sculptures appear in international tourists hot-spots via augmented reality’.[24] His latest project, an NFT start-up, Digital Diamonds Co., similarly intends to foster open innovation, focusing on promoting a new kind of diamond company. Each Digital Diamond is valued at the price of a real diamond using the Ethereum currency and has accommodated for changing pricing for bidding purposes. What is most interesting about Digital Diamonds Co. is the parallel drawn between real diamonds and the NFT creation. After all, diamonds are neither scarce, nor intrinsically precious, with their value a product of societal perception. In foresight, should artificial, lab-grown diamonds be considered to be of greater or equal significance and originality, in comparison to digital, artistic creations online? The nature of the metaverse also means that digital jewellery can sidestep issues of gemmological sourcing and occurrences of blood diamond mining; a desirable feature as consumers’ interest in ethically sourced diamonds is growing. In light of this, the evolving digital space offers a new-found freedom to artists from the complex gem authentication systems and control of the jewellery industry. The adoption of these immersive technologies can offer great creative freedom, without the limitations which govern our physical reality. Designers can use an unlimited array of gemstones, no longer be confined to small scale production, and can challenge the concepts of jewellery itself. Some of the largest fashion brands have begun to define their own label within this kaleidoscopic metaverse, as they, too, seek to explore it. Even the fashion house Gucci has recognised the value of the metaverse, presenting a digital display of their haute jewellery collection, ‘Hortus Deliciarum’, in 2021. The 130-piece collection is divided into four chapters, taking inspiration from the hues of an ever-changing, natural sky. Waterfalls, shooting stars, and celestial phenomena launched the first chapter’s designs, while the second section took inspiration from rose gardens. The colours of the sunset informed part three, with precious gemstones, such as opal, topaz, and garnets translating the rich twilight hues of the sky to one of nightfall. These pieces have a discordant symmetry as the jewels were placed mismatched to encapsulate the ephemerality of the sky as it passes from day to night. The fourth incorporated prides of lions, roaring their way around necklaces and earrings encrusted with gemstones. I believe that launching the jewellery collection in this way would simply not have been possible if it were in physical form: it feels as though Gucci chose to present the collection through a digital platform by also believing in the aptness of the metaverse. In a conventional display, the collection would not have had the same ambiance of enchantment, which captivated me and countless others.[25] And now, when the fine jewellery is worn for special events and red carpets, we can be reminded of its release in a digital format. As such, even the biggest names in commercial luxury are embracing the universe of possibilities that virtual jewellery creates. Keeping this in mind, the large-scale fashion brands designing luxury jewellery have not been the only ones to benefit from our ever-increasing connection with the metaverse. Independent artists are also able to blossom and collaborate with the creative aficionados driving the campaigns of high fashion. This is facilitated by the deregulated finance ecosystem (DeFi), which allows digital creators to sell and authenticate their NFTs without a field of experts deciding what is valuable, precious, or appealing. This helps designers, such as the New York based artist, Carol Civre, as DeFi applications give users more control over their money through personal wallets and trading services that cater to individuals. Civre’s digital creations can maintain space within the world of the big fashion brands, bridging the worlds of fashion, 3D art, and CGI to create an idealised ‘exaggeration of reality’.[26] The artist aims to transform, elevate, and explore the possibilities of the human body that may not be possible to explore in our physical lives.[27] Carol’s innovative ways of developing digital art were key to her success and have appealed to an extensive selection of brands, with her clientele including Chanel, Prada, and Vivienne Westwood. Her work has even been described as promoting an ‘E-Renaissance’ in Vogue Italia.[28] This digital space has facilitated collaborations between individual and large-scale enterprises to create new forms of jewellery that transgress the digital and physical world to form a united multi-experience for the consumer. Experiences can thus start in the physical world, but then extend into an infinite realm of the digital metaverse. It is surreal to think that we are already able to create and innovate in such an unhindered manner and in an alternative reality. It triggers a flurry of questions about what comes next in digital design. In the fashion industry, will there be a large-scale transformation with the new growth of opportunity for digital agencies, stylists, or collections, operating through the metaverse? While some companies will likely continue to operate only in the physical world, others that wish to can continue to exercise their duty in the creation of the new through digital design. With NFTs, blockchain gems, and the metaverse–jewellery is evolving beyond the physical bounds of reality, transitioning into a realm of pixels and colour. For these reasons, despite the continued process of jewellery designs serving both functions of being appreciated for its artistic qualities, as well as being an indicator of wealth, the industry is turning to digitisation to suit the future market and creative design. This is what sets the metaverse apart– the promise of infinite, artistic outcomes–and, in turn, the chance to transform the concept of jewellery in itself. On this premise, the fundamental concept of the metaverse is not to act as a way to supersede and out-do contemporary painterly, sculptural, or architectural practices so fundamental to our contemporary artistic practices today. Rather, it seeks to enable the blossoming of creative practices through a digital platform, in turn, preserving and connecting these two inspirational worlds. A thought to end this essay: this creative unity could, in fact, activate a radical shift as to how we can evaluate the notion of artistic freedom. Indeed, the interactions of the physical and digital world, in the jewellery, fashion, and broader cultural sphere could result in the transformative visualisations of our world around us. Danielle Jump Danielle Jump is an undergraduate student of History of Art at the University of Cambridge. She is interested in the decorative arts, jewellery, and the ways in which these art forms are reflective of contemporary culture. She hopes to pursue a career within the art industry, specialising in contemporary jewellery. [1] Ashkan Yousefpour et al., ‘All one needs to know about fog computing and related edge computing paradigms: A complete survey’ (2019) 98 Journal of Systems Architecture. [2] Daniel Schackman, ‘Review Article: Exploring the new frontiers of collaborative community’ (2009) 11(5) New Media & Society. [3] ibid. [4] ibid. [5] Gianluca Mura (ed), Metaplasticity in Virtual Worlds: Aesthetics and Semantic Concepts (IGI Global 2011). [6] Jeffrey M. Morris, ‘Humanness Elevated Through its Disappearance’ in Mura (n 5) 102. [7] ibid. [8] Microsoft Mesh (Preview) Overview’ (Docs.microsoft.com, 2022) accessed 6 May 2022. [9] Joseph Johnson, ‘Global Digital Population 2019’ (Statista, 2021) accessed 4 May 2022. [10] John Herrman and Kellan Browning, ‘Are We In A Metaverse Yet?’ The New York Times (New York, 10 July 2021) accessed 4 May 2022. [11] A term still unfamiliar to many, the NFT is an interchangeable unit of data stored on a blockchain, a form of a digital database, that can be sold and traded. Types of NFT data units may be associated with digital files, including photos, videos, and audio. Each token is uniquely identifiable, which differs from other blockchain currencies, such as Bitcoin. These NFTs can then be ‘minted’, referring to the process of turning a digital file into a digital asset on the Ethereum cryptocurrency blockchain, and it is impossible to edit, modify, or delete it. It is similar to the way metal coins are minted and put into circulation, non-fungible tokens are also ‘minted’ after they are created to retain their value on the digital marketplace. [12] NonFungible, ‘Yearly NFT Market Report 2021’ (NonFungible, 2022) accessed 4 May 2022. [13] Minting is the process of turning a digital file into a crypto collectible or digital asset on the Ethereum Blockchain. [14] Sweet, ‘Sweet Launches Broad-Scale NFT Solution For Leading Entertainment And Consumer Brands In Partnership With Bitcoin.Com’ (2021) accessed 4 May 2022. [15] Anna Tong, ‘Can NFTs Work For Luxury Jewellery?’ Vogue Business (21 June 2021) accessed 4 May 2022. [16] Preeti Kulkarni, ‘What You Should Keep in Mind When Investing in Diamonds’ The Economic Times (Mumbai, 12 October 2015) accessed 8 May 2022. [17] ‘Non-Fungible Token Hard Asset Diamond Investment | NFT Marketplace | Icecap’ (Icecap, 2022) accessed 6 May 2022. [18] ibid. [19] Jacques Voorhees, ‘The World’s First NFT Diamond & Jewellery Collection’ (Icecap, 2021) accessed 4 May 2022. [20] Tong (n 15). [21] Victor Danciu, ‘Not For Trademarks? The Truth About NFTs And IP’ (Dennemeyer, 2022) accessed 4 May 2022. [22] ibid. [23] Philip Nulud, ‘Protecting Your Intellectual Property In The Metaverse And On NFTs’ (Lexology, 2022) accessed 4 May 2022. [24] Anna Codrea-Rado, ‘Virtual Vandalism: Jeff Koons’s ‘Balloon Dog’ Is Graffiti-Bombed’ The New York Times (New York, 10 October 2017) accessed 4 May 2022. [25] Sarah Royce-Greensill, ‘Gucci’s New High Jewellery Collection Is Worthy Of A Fantastical Fairy Princess - Or Prince’ The Telegraph (London, 21 June 2021) accessed 4 May 2022. [26] Claudia Luque, ‘Review Of Carol Civre: An Extension Of Reality’ Metal Magazine (2020) accessed 4 May 2022. [27] ibid. [28] Rujana Cantoni, ‘RENAISSANC-E’ Vogue Italia (Milian, 17 July 2021) accessed 4 May 2022.

‘I’m mad as hell and I’m not going to take this anymore!’ is a phrase that has been raptured up into the popular English lexicon, cited, quoted, parodied, remixed, and dissolved into an ironic confirmation of the satire that produced it. It was the most iconic line from Network (1976), a now-classic film that told the dark tale of a fictional American network news anchor, Howard Beale (played by posthumous Academy Award-winner Peter Finch), whose blooming madness was exploited by his bosses for ratings bonanza. But in becoming a meme detached from its context, it rather proved the film’s point: in the particle accelerator of mass media, even the most potent radicalism can be diffused into mere entertainment. The line’s endless citation,[1] repeated without irony,[2] obscures the fact that the line represented a grim low point in the movie. Shouting it into the camera, Beale commanded the American public to get out of their chairs and holler the memorable phrase out their windows, shouting to the heavens in pure outrage about ‘the depression, and the inflation, and the Russians, and the crime in the street’ (sound familiar?), leading to angry Americans shouting about their anger into the uncaring night. It was not meant to be admired, much less imitated. It was a warning. And a particularly prescient one, at that. The film has many admirers—such as Aaron Sorkin, whose own smugly liberal style is but a dim echo of Network screenwriter Paddy Chayefsky’s own preachy yet eloquently radical approach. Such fans suggested that the movie predicted the rise of reality TV; in 2000, Roger Ebert, in a reflection on the film, asked if even in his darkest nightmares Chayefsky could have foreseen how his film anticipated the World Wrestling Federation and Jerry Springer, which is almost quaint to consider now.[3] In truth, none of those things were what Network anticipated. The film was about something more abstract than a single TV show, or even a genre. It was about how mass media perverted popular will and commodified it. And nothing embodies the realisation of its warning quite like social media. Indeed, to look at a platform like Twitter is to see millions of people yelling endlessly about their rage into the endless night of the internet, a vastly more efficient and perpetually running version of people yelling out their apartment windows. What results is a medium that is, despite all evidence to the contrary, anathema to politics. *** The best satires are often the least effective as warnings; the very things that make them popular—memorable, engaging speeches like Howard Beale’s—can outshine the subtler points that make them incisive. While writing this article, I looked up the most popular YouTube clip of the ‘mad as hell’ speech. ‘47 years old and this speech is more relevant today than it was in 1976’ – by ‘A Pickle for the Knowing Ones’ was one of the most liked comments, with the longest thread of replies. And those replies? ‘Ain’t that the damn truth, man’ ‘Amen to that 🙏’ ‘True so true’ On and on in that vein, with a few ‘Let’s Go Brandon’s thrown in there to cement the comprehensive point-missing.[4] Beale’s speech was not meant to be true. It was written as an example of omnidirectional outrage that felt vaguely plausible precisely because of how content-free it was. It wasn’t meant to be taken seriously; it was a warning about the very behaviour Beale was embodying. The speech’s generic, empty rage is applicable to many moments in modern history when we’ve all felt a sense of hopelessness and powerlessness at the world’s myriad injustices, which we are all made ever more efficiently aware of courtesy of mass media. The point was that this speech was paired with shots of the growing jubilation of network executive Diana Christensen who whooped – ‘son of a bitch, we hit the motherlode!’ – when she heard about the public reaction; she was looking for someone who could lead ‘angry shows’ that ‘articulate the popular rage’, and she found it in Beale and his speech. An inkblot test of a rant that all Americans could see themselves in. A notable line in the speech, rarely if ever quoted, is when Beale says ‘I don’t want you to protest, I don’t want you to riot, I don’t want you to write to your congressman because I don’t know what to tell you to write…’. That is the point: the substitution of meaningful political action by the expression of incoherent, omnidirectional rage. Rage that’ll make a network executive cheer about ‘hitting the motherlode’. What was truly prophetic about the movie was the way it captured the then-dawning aestheticisation of politics, the trading of substance for affect and postures. Think of the suffusion of terms that dominate English-language political discourse but mean whatever the speaker needs them to mean: cancel culture, groomer, political correctness, woke, the elite, triggered, or gaslighting. It’s all too similar to the way that Beale’s speech was essentially an inkblot, easily interpreted as a rallying cry for ethnonationalists and socialists alike. ‘Things are bad, so get angry’ is not a political programme, but it can unite us in watching a programme. Or participating in one. *** The ‘mad as hell’ speech was Chayefsky’s mockery of vacant, easily-commodified rage. But if there was ever a moment he ventriloquised Beale it was in a later speech where the anchor—now helming a parodic carnival of a ‘Nightly News Hour’ that featured a soothsayer and a fiercely applauding live audience—gave a speech condemning television as an enterprise. This is Chayefsky at his most contemptuous and it verges on insufferable in its smug lecturing to the public—lamenting that so few read books and newspapers, for instance, and charging that they ‘think like the tube, dress like the tube, raise their children like the tube’, using an American slang word for TV. But it manages to stay just on the right side of the line by nestling those jibes within a fundamental point about television: ‘You’re beginning to think that the tube is reality and that your own lives are unreal! …In God’s name, you people are the real thing! We are the illusion!’ What social media has done is made us all ‘the illusion’ to each other, Beale’s travelling circus of entertainers. It’s a bit simplistic to suggest that television is a purely passive medium that requires no participation from the viewer: the very act of watching something and making meaning from it implies activity. But there should be no question that the average user of social media is more clearly engaged in constituting the very thing that people are on the platform to consume. They are creating content. In the process, we all end up, to one degree or another, on a digital pedestal dehumanised and at least slightly alienated from ourselves as we strive to be legibly interesting before our ever-changing audience.[5] So many interpreters of Network looked to television for the fulfilment of the film’s prophecies about the vulgarisation of mass media and missed the forest for the tubes. While it is indeed fair to say that the film was prescient about the rise of partisan cable news—about the likes of the American Fox News, MSNBC, Australia’s Sky News, or British GBN, with their volcanically outraged presenters[6]—even those networks never came to look quite as absurd as Beale’s ‘Network News Hour’, with its eccentric set (a single stained-glass window over rotating daisies) which also hosted other tawdry segments. It remains notable that even the most blatantly propagandistic enterprises, from Fox News to Russia Today, still cling to the authoritative image of a traditional news studio, with immaculately coiffed and dressed presenters. It was the internet that allowed for a true redefinition of the format of news-delivery; opinion-making could flourish in a medium that seemed resistive and anti-establishment by its very nature, the inherent populism of someone in their living room talking to a webcam has an intimacy and authenticity that old television networks couldn’t hope to buy. Indeed, content creators are playing an increasing role in shaping the information environment—for good and for ill. But democracy doesn’t thrive as a result of thousands of content creators and influencers each pursuing their self-interest. Democracy is not additive. It is, at its best, a multiplicative enterprise that harnesses collective, co-ordinated action. Network told the tale of how, in one of its most underrated subplots, a group of communist revolutionaries could be domesticated into controlled opposition simply by being given a primetime television show. Social media does much the same thing, reducing political action to so many hashtags, avatars, and unceasing but ultimately pointless debates whose sole purpose is to generate the attention economy’s currency of the realm, all by diffusing any potential for mass action into individually gestural acts.[7] Rare successes, like the Black Lives Matter movement, are, regrettably, the exception that proves the rule. In lieu of meaningful change, more often than not we simply get a million little rants through the window about being ‘mad as hell’. Togetherness alone, at an undreamed-of scale. *** If Network has anything to teach us today it is the fact that, contrary to popular belief, mass media is not hypnotic. One cannot simply put whatever message one wants into the medium and expect it to pass into the public consciousness with perfect fidelity and preservation of original intent. Even when watching media passively, viewers will embark on their own journey of interpretation and meaning-making that will take them in thousands of different directions. But more importantly, the medium itself favours certain messages over others, and will transmit any message in a particular way.[8] The history of computer and information science is marked by many, ever more urgent efforts to engage with this reality. Taken together, they sound a warning about what the ultimate mass communication technology fundamentally constrains us from doing, regardless of our inputs. Alexander Galloway’s 2004 Protocol marked a landmark effort to argue that the very code on which the internet operated predisposed it to control us rather than liberate us. Kate Crawford and Tarleton Gillespie observed that the act of ‘flagging’ online content to be reported to moderators is a communicative act that severely constrains engagement and speech—many types of objectionable content and possible harms are collapsed into a tiny number of predetermined checkbox categories, for instance.[9] Sociologist Jenny L Davis, marshalling years of interdisciplinary research, argued that technology’s affordances—the interface between the features of a piece of a tech and the outcomes it produces—reflect politics and power. ‘Technologies’, she writes, ‘don’t make people do things but instead, push, pull, enable, and constrain. Affordances are how objects shape action for socially situated subjects’.[10] There is, in short, a profound limit to what we can actually say and do with ‘the most awesome goddamn propaganda force in the whole godless world’, to borrow Beale’s phrase. This is one of many reasons why the oft heard refrain about the ‘proliferation of speech’ being an antidote to whatever one defines as ‘bad speech’ is painfully naive. Elon Musk’s idea, for instance, that we can speak freely with no ‘censorship’ whatsoever on a social media platform is utterly ignorant of the fact that, with or without formal content moderators, these platforms will nevertheless automatically amplify some speech at the expense of others, and channel all speech to particular ends that the speakers won’t approve of. The riddle Galloway was trying to solve in Protocol was the fact that the internet, though apparently free of centralised control and imposed hierarchy, nevertheless still seemed to manifest that control informally. Power had not gone away, in short. This is why the last two decades are littered with the tombstones of failed hashtag-driven revolts and half-finished revolutions.[11] So much of their power was shunted into the entertainment complex of social media, rendering their most powerful critiques, their most radical goals, simply unheard. There’s an especially bitter irony that Network itself seems to embody this, with Howard Beale forever caught in that Archie Bunker syndrome—of being seen as a role model despite having been authored as a cautionary tale. But also in that we’ve all come, to some degree, to enact the artistic tricks of the trade that made Network immortal as a film, and limp as satire. So much political discourse on social media is reduced to a language of performances, humour, memes, and other assorted theatrics. These are the first signs of virality. It can seem a simple update of the sloganeering of old, but it is, in truth, an entirely new language of activism that constrains its potential. But what makes for a successful (political) TikTok does not necessarily equate to successful politics. The classic example of changing one’s avatar, for instance, whether to a black circle or square, or to the Ukrainian flag, or to Je Suis Charlie, or to show that one is vaccinated against COVID-19, is almost definitionally empty—its sole function is to signal to the viewer that you may, or may not, share some of their political views. That is a precondition for organising, but it’s too often treated as the endpoint. What social media is might best be understood through political theorist Hanna Fenichel Pitkin’s interpretation of Hannah Arendt’s unique idea of ‘the social’: ‘Arendt means a collectivity of people who—for whatever reason—conduct themselves in such a way that they cannot control or even intentionally influence the large-scale consequences of their activities’.[12] Arendt contrasts this to her equally unique view of politics, a domain of collective action that can change the world for the better. It is in this narrow, Arendtian sense, that I would call social media anti-political. *** The rare examples of successful social media activism are episodes of activism that use but are not necessarily driven by social media—the Black Lives Matter movement is the clearest instance of this, using social media as a connective tissue between individuals and on-the-ground activity in the form of protests and direct action. BLM did not stay in the realm of the gestural, it instead tries to use social media to inspire people to act in the physical world.[13] That included using it as a tool to monitor police activity[14] and help protests stay agile in the face of suppressive tactics by the police, as well as keeping tabs on far-right actors like the Proud Boys who often acted as a lawless paramilitary operating against radical protest. Groundedness in the physical world was key for using social media effectively. Twitter, in particular, can shine a bright light on abuses by the state. Where once it would’ve been easier to cover up the crimes of the police against members of the public, now mobile phone video of police murders leaves little doubt about the facts of each case. Social media spreads them quickly, inspiring outrage, which can then inspire direct action. But even here we see the dangers and limits of social media’s protocols. We experience social media as amusement; it is designed to keep us scrolling, liking, sharing, subscribing, and commenting, to increase ad impressions among other things. We get a delightful little dopamine hit from it. We get a sense of control from it, even if we’re not consciously enjoying it (see the phenomenon of ‘doomscrolling’).[15] It becomes compulsive. And we thus experience everything on it as either pure entertainment or as something we must desensitise ourselves to in order to enjoy the more overtly pleasurable parts of the experience. Thus, many BLM activists began to rail against how videos of police murdering Black citizens were being deployed on social media. They’d become clickbait, for both the platform and for news outlets that linked their articles on Twitter or Facebook. Suddenly, people were sharing tips on how to prevent videos from autoplaying on Twitter[16], and Black users were advising each other to take care when another round of police shooting videos were going viral, as well as telling their friends not to share the videos if they came across their feeds.[17] What Black social media users experienced as a traumatic reminder of deadly oppression was increasingly being experienced by many others as must-see-TV.[18] That was when the fear began to blossom—especially after many of these videos failed to lead to police accountability, charges, or convictions for the murderous officers—that the proliferation of video could even be counterproductive to the cause. Aside from being unable to shame the shameless institution of American policing, they ran the risk of further desensitising non-Black internet users to violent episodes of Black death and trauma.[19] We can also consider the Russian invasion of Ukraine which, as of this writing, enters its 89th day. Much has been made of Ukraine winning the ‘information war’,[20] at least thus far.[21] This is true, so far as it goes—it has largely outflanked Russian propaganda, particularly in the West where a narrative of potential Ukrainian victory has taken hold. This has proven vital: Western public support translates into political and material support, which remains a lifeline for the besieged democracy. That conditional information war victory has entailed heroic images of Ukrainian military victories, brash speeches from soldiers, and an unending parade of harrowing images of Russian atrocities—from the desolation left by their artillery shells and Iskander missiles, to the bodies of civilians left to rot in the streets of the cities and towns once occupied by the Russians.[22] Less discussed is the long-term cost of all this, however. As with so many other desperate tactics that such an existential war might occasion, these online ploys are not without their cost. They, too, promote a degree of dehumanisation. In a 1995 BBC documentary, the American writer and Second World War veteran, Paul Fusell observed that soldiery involved learning to ‘enjoy murder, enjoy depriving other people of their limbs and their lives’.[23] All war propaganda does this, and mythology about the gloriousness of war has infected even children since antiquity. But social media inundates us with images of a reality that might have shocked even our most jingoistic ancestors and compels us to deal with it by loving it, by cheering it on. With the greatest of ease one can find footage from Ukrainian Bayraktar drones setting Russian tanks alight, cooking three men alive at a time in each tank. Jokes and memes quickly follow. Social media makes true solemnity impossible and uncool—and I am no exception to this; I’ve found some pro-Ukrainian memes, deflating Russia’s imperialist and autocratic pretensions, quite funny. But it is very easy to lose sight of the humanity that this war obliterates every hour, of every day, and easier still to lose sight of how social media’s mass, unexpurgated broadcasts of its slaughter risk desensitising us to those horrors. Or worse, making us enjoy them. *** As with so much else online, good intentions and emancipatory dreams struggled to break free of the paths carved out by the very code of social media. Its logics do not preclude genuinely impactful radical politics, but they do make it significantly harder and introduce countless painful externalities. ‘The founding principle of the internet is control’, Galloway writes, ‘not freedom—control has existed since the beginning’.[24] He drew this conclusion in part from analysing TCI/IP (transmission control protocol/internet protocol) and the DNS (domain name system) for how they facilitated the exercise of power over the internet, amplifying some voices and stifling others, all while enabling the surveillance of all that information that, we were once told, wanted to be free. This was all before the dawn of Web 2.0, the age of social media whose data-harvesting logics would build on these protocols and lead to what philosopher Shoshana Zuboff calls surveillance capitalism.[25] You can think of these technological developments—the advent of algorithms, the targeted-ad economy, the coalescing of online communities into an ever-smaller number of websites—as channels that constrain political ferment, especially progressive or left-wing politics, with their aspirations towards collective change and freedom from capital, redirecting it to ends that are less threatening to the existing power structure. The carnival of lifestyles, affects, and postures afforded by social media is a better fit with a more reactionary, pro-capitalist politics, particularly that aimed at inspiring individual action. The recent surge of anti-trans and anti-queer legislation in the United States[26] is a prime example, urged on by a politics of screaming rage about ‘groomers’ in American classrooms (who all just so happen to be LGBT people), it inspires some consequential legislation but it also, primarily, sires hate crimes and bullying. Social media may not give the far-right its dream of Gilead, but it can enable them to crowdsource a decentralised police force to attack people for being gay or trans. There are precious few similar, easily crowdsourced individual actions that afford the left a similar short-term gain for their political programme. Just as in Network, whose communist revolutionaries were turned into TV stars who committed terrorism for ratings but changed nothing about the coming neoliberal ascendancy, social media does not allow us to use its awesome power any way we please.[27] Howard Beale seemed to command the masses from his primetime broadcast. But the one order he gave that they simply ignored? To turn off their TV sets. Some messages will simply go unheard. The medium cannot be bent against its own best interests. Online, this often means watching radical messages be bent and distorted into forms that can be easily co-opted by capital.[28] Having a voice is powerful, as is technological access that allows us to amplify our voices. But the way our voices are transformed and translated is powerfully, even decisively consequential. And rarely in our favour. *** Network is, in some real ways, a relic. Faye Dunaway’s performance as Diana Christensen is transcendent, but cannot completely disguise the anti-feminism at the core of the ‘heartless career woman’ archetype Paddy Chayefsky wrote for her, for instance.[29] Yet, the film endures because it may have hit on a truth about technology that even Chayefsky might not have been fully aware of. He certainly meant to damn television, but he also, inadvertently, condemned something larger. Something that could have been said of newspapers, the telegraph, telephones, and all the successors to television: mass media, steeped in the illusion of user-focused and individual communicative content, shapes us as much as we shape it—and it can constrain our politics as much as emancipate it. In our profoundly individualistic society, it is all too easy to believe that our intent makes us little monarchs, wandering the world realising our wills in perfect accordance with our actions. But the unintended consequences always catch up to us, and communications and information technologies exponentially accelerate that process, scaling it infinitely. Network is a tragedy precisely because it explores this fundamental fact about our most powerful tools. We are constrained by the politics that helped create them, and the enduring politics that governs their use. Network none-too-subtly suggested that Beale’s ability to ‘articulate the popular rage’ didn’t matter because television itself ‘destroyed’ him and made him its creature, in no small measure because the capitalist context of his network would never have admitted a true threat to the system that built its wealth. That remains equally true of social media. Despite the seeming vast proliferation of red roses and hammer-and-sickle emojis on Twitter, there is no revolution waiting in its digital wings, just another social circle for the platform to sort you into.[30] None of this is to indulge in a reflexive, crotchety attack on the very idea of social media. Its benefits are myriad and obvious; these platforms have brought us closer together and materially improved our lives in many ways. But it is worth stepping back to understand that the ways social media can be most helpful—forming connections across international boundaries, quickly fundraising money through crowdsourcing, networking with likeminded people all over the world—are 1) weak attempts to make up for the deficiencies of late capitalism (consider how online fundraising for medical emergencies has emerged as a stopgap against the continued slashing of public health funding worldwide),[31] and 2) easily used by awful people for perverse ends that were once beyond their reach. The same social media that has allowed the micro-minority of transgender people around the world to talk to each other, form a transnational web of support and even build a movement, has also allowed white supremacists, neo-Nazis, and their assorted ilk to do something similar. But because transgender dreams reach towards structural issues like healthcare and material support, it’s harder for our social media activism to achieve them. Meanwhile, for the far-right, hurting individuals from despised minority groups is an immediate goal that social media makes incredibly easy. This is the dilemma that faces us, and the key to using social media successfully—the key to breaking free of the hideous co-optation that Network satirised nearly 50 years ago, freeing ourselves of social media’s anti-politics—is to recognise that engagement with and connection to the physical world matters. Social media can be a bridge, but it cannot truly be the public square we were promised, especially not for the purposes of changing the world; it simply wasn’t designed to accommodate the expansiveness of such aspirations. Network showed that Gil Scott Heron was quite right: the revolution will not be televised.[32] The last two decades have shown us it won’t be tweeted either. Katherine Cross Katherine Cross is a PhD candidate in information science at the University of Washington School of Information. She has extensively studied online harassment, social media culture, content moderation, and the ethics of big data. She is also a sought-after commentator on these issues, as well as on video gaming, virtual reality, transgender politics, and media criticism. [1] ‘Network (1976 film)’, Wikipedia accessed 24 May 2022 [2] Imran Rahman-Jones, ‘‘I’m as mad as hell, and I’m not going to take this any more!’’ (Medium, 17 February 2017) accessed 24 May 2022; Clyde Haberman, ‘A Great Line, Taken Badly Out of Context’ The New York Times (New York, 21 October 2010) accessed 24 May 2022. [3] The World Wrestling Federation staged colourful, theatrical wrestling matches on American cable television, while the Jerry Springer Show was a tabloid talk show that frequently hosted acrimonious arguments, sensationalist debates, and even physical violence between guests. [4] Various authors, ‘NETWORK, Sidney Lumet, 1976 - I'm Mad As Hell and I'm Not Gonna Take This Anymore!’ (YouTube, 6 March 2018) accessed 24 May 2022. [5] Chris Rojek, Presumed Intimacy: Parasocial Interaction in Media, Society and Celebrity Culture (Polity Press 2015). [6] For but one example of the genre, here’s a clip of an Australian pundit’s reaction to the recent general election in Australia that saw the centre-left return to power in that country: Kevin Rudd, ‘Clip of Sky News presenter criticising the ‘left-wing’ UK government’ (Twitter, 22 May 2022) accessed 24 May 2022. [7] Ally Mintzer, ‘Paying Attention: The Attention Economy’ (Berkeley Economic Review, 31 March 2020) accessed 24 May 2022. [8] Marshall McLuhan, Understanding Media: The Extensions of Man (Signet Books 1966). [9] Kate Crawford and Tarleton Gillespie, ‘What is a flag for? Social media reporting tools and the vocabulary of complaint’ (2016) 18(3) New Media & Society 410–428. [10] Jenny L. Davis, How Artefacts Afford: The Power and Politics of Everyday Things (MIT Press 2020) 6. [11] It is profitable to consider the way that social media-driven colour revolutions have met with only very limited success in countries like Egypt, for instance, or how the #MeToo movement has faded into a series of spectacles too easily co-opted by corporations and powerful institutions. It was notable, for instance, that Roberta Kaplan, the former chair of Times Up, an anti-sexual-harassment organisation founded off the back of the MeToo movement, was instrumental in helping former New York Governor Andrew Cuomo cover up his own abuses. Cf. Michael Gold and Jodi Kantor, ‘Roberta Kaplan, Who Aided Cuomo, Resigns from Time’s Up’ The New York Times (New York, 9 August 2021) accessed 16 June 2022. [12] Hanna Fenichel Pitkin, Attack of the Blob: Hannah Arendt’s Concept of the Social (University of Chicago Press 1998) 16. [13] E Gilbert, ‘The Role of Social Media in Protests: Mobilising or Polarising?’ (89 Initiative, 6 April 2021) accessed 24 May 2022; Booke Auxier, ‘Social media continue to be important political outlets for Black Americans’ (Pew Research Centre, 11 December 2020) accessed 24 May 2022. [14] Farhad Manjoo and Mike Isaac, ‘Phone Cameras and Apps Help Speed Calls for Police Reform’ The New York Times (New York, 8 April 2015) accessed 24 May 2022. [15] ‘Doomscrolling’, Wikipedia accessed 24 May 2022. [16] Chaseedaw Giles, ‘Op-Ed: I’m a Black social media manager in the age of George Floyd. Each day is a new trauma’ (LA Times 23 June 2020) accessed 24 May 2022; Rachel Charlene Lewis, ‘Very Online: Inside the Endless Post-Police Brutality Loop’ (Bitch Media, 11 September 2020) accessed 24 May 2022. [17] Sara Morrison, ‘Questions to ask yourself before sharing images of police brutality’ (Vox Recode, 11 June 2020) accessed 24 May 2022. [18] Dede Akolo, ‘Abstract Pain: George Floyd and the Viral Spectacle of Black Death’ (Bitch Media, 17 June 2020) accessed 24 May 2022; Rebecca Pierce, ‘Criticism of Black death being described as ‘cinema/art’ in an article’ (Twitter, 10 June 2020) accessed 24 May 2022. [19] Caelan Reeves, ‘Front of house: Social media’s repackaging of Black death’ (The Student Life, 29 April 2021) accessed 24 May 2022. [20] Michael Butler, ‘Ukraine’s information war is winning hearts and minds in the West’ (The Conversation, 12 May 2022) accessed 17 June 2022. [21] It is important to note that the information war looks different outside of Western nations, with a more mixed picture. Cf. Carl Miller, ‘Who’s Behind #IStandWithPutin?’ (The Atlantic, 5 April 2022) accessed 24 May 2022. [22] Paul Baines, ‘Ukrainian propaganda: how Zelensky is winning the information war against Russia’ (The Conversation, 11 May 2022) accessed 24 May 2022 [23] Adam Curtis, ‘The Desperate Edge of Now’ [Part 1 of The Living Dead: Three Films About the Power of the Past] (BBC Two, 30 May 1995). [24] Alexander Galloway, Protocol: How Control Exists After Decentralisation (MIT Press 2004) xv. [25] Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (Public Affairs Books 2018). In essence, Zuboff argues that the current phase of capitalism relies on surveillance and the dissolution of privacy in order to generate products and profit. [26] Jules Gill-Peterson, ‘Anti-Trans Laws Aren’t Symbolic. They Seek to Erase Us From Public Life’ (Them, 18 April 2022) accessed 24 May 2022. [27] Edward Nik-Khah and Robert Van Horn, ‘The ascendancy of Chicago neoliberalism’ in Kean Birch, Julie MacLeavy, and Simon Springer (eds) Handbook of Neoliberalism (Routledge 2016) 55–66. [28] Owen Jones. ‘Woke-washing: how brands are cashing in on the culture wars’ The Guardian (London, 23 May 2019) accessed 24 May 2022; Amanda Maryanna, ‘the instagram infographic industrial complex’ (YouTube, 24 March 2021) accessed 24 May 2022; Lewis (n 16) 6. Each of these works engages with the phenomenon of gestural or ‘performative’ activism, activism that focuses on empty rhetoric rather than meaningful action, often with the aim of increasing one’s social capital through ‘making a statement’ or appearing to be on the right side of an issue. That genre of activism is easily exploited by corporations precisely because it changes nothing. [29] For more on this archetype’s role in mass media, cf. Susan Faludi. Backlash: The Undeclared War Against American Women (Crown Publishing Group 1991). [30] Across multiple languages on Twitter, the red rose emoji—long associated with socialist movements—has re-emerged with much the same meaning. In some countries, like the US, it has specifically come to be associated with newer democratic socialist organisations like the Democratic Socialists of America. The hammer-and-sickle emoji, meanwhile, is used by many communists on the platform. While Marxist-Leninists (or MLs) are among the most vocal, the symbol is used by adherents of many different communist philosophies on Twitter. [31] The Lancet Gastroenterology & Hepatology, Editorial, ‘Public health funding in England: death by a thousand cuts’ (2021) 6(12) The Lancet; John Burn-Murdoch. ‘Woke-washing: how brands are cashing in on the culture wars’ Financial Times (London, 28 April 2022) accessed 24 May 2022. [32] Ace Records Ltd., ‘Gil Scott-Heron - Revolution Will Not Be Televised (Official Version)’ (YouTube, 7 October 2013) accessed 24 May 2022.

The last few months, in particular the furore over Partygate,[1] have scarred the reputation of many of Britain’s most vital institutions. Police are investigating law breaking not just by the Prime Minister and his team, but among their own ranks. Parliament’s ability and willingness to hold power to account has come into question. We face a government whose answer to the old question—‘who guards the guards?’—is a simple one. No-one. This is a government that claims its democratic mandate trumps all constraint on its power, from the police, from the law, from the courts, from honour, convention, tradition, or rules. Gone is the conservative mission of the Conservative Party: the instinct to protect and preserve institutions. In its place is a revolutionary, iconoclastic movement, far more interested in dismantling the things it doesn’t like than in building anything to replace them. It is clear we can no longer rely on what Peter Hennessy called the ‘good chaps’ theory of government: that those who rise to the top will always be honourable people, willing to submit to informal rules of behaviour.[2] Instead, we need to think creatively and imaginatively about a different kind of constitutional future: how to reform and rebuild the institutions that hold power, and those that hold it to account. In this essay I’m going to set out—briefly—an institutional reform agenda for some of the most important institutions that frame our lives. Devolution, in my view, is fundamentally important, and a new settlement between the power of the centre and the power of the cities must be core to how we reform the United Kingdom, to stop it sliding into political self-destruction. Principles for institutional reform This is a central truth of all institutions, which they often struggle to deal with. They come under attack from their enemies for existing at all; their defenders get defensive and refuse to change anything; they worry that capitulation will start them down the slippery slope of institutional decay. This is wrong-footed. Institutions play an essential role in creating binding relationships between people and each other, including and especially relationships between generations. They have the potential to last hundreds of years: an institutional mindset is far more likely to worry about the legacy for generations to come—generations that most of us are not even thinking about yet—than individuals are. And yet, if institutions fail to adapt to changing times, they come under attack from the iconoclastic impulse. In physics, the word plastic doesn’t just mean the stuff used in packaging and littering our oceans. Plastic, the adjective, is the opposite of elastic. An elastic material will snap back to its original shape if you stretch it, while a plastic material will stay in its new shape. Instead of being iconoclastic, we need to be iconoplastic: ambitious and aggressive in reshaping our institutions to protect them from being smashed to pieces. An iconoplastic movement should be built around three core principles: Acceptance of New Power: The thesis of Jeremy Heimans and Henry Timms in their book New Power is that we have moved away from a primarily hierarchical system of political power to a collaborative, bottom-up one.[3] Grassroots movements, membership uprisings, social media campaigns: all challenge the old power structures that vested decision-making at the top of organisations. New Power institutions need to be built to cope with this reality, not challenge or protect against it. Participation, not just representation: In an Old Power system, representation has been the primary way that members or voters’ voices have been able to influence decision-making. Representative democratic systems have their place, but technology is increasingly making it far easier for mass participation in decision-making, including through deliberative methods. The great benefit of including people in the process of choice is that it builds a kind of democratic skillset: understanding, compromise, and collaboration. Participative institutions will be far less focused on semi-regular elections to the top, and far more focused on maximising constant collaboration. Openness: New Power and mass participation need to be facilitated by greater openness about decision-making, data, and opportunity. Organisations under iconoclastic threat can become fearful: hoarding information to protect it from bad actors who will use it to contribute to their destructive agenda. An institution confident in its own ability to continue its own process of constant reform has to stay open to challenge, sharing its weaknesses as well as its strengths. Parliament For too long we have believed the hype about Westminster being the ‘Mother of Parliaments’.[4] The truth is that all the pomp and tradition disguises the fact that Parliament is too often a hollow sham, ignored by an over-mighty executive of ministers and civil servants. No wonder, when new democracies were emerging from the Soviet bloc in the 1990s, not one of them copied our model of governance. Our system does not deliver what people want, it does not keep government or politicians honest, and it does not foster the meaningful debate we need. First, I think we should move Parliament to Manchester, though I’d be open to a public consultation on the best place to put it. Our current Parliament buildings have become a potent symbol of political decay, propped up by scaffolding, beset by leaking roofs and drafty doors, even the clockwork of the nation’s favourite bell running out of steam. Billions are being spent shoring up these crumbling edifices, misguidedly trying to preserve the old order in the old stonework.[5] Those of us who love London have to accept that this city is toxic to millions of people. It is a byword for distance, disengagement, and disconnection from the rest of the UK.[6] Government from London cannot offer the transformative moment the country needs: a recognition that the rage has been heard and that change will really come. Moving Parliament offers the chance to fundamentally rebalance our economy, as well as our politics. For thirty years or more, governments have promised to regenerate the North, and rebalance growth away from the overheated south-east. Billions of pounds have been invested; entire civil service careers have been spent mapping and planning and designing initiatives with all the goodwill and ambition in the world. Some achievements have been wrung from this sustained effort. Labour transformed the city centres of many great Northern cities. Transport investment is finally arriving across the North’s rail network, in a much more coordinated way than before. But all this goodwill is fighting gravity and it isn’t working. London and the south-east of England still outstrip everywhere else in wealth and growth[7]. The UK is Europe’s most regionally divided nation[8]. Only when politicians have to go to work every day on the rickety trains of our northern cities will they really change this, and give the North the infrastructure investment it actually needs to grow and thrive. There will be huge agglomeration effects of shifting this vitally important state institution to a city where it might do some good, rather than just contributing to the overheating of the housing market. It won’t be just politicians who will move; it will be journalists, public affairs companies, regulators, and regulated industries: anyone whose business relies on knowing what the government is up to. London will remain our financial and cultural capital, and will recover from the economic shock quickly. In the process, the North will be transformed. Countries do not need to have their economic and their political capitals in the same city. The US has four cities bigger than its capital. Australia and Canada each have five. Shanghai is larger than Beijing. And countries can move their capital for the sake of the nation: Canberra was established to stop Melbourne and Sydney from quarrelling; Abuja replaced Lagos as Nigeria’s capital because the latter was considered a divisive place to be (as well as being hot and overcrowded). Brasilia was established as Brazil’s capital, replacing Rio de Janeiro, in 1960. Belize, Botswana, and Pakistan followed soon after. Myanmar recently moved its capital city to Naypyidaw. But of course, the traditionalists will declare, it’s alright for these funny, foreign, modern sorts of places to go ‘messing around’ with the institutions of their government. We can’t: we’re English. We speak the language (as Bernard Shaw put it) of ‘Shakespeare, Milton, and the Bible’. We’ve got the very ‘Mother of Parliaments’. They declare that Parliament is a symbol of a thousand years of history and must, therefore, be protected from anything that smacks of modernity or reform. This is, of course, historical hokum. There have been buildings used for and by our rulers on the site of Westminster for a thousand years, but the vast majority of the current Palace of Westminster was completed just 150 years ago. It looks older partly because Westminster Hall, which fronts the road, is truly ancient, but mostly because our national predilection for the ancient led to its being designed in the Gothic style. In fact, Parliament’s history is not of continuity but of a series of radical changes forced upon it. From the destruction by fire of the old Palace in the 1830s to the destruction of the debate chamber by bomb in the 1940s and the establishment of something approaching democracy in the Great Reform Act to the full national franchise for men and women in 1928, Parliament changes when it needs to change. A proper reading of history shows that our greatest institutions survive when they adapt. The adaptation Parliament needs now is to move, if it wants a chance of being loved again. Democracy doesn’t live in a building. We can take Big Ben north with us, if people want to. We can hold the state opening of Parliament once a year in our crumbling relic on the Thames, if it makes life easier for the Queen and her golden carriage. But now is a time for national rebirth, and we should mark that with change, not stagnation. Political parties To cross the divides of identity politics our political parties must be transformed too. This is because membership of parties is increasingly based on identification with a particular ‘tribe’ or group, contributing to the polarisation of our politics and weakening the ability of our parties to be representative of the country at large. It was during the election of 2015 that I wrote the first draft of the constitution of the Women’s Equality Party (WEP). We included one truly radical proposition: that party members were allowed to be members of other parties, too. WEP was set up to be a ‘cross-party’ party: to welcome feminists from across the political spectrum, and offer them a second home. This is a completely different conception of what politics and parties are for, and many people laughed at us and still do. It’s the direct opposite of the rules that are set by the other parties. They can throw you out of the party for even tweeting support for a friend who’s standing under another party’s ticket; for making a £50 donation to a friend in another party; or for admitting you voted tactically in your seat. The Labour party’s constitution says that its primary purpose is to ensure the continued existence of the Labour party. Their idea is to create a community of trust in which everyone is fighting for the same purpose. Otherwise, your opponents could infiltrate your local party and, for example, choose an unelectable candidate. Of course, there’s an easy solution to this and it’s to open up candidate selection to everyone in your constituency. The closed shop of political parties does more to sabotage good politics than anything else we do wrong in Britain. Open primaries are the only way to give real voice to constituents in a two-party system; I’d be happy to change our voting system instead, but that’s a more structural reform that’s hard to imagine happening. So, for the moment, let’s just open up the parties. Pass a law against party exclusivity so the Conservatives can’t ban you from joining the Women’s Equality Party and Labour can’t ban you from campaigning for the Green candidate in your local area. Mandate and fund open primaries in every constituency. Allow people to donate a few pounds, at the ballot box, alongside their vote, from taxpayer funds and ban big donations completely from party politics. All elections should be majority publicly funded, and we should introduce legislation to force political parties to show all donors. Donations should not be more than £1000 per person, and can only be made once every year. The Monarchy and the honours system It’s hard to do much better than the proposals set out in Demos’ early days for the British monarchy. The transition to a new monarch must be a moment of renewal and reformation. The honours system is an important first step: while in the last twenty years reforms have been implemented to honour more everyday people, and prevent those who don’t pay their full taxes from being honoured, we need further change: First, we need to replace the outdated references to the British Empire: an order of British excellence is a sensible shift to the naming conventions of our honours. We should also think about the privileges conferred on those who receive an honour. Many recipients have the right to marry, or for their children to marry, in a special chapel at St Paul’s Cathedral. This is a nice perk, but we should take a less London-centric view. We should work with our civic infrastructure—town halls, guildhalls, cathedrals, temples and more—to give real status and honour to those who’ve been recognised for their service in normal life. We need a better system for stripping those who commit crimes or abuse the tax system, of their honour, in order to protect its integrity for the future. We should use the Royal magic to celebrate places, as well as people. Let every town get involved in choosing the people to be honoured from their place—instead of having the lion’s share of honours going to Londoners. Create honours for towns and villages, too: the right for every place to be Royal for a year, instead of only Leamington Spa and Tunbridge Wells. Devolution and community power Over centralisation is one of the greatest failings of our system of governance. Over the last couple of decades we have slowly inched towards progress—establishing mayors, combined authorities and devolving some power to more local organisations. We need to go much further; the central assumption needs to be reversed. We must move away from a system in which local areas must come cap in hand to central government and beg for powers and responsibilities, to one in which central government must make the case for why things need to be standardised and centralised. At Demos, we have made the case for transforming our public services by centering them around strong relationships—between citizens and the state, between citizens and each other, and—crucially—between the various services who so often work at cross purposes to one another. This is only possible if we devolve power and centre reform around places instead of the vertical specialisms of individual government departments and professional specialisms. We’ve argued for complete decentralisation of employment support services, replacing JobCentres with a Universal Work Service to help all working people develop their career and find better work.[9] That should be run and managed locally, built around the needs and opportunities of particular areas. We’ve also argued for a new approach to crime prevention, putting local authorities in the lead role, and giving them oversight of the police.[10] There is little logic in having a powerful City mayor and a separate Police and Crime Commissioner. And there is little logic in leaving crime prevention to the police alone, when the factors that reduce crime are usually to be found in social services, education, housing, and youth provision. Of course, devolution has its critics. One of the best arguments against devolution, of course, is that it enables far more variation between places and that tends to benefit people who are better off: instead of a single national system, you get good services where people can pay for them, and bad services where need is highest—also known as the ‘postcode lottery’. Thus, the desire to standardise across the country is driven by an ideological commitment to fairness and equity that has huge merit. Of course, national systems tend to have huge variation in them, too, no matter what the theory says. But it’s vital that we don’t allow community devolution to exacerbate inequality: in fact, we should use it to push in the opposite direction. Efforts to build social capital and democratic capability need to be concentrated in areas of higher deprivation. Whether through the transfer of community assets, the investment of time and resources in training, education, and relationship building, or simply through more direct funding, poorer areas need far more support, to enable them to take power, and develop their capabilities. Still, there’s the risk that politics gets more intense locally, and you end up surrendering evidence about what works and replacing it with what people fancy, even if that’s no housebuilding, unsafe hospitals, or expensively subsidised but hardly used, post offices. So why open ourselves up to the risks associated with far greater democracy at the local level? It’s because taking decisions away from people absolves them of responsibility for managing trade-offs and complexity. It allows them to outsource difficult decisions to politicians who they then complain about, and this slowly builds resentment that eats away at the political system. Many of the policy problems we face today are in fact better resolved at community level because it’s where we have the best chance of building legitimacy for so many uncomfortable decisions. But the community level is also where you can leverage human relationships, voluntary networks, and community infrastructure to be far more effective, often for less money. The state can be mobilised at national level to meet demand, but only a really strong social system can actively reduce demand. The Community Paradigm is the name given by New Local, a think tank working with local government and other organisations, to their work.[11] It identifies why the community paradigm is more likely to be effective at tackling the kind of systemic problems identified in earlier chapters. It engages people at a level that is far more likely to influence their own behaviour and choices. It has agility and personalisation that are vital in a diverse society. It builds connections and relationships between people that, over time, add up to social capital. Starting the journey It is far easier to set out ideas for reform than it is to implement them. Institutional reform requires careful, slow, patient, and confident work. Some may look at our government and feel hopeful: the Levelling Up White Paper does suggest a level of analysis and ambition that has rarely been paralleled.[12] Others may look at it and despair: where is the long-term financial commitment? Why has this generational goal of shifting power and opportunity in the country disappeared from public view within a few short months? But neither naive hope nor despair are the right approach. Perhaps this government will become great, and perhaps it will be replaced by a great government. At some point in my lifetime, I do expect that we will have a government that is willing to initiate structural change from the centre. But we should not wait. It is in the nature of ‘new power’ that we do not need to. Organisations in the public and private sphere can start to take an iconoplastic approach. We can all add a little more participation and a little more openness to the way we run our businesses, our charities, our universities, and our local systems of government. Instead of waiting for the iconoclastic enemies at the gates wanting to tear us to pieces, we can think about how to share the power we have. Change is best started yesterday, but today will do. The government that replaces Boris Johnson’s finally provides an opportunity for leadership to reset our institutions. Polly Mackenzie Polly Mackenzie is Chief Social Purpose Officer of University of the Arts London. She ran the cross party think tank Demos from 2018-2022 and was Director of Policy for the Deputy Prime Minister from 2010-2015. This article was written in the Summer of 2022. [1] ‘Partygate’ is the term given to the UK Government scandal that revealed the gatherings – which violated COVID-19 lockdown rules – taking place. The full timeline of events and police investigation results can be found at . [2] Cf. Robert Saunders, ‘Has the “good chaps” theory of government always been a myth?’ The New Statesman (London, 3 August 2021) accessed 24 June 2022. [3] Jeremy Heimans and Henry Timms, New Power (Penguin Random House 2018). [4] UK Parliament, ‘A beacon of democracy’ (UK Parliament) accessed 13 April 2022. [5] Aubrey Allegretti, ‘Parliament renovation could take 76 years and cost £22bn, report says’ The Guardian (London, 23 February 2022) accessed 13 April 2022. [6] Roch Dunin-Wasowicz, ‘London Calling Brexit: How the rest of the UK views the capital’ (LSE Blogs, 13 November 2018) accessed 13 April 2022. [7] Sam Bright, ‘The Shocking Divides Between London and the Rest of Britain’ (Byline Times, 28 April 2022) accessed 13 April 2022. [8] Jamie Hailstone, ‘UK one of the most divided countries in Europe, study warns’ (NewStart, 27 November 2019) accessed 13 April 2022. [9] Andrew Philipps, ‘Working Together: The case for universal employment support’ (Demos, May 2022) accessed 13 April 2022. [10] Alice Dawson, Polly Mackenzie, and Amelia Stewart, ‘Move on Upstream: Crime, prevention and relationships’ (Demos, May 2022) accessed 13 April 2022. [11] Adam Lent and Jessica Studdert, ‘The Community Paradigm: Why public services need radical change and how it can be achieved’ (New Local, 4 March 2021) accessed 13 April 2022. [12] Department for Levelling Up, Housing and Communities, ‘Levelling Up the United Kingdom’ (February 2022) accessed 13 April 2022.

Artists have drawn ideas, thoughts, and concepts from the works of others for centuries. However, copyright infringement issues frequently arise in the contemporary world. The case discussed in this piece concerns contemporary artworks from the ‘Canal Zone’ series by Richard Prince. Most of the works had photographs by Patrick Cariou incorporated in them, which were previously published in Cariou’s Yes Rasta book. Following an analysis of appropriation art history, postmodern theories, contemporary art market, the contradictory nature of copyright law, and finally the US ‘fair use’ test and ‘transformative character’ requirement, the author is critical of copyright law not allowing for appropriation art. She is of the view that under certain circumstances, the use of preexisting art is justified. Appropriation art history In the history of art, it would be an impossible task to count all the times artists have ‘copied’, in the broad meaning of the word, one another. Appropriation art per se was recognised around the time Pablo Picasso and Georges Braque made their collages from 1912 onwards, and Marcel Duchamp’s exhibited his ‘Readymades’ in 1915.[1] It can be defined as intentional borrowing, copying, and alteration of existing images and objects.[2] Artists have been ‘appropriating’ each other’s works for centuries. One example is Raphael (fig. 1), whose work was recreated by Diego Velázquez (fig. 2), which in turn inspired Francis Bacon (fig. 3). Another famous example is Marcantonio Raimondi (fig. 4) from whom Édouard Manet took inspiration (fig. 5). In turn, Pablo Picasso recreated Manet’s work in his 1960 Le déjeuner sur l’herbe d’après Manet (not pictured here). Appropriation has functioned as a mode of art under different names of imitations, inspirations, or replicas. Artists have used it to signal the influence of other artworks, claim the prestige of a particular heritage, or rework a theme or motif for their own time. With the development of technology and mediums such as photography or digital music recordings, the lines between originality, authorship, and the classic dichotomy of an idea and its concrete expressions have blurred.[3] Today, ‘copying’ requires as little as pressing a camera button; there is no need for Andy Warhol’s photographic silkscreen printing (a stencilling method enabling the production of many similar original artworks e.g. the Marilyn Monroe portraits) or other more complex techniques. Richard Prince’s take on art New York-based Richard Prince is one of the most globally influential and commercially successful contemporary artists today. His controversial work can be recognized as a prime example of appropriation art. Prince’s pieces have been exhibited at many museums, with numerous major solo exhibitions, including a retrospective at the Guggenheim in New York in 2007.[4] Some of his most debated pieces over the years were created using the technique of re-photography. The early series known as ‘Untitled Cowboys’ consisted of Prince’s cropped photographs of Marlboro advertisements. In 2014, Prince took photographs posted on Instagram, added his own words in the ‘comments section’, and exhibited the works at the Gagosian Gallery in New York, which raised questions of copyright infringements. Finally, in terms of legality, the ‘Canal Zone’ series discussed below was possibly the most debated of his works. Postmodern thought Appropriation art is inextricably linked to postmodern thinking. Creating artworks out of nothing is impossible meaning anything that could be created has already been created in the past and is being reused.[5] Following this thinking, all works, whether artistic, literary, or musical, are built on cumulative creativity.[6] An illustrative way to think about postmodern art is the metaphor of the palimpsest. Palimpsestic practice was especially important in the Middle Ages when the primary text of a book was effaced to make room for new writings.[7] Today, a palimpsest is a ‘work of art with many levels of meaning, types of style, etc., that build on each other’.[8] Prince’s works can be considered palimpsests, as they are based on content that the artist builds upon by adding new layers and elements. The French literary theorist and philosopher Roland Barthes wrote on postmodernism. In his essay ‘The Death of the Author’ (1967), he wrote that a ‘text is a tissue of quotations drawn from the innumerable centres of culture’.[9] This meant that the author had no authority over the meaning of the words he or she wrote, and all that happened to the content after it was written was beyond their control.[10] Moreover, he claimed that each artwork was surrounded by a web of connotations and cultural significance, such that it had no definite interpretation and could not be ultimately decoded. He was a firm believer in the idea of ever-present intertextuality—the notion that any text of culture, whether literary or visual, refers to a different text.[11] As an example might serve The Lion King’s main plot line, which resembles that of Shakespeare’s Hamlet. Matt Groenig’s television show The Simpsons is also a flagship example of intertextuality, as references to literature, films, or other cultural phenomena often feature. Similarly, in the essay ‘What is an Author?’ (1969), Michael Foucault proposed the view that the notion of an author is a social construct, and that discourse should be considered as something freely circulating between individuals.[12] Like Barthes, he was of the view that authors can only divide cultural phenomena and ideas into groups, and nothing can be ‘invented’ by way of intellect. Moreover, he noted a historical change in the way we recognize and give special attention to the concept of authorship. As of today, individuals have never had more rights over the works they produce. Even though these theorists’ principal focus was on literary works, their theories can be applied to other ‘texts of culture’ such as the visual arts. Adopting Barthes’ and Foucault’s thinking in an absolute manner would make it impossible to own rights to an image. In the modern world, the value of intellectual property can amount to unbelievable sums and the view that one should not benefit from what one has created because ‘authorship’ is a social construct is unlikely to be universally accepted. Even though ‘authorship’ is commonly recognized in the art market and the notion of ‘an author’ remains at the heart of copyright law, Barthes’ and Foucault’s thinking appears to be no less valid as a result. However, as shown in the example of Cariou, the idea of authorship can sometimes be more fluid. Cariou v. Prince In 2000, photographer Patrick Cariou released Yes Rasta, a book with portraits of Rastafarians and Jamaican landscape photographs.[13] He took the pictures over six years of living on the island, where he studied the Rastafarian way of life based on their closeness to nature, rituals, religion, and self-reliance. Almost like an anthropologist, he gained their trust and they let him photograph their lives. Prince created the ‘Canal Zone’ series by altering and incorporating Cariou’s forty-one photographs from Yes Rasta. Their works were exhibited in 2007 and 2008, first at the Eden Rock hotel in Saint Barthélemy and later at the Gagosian Gallery in New York. In most of them, he incorporated Cariou’s images by the methods of collage, enlarging, cropping, scanning, tinting, and over-painting. Cariou sued Prince for copyright infringement, and the case went up to the Court of Appeals for the Second Circuit. Legitimization of appropriation art Recognizing that appropriation art can be publicly, and not only legally, legitimised is crucial, although it was not considered by either the District or the Appeals Court. The public legitimization of different phenomena can subconsciously influence the way we think about things—and, essentially, whether we consider Prince’s works to be of fair use. Hence, the author argues that the public legitimization of appropriation art may result in the legal legitimization of such art. This is because the law adapts to the world around and the public viewpoints, as long as they are not harmful, criminal in nature, etc. In the case of Richard Prince, his established position on the international art scene and the art market should be emphasised. His art has gained legitimacy thanks to major international institutions, such as the Gagosian Gallery, exhibiting his work. The Gallery has held numerous exhibitions of his works (among them the controversial ‘New Portraits’ where screenshots of Prince’s Instagram feed were used), printed exhibition books, and organised exhibition opening dinners. Auction houses are also institutions legitimising artworks. Christie’s, Sotheby’s, and Phillips—all three most prominent auction houses have sold Prince’s works, symbolically showing they agree with his artistic practices. Moreover, the approval of other people can build legitimacy. In this case, the collector’s interest in Prince’s works suggests their high economic value. Celebrities’ interest in his works points towards them being worthy of attention. Lastly, the interest of other artists in Prince’s pieces, such as Jeff Koon’s, propounds they have artistic merit. Copyright Law Copyright is a property right subsisting in particular works ‘fixed in a tangible medium of expression’.[14] In the contemporary context of easy reproductions, appropriation art inevitably raises the questions of copyright infringements. Here, the focus is on United States copyright law, as Cariou arose before the District Court for the Southern District of New York.[15] When analysing the purpose of copyright law, one stumbles upon a paradox. On the one hand, the right to prevent others from using one’s work is supposed to ‘stimulate activity and progress in the arts for the intellectual enrichment of the public’.[16] Copyright law is supposed to guarantee artists that no one else will make an unfair economic profit from their work or claim authorship over it. However, this law, which is supposed to protect creativity, may stifle some artists’ visions. Not using the postmodern language of incorporating pre-existing artworks may bar the freedom to comment on political agendas, consumerism, wars, gender, or identity.[17] In the twentieth century, numerous artists creating via different mediums have explored appropriation art, either for the purpose of broadening their creativity or voicing their criticism for various social structures.[18] Hence, a question arises—does copyright law have to stand in opposition to appropriation art? ‘Fair use’ doctrine as a copyright exception The fair use doctrine answers the question above. It aims at a more flexible application of copyright statutes on occasions where they would stifle artists’ creativity.[19] Fair use is the most common exception to copyright law (distinct from the UK ‘fair dealing’ principle) and limits the original artist’s exclusive rights over a given work.[20] The legal doctrine comes from the Copyright Act 1976 and is significant for Cariou, as Prince asserted it as his defence.[21]The doctrine appears contrary to the orthodox rule that for an artwork to be protected by copyright, it must be ‘original’—meaning it must be an artist’s own creation and not a copy.[22] However, appropriated works are, at times, far from what is colloquially referred to as ‘copies’. The primary rationale for the fair use doctrine is that reinterpretations of old ideas should ‘be accessible to the public’.[23] The fair use doctrine is not defined in the 1976 Act, and the courts are free to adapt the doctrine on a case-by-case basis.[24] However, due to the unpredictability of litigation, fair use art cases arise only seldom and are frequently settled out of court.[25] This makes Cariou even more significant for the US jurisprudence and copyright law in general. The ‘fair use’ test To determine whether Prince appropriated the photographs for fair use, the judges in both the District and Appeals Courts looked at a four-factor test set out in section 107 of the 1976 Act. The purpose and character of the use is the first factor. The Appeals Court significantly downplayed the role of this requirement. It shifted its focus to whether the work was transformative, i.e. transforming the original work’s underlying purpose by adding ‘something new’ and presenting the photographs using a completely different aesthetics. The Appeals Court decided that Prince’s artworks have done just that. Hence, even though ‘Canal Zone’ was an economic success (several of the works sold for over 2 million dollars), fair use could still be established.[26] The second factor concerns the nature of the copyrighted work. Here, the Appeals Court found ‘no dispute’ over Cariou’s photographs’ creative and public character. However, this was deemed of little relevance due to ‘the creative work of art…being used for a transformative purpose’.[27] In terms of the third factor, i.e. the amount and substantiality of the portion used in relation to the copyrighted work, the Appeals Court considered whether the ‘taking’ from Cariou was proportional to the purpose of Prince’s works.[28] This factor consists of quantitative substantiality and qualitative substantiality. The former appears to be the most objective, as it attempts at calculating how much of the secondary work comprises the original one. The quantitative factor is especially relevant, as it enabled the Appeals Court to distinguish between the twenty-five works deemed fair use and the remaining five, which were not.[29] The fourth factor is ‘the effect of the secondary use upon the potential market for the value of the copyrighted work’. The District Court held Prince’s work damaged ‘the potential market for derivative use licences for Cariou’s original work’.[30] The Appeals Court opposed that view and focused on the different target audiences of both artists. Cariou’s works would primarily appeal to those interested in the niche knowledge area of anthropological studies of Jamaican Rastafarians. On the contrary, Prince’s works target contemporary art enthusiasts, collectors, and people of high social status. This can be evidenced, for example, by the types of guests invited to the Gagosian-held dinner opening the ‘Canal Zone’ exhibition—among them were Jay-Z, Beyonce Knowles, Anna Wintour, Robert de Niro, Angelina Jolie, and Brad Pitt. Thus, the Appeals Court followed the reasoning in Blanch and tried to determine ‘whether the secondary use usurps the market of the original work’.[31] It found there was no harm to the potential sales of Cariou’s work, as Prince’s works appealed to ‘an entirely different sort of collector’.[32][33] Ultimately, the fair use test will establish whether a fair-minded and honest person would have dealt with the work in the given way. For that purpose, the courts are free to consider any other relevant factors they deem relevant, giving them flexibility. They may consider how the appropriating artist obtained the primary work and the extent to which the work was transformative—a point which was closely scrutinised in Cariou. Transformative art The term ‘transformative’ was coined in 1990 and has been a significant consideration in the fair use doctrine.[34] It was first relied upon in Campbell v Actuff-Rose Music, Inc.[35] Since then, the courts have adopted various definitions of the word—the narrowest being that a work must be a parody and the broadest that the newer work must manifest a different purpose from the original one.[36] It was precisely the ‘transformative’ nature of Prince’s works that led to the Court of Appeals applying the fair use doctrine. The judges adopted a new definition of the word ‘transformative’—it was enough for the work to have a distinct meaning and not comment on the original work.[37] Before considering the ‘transformative’ element, the District Court decided ‘Canal Zone’ infringed on Cariou’s copyright. The infringement was seen as so abusive that the District Court ordered to ‘deliver up for impounding, destruction, or other disposition […] all infringing copies of the Photographs’.[38] The decision to destroy what many considered art outraged the artistic community.[39] However, after establishing twenty-five works by Prince to be of a transformative nature, the Appeals Court held ‘the law does not require that a subsequent use comment on the original artist or work, or popular culture’.[40] The works only had to have a different character, atmosphere surrounding them, or a distinct mood. The Appeals Court stated that Prince’s artworks: ‘manifest an entirely different aesthetic from Cariou’s photographs. Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative’.[41]The unanswered question concerns the remaining five works remanded to the District Court to consider whether Prince was entitled to a fair use defence. One of the five works based on Cariou’s photograph was Graduation, where Prince allegedly ‘little more than paint[ed] blue lozenges over the subject’s eyes and mouth, and paste[d] a picture of a guitar over the subject’s body’. Unfortunately for us, the case was settled out of court, and whether those works presented a ‘new expression, meaning, or message’ will forever remain judicially undecided.[42] Other jurisdictions Prince’s works were considered ‘fair use’ and ‘transformative’, and therefore not infringing on Cariou’s copyright in the US jurisdiction. It is uncertain whether a similar decision would have been reached e.g. in a French or an English court. In English and Welsh law, two different outcomes could be reached in Cariou. On the one hand is the ‘pessimist’ (for Prince) stance of Martin Wilson, an experienced art lawyer. In his book, Wilson claims the law of fair use under UK jurisdiction is considerably narrower than in the US, and it remains unclear whether Cariou would have been successful in UK courts.[43] On the other hand, section 30A of the Copyright, Designs and Patents Act 1988 on caricatures, parodies, and pastiches says works from those categories do not infringe on copyright. Here, it is helpful to consider whether Prince’s works could be considered pastiches. The ordinary definition of pastiche says that it is an ‘imitation of style of pre-existing works, the incorporation of parts of earlier works into new works, and the production of a medley’.[44] Moreover, pastiches usually make ‘no attempt to ridicule, lampoon or satirise the copied work, or comment critically on that work or other themes’.[45] The pastiche exception could help avoid difficulties in assessing whether work is transformative for the purposes of the fair use doctrine.[46] Considering the above, it could be that if tried in the UK, Prince’s artworks would be classified as examples of pastiche, given the artistic techniques applied, and be found as not infringing on copyright.[47] Conclusion In closing, Richard Prince, even though controversial for his immense commercial success, has proven numerous times that his appropriation practices enable him to break conventions and create new meanings—which, essentially, is the very purpose of art. Simultaneously, it seems perfectly reasonable for Patrick Cariou to have his photographs protected from being copied and taken commercial advantage of. With appropriation art being so deep-rooted in art history, a compromise between the rigidness of intellectual property law and artistic freedom must be found. By developing new rules across jurisdictions, such as the ‘transformative’ principle discussed in Cariou, there is a chance of arriving at a comprehensive set of legal principles in copyright law. A certain anomaly is necessary—a legal framework which would enable artists to freely create and have their creations protected. Marysia Opadczuk is a second-year undergraduate in English and European Law at the Queen Mary University of London. In autumn 2022, she will begin a Licence 3 program at Université Paris-Panthéon-Assas. Interested in art history and art theory, Marysia aspires to pursue a career as a solicitor to work on IP and restitution disputes. [1] Tate, ‘Art Term: Appropriation’ accessed 5 January 2022. [2] MoMA Learning, ‘Pop-Art’ accessed 5 January 2022. [3] Marina P Markellou, ‘Appropriation art under copyright protection: recreation or speculation?’ (2013) 35(7) EIPR 369. [4] Judith B Prowda, Visual Arts and the Law: A Handbook for Professionals (Lund Humphries 2013) 88. [5] Andreas Rahmatian, Copyright and Creativity: The Making of Property Rights in Creative Works (Edward Elgar 2011) 185-6. [6] Graham Dutfield, and Uma Suthersanen, ‘The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity’ (2004) IPQ 379, 390. [7] Cambridge Dictionary, ‘Palimpsest’ accessed 5 January 2022. [8] ibid. [9] Roland Barthes, The Death of the Artist (Fontana 1977) 146. [10] Lionel Bently, ‘Review Article: Copyright and the Death of the Author in Literature and Law’ (1994) 57 ModLRev. [11] Roland Barthes, ‘Theory of the Text’ in Robert Young (ed), Untying the Text: A Poststructuralist Reader (Routledge 1981) 31, 39. [12] Michel Foucault, ‘What is an Author?’ in Vassilis Lambropoulos and David N Miller (eds), Twentieth Century Literary Theory: An Introductory Anthology (SUNY 1987) 124-42. [13] Patrick Cariou, Yes Rasta (powerHouse Books 2000). [14] Stroud’s Judicial Dictionary (10th edn and 1st Supplement, 2021). [15] Copyright Act 1976 codified in Title 17 of the United States Code (1976). [16] Jowitt’s Dictionary of English Law (5th edn, 2019); Pierre N Leval, ‘Towards a fair use standard’ (1989) 103 HarvLRev 1150, 1107. [17] ‘Brief of Amicus Curiae and the Andy Warhol Foundation for the Visual Arts, Inc In Support of Defendants-Appellants and Urging Reversal’ 19 accessed 5 January 2022. [18] E Kenly Ames, ‘Beyond Rogers v/ Koons: A Fair Use Standard for Appropriation’ (1993) 93 ColumLRev 1473. [19] Iowa State Univ. Research Found., Inc. v. American Broadcasting Cos (1980) 621 F.2d 57 (2d Cir.). [20] Khanuengnit Khaosaeng, ‘Wands, sandals and the wind: creativity as a copyright exception’ (2014) 36(4) EIPR 239. [21] (n 15) s 107. [22] Markellou (n 3) 370. [23] Suntrust Bank v Houghton Mifflin Co (2001) 268 F 3d 1257. [24] Title 17 of the United States Code, Historical and Revision Notes (House Report No. 94-1476) s 107. [25] Prowda (n 4) 83. [26] In Campbell, even though the song ‘Oh Pretty Woman’ was commercially successful, because it was transformative enough, the fair use defence could be used. Campbell v Acuff-Rose (1994) 510 U.S. 569, 584. [27] Bill Graham Archives v Dorling Kindersley, Ltd (2006) 448 F.3d 605 2d Cir. [28] Blanch v Koons (2006) 467 F. 3d, 257. [29] Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company. [30] Cariou v Prince (2013) 714 F.3d 694 2d Cir., 353. [31] Blanch v Koons (n 28) 258. [32] Khaosaeng (n 20). [33] Cariou v Prince (n 30) 18. [34] Pierre Leval ‘Toward a Fair Use Standard’ (1990) 103(5) HarvLRev. [35] Campbell v Acuff-Rose (n 26). [36] ‘Copyright Law — Fair Use — Second Circuit Holds that Appropriation Artwork Need Not Comment on the Original to Be Transformative. — Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)’ (2014) 127(4) HarvLRev 1228. [37] Prowda (n 4). [38] Cariou v Prince, 08 CV 11327 (S.D.N.Y. 18 March 2011) 37. [39] (n 19). [40] Cariou v Prince (n 30) 694, 699. [41] ibid. [42] Prowda (n 4). Campbell v Acuff-Rose (n 26) 569, 579. [43] Martin Wilson, Art Law and the Business of Art (Edward Elgar Publishing 2019) 11. [44] Emily Hudson, ‘The pastiche exception in copyright law: a case of mashed-up drafting?’ (2017) 4 IPQ 362. [45] ibid 346. [46] ibid 366. [47] ibid 365.

We must not make a scarecrow of the law, Setting it up to fear the birds of prey, And let it keep one shape, till custom make it Their perch and not their terror. (Measure for Measure, II.i.1-4) Angelo may have been the bloodthirsty antagonist who becomes an abuser of the very law he enforces, but his speech opening Act II of Measure for Measure recognises the impotence of law without proper enforcement. While few are calling for the legal system to act as a ‘terror’ to deter rule-breakers (Angelo had a penchant for execution), recent events have led to concerns that the Ministerial Code has become a rather comfortable ‘perch’ for ruling politicians. The code—which outlines standards of conduct for government ministers—is a set of guiding principles rather than law (it has no statutory footing) but the opening quotation resonates with the ongoing debate about the extent to which those in power are held to account in Britain. In particular, various controversies over alleged breaches during Mr Johnson’s premiership have contributed to a perception that there is an issue with the application of the Ministerial Code, namely, that apparent contraventions do not appear to result in sanctions.[1] In the opening months of 2022, many, including members of Mr Johnson’s own party, expressed concern at his failure to resign despite being the first sitting Prime Minister to be sanctioned for breaking the law and in spite of multiple claims that he misled Parliament about Downing Street parties during lockdown (at the time of writing these claims are being investigated by the Privileges Committee). In May 2022, within days of the publication of senior civil servant Sue Gray’s report, which found ‘failures of leadership and judgment [in] No 10’, Mr Johnson responded by publishing an ‘updated’ Ministerial Code which was met with controversy in the press, not least because of the timing. The Prime Minister is the ultimate arbiter of the Ministerial Code: only the Prime Minister can initiate or consent to the launch of an inquiry into whether a Minister has broken the code, but the Prime Minister does not have to accept such an inquiry’s findings. It is for the Prime Minister to decide what, if any, sanctions should be applied. In a sense, it is up to the Prime Minister to ‘shape’ the code. Thanks to its previous drafting, popular conception has been that any breach of the Ministerial Code should result in dismissal or resignation, but Mr Johnson’s recently updated code has introduced a range of sanctions available for breach, which has led to some critics alleging a watering-down. The updated code does retain the only specific breach with a defined punishment: knowingly misleading parliament. It keeps the pre-existing clause that ‘[i]t is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity’ and that Ministers ‘who knowingly mislead Parliament’ will ‘be expected to offer their resignation to the Prime Minister’.[2] It seems that its original writers did not conceive that the Prime Minister may be the person so accused. ‘Partygate’ and other recent scandals are far from the first ministerial breaches that have engaged a possible misleading of Parliament. Applying the terms of the title quotation to selected examples over time, has the Ministerial Code served more as a ‘terror’ or a ‘perch’? Background to the Ministerial Code Mr Johnson’s Foreword to the previous code (before his recent update) summarised the standards expected of Ministers as follows, There must be no bullying and no harassment; no leaking; no breach of collective responsibility. No misuse of taxpayer money and no actual or perceived conflicts of interest. The precious principles of public life enshrined in this document—integrity, objectivity, accountability, transparency, honesty and leadership in the public interest—must be honoured at all times; as must the political impartiality of our much admired civil service. The updated code includes a new Foreword which removes references to ‘integrity, objectivity, accountability, transparency, honesty and leadership’ (although the principles are embedded in the code itself). The Ministerial Code started life in 1945 as two documents, ‘Cabinet Procedure’ and ‘Questions of Procedure’, both introduced by then Prime Minister Clement Attlee.[3] In 1946, Attlee re-issued the guidance as one document called ‘Questions of Procedure for Ministers’. The code is generally revised at the start of each new administration and it remained confidential until John Major approved its publication in May 1992, opening it to external scrutiny. The code was given its current name under Tony Blair’s government in 1997. The Ministerial Code’s guidelines are intended to serve as a yardstick of procedure and conduct for all ministers, including the Prime Minister. However, as noted, the Prime Minister is the ultimate judge of breaches of the code and this has been the case since 1997.[4] Prior to then, the code stated that it was for ‘individual Ministers to judge how best to act in order to uphold the highest standards’. The First Report of the Committee on Standards in Public Life recommended that the code be changed so that ‘It will be for individual Ministers to judge how best to act in order to uphold the highest standards. It will be for the Prime Minister to determine whether or not they have done so in any particular circumstance’.[5] This recommendation is reflected at paragraph 1.6 of the current Ministerial Code. The Ministerial Code and Misleading Parliament One of the most high-profile ministerial resignations in the 20th century was that of John Profumo in 1963. Profumo, then Secretary of State for War, denied his affair with Christine Keeler stating there was ‘no impropriety whatsoever’ (impropriety in this case meaning sexual relations), thereby knowingly misleading the House of Commons.[6] The relevance of the relationship was not purely a moral issue; Ms Keeler was also involved with Colonel Yevgeny Ivanov, a naval attaché at the Soviet Embassy. Lord Denning’s subsequent inquiry into the scandal was primarily concerned with the potential security risk. Then Prime Minister, Harold Macmillan, lamented the level of the lie in the debate following Profumo’s resignation, stating: I do not remember in the whole of my life, or even in the political history of the past, a case of a Minister of the Crown who has told a deliberate lie to his wife, to his legal advisers and to his Ministerial colleagues, not once but over and over again, who has then repeated this lie to the House of Commons as a personal statement which, as the right hon. Gentleman reminded us, implies that it is privileged, and has subsequently taken legal action and recovered damages on the basis of a falsehood. This is almost unbelievable, but it is true.[7] In Profumo’s case, there was no question that he had blatantly misled the House of Commons. Once the truth came out, he had no choice but to resign. Breach of the Ministerial Code was not necessarily the only factor behind the resignation but the single misdemeanour that should prompt resignation in today’s code—knowingly misleading Parliament—was enough to do so then, tilting the balance towards the code at least having teeth, if not serving as a ‘terror’. However, subsequent examples are not as clear-cut. The Scott Inquiry was launched in 1992 after government lawyers instructed prosecutors to stop the trial of executives from machine tool firm, Matrix Churchill, who were accused of selling arms-related equipment to Iraq in breach of export controls.[8] The collapse of the trial led Prime Minister, John Major, to launch an inquiry under Sir Richard Scott, resulting in the publication of the Scott report in 1996 which found, amongst other things, that government ministers had misled Parliament over the export policy. The report concluded with the seemingly clear indictment that, ‘[i]n the circumstances, the Government statements in 1989 and 1990 about policy on defence exports to Iraq consistently failed, in my opinion, to comply with the standard set by paragraph 27 of the Questions of Procedure for Ministers and, more important, failed to discharge the obligations imposed by the constitutional principle of Ministerial accountability’.[9] However, in a vote over the findings of the report, John Major’s government narrowly survived (by a single vote) ‘by quite simply brazening it out and by openly disagreeing with the verdict that the Scott report had reached’.[10] The report led to no resignations. At the time of the Scott report’s publication, only William Waldegrave (who had been a junior minister in the foreign office), remained in office from the time period in question. Following the report’s publication, there were calls for Mr Waldegrave to resign—as Adam Tomkins writes, ‘on a number of occasions, the Scott report did find that Mr Waldegrave had misled Parliament, albeit without apparently realizing so at the time’.[11] Tomkins queries, ‘[h]ow did we get from the strong words (‘inaccurate’, ‘misleading’, ‘designedly uninformative’) of the Scott report to the position where no minister resigned?’ and proffers a variety of reasons in answer to this.[12] These range from the fact that the Major government had access to the report prior to its publication meaning they had time to analyse it and ‘[p]ublish an extremely partial (in two senses) and in places positively (i.e. knowingly and deliberately) misleading summary of and response to the report’, to the lack of highlighted conclusions in the report’s dense 1806 pages, which in themselves were not ‘sharp verdicts’.[13] In relation to Waldegrave, the report held that he did not intentionally mislead Parliament (even though Parliament was indeed misled and he ought to have realised the same). Further, there was no ‘duplicitous intention’ behind potentially misleading statements by government ministers to Parliament.[14] This is an example of a literal interpretation of the wording of the Ministerial Code being utilised in the government’s favour, in doing so potentially rendering it more of a ‘perch’ than a ‘terror’, particularly in the context of the wider report’s findings on government failings. This calls to mind some potential similarities with the current ‘Partygate’ scandal and, as with the Scott report, specifically, the Ministerial Code’s prescription that a Minister must ‘knowingly’ mislead Parliament. Boris Johnson has stated, Let me also say—not by way of mitigation or excuse, but purely because it explains my previous words in this House—that it did not occur to me, then or subsequently, that a gathering in the Cabinet Room just before a vital meeting on covid strategy could amount to a breach of the rules [emphasis added].[15] Mr Johnson’s defence here relied on inadvertent error and a more literal application of the Ministerial Code’s wording that only those who ‘knowingly mislead’ Parliament are expected to resign. A contrasting example of the inadvertent misleading of Parliament came to the fore in 2018 when Amber Rudd resigned as Home Secretary after unintentionally misleading the Home Affairs Select Committee within the context of the Windrush Scandal. Arguably, ‘[i]n constitutional terms, this is a precedent’.[16] Amber Rudd’s resignation letter to Prime Minister Theresa May was produced in response to a leak of an internal document setting out immigration targets. In the letter, Ms Rudd described her resignation as necessary ‘because I inadvertently misled the Home Affairs Select Committee over targets for removal of illegal immigrants during their questions on Windrush’. Although Ms Rudd continued to deny any awareness of specific removal targets, she accepted that ‘I should have been aware of this, and I take full responsibility for the fact that I was not’. Arguably, this indicates that a literal application of the linguistics of the Ministerial Code is not always appropriate or sufficient and the question is whether a minister ‘should have been aware’ and should therefore, as Rudd did, take responsibility. There were a number of other high-profile resignations under the May administration for improper behaviour that could be seen to breach the standards expected under the Ministerial Code. These included Secretary of State for Defence Michael Fallon, Secretary of State for International Development (and current Home Secretary) Priti Patel, and First Secretary of State Minister for the Cabinet Office Damian Green. Theresa May has been viewed by various political commentators as a ‘stickler for the rules’.[17] This raises the speculative question of whether the behaviour in question would have resulted in resignations had it occurred under a different administration led by a different leader. Scarecrow of the law? In his book The Good State: On the Principles of Democracy, A C Grayling quotes Roman poet Juvenal’s question, ‘quis custodiet ipsos custodes? (who watches the watchmen?)’ in relation to the House of Commons Code of Conduct.[18] The same might apply to the Ministerial Code. The instances explored above are merely selected examples and are too few and unrepresentative to seek to arrive at a definitive evaluation—there are obviously a myriad of factors that contribute to any ministerial resignation. However, they do illustrate that the Ministerial Code, with its lack of statutory footing, appears to have been applied inconsistently over time, depending on the current administration and Prime Minister. The code consequently operates with an extremely wide discretion and, to some degree, at the whim of the incumbent Prime Minister. Returning to the title quotation, would Angelo consider the Prime Minister’s approach to ministerial breaches to be making a ‘scarecrow’ of the Ministerial Code by offering the sanctuary of a ‘perch’ instead of serving as a ‘terror’? Almost certainly yes. However, Angelo calls for the law to be carried out to the letter and without discretion in order to be adhered to. This is not necessarily the answer either, not least given that the code’s historic lack of specificity on sanctions often led to a perception or expectation that any breach should lead to a blanket resignation, regardless of the scale or significance of the breach in question. This may alter now that the updated code provides for a range of sanctions, presumably to be applied proportionately with the gravity of the breach.[19] However, enforcement still relies on each Prime Minister’s discretion. Angelo may have been the chief advocate for rigid enforcement of definable rules, but at the end of Measure for Measure his own life is spared (after breaking those same rules) by an act of political mercy. As the title of the play suggests, balance is key. Shakespeare well understood that neither ‘perch’ nor ‘terror’ equates to good governance: a helpful reminder when considering the Ministerial Code and how it might best serve its purpose. Shulamit Aberbach, Mishcon de Reya Shulamit Aberbach is an Associate in the Politics & Law Team at Mishcon de Reya. Shulamit regularly advises clients in relation to political disputes and public law. She has acted for members of various political parties in a range of disputes, including in relation to internal party disciplinary procedures. Shulamit also contributed to the firm’s responses to the Judicial Review and Human Rights Act government consultations. Mishcon de Reya is an independent law firm, which now employs more than 1200 people with over 600 lawyers offering a wide range of legal services to companies and individuals. With presence in London, Singapore and Hong Kong (through its association with Karas LLP), the firm services an international community of clients and provides advice in situations where the constraints of geography often do not apply. This sponsored article was written in May 2022. [1] For example, the scandal surrounding Priti Patel’s alleged bullying of Home Office civil servants (paragraph 1.2 of the Code states that bullying and harassment by Ministers ‘will not be tolerated’). Sir Alex Allan, the then Independent Adviser on Ministers’ Interests, found that Ms Patel had not consistently met the ‘high standards required by the Ministerial Code’, concluded that on occasion her treatment of civil service staff amounted to behaviour that could be described as bullying and confirmed that her behaviour was in breach of the code. Notwithstanding Sir Allan’s conclusions, the Prime Minister took the view that her behaviour did not breach the code and declared his full confidence in Ms Patel, resulting in Sir Allan’s resignation. [2] Ministerial Code, para 1.3(c). [3] Although based on an earlier document, ‘The War Cabinet: Rules of Procedure’, produced in 1917—see FDA v Prime Minister [2021] EWHC 3279 (Admin) [5]. [4] ibid [12]. [5] ‘The First Report of the Committee on Standards in Public Life’ (1995) 49. Proposed addition emphasized. [6] HC Deb 22 March 1963, vol 674 col 810. [7] HC Deb 17 June 1963, vol 679 col 55. [8] Richard Norton-Taylor, ‘Iraq arms prosecutions led to string of miscarriages of justice’ The Guardian (London, 9 November 2012). [9] See HL Deb 26 February 1996, vol 569 col 1238. [10] Adam Tomkins, The Constitution After Scott: Government Unwrapped (Oxford University Press 1998) 36. [11] ibid 35-6. [12] ibid 36. [13] ibid 36-7. [14] ibid and see HL Deb 26 February 1996 vol 569 col 1259. [15] Boris Johnson, ‘Easter Recess: Government Update’ Hansard, vol 712, debated on 19 April 2022. [16] Mike Gordon, ‘The Prime Minister, the Parties, and the Ministerial Code’ (UK Constitutional Law Blog, 27 April 2022). [17] ‘Britain’s good-chap model of government is coming apart’ The Economist (London, 18 December 2018). [18] AC Grayling, The Good State: On the Principles of Democracy (Oneworld Publications 2020) 88. [19] The Institute for Government’s July 2021 report in fact recommended an updated code including, amongst other things, a range of possible sanctions. Tim Durrant, Jack Pannell, and Catherine Haddon, ‘Institute for Government: Updating the Ministerial Code’ (July 2021). In April 2021, the Committee on Standards in Public Life called for the same. See the letter from Lord Evans, Chairman of the Committee, to the Prime Minister dated 15 April 2021.

Then from out the cave the mighty Polyphemus answered them: ‘My friends, it is Noman that is slaying me by guile and not by force’. And they made answer and addressed him with winged words: ‘If, then, no man does violence to thee in thy loneliness, sickness which comes from great Zeus thou mayest in no wise escape’. - Homer, The Odyssey, Book IX […] for when man was first placed in the Garden of Eden, he was put there ut operaretur eum, that he might cultivate it; which shows that man was not born to be idle […] let us cultivate our garden. - Voltaire, Candide Introduction The emergence of global digital surveillance and control heralds the advent of digital technologies as the nexus of social cohesion and political decision-making. The ominous image of representatives from Google, Apple, Facebook (Meta), and Amazon engaging in political discourse with representatives from the seven most economically advanced nations in the world at the G7 meeting in 2017 epitomises how this emergence has upset the balance of power. This new form of surveillance and control marks a paradigm shift within surveillance theory. Whereas Foucauldian panopticism had informed our understanding of the dynamic between surveillance and control, many recent publications are more likely to be informed by Deleuze’s concept of the society of control, which reconceives the dynamic as existing between access and control. We are, then, beckoned to shift the locus of our analyses from subjectification to access control as the primary power mechanism to be analysed. In this paper, I examine the contemporary discussion surrounding Foucauldian and Deleuzean methods of power analysis. While I will defend the Foucauldian focus on subjectification as a privileged power mechanism, I recognise that Foucault’s analysis of subjectification as such is untenable. This paper seeks to uncover how a post-Foucauldian conception of subjectification can contribute to the discourse on power in the emerging societal landscape of global digital surveillance and control. In order to arrive at a post-Foucauldian conception of subjectification, I first elucidate what exactly Foucault means by subject. Then, informed by Heidegger’s analysis of Dasein, I exposit how a subject arrives at their operating framework, ie, their framework of possible thought and action. Employing Deleuze’s concept of territory, I then arrive at a conception of how the operating framework of subjects can be produced and reproduced. This exploration ultimately culminates in ten theses regarding a post-Foucauldian concept of power and subjectification. Finally, I conclude that a post-Foucauldian conception of subjectification can restore the focus on subjectification within power analysis, thereby providing us with an explanatory model that can account for the voluntary display of intentional socially desirable behaviour by subjects en masse. 1. Foucault and Deleuze Before delving into the discussion surrounding Foucauldian and Deleuzean power analyses, I will first devote a few elucidatory remarks to the concept of power and the concealments that the English language entails in respect to it (§1.1). Afterwards, I articulate the difference in focus between Foucault’s and Deleuze’s analyses. In §1.2, I defend Foucault’s position, namely, the importance of a focus on subjectification in power analysis. In §1.3, I problematise Foucault’s account of subjectification and articulate the necessity of a post-Foucauldian conception of subjectification. 1.1. Power, Potestas, and Potentia English blurs and conceals the important distinction both Foucault and Deleuze make between puissance and pouvoir. One way in which Deleuze describes puissance is as ‘the capacity to effectuate’[1] and with such a description, it discloses itself as potentia. Pouvoir, ie political power, can be rendered as potestas (Spinoza). Foucault’s analysis of power, in his own words, focuses specifically on potestas (pouvoir).[2] Appropriately, in this paper I use the word power in the sense of potestas. Foucault writes that power ‘operates on the field of possibilities in which the behaviour of active subjects is able to inscribe itself’.[3] This can be interpreted as a conception of power as a complex network of relations between possible actions/actors, ie, a network of potentia. On this conception, power cannot be explicitly reduced to the exercise of coercion (the actualisation of potentia), nor can it be described as an attribute that can be ascribed to a particular actor, but rather describes relations between possible actors, who, when taken together as a given constellation, produce specific behaviour. Potestas is inextricably linked to potentia in this analysis; potestas is exercised by playing off the potentia of each actor against another, i.e, potestas operates as a network of potentia. Foucault further notes of his own work that the aim of his research ‘has not been to analyse the phenomena of power […] [but] has been to create a history of the different modes by which, in our culture, human beings are made subjects […] [he has] sought to study […] the way a human being turns him- or herself into a subject’.[4] I interpret this statement as Foucault’s acknowledgement that research into power focuses primarily on the way in which potentia can be channelled by means of power internalisation, ie, how specific subjects arise who operate ‘voluntarily’ within a specific framework of possible actions. It is on this point, the centralisation of subjectification in the analysis of power, that Deleuze differs from Foucault. Deleuze states in an interview that ‘puissance [potentia] is always an obstacle in the effectuation of potentia’.[5] A concretisation of this statement can be found in Deleuze’s analysis of the society of control. Deleuze writes in response to Foucault’s analysis of power that ‘in the societies of control, on the other hand, what matters is […] a code: the code is a password […], which marks access to information or rejects it’.[6] Here, Deleuze presents a conception of power as the framing of potentia through the raising of obstacles in the form of access control. The difference between Foucault and Deleuze in their power analysis is a difference in focus in which ways potentia is framed. Foucault emphasises a framing of potentia by means of subjectification in which power relations are internalised. In Deleuze, the emphasis shifts to a framing of potentia through access control, leaving the subject free to act as they please within a given delimited space. 1.2. A qualified defence of Foucault’s insistence on subjectification against Deleuze Before discussing Deleuze’s critique of Foucault in his analysis of the societies of control,[7] I want to emphasise that I explicitly do not interpret this critique as a critique of the correctness of subjectification as an exercise of potestas. I take the Deleuzean critique as aimed at the central position that subjectification occupies in Foucault’s analysis of power. One of the most resonant arguments in this critique in the landscape of global digital surveillance and control is articulated by Galič et al, who maintain that it is ‘no longer actual persons and their bodies that matter or are subject to discipline, it is about the representations of the individuals’.[8] Contemporary digital surveillance and control focuses on what Deleuze calls the dividual[9], where the individual is split into digital representations. Since it is no longer the individual who is central to methods of surveillance and control, it seems logical that the subjectification of this individual should no longer play a central role in our analyses. As such, Matzner notes a certain distrust of the thematicization of subjectification in Deleuzean theory.[10] A general picture that emerges from many contemporary Deleuzean theories of power—where in addition to the society of control[11], we also have, eg algorithmic governmentality[12], invigilator assemblies[13], and data derivatives[14]— is a shift of focus from subjectification to access control: the automated management of spaces and potentialities. Rouvroy is particularly adamant about this when she states that ‘algorithmic governmentality does not allow for subjectivation processes’.[15] In response to this shift in focus, I would first of all like to note that denying subjects (in the sense of the subjected) access to specific spaces also concerns a regulation and framing of their capacity to act (potentia) and, therefore, also concerns a power structure (potestas). I will, appropriately, grant the Deleuzeans that an analysis of power which exclusively focuses on subjectification without notice to other obstacles in potentia is, then, underdetermined as such. This same critique of underdetermination, however, can be further extended to analyses of power that operate solely in terms of access control. Although digital surveillance focuses on the individual, access control (and in particular the refusal of access) is, indeed, exercised on the individual. In addition to the direct impediment it causes, it also has a subjectivising effect, as described by Matzner in the sense that it ensures that subjects anticipate the control and adjust their behaviour themselves in order to gain access.[16] Even if access is not refused, in such cases, potentia is still framed by means of subjectification. Thus, a power structure forms that escapes our notice when the analysis of power renounces its attention to subjectification. The main defect with the Deleuzean position, however, is that it cannot explain how subjects continue to exhibit desirable socially intended behaviour en masse. Without a focus on subjectification, it remains unclear how the social consensus about acceptable behaviour is produced and reproduced, a process that ensures that denial of access remains the exception and not the rule, and that subjects normally already exhibit intended behaviour on their own. Deleuze speaks with amazement of young people who ‘strangely boast of their “motivation”’.[17] By maintaining a Foucauldian focus on subjectification, it becomes clear how this ‘motivation’ is a produced subjectivity. It is the effect of a power structure that shapes subjects and thus ensures the maintenance of a stable society, in which refusal of access remains the exception. 1.3. Problematising the Panopticon: against Foucault’s account of subjectification Although the Foucauldian focus on subjectification can thus be defended, it remains problematic to directly apply Foucault’s concrete analyses to analyses of contemporary society. The genealogical and archaeological methods of Foucault, who was primarily an historian, focused mainly on the exercise of power in the nineteenth and twentieth centuries. Therefore, it should come as no surprise that the conceptualisation of disciplining power which emerges from his analysis tells us little about the rhythmic flows of power we experience in an increasingly digital age, even if it does inform the historical conditions of their possibility. Panopticism is emblematic of disciplinary society, of which Foucault writes that ‘the major effect of the Panopticon [is] to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power’.[18] Central to disciplining power is, then, the subjectivising effect that emanates from the panoptic view. Attempting to employ the model of this power mechanism to contemporary society shows itself to be less than adequate, partly because contemporary digital surveillance thrives by pretending that it is not there at all. Contemporary methods such as tracking cookies, Wi-Fi, IP- and photo-tracking, hidden cameras and microphones, discreet laptop- and mobile camera activation, etc., function inconspicuously in the background, hidden from the subject. It is, therefore, completely unclear how traditional panopticist methods make the subject aware of its permanent visibility, or how a subjectifying effect should follow from this in another way. Didier Bigo attempts to salvage the panopticist model for contemporary ends in the form of ban-opticism, but here Bigo writes precisely that the Ban-opticon no longer depends on immobilising bodies under the analytic gaze of the beholder.[19] The explanation of subjectification so intuitive to understand by means of a compelling gaze, which induces a framing of potentia in the subject[20] is here no longer compelling or useful for our ends. This brings us to a more fundamental problem in the Foucauldian conception of subjectification. What remains in terms of explanations that Foucault gives for the mechanisms of subjectification are ‘modes of objectification that transform human beings into subjects’.[21] How objectification as such is to lead to transformation in subjects remains unclear, and Mohanty does not unjustly describe this aspect of Foucault’s work as a ‘muddle’.[22] If we now want a power analysis of post-panopticist society, while acknowledging the central focus on subjectification and recognising the limitations of Foucault’s conception of subjectification through objectification, then the need arises for a post-Foucauldian conception of subjectification. 2. The Subject In order to arrive at a productive post-Foucauldian conception of subjectification, we must first establish what a Foucauldian conception of subject actually entails. Consequently, in §2.1, I will articulate the ambiguities in the meaning of the word ‘subject’ and then analyse a number of statements by and about Foucault in order to elucidate what Foucault means, but more importantly, what Foucault does not mean, by ‘subject’. 2.1. The Foucauldian Subject Subject, in the grammarian sense, relates directly to power exercised in the verb ‘to subject’, ie, to place someone under oneself. Within philosophy, at least since Descartes, subject does not refer only to the grammarian subject, but predominantly to (self) consciousness, an ‘I’, which—at least with Descartes—is in a subject-object relationship vis-à-vis its extension in the external world. This last meaning of ‘subject’, nevertheless, still possesses an odious degree of ambiguity. For example, in the context of consciousness, subject does not necessarily refer to an individual, as evidenced by, for example, the ‘transindividual subject’.[23] Nor is the subject-object relationship generally seen as a relationship of opposites. For Lukács, among others, it is not a matter of denying the object or subject, but of denying their contradiction.[24] In the context of making individuals subjects, Foucault writes that ‘[t]here are two meanings of the word “subject”: subject to someone else by control and dependence, and tied to his own identity by a conscience or self-knowledge. Both meanings suggest a form of power that subjugates and makes subject to’.[25] Foucault, then, includes an aspect of submission and the exercise of power into the sense of the word ‘subject’. Of particular interest is the second meaning that Foucault gives to subject. In this second sense, a link between subject as subjected and subject as consciousness with self-knowledge is identified. It is also this meaning, the framing of potentia by an attachment to an identity, that can explain how subjects en masse continue to display desired behaviour, even in the absence of direct control or dependencies. Dreyfus notes a commonality between Heidegger and Foucault in their criticism of the Cartesian idea of ​​a self-transparent subject and the related Kantian ideal of autonomous actorship.[26] If a subject is not self-transparent, then the question is to what extent the awareness or self-knowledge that creates an attachment to one’s own identity can be completely immanent. Moreover, rejecting the Kantian ideal of autonomous actorship implies that conditions of the possibility of action cannot, or at least, cannot only arise from an autonomous immanent sphere. Thus, it seems unlikely that on a strong reading, a Foucauldian conception of subject refers to some immanent sphere, or on a weaker one, that subject is determined by such immanence and thus can possibly correspond to just such a sphere. Foucault further states that ‘power is exercised only over free subjects, and only insofar as they are “free”. By this we mean individual or collective subjects who are faced with a field of possibilities in which several modes of conduct, reaction, and behaviour are available’.[27] Attributing a certain degree of freedom to subjects presupposes they can exhibit intentional behaviour. After all, without the possibility of an intentional choice in the manner of directed behaviour with regard to a field of possibilities, one cannot reasonably speak of freedom. I interpret the quotation marks that Foucault places around ‘free’ as the framing/regulation of the field of possibilities to which the subject, subject to potestas, has access to—the regulation of the subject’s potentia. Although the subject can make an intentional choice in its field of possibilities, my sense is that the options are limited by either control and dependence, or by an attachment to one’s own (imposed) identity. Furthermore, it is remarkable that Foucault here speaks of ‘collective subjects’.[28] Although individuals can be made subject, subject does not—at least not necessarily—refer back to an individual or an ‘I’. I interpret this as the recognition that the attachment of an individual to an identity can be a matter of an attachment to a collective identity, to which several individuals are collectively bound. We have now arrived at a Foucauldian conception of subject which maintains the following premises: The subject is attached to its own identity The subject can exhibit intentional behaviour The subject does not correspond to an immanent sphere The subject does not (necessarily) refer to an individual ‘I’ 2.2. Excursus: moving beyond Foucault through Being and Time Dreyfus articulates a range of parallels between Foucault’s thinking and Heidegger’s.[29] Foucault himself states in an interview that his ‘entire philosophical development was determined by [his] reading of Heidegger’.[30] In this same interview, however, Foucault also admits to knowing nothing about Being and Time.[31] From this, I contend that it is not trivial for a post-Foucauldian conception of subjectification to draw inspiration from precisely this blind spot in the determination of Foucault’s philosophical development: Being and Time and Dasein’s analysis. It can be argued against any application of Heidegger to subjectification that Heidegger precisely rejects the concept of subject as such. Therefore, Heidegger’s analysis of Dasein can never be taken as formative of a subject. In making such an untimely repudiation, however, it is important to take into account the ambiguity of the meaning of subject and to examine which conception of subject Heidegger is rejecting. Heidegger states that ‘[b]ecause the usual separation between a subject with its immanent sphere and an object with its transcendent sphere—because, in general, the distinction between inner and an outer is constructive and continually gives occasion for further constructions, we shall in the future no longer speak of a subject, of a subjective sphere, but shall understand the being to whom intentional comportments belong as Dasein’.[32] This shows that by rejecting subject, Heidegger opposes the idea of ​​an immanent subjective sphere as well as the opposition between subject and object. We have, however, just come to the conclusion that the Foucauldian conception of subject does not correspond at all to some immanent sphere. This seems to remove the sting from the objection. Although Heidegger rejects the Cartesian and Kantian conceptions of subject, this rejection is grounded in conceptions of subject that do not correspond to Foucault. This does not, however, in any way entail that Dasein and a Foucauldian subject can or should be readily equated with each other. The possibility, nevertheless, remains, as Goldmann does in his comparison between Lukács and Heidegger, ‘to translate the developments of each thinker into the terminology of the other’.[33] Another possible obstacle to the applicability of Heidegger’s analysis of Dasein to the conceptualisation of subjectification is that Heidegger writes of Dasein that ‘[t]hat Being which is an issue for this entity in its very Being, is in each case mine […] [b]ecause Dasein has in each case mineness [Jemeinigkeit], one must always use a personal pronoun when one addresses it: ‘I am’, ‘you are’.[34] When Foucault speaks of collective subjects, however, it seems appropriate to address them as ‘we are’, ‘you are’. Although also personal pronouns, it is doubtful to what extent Dasein can be interpreted as plural (at least with respect to Heidegger’s formulation of it in Being and Time). What this illustrates, however, is only that Dasein cannot simply be equated with a Foucauldian subject. It does not prevent us from using Heidegger’s analysis of Dasein to explore how an individual (who is indeed addressed in the singular) can be made a subject. The task now before us is to examine critically how Dasein’s constitution can serve as inspiration for a conceptualisation of subjectification. 2.3. Hybridisation: Cross-pollinating Subject with Dasein If we compare Dasein with the four premises elaborated above about the Foucauldian subject, two similarities can be noted. Firstly, we can say that Dasein also possesses intentionality, which is explicitly affirmed in Dasein’s description as ‘the being to whom intentional comportments belong’.[35] Secondly, it also applies to Dasein that it does not correspond to some immanent sphere, the presence of which led Heidegger to repudiate the concept of subject. What remains, and this is exactly where Heidegger’s analysis of Dasein promises to be particularly fruitful, are: 1) the question of an attachment to identity that frames the possibilities for action, and 2) the explanation of a possible plurality of subject. Heidegger writes: ‘as thrown, Dasein is thrown into the kind of Being which we call “projecting”’.[36] In more Foucauldian terminology, I take this statement as the acknowledgment that an individual is situated at every moment in a field of possibility from which his ‘world understanding’ comes into being. It should be noted that in On Humanism Heidegger returns to attributing projection to Dasein. Here he says that ‘what throws in projection is not man but Being itself, which sends man into the ek-sistence of Da-sein that is his essence’.[37] Philipse interprets this turn as a denial of man’s fundamental contingency and calls this later position of Heidegger ‘flatly contradictory to Sein und Zeit’.[38] For the sake of coherence, I am committing myself here to the position of early Heidegger of Being and Time. In my post-Foucauldian interpretation this means that the individual’s ‘world understanding’ is determined by both the individual and his a priori field of possibilities. In so doing, I explicitly do not want to reduce the creation of a ‘world understanding’ to an intentional act or thought, nor to an expression of will. Suffice it for now to say that I take Dasein’s projection as the recognition that, formally speaking, from any situation the individual finds themselves in, there are several possible ‘world understandings’ accessible to the individual. But what do these possible ‘world understandings’ imply? And what is the relation of ‘world understanding’ to our question concerning the attachment to identity and the plurality of subject? Heidegger states that ‘projection is constitutive for Being-in-the-world with regard to the disclosedness of its existentially constitutive state-of Being by which the factical potentiality-for-Being gets its leeway [Spielraum]’.[39] I read this as a conception of ‘world understanding’ as the scope of thought and action possibilities of the individual from his given a priori field of possibilities. While this does not elucidate anything about a plurality of subject, it does reveal a first insight into the process by which subjects are attached to identities. What brings about the attachment to identity, and why it is relevant for the maintenance of power structures, is the framing, ie, the regulation of possible actions. Further, with ‘world understanding’ interpreted as such, we describe the framework from which all thought and action possibilities arise. Could it be that an attachment to identity goes hand in hand with a certain ‘world understanding’? Before I continue to explore the question at hand, I would first like to address the possible repudiation that an identification of the notion of ‘projection’ with a framework for thought and action may elicit. Indeed, such an identification does neither justice to the depth and complexity of Heidegger’s conception of projection, nor to that of his conception of possibility. Heidegger himself states that ‘[t]he Being-possible which Dasein is existentially in every case, is to be sharply distinguished both from empty logical possibility and from the contingency of something present-at-hand, so far as with the present-at-hand this or that can ‘come to pass’.[40] Here, I understand Heidegger to be referring with the notion of ‘projection’ to possible modes of being and not to concrete capacities for thought and action. Does this not contradict my earlier reading? To this I first say that I am not interested in providing a one-to-one equivocation of Heidegger with Foucault, but only to draw inspiration from Heidegger’s work to arrive at a post-Foucauldian conception of subjectification. On these grounds, I maintain that some degree of flexibility in interpretation is permitted. Moreover, here, my liberal use of Heidegger does not really encounter any contradictions. Concrete behaviours, thoughts and possibilities for action arise from the kind of being Dasein is. As such, projection is perhaps a more fundamental and complex concept than a framework of possible thought and action, but every concrete framework of possible thought and action is fully determined by projection. While I grant that my interpretation is, then, a movement from a fundament to its derivative, it is here not problematic to do so. We have, now, arrived at the individual who is situated at every moment in an a priori field of possibility from which his ‘world understanding’ comes into being and in which this realisation has a direct power-law distribution because it frames the individual’s options for action. In order to find out to what extent this power-law distribution corresponds or can be compared to the attachment to one’s own identity by the consciousness or self-knowledge that Foucault describes,[41] we have to examine how a ‘world understanding’ emerges. Heidegger writes the following about this: The Self of everyday Dasein is the they-self, which we distinguish from the authentic Self-that is, from the Self which has been taken hold of in its own way [eigens ergriffenen]. As they-self, the particular Dasein has been dispersed into the ‘they’, and must first find itself. This dispersal characterizes the ‘subject’ of that kind of Being which we know as concernful absorption in the world we encounter as closest to us. If Dasein is familiar with itself as they-self, this means at the same time that the ‘they’ itself prescribes that way of interpreting the world and Being-in the-world which lies closest.[42] Would it be meritorious to read a correspondence between this ‘they-self’ and the ‘own identity’ that Foucault spoke of? Such a correspondence would mean that the last sentence of the above quotation translates to something very similar to Foucault’s definition of subject, ie, if the individual is familiar with himself as his own identity, then his ‘world understanding’ is dictated by the ‘they’ and the they would determine his operating framework. It would also provide a starting point for an explanation of the possible plurality of subject in the plural of ‘they’. If this is so, if ‘they-self’ is translated into ‘own identity’, then the difference between Dasein and indifferent everyday Dasein seems to correspond to the difference between individual and subject. Before we get to that point, however, it pays to elucidate how something like ‘own identity’, with all its connotations of personality and singularity, can correspond to the plurality of the ‘they-self’. Is there not a contradiction in identifying the private with something that belongs to the common ‘they’? Who or what is this ‘they’ even supposed to be? Heidegger writes that ‘Dasein’s facticity is such that as long as it is what it is, Dasein remains in the throw, and is sucked into the turbulence of the “they’s” inauthenticity’.[43] Heidegger is talking about ‘the turbulence of the inauthenticity of the they’ arising directly from the condition of being thrown. When self-knowledge as ‘they-self’ flows directly from this ‘turbulence’, it means that the ‘they-self’ also flows from the condition of being thrown. Dreyfus describes the condition of thrownness as ‘culture bound’.[44] When an identity arises from being bound by culture, we speak of a cultural identity. Can the ‘they-self’ then be characterised as cultural identity? I will not deny that the reduction of thrownness to culture-boundness on which this equivocation rests is problematic. Philipse offers us a less problematic insight when he writes that: ‘[t]he cultural matrix into which we have been ‘thrown’ […] is partly constitutive of our personal identity, of our ‘self’’.[45] This can be taken to denote the own identity that is partly constituted by the a priori field of the culturally situated individual. This gives one’s own identity a constitution in plurality in the non-trivial sense that there is no such thing as the culture of the individual. The question remains as to what extent this constitution is determinative. Philipse here further provides that ‘[t]he dictatorship of Everyman [the They] might be seen as a conservative, unimaginative, narrow-minded, and conformist way of endorsing a common cultural background, in which one identifies oneself entirely with traditional stereotyped roles’.[46] We can extrapolate from this exegesis that the ‘they-self’ corresponds to one’s own identity, if and only if the common cultural background is endorsed in a specific uninspired way. This specifically uninspired way of endorsing follows from everyday inauthenticity and will be revisited in §4. We have, now, arrived at the individual who becomes subject when his ‘world understanding’, and thus his operating framework, is dictated by identifying his own identity with stereotyped roles. This transformation from individual to subject occurs in the everyday inauthenticity. Everyday inauthenticity, thus, shows itself to be a reproduction mechanism for subjectification. The everyday inauthenticity, taken only in itself, does not yet give a concrete interpretation to the ‘world understanding’, but dictates an a priori given ‘world understanding’, holds the individual, so to speak, in the grip of a specific subjectivity. For our question concerning subjectification, there remains, on the one hand, the elaboration of exactly what this everyday inauthenticity entails and, on the other hand, the question of how the framework of possible action is given shape or can be controlled, ie, how a ‘world understanding’ comes to its concrete form. 2.4. After Heidegger: from thrownness to territory We are now faced with two questions: on the one hand, a question concerning the production of subjects, and on the other, a question concerning the reproduction of subjects, ie, subjectivities. We have seen how an individual becomes a subject by understanding himself as ‘they-self’, but we have not yet given a clear answer to the question of who or what this ‘they’ is. Heidegger is reluctant to offer a positive exposition of the ‘they’ and says: ‘The “who” is not this one, not that one, not oneself [man selbst], not some people [einige], and not the sum of them all. The ‘who’ is the neuter, the “they” [das Man]’.[47] Yet a more positive determination can be extrapolated from a statement by Heidegger about Being-with-Others: ‘But if fateful Dasein, as Being-in-the-world, exists essentially in Being-with-Others, its historicizing is a co-historizing and is determinative for it as destiny [Geschick]. This is how we designate the historizing of the community, of a people’.[48] If we assume that the ‘who’ of the ‘they’ corresponds to the ‘who’ of ‘Being-with-Others’, then the ‘they’ is defined here as the community. At this point it becomes a strenuous undertaking to extend Heidegger to our current affairs. Quite apart from the dubious political connotations of ‘people’, if we want to maintain that the ‘they’ dictates a ‘world understanding’, we must presuppose a coherent ‘world understanding’ maintained by the ‘they’. Such a coherence is a presupposition that is left wholly undetermined by Heidegger. Let us consider the following two stereotyped roles, the programmer and the gamer, and their pre-ontological understanding of a computer. Both roles can co-exist in one nation, and, indeed, one individual (the nexus of the stereotype’s inherent contradiction). For the stereotyped programmer, however, the primary purpose of a computer is programming, while for the stereotyped gamer, this is gaming. Even in everyday inauthenticity, when both remain completely in the turbulence of the throw, both have been dictated by a different primary explanation of the world—or at least of the computer as part of the world. In Heidegger’s defence, this does not mean that the programmer and the gamer have a fundamentally different understanding of the world. They speak the same language, understand a hammer as something to hammer, ‘take pleasure; [they] read, see, and judge about literature and art as they [das Man] see and judge[49], etc. Yet there are role-specific areas of their ‘world understanding’ that do differ fundamentally from each other. It should be noted that the different roles correspond to different communities; there is a community of programmers, a community of gamers, etc. A possible solution is, then, not to speak of one ‘they’ dictating one ‘world understanding’, but a plurality of ‘theys’, each dictating a strata or sub-strata of ​​a ‘world understanding’. Such a division of the ‘they’, however, contradicts Heidegger’s unambiguous statement that the ‘they’ are ‘not some people [einige]’.[50] If we are talking about the community of programmers, then these are indeed ‘some people [einige]’ and not the entire population or a neuter thereof. From this point on we can really only take Being and Time as a point of departure, and I will try to reconceptualise the proposed salvaging of the plurality of the ‘they’ through another avenue. We had already arrived at the individual who becomes a subject when his ‘world understanding’, and with it his operating framework, was dictated by identifying his own identity with stereotyped roles. We have also come to the conclusion that the concrete interpretation of a ‘world understanding’ consists of a plurality of sub-stratas. A path to reconceptualise these ‘strata and sub-stratas’ from which a ‘world understanding’ is constructed, in such a way that this reconceptualisation is sufficiently compatible with the Heideggerian ideas on which it rests, but without lapsing into Heideggerian terminology or a commitment to notions of ‘people’ or to imply an unambiguous ‘they’, avails itself in the Deleuzean concept of the territory. On this question, Petr Kouba states that ‘[h]owever incompatible with Heidegger’s inquiry into being the notions of territory and deterritorialization may seem, their adequacy becomes apparent if we realise that territory is, in Qu’est-ce que la philosophie?, tied together with home, with what is familiar, whereas deterritorialization belongs to what is unheimlich’.[51] Deleuze and Guattari write about territories and deterritorialization in various contexts.[52] In line with the argument I have put forward, a territory may be understood as a specific structure and interpretation of thoughts and possible actions, a delimited scope of thought and extension. I interpret deterritorialization as the process through which an individual thinks or acts on a specific territory in ways that exceed the boundaries of that territory. As such, deterritorialization follows a line of flight. I interpret reterritorialization as the process in which thinking or acting along a line of flight is placed back into a territory. On such a reading, the concept of territory shows some parallels to Heidegger’s notions of thrownness and ‘the turbulence of the throw’, while de- and reterritorialization are analogous to authenticity and fallenness, respectively. 3. Subjectification: Reproduction We have arrived at the individual who is situated at all times in designated a priori territories, on which every thought and action is grounded. The individual becomes subject when he understands himself within the framework of these territories. For the reproduction of subjectification, it is then important to keep the individual within these frameworks, ie, to prevent de- and reterritorialization. In order to examine how de- and reterritorialization can be prevented, ie, what power structures can be employed to reproduce subjectification, it is first necessary to examine what the conditions and possibilities are for de- and reterritorialization, respectively. We will then gain insight as to how any given power structure can be employed such that it can deprive the conditions and possibilities of deterritorialization of their genetic potencies. In §3.1, I will elaborate on the conditions for the actualisation of deterritorialization as well as indicate where methods to prevent this can be developed. In §3.2, I will retrace the above process for reterritorialization in order to reconstruct the process of the reproduction of subjectification. 3.1. Death and Time 3.1.A. Anticipating Death If we are going to consider a possible correspondence between deterritorialization and authenticity, it is worth examining what Heidegger has to say about this case in his discussion of death: We may now summarize our characterization of authentic Being-towards-death as we have projected it existentially: anticipation reveals to Dasein its lostness in the they-self, and brings it face to face with the possibility of being itself.[53] This coming face to face with the possibility of being oneself is a coming face to face with a line of flight, allowing a deterritorialization from the ‘they-self’. Foucault, too, notices an element of authenticity in anticipating death when he discusses the meletē thanatou, the meditation on, ie, training for death, where he says that to partake in it is to ‘judge the proper value of every action one is performing’.[54] I also interpret this assessment of the actual value of an action as following a line of flight; one’s own action is no longer assessed within the framework of an a priori designated territory. This can open up new possibilities for action that would normally have been internally judged as impossible, inappropriate or performatively wrong. Without wishing to delve deeper into analyses of anticipating death, it suffices to conclude, here, that anticipating death opens up possibilities for deterritorialization. However, the fact that ‘anticipating death’ opens up possibilities for deterritorialization can come across as bewildering and under-determined. Peone speaks of a ‘Heideggerian fixation on death’[55] and defends Cassirer’s criticism of the Heideggerian position of ‘anticipating death’ as ‘the sine qua non of actual life’.[56] However, Cassirer’s critique is not relevant in this case. It is not important whether or not anticipating death is the only way to achieve deterritorialization. It only matters that it is a way. How can this ‘anticipation of death’ be prevented? What is the necessary condition for this possibility of deterritorialization? One aspect of death meditation that can bridge the gap between Foucault’s meletē thanatou and Heidegger’s ‘Being-towards-death’ is that death meditation ‘changes our temporal experience’.[57] Of such a temporal experience, Dahlstrom says in his reading of Heidegger that ‘“[a]uthentic temporality” stands for the ecstases-and-horizons without which there is no authentic existence or, equivalently, no authentic care’.[58] Thus, in view of the relationship between authenticity and deterritorialization, a necessary condition for deterritorialization seems to have been found in something like ‘authentic temporality’, a temporality that—if we maintain the bridge between Heidegger and Foucault—corresponds to the altered temporal experience that meditation produces. 3.1.B. Authenticating Time In order to better grasp the necessary condition found in this way of ‘authentic temporality’, a short exploration of Heidegger’s account of time is warranted. In Being and Time, Heidegger describes three kinds of time: primordial time, world-time, and ordinary time, where both world-time and ordinary time can be traced back to primordial time. Primordial time, or temporality as such, is a threefold transcendental condition of Dasein that discloses the world. Primordial time is the horizon in which Dasein understands the world and in which the thrownness of the past, the contemplation of the present, and the projection of the future converge. This is in stark contrast to the ordinary understanding of time as an infinite linear series of successive now-times. How this ordinary understanding of time came to be can be explained on the basis of world-time, which arises from Dasein’s everyday being-in-the world. World-time is an ordering of temporality on ground of the practical operation of the world: the setting of the sun is the time to stop working (or switch on the light), an early arrival at the station allows just the time for a sandwich before the lecture starts, the beeping of the mobile phone marks lunchtime, etc. ‘The everyday concern which gives itself time, finds “the time” in those entities within-the-world which are encountered “in time”’.[59] In the everyday use of the clock, ‘time shows itself as a sequence of “nows” which are constantly “present-at-hand”, simultaneously passing away and coming along’.[60] Heidegger further describes the mode of being that aligns with the temporal experience of time as the succession of now-moments as ‘the Being which falls as it makes present’.[61] I take this as the nexus conjoining temporal experience and inauthenticity. A necessary condition for deterritorialization, which is analogous to Heidegger’s ‘authentic temporality’, is, then, the escape from this temporal experience—escaping the everyday grind of now-moments. Now we have moved from a somewhat ambiguous ‘anticipation of death’ to a more concrete necessary condition for deterritorialization. If we want to step outside the box of everyday thinking and deterritorialize ourselves, we must break with everyday temporal experience and not let ourselves be carried away in the rut of now-moments. Conversely, if we want to reproduce subjectification, we must, then, be diligent in our perpetuation of the grind of infinite now-moments and prevent any other temporal experiences than the ones encountered in our average everydayness. 3.2. Concerning the genesis of new territories and their destabilising effects on power structures So far, I have discussed the reproduction of subjectification in terms of preventing deterritorialization. Now suppose that deterritorialization cannot be prevented, is all hope lost for the reproduction of subjectification? Or, even when deterritorialization has occurred, are there still avenues through which power structures can arise such that the subject can be replanted? To answer this question, it is necessary to examine where deterritorialization is heading and what this means for existing power relations. The ‘whither’ of deterritorialization is the direction of a line of flight, an ‘away from’. But away from what exactly? Goodchild states that completely deterritorialised concepts ‘have no meaning, and only express a kind of nonsense’.[62] A deterritorialization is, therefore, an abandonment of a common framework for thought and action, and with it also an abandonment of a common conceptual framework. ‘Having crossed a threshold of absolute deterritorialization, concepts no longer refer back to their primordial significations’[63], when a line of flight leaves any territory, then any thought and action that follows this line of flight is doomed or fortunate to be relegated to nonsense, to common misunderstanding. The individual, in following a line of flight, thus, moves from subject to madman (irrespective of what it does, as madman the individual can still be subsumed under a power structure through coercive institutionalisation). In the context of power relations, however, it is hardly plausible that a move towards nonsense poses a threat. The real danger deterritorialization poses towards power structures and the reproduction of subjectification lies, therefore, not only in deterritorialization, but more so in deterritorialization followed by reterritorialization. Earlier I have referred to reterritorialization as related to Heidegger’s concept of fallenness. Where Heidegger’s ‘Fall’ describes a movement towards the ‘they’, a falling into communality, reterritorialization can also be grasped as a movement towards communality, ie, a movement towards a territory. What distinguishes reterritorialization from fallenness is that the territory to which reterritorialization is moving does not consist of the thought and action framework of a singular ‘they’. I take reterritorialization as a movement of a line of flight back to a community, back to a territory that is part of a large plurality of communities or territories. The reterritorializing movement of the individual can thereby 1) return to the territory from which the deterritorialization originated and adapt this territory in its movement, 2) return to another already existing territory, or 3) form the basso continuo of an entirely new territory. The claim to communality that is found in reterritorialization from a line of flight is the constitutive movement for an adjustment or new emergence of a thought and action framework. What we see arising in this way in reterritorialization is the adaptation or the new emergence of potentia of subjects. And precisely therein lies the tedious threat de- and reterritorialization pose to the stability of power structures, to potestas: the cycle of de- and reterritorialization creates new kinds of subjects, with new operating frameworks, which may be incompatible with the old. It is, then, in the interest of the reproduction of subjectification to take due care to prevent not only deterritorialization, but also—in case deterritorialization does occur—of reterritorialization. The necessary conditions for reterritorialization are, on the one hand, deterritorialization. The conditions of this and an impetus for methods to prevent deterritorialization have already been discussed above. On the other hand, reterritorialization also presupposes a claim to communality from the line of flight. Methods for the reproduction of subjectification must, then, be diligent in preventing a claim to new communality, rendering the old communality insensitive to the movement from a line of flight. 4. Subjectification: Production In the above section, I have exposited the various loci power structures one must be wary of if they are to retain subjects within certain thought, and action frameworks that operate within a specific territory. What remains is the question as to what kind of methods should be used to give a positive interpretation to this territory. In other words, how can an individual’s designated a priori territory on which it thinks, and acts be constructed in such a way that as subject, it exhibits specific desired behaviour? When we talk about constructing an individual’s given territory, we are talking about either modifying an individual’s current designated territory or establishing a new territory. In the previous section I have already explained how these two options arise from a movement of reterritorialization. I have also already described how reterritorialization coincides with a movement towards communality. What is important for the maintenance of power structures is how to construct a specific behavioural framework for this community. In order to discover how individuals behave within a community, it is worth asking how individuals behave in general as they do within a community. And how do individuals behave within a community? Generally, they behave normally. The question, then, becomes how to interpret what is normal within a community. This point can be disputed on two levels: on the one hand it must be recognised that individuals sometimes behave abnormally, on the other hand it also happens that the communal framework, ie, the ‘they’ behaves abnormally. Is giving substance to what is normal sufficient? Where an individual does not behave normally within a certain community, when his behaviour is misunderstood from the point of view of the community, this behaviour follows a line of flight, and we can identify a deterritorialization. In the previous discussion of the reproduction of subjectification, it has already been indicated what power structures must focus on to prevent this. This occurrence is sufficient to avoid having to take into account individuals who do not behave normally in order to nevertheless direct the behaviour of the community through the construction of a normality. When one speaks of the ‘they’ as behaving abnormally, this ‘they’ always describes a different community than the one from which the behaviour is considered abnormal. The abnormality of the other ‘they’ is only abnormal because it contrasts with the normality of one’s own ‘they’. This does not diminish the possibility of influencing behaviour by directing the normality of one’s own ‘they’. With regard to the question of how normality can be managed within a community, we can refer to the work of Foucault, who elaborates on processes of normalisation. Foucault writes that ‘a whole range of degrees of normality [indicates] membership of a homogeneous social body […] In a sense, the power of normalisation imposes homogeneity’.[64] I take this ‘membership of a homogeneous social body’ to equate to an attachment to a common territory. A subject who is completely bound to such a territory will, therefore, exhibit the highest degree of normality, that is, from the point of view of the community and according to the common framework of thought and action, it will behave perfectly normal: normality manifests itself as an ‘imperative measure’.[65] Foucault describes the processes of normalisation maintained in disciplinary power as a normalising sanction, ie, ‘a micro-penal’ system[66], or a ‘micro-economy of privileges and impositions’.[67] These methods consist of ‘a double system: gratification-punishment. And it is this system that operates in the process of training and correction’.[68] A meticulous system of subtle punishments and encouragements is installed in ‘the web of everyday existence’[69], with the result that the subjects not only start to display socially intended desired behaviour, but also that they all start to resemble one another.[70] Should we now understand normalisation as a collective internalisation of imposed rules? Is the goal of normalisation for subjects to follow the rules in their behaviour? Does the conscious following of rules not all too easily open up the line of flight which unveils the possibility to consciously and deliberately not follow the same rules, legal or conventional? In order to explain how the systematic imposition of an extensive constellation of rules leads to a framework for thought and action in which deterritorialization cannot simply be reduced to a conscious choice, I want to make a comparison with the phenomenon of the acquisition of skills. Dreyfus notes in a discussion about rule-following in response to Searle with respect to the act of teaching left-handed driving in Britain that ‘the rule one originally followed expresses a social norm, is irrelevant so far as the causal explanation of the behaviour is concerned’.[71] But if a social norm does not provide a causal explanation for behaviour, how can we explain ‘the power of the norm’?[72] Dreyfus may once again aid us here when he writes that ‘[i]f the driver in Britain, for example, just does in each situation what experience has shown works in that type of situation, and all the situations have in common that they require that to avoid accidents he must drive on the left, then he would be acting according to that rule but not following it’.[73] The functioning of the normalising sanction can, then, be explained not as the imposition of rules that are followed and internalised, but as the construction of experiences that show that specific behaviour works in certain situations. Processes of normalisation, the production of subjectification, should, then, focus on the construction of an everydayness of a community, in which specific desired behaviour operates. 5. Ten Theses on Power and Subjectification In summary, we have arrived at the following theses regarding a post-Foucauldian conception of power and subjectification: THESES I. Power, in the sense of potestas, consists of the orchestrated framing and regulation of potentia. II. Potestas’ object, the individual’s potentia, is framed and regulated by raising obstacles (access control) as well as by the individual’s own operating framework. III. In order to explain the automatic operation of potestas, power analysis must primarily concern itself with the subject’s own operating framework. IV. In every situation in which it finds himself, the individual possesses a designated a priori territory on which it thinks and acts. V. The individual becomes a subject when it is bound by the operating framework of its territory and when it is deprived the possibility of deterritorialization. VI. Subjectification includes, on the one hand, a binding to territory (reproduction), and on the other hand, the interpretation of territory (production). VII. If we want to reproduce subjectification, we must prevent the de- and reterritorialization of subjects. VIII. If we want to prevent deterritorialization, we must maintain the grind of infinite now-moments and prevent the experience of temporal experiences other than the ordinary time of average everydayness. IX. If we want to prevent reterritorialization, we must curtail the subject’s potential of latching itself to a new communality. X. If we want to produce subjectification, we must cultivate the everydayness of a communality, in which specific desired behaviour flourishes. Conclusion I see men like trees, walking. - A blind Bethsaidan, Mark 8:24 This paper has uncovered that the suspicion towards subjectification in Deleuzean theory is grounded in a Foucauldian conception of subjectification, which it rightly finds to be untenable. A restoration in the form of a post-Foucauldian conception of subjectification, where the locus is not on a coercive gaze or the internalisation of norms, but where subjectification is produced by the construction of an everydayness in which specific desired behaviour operates, undermines the ground of this suspicion. Indeed, the shift in focus to access control, the automated management of spaces and possibilities, implies a shift in focus to precisely that subjectifying construction of an everydayness in which specific desired behaviour operates. If we endorse the subjectifying effect of access control, it also becomes clear why subjects continue to exhibit desired behaviour en masse, even in the absence of control, even when they are not controlled and do not experience any access barriers. With access control, the everyday experience has already been created in which this behaviour operates. The subject is, thus, already in a territory on which an operating framework is planted that encourages its behaviour. The subject is, then, already in a situation in which this behaviour is normal, even if this normality has never been articulated as such as a norm. What this paper has left underdetermined, and merits further thought, is the way in which intentional behaviour arises from a given territory, this is to say, to what extent and in what way our conceptual framework is grounded in everyday experiences and what the implications are for the possibilities of intentional action. The overlap and stratification of territories also merit further engagement. It is clear that in our emerging climate, one can no longer speak of an homogeneous ‘person’, but how being part of different communities, with different territories, leads to a territory from which an individual can think and act has not yet been sufficiently determined. This paper, nevertheless, offers a first insight into a post-Foucauldian conception of subjectification that can, on the one hand, further be expanded, and which can, on the other hand, serve as an instrument for further power and concrete case analyses. With this instrument, research focused on access control can be deepened and it is possible to investigate what experiences access control brings about in subjects. This makes it possible to reveal what kinds of territories and normalities are being constructed, even when there is no explicit norm. This may explain why subjects continue to display desired behaviour even in the absence of interventions and, thus, inform what constitutes the substrate of a stable society. The contribution that a post-Foucauldian conception of subjectification offers to the discourse surrounding power in the current and emerging social landscape of global digital surveillance and control is, then, that it provides an explanatory model for the way in which access control ensures the maintenance of a stable society, where the denial of access remains the exception and not the rule. Jojo Amoah Jojo Amoah completed his undergraduate degree in Politics, International Relations, and Philosophy at Royal Holloway, University of London in 2021 and his MA Law (conversion) at The University of Law in 2022 with a dissertation on the remedy liabilities of mortgagees in possession. He is interested in the intersection between 17th-20th century German and French critical and political philosophy, anthropology, and jurisprudence, particularly surrounding the questions of hermeneutics, systematicity, sense, and judgement. [1] Gilles Deleuze and Felix Guattari, Anti-Oedipus: Capitalism and Schizophrenia (Bloomsbury Publishing 2013) xvi. [2] Peter Morriss, Power: A Philosophical Analysis (Manchester University Press 2012) xvii. [3] Michel Foucault, Power: Essential Works of Foucault 1954–1984 (James D Faubion ed, Paul Rabinow tr, The New Press 2000) 341. [4] ibid 326-327. [5] Claire Parnet and Pierre-André Boutang, ‘L’Abécédaire de Gilles Deleuze’ (1996) accessed 6 June 2022. [6] Gilles Deleuze, ‘Postscript on the Societies of Control’ (1992) 59 October 5. [7] ibid. [8] Maša Galič, Tjerk Timan, and Bert-Jaap Koops, ‘Bentham, Deleuze and Beyond: An Overview of Surveillance Theories from the Panopticon to Participation’ (2016) 30 Philosophy & Technology 20. [9] Deleuze (n 6) 5. [10] Tobias Matzner, ‘Opening Black Boxes Is Not Enough – Data-Based Surveillance in Discipline and Punish and Today’ (2017) 23 Foucault Studies 31. [11] Deleuze (n 6). [12] Antoinette Rouvroy, ‘The End(s) of Critique: Data Behaviourism versus Due Process’ in Mireille Hildebrandt and Katja de Vries (eds) Privacy, Due Process and the Computational Turn (Routledge 2018). [13] Kevin Haggerty and Richard Ericson, ‘The Surveillant Assemblage’ (2000) 51 British Journal of Sociology. [14] Louise Amoore, ‘Data Derivatives’ (2011) 28 Theory, Culture & Society. [15] Rouvroy (n 12) 144. [16] Matzner (n 10) 32. [17] Deleuze (n 6) 7. [18] Michel Foucault, Discipline and Punish: The Birth of the Prison. (Alan Sheridan tr, Random House Inc 1991) 201. [19] Didier Bigo, ‘Globalized (In)Security: The Field and the Ban-Opticon’ in Didier Bigo and Anastassia Tsoukala (eds) Terror, Insecurity and Liberty: Illiberal Practices of Liberal Regimes After 9/11 (Routledge 2014) 44. [20] Jean-Paul Sartre, Being and Nothingness: A Phenomenology Essay on Ontology (Washington Square Press 1992) 351. [21] Foucault (n 3) 326. [22] Jitendranath N Mohanty, Phenomenology: Between Essentialism and Transcendental Philosophy (Northwestern University Press 1998) 86. [23] Lucien Goldmann, Lukács and Heidegger: Towards a New Philosophy (Routledge 2009) 8. [24] ibid 68. [25] Foucault (n 3) 331. [26] Hubert Dreyfus, ‘Heidegger and Foucault on the Subject, Agency and Practices’ (Regents of University of California 2002) accessed 6 June 2022. [27] Foucault (n 3) 342. [28] ibid. [29] Hubert Dreyfus, ‘Being and Power: Heidegger and Foucault’ (1996) 4 International Journal of Philosophical Studies 1; Dreyfus (n 26). [30] Gilles Barbedette and André Scala, ‘Le Retour de La Morale’ (1984) 2937 Les Nouvelles littéraires. [31] ibid. [32] Martin Heidegger, The Basic Problems of Phenomenology (Albert Hofstadter tr, Indiana University Press 1988) 64. [33] Goldmann (n 23) 11. [34] Martin Heidegger, Being and Time (John Macquarrie and Edward Robinson trs, Blackwell Publisher Ltd 1962) 67-68. [35] ibid 64. [36] ibid 185. [37] Martin Heidegger, Basic Writings: From Being and Time (1927) to the Task of Thinking (1964) (David F Krell ed, Routledge 1977) 217. [38] Herman Philipse, Heidegger’s Philosophy of Being: A Critical Interpretation (Princeton University Press 1998) 220. [39] Heidegger (n 34) 192. [40] ibid 183. [41] Foucault (n 3) 331. [42] Heidegger (n 34) 167. [43] ibid 232-233. [44] Dreyfus (n 26). [45] Philipse (n 38) 26. [46] ibid 27. [47] Heidegger (n 34) 164. [48] ibid 436. [49] ibid 170. [50] ibid 164. [51] Petr Kouba, ‘The Phenomenon of Mental Disorder: Perspectives of Heidegger’s Thought in Psychopathology’ (2014) 40 Human Studies, 60. [52] Gilles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia (Bloomsbury Publishing 2013) 68, 106, 317; Gilles Deleuze and Felix Guattari, What Is Philosophy? (Columbia University Press 1994); Deleuze and Guattari (n 1). [53] Heidegger (n 34) 311. [54] Michel Foucault, The Hermeneutics of the Subject: Lectures at the Collège de France, 1981-1982 (Frédéric Gros ed, St Martin’s Press 2005) 504. [55] Dustin Peone, ‘Ernst Cassirer’s Essential Critique of Heidegger and Verfallenheit’ (2012) 42 Idealistic Studies 125. [56] ibid 127. [57] Joseph Glicksohn, ‘Temporal Cognition and the Phenomenology of Time: A Multiplicative Function for Apparent Duration’ (2001) 10 Consciousness and Cognition 8. [58] Daniel O Dahlstrom, ‘Heidegger’s Concept of Temporality: Reflections of a Recent Criticism’ (1995) 49 The Review of Metaphysics, 114. [59] Heidegger (n 34) 472. [60] ibid 474. [61] ibid. [62] Philip Goodchild, Deleuze and Guattari: An Introduction to the Politics of Desire (Sage 1996) 56. [63] ibid 57. [64] Foucault (n 18) 184. [65] ibid. [66] ibid 178 [67] ibid 180. [68] ibid. [69] ibid 183. [70] ibid 182. [71] Hubert Dreyfus, ‘Phenomenological Description versus Rational Reconstruction’ (2001) 216 Revue internationale de philosophie 182. [72] Foucault (n 18) 184. [73] Dreyfus (n 71) 183.

Russia’s assault on Ukraine continues to intensify as bombs increasingly hit city centres, destroying apartment buildings, theatres, and hospitals and killing civilians while the world watches. The brutal actions of the Russian army may seem inconceivable in the context of international norms but are not unimaginable for those who have actually been listening to Russian President Vladimir Putin. President Putin has long made his convictions regarding Ukraine known, but few took him at his word. Driven by nostalgia for the Russian Empire as well as the USSR, Putin has made it clear that he seeks to destroy Ukraine as an independent state. Putin was more or less satisfied when the Kremlin-controllable common criminal Victor Yanukovych was Ukraine’s president. He never forgave Ukrainians for driving Yanukovych from office during their Maidan revolution eight years ago, and retaliated by annexing Crimea and beginning Russia’s war in Ukraine’s Donbas region. Since that time, Russian TV has kept up a drumbeat of hate and fear, dehumanizing Ukrainians and demonizing them as fascists and neo-Nazis. It has been Russian state policy to spread misinformation, priming the Russian public to root for, or at least accept, genocidal acts against the citizens of a peaceful, neighbouring state. The Russian media has for eight years told the Russian public that Ukrainians—particularly those who assert Ukraine’s right to independence—are evil and the enemy. The Russian soldiers who are firing missiles at Ukrainian cities today are part of that audience, which has been fed a steady diet of hate. Addressing the Russian people, President Putin continues to tell his citizens that Ukraine is led by drug-addled Nazis—a particularly ugly, cynical lie given that the Ukraine’s democratically elected President Zelenskyy is Jewish and lost relatives in the Holocaust. To his list of dangers that Ukrainians pose he has added the threat of a nuclear Ukraine, even though Ukraine gave up its nuclear weapons when it became independent in exchange for what have turned out to be meaningless security guarantees, including from Russia. Western pundits have wasted too many words discussing whether Ukraine's aspiration to belong to NATO triggered the Russian president. The possibility of NATO membership was not on the table when Putin invaded Ukraine eight years ago. The demonization of Ukrainians as a prelude to genocide has a precedent. Under the tsars, Ukrainian efforts for freedom were suppressed, including bans on the use of the Ukrainian language. In the lead up to the Holodomor, the Soviet famine of 1932-33 in which millions of Ukrainians were starved to death, Soviet propaganda paved the way, casting the Ukrainian peasant farmers as kulaks, describing them as parasites and vermin and as a class that deserved and needed to be exterminated. Worth noting is that Rafael Lemkin, the lawyer who developed the concept of genocide as well as the term, considered the Holodomor part of a greater genocidal attack on Ukraine and Ukrainians. The Holodomor also provides a precedent for the Kremlin lies and disinformation of the past weeks. Over the past weeks, Russian TV has insisted that Russian troops are fighting only in Donbas. There is no mention that Russia is bombing Kyiv, Kharkiv, and other Ukrainian cities, or of civilian deaths; Russian media also claims that the Russian army is fighting irregular formations of nationalists and not the Ukrainian army. These lies intend to hide the truth of the Kremlin’s actions, just as Soviet authorities in 1932-33 refused international offers of food aid, claiming that people were not starving. They continued to deny the Holodomor for more than 50 years. It took the fall of the USSR, when researchers finally gained access to archives, to prove what eyewitnesses and survivors had insisted upon—that the Kremlin had engaged in the intentional starvation of the Ukrainian countryside. The intelligence sources that correctly predicted today’s onslaught also warned that the Kremlin has already prepared arrest and kill lists of the Ukrainians most likely to lead resistance to the imposition of Kremlin rule. A number of mayors, journalists, and activists in Ukraine have already been kidnapped. In the 1990s, I lived in Ukraine and worked with civic organisations, and I fear now for the people I know who have devoted their lives to building civil society in their country. They are likely to be targeted for their commitment to the development of a democratic Ukraine. Today, as Executive Director of the Holodomor Research and Education Consortium (a project of the Canadian Institute of Ukrainian Studies at the University of Alberta, which researches and educates about the genocidal famine in 1932-33), I fear for the Ukrainian academics I know. In Ukraine, historians are free to carry out their research. In Russia, historians who disagree with the Kremlin face persecution and imprisonment. Scholars engaged in the study of Ukrainian history and culture, as distinct from Russian, will certainly be targeted. Putin has made his intentions in Ukraine known—he is bent on destroying Ukrainians who assert their distinctiveness and who are willing to fight to preserve Ukraine as a sovereign state. Unlike during the Holodomor, when journalists were prevented from travelling to Ukraine to report on the suffering, today we are witnessing events in Ukraine in real time. We have no excuse. We know. The question is whether the world is willing to do what it takes to stop the Russian President who has already started down the path of genocide. Marta Baziuk is Executive Director of the Holodomor Research and Education Consortium (Canadian Institute of Ukrainian Studies, University of Alberta). She has more than 25 years’ experience in the not-for-profit sector, in Ukraine and North America.

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. Follow The Money Money plays a huge role in US politics. Members of Congress need to solicit vast amounts of money to wage their electoral campaigns. Money comes from a variety of sources. There is the modest contribution of the ordinary citizen, that can sometimes make a difference in insurgent campaigns. There are also the legal contributions from well-founded groups. Lastly, there is the ‘dark money’ of nonprofit organizations including unions and trade organizations, and political action campaigns (PACs) who do not have to disclose their donors.[4] Individuals can contribute to these organizations’ political campaigns while remaining anonymous. The Supreme Court, in a series of rulings including Buckley v, Valeo in 1976 and Citizens United v. FEC in 2010, made it easier for all types of money, including dark money to flood into the political system.[5] Politicians look to garner support through campaign contributions. To take just one example from recent news reports: in May 2021, the FBI was investigating a case involving Susan Collins, a US senator and Republican from Maine, for receiving contributions to her 2020 re-election campaign—organized by an executive at the defense contractor firm, Navatek. It is worth noting that Senator Collins sits on a key Senate subcommittee that controls military spending. In 2019, Senator Collins lobbied for Navatek to receive an $8 million contract at a Maine shipyard. In the 2020 election, the Navatek executive routed $45,000 personally and $150,000 through a PAC to support her re-election bid.[6] Collins is not accused of any wrongdoing. It is the executive that is under FBI scrutiny, for allegedly breaking one of the few legal restrictions on campaign contributions: being a defense contractor and giving a political campaign contribution. Collins, in contrast, did nothing wrong, legally speaking. She could be said to be working for the constituencies in her state by directing work to a shipyard in Maine. There is no obvious personal venality by Collins. While individual politicians such as Collins may not be corrupt in the formal sense of gaining individually for a service or favor, the system is rotten to the core. Most political campaign contributions deemed illegal in most of the other liberal democracies around the world do not constitute corruption in the US. It is everyday politics; business as usual. Today, policies in Washington DC are shaped more by interest groups who hone regulations to meet their needs, rather than the needs of the ordinary electorate. The political system listens to the power of money. Politicians desperately need money to stay competitive, win races, and remain in power. Those with the most money have the best access: they have the power to influence and advise. Ordinary people exercise political choice at elections but those with money exercise real political power all the time.[7] Divided Government Under the mounting pressure of growing partisanship, the constitutional division of political responsibilities across the different levels of government is now revealed as a major flaw. The Senate is Rigged The rigging of the voting system for the US Senate so that some electoral votes count more than others is not new; it’s a foundational reality, an integral part of the political architecture of the country. Under the US constitution, each state receives the same number of senators, despite differing population size, while the number of representatives afforded to a state is based on its population. It started at the beginning of the Republic, when each state was allocated two senators, despite differing population size. At the time of the First Congress in 1789, the population of the largest and smallest states, respectively Virginia and Delaware–and here we will only include free White males over 16 as befits the prioritization of the time–was 110, 936 and 11,783. Roughly, a 9-fold differential.[8] By the time of the 2016 presidential election, the population of the most and least populous states, respectively California and Wyoming, was 39.25 million and 585, 501. The differential has increased to 67-fold, whilst the senator allocation has remained the same. Senators from small states with reliably consistent voting preferences can amass seniority that bestows enormous power beyond their demographic significance. A longtime leader of the Senate, Mitch McConnell, co-represents a state with a 2020 total population of only 4.4 million that is 89.4 percent White with only 3.5 percent foreign-born while the US average is 71.7 percent white and 12.9 percent foreign-born.[9] Senate representation reflects the political realities of the largely rural 18th Century rather than the demographic realities of the metropolitan 21st Century. More than a quarter of the entire US population resides in just 10 metro areas across only 16 states. And 85 percent of all Americans now live in metro areas. The opinions of the metropolitan majority on such issues as gun control, abortion rights or immigration policy, are countermanded in the Senate by the preferences of voters in small, rural states.[10] Political power no longer parallels demographic realities. To be sure, the US was never designed as a democracy but as a republic engineered to limit the power of the people and prevent political convulsions. The multiple sources of governmental power were to be a check on unbridled power. A majority of the Supreme Court can be appointed by Senators representing a minority of the US population.[11] What About the House? Seats in the House of Representatives are based on the population of the states.[12] Thus California with a population of almost 40 million sends 52 representatives to the House, while New Hampshire with a population of around 1.36 million sends two. Thus, the House is supposed to even out the effects of states with different populations. However, the pooling of Democratic voters into dense areas lessens their effectiveness as they tend to win big in a few districts while Republicans have a wider national spread. The current system gives the Republicans an advantage over Democrats. A mathematical model produced by The Economist concluded that the Democrats need to win 53.5 percent of all votes cast to have an even chance of winning a House majority.[13] The Local Level is Stymied Although voting also takes place at the more local level of towns and cities, there is a problem as state politicians are allowed to overturn local initiatives. Twenty-four states now have pending legislation to reverse ballot measures that were introduced at the local level.[14] In Virginia, with the Republican control of state legislature, the state prohibited localities from removing memorials or replacing street names that honor southern ‘heroes’ of the Civil War. In this case, the democratic will of progressive districts was blocked because they were encased by the power of conservative states. On the other hand, conservative localities can be blocked by progressive states. This was evident in local resistance to more liberal states’ mandates for mask wearing during the worst of the COVID pandemic.[15] The Electoral College Does Not Represent the Popular Will The Electoral College, not the voting electorate, elects the President. This system was established in the Constitution to blunt the power of raw popular opinion. It is not the total votes cast for a presidential candidate that leads to a winner, but the votes of the 538 electors of the College allocated to each state in the same numbers as their Congressional delegation.[16] It tends to favor the large states since they have more population, and hence more congressional representation. Since 1888, the system worked well in that the popular vote and the Electoral College were in sync.[17] However, in both 2000 and 2016 a President won without obtaining a majority of popular votes. If presidents were elected by a simple popular vote, we would have had President Hilary Clinton and President Gore. The Electoral College does not transmit the will of the people, and is starting to undermine it. The Electoral College system also overvalues voters in large swing states such as Florida. Because of its importance and the demographic profile of this state the interests of elderly voters, self-identified Jewish voters[18] and anti-Fidel Castro voters have influenced national policies as a succession of presidential candidates sought to appease these groups to win the Presidency.[19] US foreign policy toward Israel and Cuba, and domestic safeguards to Medicare are in no small part a function of the importance of Florida’s Electoral College votes. Gerrymandering Then there is the manipulation of voting boundaries to engineer specific political outcomes.[20] The political party that controls state legislatures is directed by the Constitution to redraw Congressional boundaries every 10 years, after the results of the most recent Census, in order to take account of population shifts. This redistricting is often done to win seats and is known as gerrymandering. Basically, it allows politicians to select their voters, rather than citizens to choose their representatives. In 2012, Republicans won a majority of 33 seats in the House despite getting 1.4 million fewer votes than their Democratic opponents. The term ‘gerrymandering’ originates with the activities of Elbridge Gerry who, in 1810 as governor of Massachusetts, signed a bill that created legislative boundaries that favored his political party. A cartoonist of the day depicted the outline of the boundaries as a salamander, attempting to convey the arbitrariness of the resulting boundaries (Figure 1). The system was so ‘gerrymandered’ that the Democratic-Republicans won only 49 percent of the votes but picked up 72 percent of the seats. Gerrymandering involves what's called the ‘cracking and packing’ of voters by moving the boundaries of voting districts. Cracking spreads opposition voters thinly across many districts to dilute their power, whilst packing concentrates opposition voters in fewer districts to reduce the number of seats they can win. Gerrymandering has gotten worse in the last 20 years for three main reasons. First, gerrymandering is effective in helping political parties hold power in the House. Since 1995, after 40 years of uninterrupted Democratic dominance, the House has become more competitive. It is now up for grabs and gerrymandering has helped tip the scales. One political consultant, Thomas Hofeller, described by many as a gerrymander genius,[21] was particularly effective in designing redistricting strategies for Republicans between 1992 and 2017. He realized early on that redrawing boundary was one way to elect as many Republicans as possible. He worked for the Republican National Committee in drawing congressional maps after the 1992 elections in Arizona, Michigan, Minnesota, and Ohio. The gerrymandered seats helped the Republican win the House in 1994. He subsequently advised Republican politicians across the country on how to redraw electoral maps to their advantage. Second, gerrymandering has become a much more effective tool in the last 20 years due to greater insights in voters’ preferences. With sophisticated computer programs and ever more detailed information on voters' location and preferences, politicians now crack and pack with surgical precision.[22] Maryland's 3rd congressional district, for example, slithers and slides across the state to pick up as many Democratic voters as possible. With pinpoint accuracy afforded by the new technologies, the Democratic-controlled state legislature was able to create a Democratic majority vote. Over a third of all votes cast in the state in the 2016 congressional races were for Republican Party candidates but Republicans won only one out of 8 districts. But across the country gerrymandering favors Republicans. The Brennan Center estimates that the tactic provides at least 16 seats in the current Congress with extreme partisan bias most obvious in Michigan, North Carolina and Pennsylvania and significant bias in Florida, Ohio, Texas, and Virginia.[23] The third reason is that the Supreme Court has effectively sanctioned gerrymandering. In 1986, the Court in Thornburg v. Gingles ruled against a Democratic legislature's attempt to thinly spread, or crack, minority voters among seven new districts in North Carolina. The ruling helped create districts where minority voters were concentrated and aided the packing of voters in future cases. Later, a more conservative court in Vieth v. Jubelirer ruled 5-4 not to intervene in cases of gerrymandering. Predictably, partisan gerrymandering then increased without legal challenge, especially after the 2010 redistricting round initiated by the 2010 Census results. In Shelby v. Holder in 2013, the Court in a 5-4 ruling overturned key elements of the 1965 Voting Rights Act that protected voters’ rights in the South. The ruling gave the green light for a return to partisan gerrymandering in areas of the country previously under federal scrutiny. In 2017, and again in 2018, the Supreme Court passed up numerous opportunities to declare gerrymandering unconstitutional. The Supreme Court's 2018 decision has emboldened ever more gerrymandering.[24] Gerrymandering has a pernicious impact on the electoral system and on the wider democratic process. It encourages long-term incumbency and a consequent polarization of political discourses. In gerrymandered districts, politicians only need to appeal to their base rather than to a wider electorate. Gerrymandering remains an ugly fact of the U.S. electoral system that belies the claim to democracy. Gerrymandered districts produce safe seats and lock politicians into political postures than promote ideological purity and party loyalty over bipartisan negotiation. Primary voters in gerrymandered districts thus count more than the general voting public. Suppressing The Vote Of all the disturbing trends causing the decline of democracy in the US, voter suppression– another foundational feature of US politics—is the most insidious. Women and Black people were long denied the right to vote, and strict citizenship rules were often employed to marginalize recent immigrants. Voter suppression is a way for a White oligarchy to remain in power. Naturally, there was resistance. Voter suppression was often met by renewed efforts at securing voting rights, which in turn stimulated new rounds of suppressions by traditional holders of power. We can briefly recount the political history of the USA as a series of attempts to suppress an extended franchise that in turn prompts resistance and in turn new forms of suppression. Let me flesh out this assertion with a more detailed exposition. In the wake of the Civil War in the Reconstruction era, traditionally dated from around 1863 to 1877, three major constitutional amendments abolished slavery (the 13th Amendment, adopted in 1865), created citizens from former enslaved people (the 14th Amendment, adopted in 1868) and extended the right to vote to Black people and other minorities (the 15th Amendment, adopted in 1870). Together, they constitute a ‘Second American Revolution’. It was a difficult struggle to ensure political equality in the old South, where racist attitudes were most strongly held. Despite the hurdles and difficulties, Black people were elected to state legislatures in a period of political emancipation. From 1869 to 1876, two Black men became US senators and 20 Black men were elected to the Congress.[25] However, this political flowering proved short-lived, as southern states reentering the Union were freed from outside and military control and local White political elites began working to marginalize the active political participation of Black people. Reconstruction was dead by the end of the 19th Century. In the South, White supremacy was reincarnated and maintained by the suppression of the Black vote through poll taxes, literacy tests, and outright intimidation. In 1896, 130,334 Black people were registered to vote in Louisiana, but by 1904 there were only 1,342.[26] By the early 1900s, only 2 percent of Black people eligible to vote in Alabama had cast their ballot. This effective political disenfranchisement was maintained by White Democratic voting registers that excluded Black voters from voting lists and was enforced by the threat and constant practice of violence by local and state police, and paramilitary organizations such as the White League and the Klu Klux Klan. This period of ‘Deconstruction’ lasted for decades, until the middle of the 20th Century. It was reinforced by absolute Democratic control of the South and the entrenched power of incumbent White southern Democrats in Congress, chairing influential committees to suppress, deflect, or minimize civil rights legislation that threatened a monopoly of White political power in the South. There was no federal civil rights legislation from 1877 to the 1950s. The Supreme Court was an active participant in, what one legal historian refers to as, the process of Black people being “erased from national politics.”[27] A new civil rights movement emerged in the 1950s. The 1957 Civil Rights Act, the first such legislation since Reconstruction, established a civil rights section in the Department of Justice (DOJ) that employed federal prosecutors to pursue voting discrimination and created a federal Civil Rights Commission. Put forward by the then Republican President, Dwight Eisenhower, the act was weakened by the southern Democrats in the Congress.[28] It was the last time that Republicans favored federal oversight of state voting practices and Democrats actively resisted them, as alliances were shifting. White voters in the South drifted to the Republican Party and Black people overwhelmingly moved their allegiance to the Democratic Party. Agitation and protest resulted in the Civil Rights Act of 1964 that sought to end segregation in public places and discrimination in the job market. It also inaugurated a restructuring of US spatial politics as the white South began its eventual transformation into a Republican rather than a Democratic stronghold, and as a consequence, the national Republican Party became a more overtly religious and socially conservative party.[29] The 1964 legislation also provided the platform for the Voting Rights Acts (VRA) of 1965 that proposed stiffer legal safeguards to ensure registration and voting for Black people. The VRA has evolved over the years in a series of amendments –most noticeably in 1970, 1975, 1982 and 2006– but at its core, it prohibited discriminatory voting laws across the land and identified areas of the country subject to special conditions; they were termed covered areas (essentially the South).[30] Section 5 spelled out these conditions: any changes in voting laws or voting procedures in these covered areas had to be precleared by the DOJ or by the US District Court of DC. The political space of the country was reimagined; across the country there was a greater federal oversight of elections that traditionally had been the sole responsibility of the states. It was a shift of the ultimate control of elections from the state to the federal level because there was a sense that at the more local levels’ discriminatory practices were both possible and actual. While much civil rights legislation had broad and general goals such as eliminating job and housing discrimination, the VRA specifically targeted the reality as well as the promise of the 15th Amendment by removing the persistent and pervasive political discrimination. The VRA is one of the most successful pieces of federal public policy. In 1964, in Alabama, Georgia, Louisiana, Mississippi and South Carolina only 6.7 percent of eligible Black voters were registered to vote compared to 60 percent of Whites. By 2010, the figure for Back people was comparable to White people. In 1960, only 4 percent of registered voters in Mississippi were Black, but by 1984 this had increased to 26 percent. With the implementation of the VRA, Black people’s political participation has increased dramatically, reversing decades of exclusion from the political process. In 1964, there was only 1 Black legislature in the original covered areas, by 2010 there were over 230. Black political representation increased across the country.[31] Shelby County is an affluent county in central Alabama with a population of just over 200,000. According to the census of 2010, it had about 11.5% Black people, whereas the percentage for the state is 26.5. Only 7% live below the poverty line compared to 17% for the state. It is an affluent majority-predominantly White county in a poor state. It also reflects the recent political history of the South shifting from solidly Democratic in the 1980s to overwhelmingly Republican. By 2010, every elected partisan office in the county was held by a Republican. In 2010, Shelby County took a case to federal court arguing that sections of the VRA were unconstitutional. The county lost its case in a federal district court, a decision upheld in a court of appeals. The case went to the Supreme Court in February 2013. The majority decision released in that busy end-of-session week in June of 2013, and written by Chief Justice Roberts, ruled that Section 4 of the VRA (which identified areas subject to preclearance) was unconstitutional. Essentially, it freed local areas with a long history of pernicious racial suppression from federal oversight.[32] In the seemingly ever-repeating cycle of voter suppression leading to resistance that in turn ushers in new forms of voter suppression, we are at the ‘third stage’ of renewed voter suppression. Stung by former President Trump’s defeat in the 2020 Presidential elections, Republican state legislatures tried to suppress the popular vote with more new forms of voter identification and registration designed to penalize the less wealthy. Now, freed from federal oversight, states and municipalities across the nation have introduced discriminatory practices fueled by exaggerated and false accounts of voter fraud especially in partisan media accounts. In actuality, voter fraud is negligible.[33] Voter suppression is masquerading as ensuring voting integrity. It is nothing more than a brazen attempt to suppress Democratic leaning voters, with restrictive practices such as restrictive ID requirements that favor the affluent, not allowing freed prisoners to vote, and the restriction of early voting and absentee voting. There is also the more indirect voter suppression such as the inequities on voting facilities.[34] Poorer districts with majority people of color tend to have to wait in line for much longer than those in affluent, majority-White districts as there are fewer places to cast a ballot. These are all attempts at voter suppression. In 2020, the Texas legislature worked to pass a bill that would not allow voting on a Sunday before 1 pm. Its one and only aim was to suppress Black churchgoers from going to the polls directly from Sunday morning services. Many of the faithful in this state lack private transport, so Black churches often provide group transportation to the polls. The same bill also sought to restrict people driving non-relatives to the polls. It is aimed directly at elderly poor black voters who do not have their own cars.[35] Voter suppression in various forms is not about combating voter fraud; it is a way for Republicans to remain in power, even as the electorate drifts away from supporting them.[36] Fully-functioning democracies allow voters a sense of participation in a shared experience. Flawed democracies, in contrast, feed resentments about fairness and create fertile conditions for conspiracy narratives. There is no simple explanatory step from noting these mounting democratic deficits to explaining the insurrection of 6 January 2021. However, the flaws in US democracy are significant background factors in creating narratives of resentment and anger. Insurrections happen in the context of declining political legitimacy and growing discontent. While all voters get to exercise political choice, only some get to exercise real political power. As the undemocratic trends strengthen, we are likely to see more crises of political legitimacy and more expressions of raw political anger.[37] John Rennie Short John Rennie Short is a Professor in the School of Public Policy, University of Maryland Baltimore County. He has published widely in a range of journals and is the author of 50 books. His work has been translated into Arabic, Chinese, Czech, Italian, Japanese, Korean, Persian, Romanian, Spanish, Turkish, and Vietnamese. His essays have appeared in Associated Press, Business Insider, Citiscope, City Metric, Market Watch, Newsweek, PBS Newshour, Quartz, Salon, Slate, Time, US News and World Report, Washington Post, and World Economic Forum. [1] ‘A New Low For Global Democracy’ (The Economist, 2022) accessed 17 April 2022. [2] John Rennie Short, Stress Testing The USA (2nd edn, Springer 2022); John Rennie Short, ‘An Election In A Time Of Distrust’, U.S. Election Analysis 2020: Media, Voters and the Campaign (1st edn, Election Analysis - United States 2022) accessed 17 April 2022; John Rennie Short, ‘After Supreme Court Decision, Gerrymandering Fix Is Up To Voters’ (The Conversation, 2019) accessed 17 April 2022; John Rennie Short, ‘Four reasons gerrymandering is getting worse’ (The Conversation, 2018) accessed 17 April 2022; John Rennie Short, ‘Campaign season is moving into high gear—your vote may not count as much as you think’ (The Conversation, 2018) accessed 17 April 2022; John Rennie Short, ‘Globalization and its discontents’ (The Conversation, 2016) accessed 17 April 2022; John Rennie Short, ‘The legitimation crisis in the USA: Why have Americans lost trust in government?’ (The Conversation, 2016) accessed 17 April 2022; John Rennie Short, ‘The Supreme Court, The Voting Rights Act And Competing National Imaginaries Of The USA’ (2014) 2 Territory, Politics, Governance. [3] James Madison, ‘Federalist Papers No. 10 (1787)’ (Bill of Rights Institute) accessed 17 April 2022. [4] Peter Geoghegan, Democracy For Sale: Dark Money And Dirty Politics (Head of Zeus 2020); Heather K Gerken, ‘Boden Lecture: The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties’ (2013) 97 Marquette University Law Review accessed 17 April 2022; Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right. (1st edn, Anchor 2017). [5] Buckley v Valeo [1976] United States Court of Appeals, District of Columbia Circuit, 519 F2d 821 (United States Court of Appeals, District of Columbia Circuit); Citizens United v Fed Election Commission [2008] Supreme Court of the United States, 170 L Ed 2d 511 (Supreme Court of the United States). [6] Byron Tau and Julie Bykowicz, ‘FBI Probes Defense Contractor’s Contributions To Sen. Susan Collins’ Wall Street Journal (2021) accessed 17 April 2022. [7] Benjamin I. Page, ‘How Money Corrupts American Politics’ (Scholars Strategy Network, 2013) accessed 17 April 2022. [8] U.S. Census Bureau, Public Information Office (PIO) ‘1790 Census’ (National Geographic Society) accessed 17 April 2022. [9] Nicholas Jones and others, ‘2020 Census Illuminates Racial And Ethnic Composition Of The Country’ (Census.gov, 2021) accessed 17 April 2022. [10] Kristen Bialik, ‘State of The Union 2018: Americans’ Views on Key Issues Facing the Nation’ (Pew Research Center, 2018) accessed 17 April 2022. [11] Kevin J McMahon, ‘Is The Supreme Court’s Legitimacy Undermined In A Polarized Age?’ (The Conversation, 2018) accessed 17 April 2022. [12] The total number of representatives in the House is limited to 435. [13] ‘America’s Electoral System Gives the Republicans Advantages Over Democrats’ (2018) The Economist accessed 17 April 2022. [14] Lori Riverstone-Newell, ‘The Rise Of State Preemption Laws In Response To Local Policy Innovation’ (2017) 47 Publius: The Journal of Federalism 403-25. [15] Jeffrey Lyons and Luke Fowler, ‘Is It Still a Mandate If We Don’t Enforce It? The Politics of COVID-related Mask Mandates in Conservative States’ (2021) 53 State and Local Government Review 106-21; Dannagal G Young et al, ‘The politics of mask-wearing: Political preferences, reactance, and conflict aversion during COVID’ (2022) 298 Soc Sci Med. [16] John C. Fortier, After The People Vote: A Guide To The Electoral College (4th edn, AEI Press 2020). [17] Benjamin Forest, ‘Electoral Geography: From Mapping Votes to Representing Power’ (2018) 12 Geography Compass. [18] These are voters who identify themselves as Jewish voters, as opposed to Jewish people who vote but do not consider themselves Jewish. [19] David A Schultz and Rafael Jacob, Presidential Swing States (2nd edn, Rowman & Littlefield 2018). [20] John Rennie Short, ‘4 Reasons Gerrymandering Is Getting Worse’ (The Conversation, 2018) accessed 17 April 2022. [21] David Daley, ‘The Secret Files Of The Master Of Modern Republican Gerrymandering’ (2019) The New Yorker accessed 17 April 2022. [22] Samuel Wang, ‘Three Practical Tests For Gerrymandering: Application To Maryland And Wisconsin’ (2016) 15 Election Law Journal: Rules, Politics, and Policy. [23] Michael Li and Laura Royden, ‘Extreme Maps’ (Brennan Center for Justice 2017) accessed 17 April 2022. [24] Supreme Court Cases on Gerrymandering: Thornburg v Gingles [1986] US Supreme Court, 478 US 30 (US Supreme Court); Vieth v Jubelirer [2003] No. 02–1580 (US Supreme Court); Shelby v Holder [2012] 12–96 (US Supreme Court). [25] ‘Black-American Members By Congress, 1870–Present | US House Of Representatives: History, Art & Archives’ (History, Art and Archives, 2022) accessed 17 April 2022. [26] Allie Bayne Windham Webb, ‘A History of Negro Voting in Louisiana, 1877-1906’ (Louisiana State University Dissertation 1962) accessed 19 April 2022. [27] James MacGregor Burns, Packing The Court (Penguin Books 2009) 93. [28] The Civil Rights Movement and the Second Reconstruction, 1945-1968 | US House of Representatives: History, Art & Archives’ (History, Art and Archives, 2022) accessed 17 April 2022. [29] Jonathan Peter Bartho, ‘Whistling Dixie: Ronald Reagan, The White South, And The Transformation Of The Republican Party’ (PhD, University College London 2021); MV Hood, Quentin Kidd, and Irwin L Morris, The Rational Southerner (2nd edn, Oxford University Press 2014). [30] Marsha Darling, The Voting Rights Act Of 1965: Race, Voting, And Redistricting (1st edn, Routledge 2013); Chandler Davidson and Bernard Grofman, Controversies in Minority Voting (2nd edn, Brookings Institution 2011); John Rennie Short, ‘The Supreme Court, The Voting Rights Act And Competing National Imaginaries Of The USA’ (2014) 2 Territory, Politics, Governance. [31] Robert Brown, ‘Race And Representation In Twenty-First Century America’ (2020) 8 Journal of Global Postcolonial Studies; David T Canon, Race, Redistricting, and Representation: The Unintended Consequences of Black Majority Districts (University Chicago Press 2020). [32] Short (n 30). [33] Brennan Center for Justice, ‘The Myth of Voter Fraud’ (Brennan Center for Justice 2021) accessed 17 April 2022. [34] Lisa Marshall Manheim and Elizabeth G Porter, ‘The Elephant in The Room: Intentional Voter Suppression’ (2019) 2018 (1) The Supreme Court Review. [35] Patrick Svitek, ‘Republicans say they’ll tweak part of Texas elections bill criticized for impact on Black churchgoers’ The Texas Tribune (2021) accessed 17 April 2022; Brad Brooks, ‘Vote on Texas bill to make voting tougher blocked by no quorum’ (Reuters, 2021) accessed 17 April 2022; Nick Corasiniti, ‘Texas Senate Passes One of the Nation’s Strictest Voting Bills’ New York Times (2021) accessed 17 April 2022. [36] Manheim and Porter (n 35); Bertrall L Ross II, ‘Passive Voter Suppression: Campaign Mobilization and the Effective Disfranchisement of the Poor’ (2019) 114 Nw. UL Rev. [37] John Rennie Short, ‘The ‘Legitimation’ Crisis in The US: Why Have Americans Lost Trust In Government?’ (The Conversation, 2016) accessed 17 April 2022.

There exists a fine line that sociologists—and all social scientists—must tread as they try to knit together empirical, objective[1] evidence and participants’ subjective realities. It is not an either/or situation. It is not a very easy path to walk down. But it must be done—not only by sociologists, but by all of us. I argue that working out how to value both objective and subjective realities is a central step we must take if we are to move towards a more compassionate society. And a step that we must not leave to junior researchers or postgraduate students to take, but which must be emphasised to undergraduates as they begin their research. To illustrate how I came to this understanding, I think it is instructive to consider one of my own research experiences. When interviewing a research participant on Zoom a few weeks ago, I found myself particularly struck by something this participant said. Whilst I cannot say exactly what this comment was (the research project is ongoing), I was bewildered at the way a young woman, whose candour and generosity I admired and appreciated, seemed to be denying an aspect of the inequalities prevalent in university life. She denied something I believed I knew to be true. I found myself thinking ‘but that’s a myth’ so ‘you’re wrong’, ‘you’ve been duped’, ‘you’re misinformed’. I even fleetingly considered that my interviewee was under a form of ‘false consciousness’, the sociological equivalent to ‘you’re wrong and I’m right—but you can’t see it’. It is in order to avoid instances like this in the future, instances where the power dynamics between interviewee and interviewer are at risk of sullying the integrity of the research, that I propose a route towards a more compassionate sociology, one that remains both critical and empowering. Fortunately, however, I recalled that the growing refrain within the discipline of sociology is ‘reflexivity, reflexivity, reflexivity’. Reflexivity means being alert to and examining your own assumptions, views, and social location within structures and relations of power; it is central to good sociological research. This incident raised the question of how I should represent this participant’s views in my work. I considered the option of turning to the corpus of sociological work demonstrating why she is wrong and, in the process, take away her autonomy and devalue her views. Or, I could take her own perspective at face value, ignoring the empirical evidence to the contrary. The truth is that neither option is adequate. Instead, we must all seek to value objective and subjective realities simultaneously. Only then can we completely fulfil the requirement to be reflexive and, in turn, become more compassionate sociologists and, beyond that, citizens. Unable to detail this specific incident, I want to illustrate what I mean by applying this idea—of valuing both the objective and subjective simultaneously—to the mythological status of meritocracy. Meritocracy refers to the idea that intelligence and effort, rather than ascriptive traits, determine individuals’ social position and trajectory. I had previously believed meritocracy to be a ‘myth’ in the UK. Drawing on David Bidney’s definition of myth,[2] when referring to meritocracy as a myth, I mean that meritocracy is an idea or concept that is frequently discussed and often believed but, in reality, it is false because it has been shown to be incompatible with scientific and empirical evidence. Thinking about whether meritocracy is a myth is particularly pertinent in the context of COVID-19. With murmurs of ‘life after COVID-19’ and ‘a return to normal’, forms of government relief like eviction moratoriums and furlough schemes have been wound down or withdrawn completely. As these expanded safety nets are dismantled, it is likely that we will return to a government discourse of ‘meritocracy’ that positions the privileged as deserving of their dominance and wealth on the basis of ‘merit’, whilst the dominated and marginalised are rendered responsible for their own hardship because they are neither sufficiently talented nor conscientious. However, given that the fatal impacts of COVID-19 have exposed the persisting fault lines of structural inequality, with mounting death tolls, lockdown restrictions, and concomitant economic shocks disproportionately affecting the marginalised and dominated in society, particularly the working class and people of colour (many of whom are working-class), it raises the question of whether meritocracy was and is a myth. The meritocratic discourse: level playing fields and worthy winners Meritocracy, as popularised by Michael Young in 1958,[3] refers to the idea that ‘IQ+effort’, rather than ascriptive traits (such as class, race, gender, sexuality, or nationality), determine individuals’ social position and trajectory. The term has transformed from being a negative slur, as argued by Michael Young and Alan Fox, to a positive axiom of modern life.[4] Jo Littler argues this positive evaluation characterises contemporary neoliberal inflections of meritocracy that justify inequalities (conferring meritocratic legitimation) and which are underpinned by individualism and the linear, hierarchical ‘ladder of opportunity’.[5] The current prime minister’s narrative of ‘Levelling Up’ shows meritocratic discourse in action. It is largely a continuation of the rhetoric Boris Johnson deployed as Mayor of London, when he famously ‘hailed the Olympics for embodying the “Conservative lesson of life” that hard work leads to reward’—the effort part of the ‘IQ+effort’ meritocratic formula.[6] Perhaps most revealing of this meritocratic discourse is Johnson’s effusive article titled: ‘We should be humbly thanking the super-rich, not bashing them’.[7] In this article, he argued the super-rich deserve their wealth (meritocratic legitimation) on the basis of their ‘merit’, that is, their exceptional levels of intelligence, talent, and effort. Thus, he adopts a trope of meritocratic legitimation to justify the gross inequalities between the super-rich and the poor. The implication is that those at the bottom of the social ladder are to blame for their own position. Fellow Etonian, David Cameron, matches Johnson’s meritocratic rhetoric. Cameron’s ‘Aspiration Nation’ discourse similarly assumes all progressive movement must happen upwards, thereby positioning working-class culture as ‘abject zones and lives to flee from’.[8] This is epitomised by Cameron’s moralised binary opposition of ‘skiver’/ ‘striver’. The rhetorical construction of these social types denies structural (dis)advantage by ‘responsibilising’ solutions to inequality as an individual’s ‘moral meritocratic task’.[9] Thus, meritocracy assumes a ‘level playing-field’ or ‘equality of opportunity’, whilst presenting a moralising discourse that blames or applauds individuals for their social position and erases the persistence of structural inequality. Meritocracy as myth: the following wind of privilege makes for an uneven playing field If meritocracy was regularly being touted by politicians, why, then, did I consider it to be a myth? To answer this question, we must consider how past and recent scholarship places meritocracy firmly in the realm of myth by showing it to be incompatible with scientific and empirical evidence. I limit my analysis here to class, despite literature on intersectionality showing that class does not exist apart from other axes of oppression. This focus reflects the long-standing British political obsession with class mobility and that literature on meritocracy has traditionally centred on class inequalities, whereby meritocracy is framed as achievement irrespective of material circumstances, for which class is perhaps the most pertinent lens. My sociological training at undergraduate level has instilled in me that meritocracy as an operational social system—where ‘IQ+effort’ is the basis of reward and resource allocation in society—is a myth. In traditional class analyses, such as that by Richard Breen and John Goldthorpe,[10] meritocracy is operationalised in terms of employment relations, analysing the relationship between class origins and destinations—coded by occupation—as illustrative of social mobility. Breen and Goldthorpe found that, in Britain, ‘merit’—measured as ability, effort, and/or educational attainment—does little to mediate the association between class origin and destination.[11] In other words, in order to enter similarly desirable class positions, children of less-advantaged origins need to show substantially more ‘merit’ than their privileged-origin counterparts. Meanwhile, the culturalist approach to class analysis, which emerged in direct response to the deficiencies of traditional class analysis, tells a similar story. A new generation of class theorists, notably Mike Savage and colleagues[12] alongside Sam Friedman and Daniel Laurison,[13] criticised traditional class analysis’ narrow focus on occupational divisions in class reproduction to the exclusion of cultural processes and markers of inequality. The culturalist approach operationalises a Bourdieusian framework for understanding inequalities. As economic capital was seen as just one aspect of class reproduction, focus shifted to social capital and, especially, cultural capital which exists in three forms: objectified (cultural products, such as book or works of art); institutionalised (educational credentials), and embodied (enduring dispositions of mind and body, such as mannerisms, preferences, language). In particular, embodied cultural capital can illuminate how often ‘IQ+effort’ is not recognised as ‘merit’. Rather, ‘merit’ is read off the body through the ways individuals ‘perform merit’: for instance, in mannerisms, language, accent, dress, and tastes. Possession of embodied cultural capital is structured by what Bourdieu refers to as the ‘habitus’: the set of pre-reflexive, pre-discursive dispositions an individual embodies, conditioned by their social position or ‘conditions of existence’ (proximity to material necessity). In this way, one’s habitus is classed. The ‘structure’ of the habitus generates ‘structuring’ dispositions, relating to a particular mode of perceiving, inhabiting, and knowing the social world, rooted ‘in’ the body, including posture, gesture, and taste – embodied cultural capital.[14] Sam Friedman and Daniel Laurison, following this culturalist approach, move beyond the traditional class analysis assumption that mobility finishes at the point of occupational entry. Instead, they view equitable access to the highest echelons of elite professions (such as law, medicine, engineering, journalism, and TV-broadcasting) as crucial to the actualisation of meritocracy: it is not just about who gets in, but who gets to the top. They interrogate inequalities in elite professions, finding that the probability of someone from upper-middle-class origins landing an elite job to be 6.5 times that of their counterpart from working-class origins.[15]They argue that differences in educational credentials cannot fully explain the stubborn links between class origins and destinations. Whilst there are class disparities in levels of education, the percentage of people with a degree or higher obtaining ‘top’ jobs is 27% for people of working-class origin and 39% for people of privileged origin.[16] These disparities reveal that even if people from working-class origins possess the credentials meritocratic discourse presents as necessary (‘IQ+effort’), class hierarchy within elite professions persists. Friedman and Laurison contend that cultural processes are the cause of these inequalities, thereby exposing the limits of Goldthorpe’s more economics-based approach. They argue that what is routinely categorised and recognised as ‘merit’ in elite occupations is ‘actually impossible to separate from the “following wind of privilege.”’[17] Rather than ensuring a level playing field, the assessment of ‘merit’ is based on arbitrary, classed criteria. For example, recognition of ‘merit’ depends on ‘polish’ in accountancy and ‘studied informality’ in television, both of which ‘pivot on a package of expectations—relating to dress, accent, taste, language and etiquette—that are strongly associated with or cultivated via a privileged upbringing’.[18] That is to say, in Bourdieu’s terms, performance of ‘merit’ requires a certain privileged habitus. This enables the already privileged to ‘cash in’ their ‘merit’ in a way that is unavailable to the working-class who, due to their class origins, do not possess the requisite cultural repertoire – embodied cultural capital, possession of which is structured by the habitus. The existence and differentiation of an inflexible and durable habitus thus means any universal, objective set of criteria that constitutes ‘merit’ is an impossibility as is the notion that anyone can possess this ‘merit’. Moreover, a privileged habitus is favoured through a process of ‘cultural-matching’ whereby a ‘fit’ between employer and employee is sought.[19] ‘Fit’ is based on relationships forged on cultural affinity which, due to the habitus, usually map onto shared class origins. Since those in senior positions are overwhelmingly from privileged backgrounds, cultural-matching enables the upper-middle classes to advance at the expense of the working-class. The process of cultural-matching becomes self-perpetuating. Yet, as it is couched in veiled meritocratic management jargon, such as ‘talent-mapping’, cultural-matching operates under the radar.[20] These homophilic bonds enable the privileged to ‘cash in’ their ‘merit’ in a way that is unavailable to the working-class who possess a habitus inscribed by proximity to necessity and thus lacking the required embodied cultural capital, producing experiences of ‘lack of fit’.[21] Whilst Friedman and Laurison do not explicitly make this connection, I follow Vandebroeck in seeing this ‘lack of fit’ as the corollary of how every habitus ‘seeks to create the conditions of its fulfilment’, meaning ‘that every habitus will seek to avoid those conditions in which it systematically finds itself questioned, problematised, stigmatised and devalued’.[22] For those of working-class origin, the resultant poor ‘fit’ leads to an ostensibly elective ‘self-elimination’ from elite occupations.[23] This ensures limited mobility between origins and destinations and suggests that something other than the meritocratic formula ‘IQ+effort’ is operating as the selection mechanism in elite professions . In other words, there is no point talking about a level playing-field when the wind is blowing so strongly in one direction. Meritocracy thus appears as a myth on the level of empirical, structural reality. Whilst academic research thus evidences the mythical status of meritocracy as an empirical reality, the state of affairs in politics and the media also encourage similar conclusions. Whilst only 6.5% of the general population attends fee-paying schools, 54% of Johnson’s cabinet were privately educated (as of July 2019). The equivalent number for May’s 2016 cabinet was 30%; Cameron’s 2015 cabinet was 50%; the coalition 2010 cabinet was 62%. Even in Labour cabinets the privately educated were overrepresented: 32% in both Brown’s 2007 and Blair’s 1997 cabinet.[24] Similarly, a 2019 Ofcom report found that television workers were twice as likely than the average Briton to have attended private schools.[25] The Panic! 2015 survey also found that, of those in film, television, and radio, only 12.4% have working-class origins, compared to 38% of the general population.[26] All of this evidence seems to point to an undeniable status of meritocracy as myth. A belief in a myth?: ‘the playing-field looks fine to me’ These academic findings and research statistics, published in peer-reviewed journals and fact-checked news outlets, are considered reliable, valid, and largely unambiguous. Yet significant swathes of the population continue to believe in meritocracy. Only 14% of respondents to the 2009 British Social Attitudes survey regarded family wealth as important to getting ahead and only 8% saw ethnicity as a decisive factor—a fall from 21% and 16% in 1987. Meanwhile, 84% and 71% believed ‘hard work’ and ‘ambition’ were important to getting ahead. This high level of belief in meritocracy may have even increased in recent years. In 2018, Jonathan Mijs found that the recent rise of income inequality has been accompanied by an increase in popular belief in meritocracy internationally.[27] If meritocracy is believed on a significant scale, how can such beliefs be sustained despite contradictory evidence? It is especially important to ask the question of why those who appear to lose out, precisely because meritocracy is nothing more than a guise for persisting class prejudices, are persuaded by the idea that meritocracy is a true functioning system of reward and resource allocation in our society. Elites have obvious stakes in believing and perpetuating belief in meritocracy if it works to justify their power as deserved and legitimate on the basis of intelligence, talent, and effort. Therefore, I will focus on the so-called losers of meritocracy, or ‘skivers’ in Cameron’s classist parlance. In order to move towards a more compassionate sociology, it is insufficient simply to look at whether or not meritocracy exists, or how far ingrained prejudices prevent it from being realised. Rather, we also need to take into account the subjective responses to meritocracy of those we study. Failing to consider simultaneously the objective and subjective realities of meritocracy means we risk seeing those who believe in it as cultural dupes in a state of ignorance and delusion. Whilst this kind of disempowering analysis can be seen in some sociological writings,[28] there is nevertheless a body of scholars whose work actively seeks to contest and move beyond this. The work of Wendy Bottero on social inequalities and of Lauren Berlant on her concepts of ‘cruel optimism’ has shaped my thinking on this and both are discussed briefly below.[29] Robbie Duschinsky and colleagues also provide a way through these thorny issues when discussing the psychiatric concept of ‘flat affect’. They argue against the totalising resistance/compliance binary in the social sciences and humanities that is ‘too quick to divide actions into compliance with or resistance to power’.[30] They contend that this binary obscures the many strategies individuals engage in to negotiate ‘compromised, valuable freedom’ in conditions not of their own choosing. Whilst this scholarship is crucial, students—particularly undergraduates—have to seek out this work as it is not part of most compulsory syllabi. Even in optional modules and papers, it is often only touched on briefly and indirectly in discussions of researcher reflexivity. Meanwhile, the objective and ‘scientific’ nature of social sciences seem to be a crucial lynchpin around which all undergraduate learning turns. Alternatively, the student has to be lucky enough to have a supervisor that will guide them in this direction. I believe research would become not only more nuanced, but more compassionate, if scholarship like that of Bottero, Berlant, and Duschinsky, and the notion of valuing objective and subjective realities simultaneously, became a staple of undergraduate sociology courses. More than this, it would help us become more compassionate people outside of the classroom and lecture hall too. Favouring objective, empirical evidence, which points to the nonexistence of meritocracy, over subjective feeling and meaning-making means failing to consider the seduction and benefit of meritocratic belief in providing meaning and order to one’s life. Christopher Paul overcomes this problem, recognising that meritocratic belief is ‘understood as a great liberator, freeing citizens from an aristocratic past based on inheritance and lineage’.[31] Given this historical reference point, meritocracy is consented to as it seems ‘fair’ and ‘just’. However, because meritocracy structurally disadvantages the dominated (working-classes), such belief can be characterised as a ‘cruel optimism’. Lauren Berlant conceptualises ‘cruel optimism’ as the affective state produced under neoliberalism which encourages optimistic attachments to a brighter, better future, whilst these same attachments and beliefs are simultaneously ‘an obstacle to our flourishing’.[32] In other words, meritocratic belief can provide a sense of hope which is difficult to argue with.[33] Berlant recognises this process of meaning-making through belief, arguing that hope can bind together a chaotic neoliberal world ‘into a space made liveable…even if that hope never materialises’,[34] just as hope for meritocracy as a structural reality may never materialise. A myth as fact? On the one hand, we have seen that empirical evidence suggests that the recognition and categorisation of ‘merit’ is based more on possession of classed embodied cultural capital than on ‘IQ+effort’; meritocracy as an objective social system is a myth. On the other hand, belief in the meritocratic formula at a subjective level is clearly not mythical, but a strong ideological force in British society. The existence of belief in the meritocratic formula at a subjective level means we cannot label meritocracy ‘just a myth’ and proceed with our analysis heedlessly. As David Bidney recognised as early as 1950, ‘the very fact of belief implies that subjectively, that is, for the believer, the object of belief is not mythological’, but ‘an effective element of culture’.[35] Ultimately, if people find meaning and sense in a meritocratic idiom, acting on the basis of meritocratic belief, sociologists must be cautious in imposing alternative categorisations and identifications in the teeth of lay peoples’ denials. This is exactly what almost occurred when I was interviewing a research participant a few weeks ago. Thus, meritocracy is a myth at an objective level, but also exists as ideology, meaning subjective belief in this ideology is far from a myth in British society. Because believed true, meritocracy is not a myth to those who believe it, but a myth only to those who know and believe it to be false. This brings us to the problem of why, so long as some people believe in meritocracy, it is impossible to unproblematically label it as a myth despite research suggesting meritocracy has no empirical reality. I draw here on conceptualisations of ideology. Since meritocracy comprises a system of beliefs constituting a general worldview that works to uphold particular power dynamics between the dominant (presented as the deserving ‘winners’ of meritocracy) and the dominated (presented as unmeritocratic and undeserving), it operates as an ideology.[36] Michael Freeden extends this view, defining ideology as ‘particular patterned clusters and configurations’ of decontested ‘political concepts’ not external to but existing within the world.[37] This is helpful for two reasons. Firstly, the notion that ideology exists within the world highlights how ideologies have material effects: if believed, they influence how we act and behave, as seen in processes of ‘self-elimination’ (whereby individuals from marginalised or dominated backgrounds do not enter elite jobs, not because they lack ambition or aspiration, but as a reaction to or an anticipation of the kinds of barriers they will face there).[38] Moreover, belief in meritocracy—that we had lost our meritocratic way and needed to recapture it—is, David Goodhart argues, at the heart of the contemporary anti-elitist, populist challenge.[39] This belief in meritocracy was an underlying part of both Trump’s and Brexit’s appeal, political changes that re-organised and shaped the world in which all must participate. Therefore, even if meritocracy is a structural mirage, belief in it as ideology still has material, real-world effects. Sociologists, then, seem to have an additional task. It can no longer suffice to evidence the absence of meritocracy as a functioning social system in society. That is to dismiss it as a myth and to overlook these real-world effects. Instead, sociologists need to grapple with the more complex and less neatly categorised implications of the persistent belief in meritocracy, even by those it disadvantages. I agree with Stuart Hall, one of the founding figures of British Cultural Studies, that ideology ‘concerns the ways in which ideas of different kinds grip the minds of the masses and thereby become “a material force”’[40] and I suggest that scholars who dismiss meritocracy as myth fall prey to the mistaken traditional philosophical distinction between thought and action, isolating them in separate, impermeable spheres with potentially deleterious consequences. Secondly, in Freeden’s theory of ideology, we are presented with the notion that there is no ‘absolute truth’ since all concepts are ‘essentially contestable’, with as many potential meanings of concepts and ideas as there are human minds.[41] Whilst this is a rather extreme and destabilising stance, it highlights how belief is subjective, contextualised, and personalised, meaning meritocracy cannot be completely and unequivocally tarred with the brush of mythology. These two points—that meritocratic belief has real-world effects and meritocratic belief as subjective reality—highlight why, so long as some people believe in it, meritocracy cannot merely be a myth. Bottero argues that ‘the asymmetrical distribution of resources tends to worry sociologists more than it worries lay actors’, suggesting that ‘discussion of such issues must draw on the language of perceived injustice and conflict which emerges from people themselves’.[42] However, the language of injustice and conflict does not always and for everyone refer to meritocracy. Rather, meritocracy is instead often spoken of in terms of legitimate inequality. Towards a more compassionate sociology – and beyond? We cannot deny that sociology (and social sciences more broadly) is and should remain an empirical discipline, but nor can we deny that an approach which puts greater emphasis on lay actors’ own beliefs and consequent action is also within sociology’s remit. Indeed, an important tenet of sociological training is the ‘Thomas Theorem’: ‘If [people] define their situations as real, they are real in their consequences’.[43] This is a tenet that seems to be offered to students and young researchers only after their undergraduate studies, and even then it is not always followed. Instead, this tenet should become crucial to any undergraduate sociological training. Sociologists and other social scientists must continue to analyse and expose how power is operating and so cannot take people’s own perspectives at face value since they may potentially ‘misrecognise’ the power inequalities experienced. Yet social scientists must also avoid, as Berlant puts it, ‘shit[ting] on people who hold to a dream’.[44] What I have been arguing for here is a sociology that avoids this by making the distinction between the objective, empirical myth of meritocracy as a social structural system (based on the ‘IQ+effort’ formula), and belief in meritocracy as a subjective reality which is not a myth because it has real-world effects on and meanings for people’s lives. Consequently, meritocratic belief becomes a material force that can only be confined to the mythological sphere at the price of a limited understanding of the real-world effects it has. That is, meritocracy may be a myth to some, including many sociologists, but it is an integral cultural element for many. This two-pronged argument that calls for encompassing objective and subjective realities simultaneously extends beyond the issue of meritocracy. For example, it can help us understand why women—not just men—believe that gender equality has been achieved. It can help us understand why people hold onto conspiracy theories. It can help us understand why people in urban, developed cities practice witchcraft or spend hours logging sightings of UFOs, to name just a few. Reflecting on this conclusion is crucial given social sciences’ (like sociology, law, and politics) tendency to focus on empirical reality, rather than subjective belief. Without the latter, simple conclusions that meritocracy is merely a myth or that my research participant was merely suffering from ‘false consciousness’ risk alienating and dismissing the existence of many whose lives take meaning and action from such beliefs. What this essay ultimately aims to do, therefore, is to caution social scientists, particularly undergraduate students, in their analysis and exposure of objective reality, to not dismiss point-blank individuals’ subjective reality. Whilst researchers must always be awake to power dynamics that may go unnoticed by the individuals they study, this essay suggests sociology (and other social sciences) perhaps needs to be more reflexive, aware that its claims to inclusivity and criticalness may be undermined as its empirically focussed, objectivity-driven approach risks ostracising the very people who, in its aim to bring inequalities to the forefront, it intends to empower. This idea, that we must avoid shitting on those who believe in a dream, despite empirical evidence of its nonexistence, should not just be taken up by sociologists, but by all of us. As this essay has outlined, it can help us—academics and students in elite institutions especially—understand why people voted for Trump or Brexit, for instance. It will stop us from dismissing and even dehumanising others point-blank and instead open up channels of empathy, compassion, and communication, something which I hope will be present in all my future research interviews and which I fear was not present in the interview that sparked this essay. Niamh Hodges Niamh Hodges graduated from Sidney Sussex College, Cambridge, in summer 2022, where she received a first class degree in Human, Social and Political Sciences (HSPS). Interested in the convergence between sociology, politics and law, she intends to pursue a Masters and career in social work. [1] It is implicit throughout this essay that completely ‘objective’ evidence is impossible to achieve given the influence of the researcher on research outcomes, but the term is used here as objective knowledge remains the ideal across large swathes of the social science community. [2] David Bidney, ‘The Concept of Myth and the Problem of Psychocultural Evolution’ (1950) 52(1) American Anthropologist 16. [3] Michael Young, The Rise of the Meritocracy 1870-2033: An essay on education and society (Thames and Hudson 1958). [4] ibid; Alan Fox, ‘Class and Equality’ (May 1956) Socialist Commentary 11; Richard Herrnstein, IQ in the Meritocracy (Little, Brown 1971) and Daniel Bell, The Coming of Post-Industrial Society: A Venture in Social Forecasting (Basic Books 1973). Also see Jo Littler, Against Meritocracy: culture, power and myths of mobility (Routledge 2018). [5] Littler (n 4) 8. [6] Geri Peev, ‘Games Embody the Tory Ethic of Hard Work that Leads to Reward, Says Boris’, Daily Mail (London, 6 August 2012) . [7] Boris Johnson, ‘We should be humbly thanking the super-rich, not bashing them’, The Telegraph (London, 17 November 2013) . [8] Littler (n 4) 7. [9] ibid 89–90. [10] Richard Breen and John Goldthorpe, ‘Class Inequality and Meritocracy: A Critique of Saunders and an Alternative Analysis’ (1999) 50(1) British Journal of Sociology 1; Richard Breen and John Goldthorpe, ‘Class, Mobility and Merit: The Experience of Two British Birth Cohorts’ (2001) 17(2) European Sociological Review 81; Erzsébet Bukodi, John Goldthorpe, Lorraine Waller, and Jouni Kuha, ‘The mobility problem in Britain: New findings from the analysis of birth cohort data’ (2015) 66(1) British Journal of Sociology 93. [11] Breen and Goldthorpe, ‘Class, Mobility and Merit’ (n 10). [12] Mike Savage, Niall Cunningham, Fiona Devine, Sam Friedman, Daniel Laurison, Lisa McKenzie, Andrew Miles, Helene Snee, and Paul Wakeling, Social Class in the 21st Century (Pelican Books 2015). [13] Sam Friedman and Daniel Laurison, The Class Ceiling: Why It Pays To Be Privileged (Bristol University Press 2019). [14] Dieter Vandebroeck, Distinctions in the Flesh (Routledge 2017). [15] Friedman and Laurison (n 13) 13. [16] ibid. [17] ibid 27. [18] ibid 213. [19] ibid. [20] Friedman and Laurison (n 13) 211. [21] ibid 218. [22] Vandebroeck (n 14) 220. [23] Friedman and Laurison (n 13). [24] BBC News, ‘Prime Minister Boris Johnson: Does his cabinet reflect “modern Britain”?’ (25 July 2019) . [25] Ofcom (2019) Breaking the class ceiling—social make-up of the TV industry revealed. [26] Dave O’Brien, Orian Brook, and Mark Taylor, ‘Panic! Social class, Taste and Inequalities in the Creative Industries’ (2018) ; Ofcom (n 26). [27] Jonathan Mijs, ‘Visualising Belief in Meritocracy, 1930–2010’ (2018) 4 Socius 1. [28] I contend that such analysis is seen in Littler (n 4) and that many Bourdieusian analyses edge very close to falling into this trap as well, such as Friedman and Laurison (n 13). [29] Wendy Bottero, ‘Class Identities and the Identity of Class’ (2004) 38(5) Sociology 985, and A Sense of Inequality (Rowman and Littlefield International 2018); Lauren Berlant, Cruel Optimism (Duke University Press 2011). [30] Robbie Duschinsky, Daniel Reisel, and Morten Nissen, ‘Compromised, Valuable Freedom: Flat Affect and Reserve as Psychosocial Strategies’ (2018) 11(1) Journal of Psychosocial Studies 68. [31] Christopher Paul, The Toxic Meritocracy of Video Games: Why Gaming Culture is the Worst. (University of Minnesota Press 2018) 44–45. [32] Berlant (n 29) 1. [33] Naa Oyo A Kwate and Ilhan H Meyer, ‘The Myth of Meritocracy and African American Health’ (2010) 100(10) American Journal of Public Health 1831. [34] Chase Dimock, ‘‘Cruel Optimism’ by Lauren Berlant’ Lambda Literary (30 July 2012) . [35] Bidney (n 2) 22. [36] Jo Littler, ‘Ideology’ in Jonathan Gray and Laurie Oullette (eds), Keywords for Media Studies (New York University Press 2017) 98. [37] Michael Freeden, Ideologies and Political Theory: A Conceptual Approach (Oxford University Press 1996). [38] Friedman and Laurison (n 13). [39] David Goodhart (2017) cited in David Civil and Joseph J Himsworth, ‘Introduction: Meritocracy in Perspective. The Rise of the Meritocracy 60 Years On’ (2020) 91(2) The Political Quarterly 373, 376. [40] Stuart Hall, ‘The Problem of Ideology: Marxism without Guarantees’ in David Morley and Kuan-Hsing Chen (eds), Stuart Hall: Critical Dialogues in Cultural Studies (Routledge 1996) 26. [41] Freeden (n 37) 53. [42] Bottero, ‘Class Identities’ (n 29) 995. [43] WI Thomas and DS Thomas, The Child in America: Behaviour Problems and Programs (Knopf 1928) 572. [44] Berlant (n 29) 123.

To stand at the edge of the sea, to sense the ebb and flow of the tides, to feel the breath of a mist moving over a great salt marsh, to watch the flight of shore birds that have swept up and down the surf lines of the continents for untold thousands of years, to see the running of the old eels and the young shad to the sea, is to have knowledge of things that are nearly as eternal as any earthly life can be. -Rachel Carson It would have been a shame to have missed the scale of the night with sleep and, besides which, it has been too cold. A late May frost has crept across the land, stiffening stalks and deep-freezing my bones. A super-moon has drowned the night with light. It is three in the morning. The ducks who have been swimming all night keeping warm and alert, are now calling to each other in short whispered wheinkk-wheinkkks. An owl patrols the path at the foot of the sea wall and on the silver band of silent water before me huge supertankers hum and throb their way up-river towards London’s ports. The Thames Estuary is not beautiful in any conventional sense. Joseph Conrad, who is probably the estuary’s greatest champion wrote, ‘it has no noble features, no romantic grandeur of aspect, no smiling geniality’. For centuries, its marshes have been a place for dirty industry where ‘tall slender chimneys smoked, speaking of work, manufacture and trade as palm groves on a tropical island speak of luxuriant grace, beauty and vigour of a tropical nature’. Nowadays the chimneys have largely been replaced by the squat tanks and twisting pipes of oil refineries, gas and petrochemical works. Acres of imported cars twinkle like gems in the sun and cones of sand and gravel peak like extinct volcanoes. But, beyond the cement and aggregate works of Gravesend, is the wild and mysterious Hoo Peninsula. Conrad wrote of the area that it appealed to an ‘adventurous imagination’. He wrote of the ‘wide open, spacious, and inviting place’ which is ‘hospitable at first glance’. It is a haunting place where skylarks and curlews have shared the space with convicts, cordite, and malaria. The critic, novelist, and London biographer Peter Ackroyd wrote that ‘even at the beginning of the 21st century, walking alone by the shores of the estuary, it is possible to feel great fear—fear of solitude, fear of being abandoned, fear of the river itself’. In Gravesend’s last pub before the isolation of the marshes begins, grey-haired men with big bellies slouch in metal chairs, drinking mid-morning lagers at the Ship and Lobster. Two St. George flags twitch on the beer garden’s fence and another flaps from a flagpole. I walk past the crumbling Victorian warehouses and join a fence which borders the path. A red flag, agitated by the stiff easterly wind, warns of a firing range. A group of police marksmen in fluorescent jackets gather by a firing wall. They shall be the last people I’ll see for more than 24 hours. As the land breaks free from the town, the horse-cropped grass is firm and fast to walk upon. This is that lovely moment at the beginning of a walk when one feels that one could walk forever. A sure and clear path, a wind and a cloudless May sky. Sandwiches, coffee and soup in the back pack. Ahead, avenues of pylons stretch from horizon to horizon and along the sea-wall stubby hawthorns whistle in the wind as they prepare to burst their buds. Wild gypsy horses with huge furry forelocks nibble at short stems. Supertankers filled with oil, others labouring under cliffs of containers, ply the river. They seem ponderous and slow, burdened by their loads, but I cannot keep up with them as they sail downstream. I even ran for a short section, but they are fleeter than they appear. After an hour or so of walking—and some running—I arrive at Shornmead Fort, one of several built in the 1860s to counter a new French threat. It’s no mediaeval fantasy of square keeps and round towers, but rather a low black wall with gun ports on top of a bramble-covered bank. The state had ordered the Royal engineers to blast it in the 1960s and what remains is under the control of the local youths who have mounded earth in the former parade ground to make jumps for bike stunts. Each gunport has its collection of cheap lager cans and NO2 gas canisters piled into a corner. I have the place to myself today and it is perfect for a coffee stop—art on the walls, ingenious inglenooks and wildflowers in the courtyard. Further along the path, towards Cliffe, near to the low mound of the next abandoned fort, a hawthorn bush bursts with photos and mementos which were tied on to it last week. Dayton Webb, a railway worker, had misjudged a jump on a trial bike and was killed while having reckless fun. He was 23. This place—this marshland—has a narcotic effect on me. It’s my ‘go-to’ place when I need space in which to breathe. This is where my spirit rejoices and my mind empties of concerns. I am almost skipping along the path as it continues along the top of the sea wall. The air is rich with sea smells and the light phosphorescent. An unseen moon pulls the trickling tide-waters away from the bank, leaving mud which ripples like a blanket on an unmade bed. Dunlins, black-tailed godwits and shelducks feast on worms and shells. Gulls loll like teens in the sky. Purpling sea lavender and grey green sea purslane grow in the muddy creeks and I pick shoots and leaves as I walk. Tastes of the sea fizzle on my tongue. Approaching Lower Hope Point the path twists through towering cones of sand and gravel. Conveyor belts wheeze and whine. Tiny particles of silica roll down the steep sides. It is as if another world has been entered where nature has yet to settle on a design. The air smells ferrous and earthy. The path through the works is bordered by a high chain-link fence, on which notices hang warning of death by various means. Gold-green alexanders border the path and sweeten the air. The watery earth of the peninsula has always been exploited—Romans dug for salt, farmers dug ditches, and during Victorian times ‘muddies’ dug for the mud—Gault Clay— which made the hundreds of millions of bricks needed for the ever-expanding city. At Cliffe Pools, birds convene in a raucous conference. This former gravel extraction site is now a nature reserve managed by the RSPB, where avocets, spoonbills, and egrets roam. They say it’s the best place in Britain to hear nightingales. Today the pools are teeming with black-headed gulls, herons, and egrets. On the shorelines, redshanks and Kentish plovers are probing the mud whilst a black kite patrols the skies above. In a few days, the rough scrub will tune to the throaty willow warblers, marsh warblers, and blackcaps. To see such density of nature re-colonising the rough dug pits is joyous. Peter Ackroyd wrote that the marshes ‘exert a primitive and still menacing force, all the more eerie and lonely because of its proximity to the great city’. It is not difficult to become lost in the autumn rains or in the low light of winter. Paths can take on the appearance of deep ditches and mists twist the shapes of huts and trees into something the irrational imagination fears. In the low, grey light of winter, when red lights blink on masts and pylons, when indefinable noises haunt the turbid air, and the sudden scream of vixen on heat, can chill already cold bones. Today is early summer and the light is full and bright, but a frisson of fear is stalking me as memories of an earlier time return. Now, the RSPB car parks are empty, and I am acutely aware again of the remoteness of these Pools. Here, many decades ago, I nearly met my end when a banger of a car, driven by a skin-head youth, misjudged a hand-brake turn and just missed me. On another occasion, a youth rode a motocross trial bike straight and fast at me, jerking out of the way at the very last second, spraying me with mud and gravel, after which a knot of malevolent youths appeared out of the scrub cheering and jeering, asking—‘whachya want mate?’ Not responding, I walked fast away. On a wide sweep of the river stands Cliffe Fort. Domes of sand and thickets of bramble and thorn are piled against the black walls and two non-scaleable fences surround the ditch. Beside the fort are the remains of a Brennan Torpedo launch, one of only eight made, which was designed to propel torpedoes into the Thames. The rails emanating from out of the scrub onto the beach make a perfect place to stop for lunch. Eating cheese and pickle sandwiches, and a salad of fresh sea purslane picked from the shoreline, is the most perfect lunch. I watch ships, and inhale lungfuls of sea air which smells of shells and salt. I watch the waders prodding the mud and the gulls in the canopy of sky above me. There are no dogs sniffing around, no joggers pounding past, no city people leaking their music and noise. These marshes were not always a blissful place to be. Peter Ackroyd described the lands beyond the Pools as ‘not a human place’. Malaria—or the ‘ague’ by which it was known—regularly swept away those who had to live nearby. The Anopheles Mosquito, the largest of its kind in the Western Hemisphere, carried a parasite known as Plasmodium vivax which had a fatal effect. People were still dying of malaria beyond the end of the Great War. As the afternoon drifts into evening, the land carries a haunted feel. In the nineteenth century, Hay Merricks & Co. set up a small-scale gunpowder storage facility which quickly grew into a chemical explosives factory, producing cordite for the navy. Accidental explosions and deaths were common. Shadows from the now roofless nitro-glycerine huts lengthen across the grass and the hills bordering the flatlands turn a deeper shade of purple. The wind has died. Everything is very quiet. Across the Thames six skeletal monsters at the London Gateway port haul containers from the decks of ships two at a time and lay them down on the quay, where another automated crane carefully places them onto the backs of queuing lorries. Watching this silent and graceful movement is mesmerising. I reach a large dent in the coastline; Egypt Bay. Google maps has marked the bay with an icon of a sun umbrella and beach ball. What a shift of imagination someone has had! In the waning light, there is a large curve of mud, channelled by shaky rivulets and near the sea wall, a wide expanse of purple sea lavender. The sea itself is a long way away, so far that the oil tanker passing along the river seems as if it’s gliding across land. In my weary state the bay seems benign, but it was a fearful place. There is no sign today of the rotting hulks of former ships of the line which, de-masted and decommissioned, spent their last few years as prisons on the Thames. Few sentenced to spend time on these prison ships ever re-emerged. They were chained to the decks, and succumbed to malnourishment and disease. Charles Dickens, who lived on the peninsula’s small spine of hills, was appalled by the conditions and campaigned for a more humane treatment of criminals. In his novel, Great Expectations, Abel Magwitch escaped from a prison ship in this bay before surprising Pip and demanding ‘wittels’ in the Cliffe churchyard up on the hill. I’m tired now and the day is done. The sun is setting. I walk on to where the OS map describes a ruined building as ‘Camp Abandoned’. It is a 3 metre square block of old concrete which has been much holed by time, guns and youths. On the inside wall is written, ‘Datse loves girls’. The floor is sand banked with dust and dried marsh dirt. In a corner, empty Diet Coke cans and a Subway sandwich packet jerk idly across the rippled concrete floor. I kick away the worst and unroll my sleeping bag. It is nearly dark and near to freezing. Supper is chunky warm soup. The night quickly turns from chilly to very cold. A gentle wind whines, and ghouls patrol the outside marsh and steal my sleep. However the night is magical. The Rose moon, one of three super moons of the year, is now so large and bright that the marshes glow in a light of silver gilt. Mist steams from dykes. I watch the ducks paddle in circles. Reeds twitch. Ships continue to throb and growl. Lights on the opposite shore blink red and white from towers, chimneys and cranes. In the night light they seem like fallen stars. Directly opposite me is the London Gateway port where the world’s largest dockside cranes work in total silence through the night, relieving two ships of their containers. To be so alone and so far from the city, yet so close to its workings, is an extraordinary and thrilling feeling. Dawn comes early, and after a cup of barely warm coffee from a flask and a chew on a very squashed croissant, I set off into a thin line of mist which lies across the ground. I cannot see my legs, nor anything that is below waist height. I feel my way along the path and make for posts which float like wood on the sea. Birds and fowl commute on invisible lines in the air. Across the river, Southend begins to wake and traffic noise drifts across on the tide. By the time I reach Allhallows-on-Sea I’m nearly ready to re-enter society again, after my time alone with ghosts and the cold. Some early dog walkers are about. We nod as we pass each other in early morning greeting. As the sun rises on the caravan park, I pass a new concrete and gravel-filled plot commemorating 2nd Lt. Armand John Ramacitti. He’d been flying his first combat mission in a B17 and was returning from northern France. He’d been hit by flak and lost an engine. Over the Thames another engine failed. As he struggled to control his plane, it veered into his section leader, lost a wing and nose-dived into the Thames. He was only 15 minutes away from landing at his base in Essex. A mile or so further on, is a stone memorial to a boy who drowned in the Yantlet channel. The copper plaque with his name and story has long since been prized off and melted down. To those Romans who fell chasing the woad-covered Britons, to the malarial victims, to the women in the nitro-glycerine factories, prisoners, sailors, smugglers, fishermen and others who’ve died on these watery lands, there is no monument other than the living and ever-changing memorial of the marshes themselves. Beyond the Yantlet, it really is the end of the world. An obelisk marks it so. Joseph Conrad wrote of this place as where ‘the sky and sea are welded together without a joint’. The solitude and immensity is beyond words. I turn inland and am met by great rusting coils of barbed wire, along with notices warning of death. The MoD shells have long been removed from this firing range but it still remains closed. I toy with the idea of trespass but after such a blissful solitudinous time, I’m in no mood for an argument should I meet a ranger. So I take the new and more circuitous England Coast Path towards the huge cylindrical containers of the Isle of Grain, some white, some rusting brown, some aged grey, resembling gigantic African huts. On the Isle of Grain there are tank traps along the shore, and another disused fort which is much loved by brambles. Walking along the streets of Grain, and passing unglamorous housing, is a ‘coming-back- to-earth’ experience after the euphoria of being in space. The little stains of sadness which inevitably smudge the emotions after the passing of so fine a time, mix with the knowledge that all things must end. In a public park, beneath the fort, there’s a bench with a table where I sit and watch the sun sparkle on the silver sea. A man is mowing the grass creating long horizontal lines of green with his sit-on mower. He decides it’s time for a break and so drives his noisy machine straight towards where I am sitting and parks it right in front of me. ‘Coffee break’, he says and sits on the other side of the table blocking my view of the sea. I have left my words out on the marshes so nod by way of reply. Reluctant to leave, but in need of some sleep and food, I walk towards the stop where the bus will come and take me home. Julian Kirwan-Taylor Julian Kirwan-Taylor is a retired teacher of History and Philosophy and the curator of two websites: one which details walks in unconventional, imperfect and impermanent landscapes (www.wheremyfeetgo.uk); the other promoting traffic-free cycling in the UK (www.wheremywheelsgo.uk).

Jean Tirole is a French economist who specialises in regulation, behavioural economics, industrial organisation, finance, banking, and macroeconomics. Considered one of the most influential economists of our time, he was awarded the Nobel Memorial Prize in Economic Sciences in 2014 and the CNRS Gold Medal in 2007. He is currently Honorary Chairman of the Toulouse School of Economics (France) and of the multidisciplinary Institute for Advanced Study in Toulouse (IAST), Visiting Professor at the Massachusetts Institute of Technology (MIT, US), and a member of various public policy committees. In 2017, Jean Tirole published  Economics for the Common Good , a general-audience book translated into 14 languages. He is also a Corresponding Fellow of the British Academy and an Honorary Fellow of the Royal Society of Edinburgh. He and MIT economist Olivier Blanchard have recently been appointed by President Macron of France to make proposals to address post-COVID-19 economic challenges. In conversation with Cambridge first-year historian Gabrielle Desalbres, he discusses the management of the COVID-19 crisis and the different paths to economic recovery.   Crisis management   CJLPA : In March 2020, the COVID-19 pandemic forced many states to implement national lockdowns, resulting in the interruption of almost all economic activity. Whilst the economic recovery from the 2007–08 subprime crisis was still fragile in most Southern European states, it was crucial for governments to intervene quickly and with sufficient means to avoid mass unemployment, social unrest, and widespread company bankruptcies. States are therefore borrowing at unprecedented levels. But how long can this last?   Jean Tirole : How much debt can a country sustain? There is no magic number; a 40% debt-to-GDP may be unsustainable for one country, while another can sustain 200%. It all depends on a range of factors: the country’s fiscal capacity (can it increase taxes further if needed?), its rate of growth (a given debt burden is much lighter in relative terms in a growing economy), the debt maturity (a short-term debt creates more pressure on countries to disgorge money for debt repayment than debt whose repayment is far into the future), the countries’ dominant political constituencies (which shape public policies, as was observed in the case of German exporting industries), or the debt’s ‘home bias’ (the percentage of debt held domestically. The higher this number, the lower the country’s incentive to default: over 90% of Japanese debt is held in Japan, so a sovereign default would amount to Japan’s shooting itself in the foot. By contrast, over half of the French sovereign debt is held by foreign investors).   Another lesson is that measuring debt is highly complex. Indeed, countries (and also regions, municipalities) do their best to hide new debt as ‘off-balance exposures’, despite improvements in Europe in their accounting a few years ago. Off-balance exposures are contingent liabilities which may or may not lead to a future disbursement: guarantees given to social security systems and public enterprises, ECB guarantees though the European Stability Mechanism, collective borrowing under joint and several liability per the European 2020 stimulus package, the securitisation of future revenue, and the use of derivatives (credit disguised as swaps) to conceal indebtedness. Even unfunded pensions, a big item in the pay-as-you-go pension systems of France and many other European systems, are counted as a contingent liability, even though citizens expect their pensions to be paid for sure. All those items are not part of a country’s formal debt, but they are certainly part of the debt.   CJLPA : Can governments keep borrowing?   JT : The pandemics have triggered an extraordinarily high increase in public debt. No-one exactly knows how big this increase will be in the end. This depends on how efficient we will be at ending the pandemic, but it will also depend on the subsequent macroeconomic crisis. In a country like France, many firms have taken on debt from the government (loans, unpaid social security contributions, etc). This debt, combined with the lost earnings during the pandemics, will make it hard for firms to finance new investments or even to survive. Some of it will just be forgone, adding to the state’s indebtedness. Tax revenues will also decline in the recession relative to the pre-Covid situation. And austerity might kill the economic recovery.   The increase in the public debt burden is a concern not only for emerging countries, but also for Southern Europe. The hard question is whether it is sustainable. As we discussed earlier, this depends in particular on whether countries will grow faster than the rate of interest at which they borrow. Can they roll over their debt or do they get in dire financial straits? The rate of growth is likely to be low in the years to come, but so will the rate of interest despite high public debt (high volumes of public debt in principle go together with high yields on them to attract enough savings). Precautionary savings and low corporate investment mean that savings will be high and the corporate demand for funds low, so savers will receive low returns. In theory, therefore, this large increase in public debt may be sustainable, but there are two caveats as is clear from the previous argument. First, the rate of growth must remain above the rate of interest for a substantial amount of time. Second, trust must be maintained and there must be no speculative attack. A country whose economic growth is at 1% can borrow very large amounts at a 0% rate of interest, but if doubts about country repayment emerge, international markets will demand a ‘spread’, say a rate of interest of 5%, and public finances will quickly be drained. Such speculative attacks are self-fulfilling phenomena and may (or may not) occur when the country is highly indebted.   Although one cannot have certainties in the presence of self-fulfilling phenomena, the situation is risky. One possible approach is to avoid contracting output through tight budgetary policies, but assuage the markets’ fear of profligacy by signalling intentions to better manage public expenditures and reorient the latter toward more investment and less consumption. Indeed, investment is what will create the conditions for the sustainability of the debt in the future.   CJLPA : An alternative might be to repudiate the debt…   JT : Two proposals are on the table. The first is to cancel the debts held by the central bank. A letter recently circulated within the Eurozone countries to call for the cancellation of debt held by the European Central Bank (ECB). This makes no sense. We would be defaulting on ourselves, because the ECB belongs to European citizens. Indeed, the ECB’s profit, net of its day-to-day running expenditures, is paid back to the member states’ treasuries. So what we would gain on one side—the alleviation of debt repayment—we would lose—exactly the same sum—on the other side. It is a mere  jeu d’écriture . Erasing the debt held by the ECB could alleviate the disparities between member states but it would consist of a fiscal transfer. Such a project would inevitably be opposed by Germany and the Netherlands whose public finances are strong compared with the rest of the EU, and would heighten the tensions between member states even further.   Some economists make a parallel between ‘coronabonds’ and the erasure of the debt held by the ECB, but the two are different. Member states have agreed to borrow jointly by issuing treasury bonds to cover the increase in public expenditures incurred during and after the sanitary crisis, thus securing common interest rates on the financial markets. But, except for the grants component of the program (which de facto is a set of transfers among countries), each member state in principle has to reimburse its own debt.   The second proposal is a broader default, euphemistically called ‘restructuring of the debt’, which would include among its victims private investors, and not only the central bank. Some of the cost of such a default of course would again be inflicted on the country itself. Italian banks hold a lot of Italian government bonds. A repudiation of the latter would weaken the Italian banks substantially and for some of them would lead to a bailout by the Italian government …   But even if the default had no direct financial impact on the country itself, it would still be problematic. Financial markets would lose trust in the government and refuse to lend to it, or lend at very high rates, for a number of years. This means that the government would have to more or less balance its budget overnight, which it has not done for a while (almost 50 years in France) and would definitely not be advisable in the forthcoming recession.   CJLPA : What about inflation?   JT : Inflation is a concern when a crisis occurs: the glut created by central bank injections of liquidity may in theory translate into inflation, too much money chasing too few goods. However, deflationary expectations and high precautionary savings by households and banks may reduce the spending and counter this natural trend. Indeed, the quantitative easing policies implemented by the Federal Reserve (Fed) and the ECB in the last decade did not lead to inflation and the jury is still out for what will happen this time.   Post-crisis management   CJLPA : You are a specialist in behavioural economics. In that regard, do you think economic agents will change their habits of consumption and lifestyles?   JT : To be honest, we don’t have a good answer to this, only a few hints. Ideally, having learnt about our collective fragility, we should come out of the crisis more prone to solidarity and more eager to substitute investment for consumption to prepare our common future, which includes being more respectful of our environment. But such a reckoning, such an embrace of a more forward-looking society, is not a foregone conclusion.   Part of the reason is that our beliefs are motivated. To give some analogy, we like to think that accidents and illnesses only afflict others, not ourselves or those close to us. This can lead to harmful behaviour, such as driving carelessly or not looking after our health (though this may not be entirely negative since worrying less also improves our quality of life). We dream of a world in which the law would not have to encourage or constrain people to behave virtuously, a world in which companies would stop polluting and avoiding their taxes, in which people would drive carefully even without police officers around. That is why movie directors invent endings that meet our expectations.   Just as in the case of driving and health behaviour, motivated beliefs, by making us more optimistic about the future, may lead to bad policies. Many people are (correctly) convinced that climate change is an existential threat, but they repress these thoughts. Or they believe that they should not have to incur a cost themselves to reduce their emissions: it is up to the others to do so. Or else they hope that the problem will solve itself thanks to phenomenal technological progress. In a similar spirit, nations which have had serious financial problems and have thereby lost their economic independence to the markets and the international official lenders and seen their growth vanish, most often have been oblivious of the incoming threats.   Will we behave differently with others after the crisis? Whether civil, international, or sanitary, wars leave their mark on society. Faced with anxiety-provoking events, people may reconsider their goals in life. Research in the social sciences shows that our individualistic tendencies decline, and we display more empathy. We behave more cooperatively and altruistically and are more likely to join social groups. Much of this new altruism however is parochial—it is directed toward those who are ‘on our side’. But unlike internal wars, external warfare generates common interests that bridge the gaps across groups. In the war against COVID-19, the in-group extends to all mankind and there is no out-group other than the virus, provided that ‘every country for itself’ fails to prevail. If this crisis exhibits the same gap-bridging pattern, this might be good news given the recent trend toward populism, nationalism, and ethnic and religious intolerance.   CJLPA : The current pandemic has resulted in an increased gap between the globalised élites and the left-behinds. How could these growing inequalities be managed?   JT : Inequality, which had already grown substantially (with differences across countries: they have grown much more in the UK and the US than in France), has been exacerbated by COVID. The young and the workers in gig jobs in particular have suffered: many self-employed workers in the service sector have been struggling to make ends meet.   But inequality is not limited to income or labour market inequality. One of the most detrimental forms of inequality is the educational one, as it underlies the equality of opportunity—a really fundamental one. Prior to the sanitary crisis, access to a good education was already highly socially determined. Things have gotten worse during COVID. In France or in the UK, top schools, from primary schools to higher education, have overall kept a relatively normal functioning, while pupils in disadvantaged ones often lost proper access. Covid has reinforced the impact of parents and housing conditions on school performance. This won’t have immediate consequences, but does not bode well for future growth rate and especially for a better access to good jobs, except for the happy few.   CJLPA : What do you think of the idea to implement a universal basic income? Could it be a solution to the growth of inequalities and to the ongoing upheavals brought by artificial intelligence (AI) to the job environment?   JT : Every country has some form of minimum income already, although not for everyone (the RSA jeune  in France for the under 25 has strict conditions). I find the debate rather confusing, in part because of semantic issues. It is crucial to specify how the tax structure would change in reaction to the introduction of a universal basic income. There is no reason to give access to this income to middle-class or well-to-do households, keeping the tax schedule as it is. This would be as senseless as was, on a smaller scale, Trump’s $2,000 COVID check for all. It would be extremely expensive for public finances and would not serve the goal of protecting citizens in dire financial straits. But if one offsets this transfer by altering the tax structure, de facto taking the money back from middle-class or well-to-do households, this is no longer a universal basic income. I therefore imagine that advocates of a universal basic income have in mind social protections and social transfers rather than a universal basic income.   There are two potential issues with a sizable universal basic income: its cost for public finances, that can crowd out other public expenditures such as education or health; and a potential lack of incentives to re-enter the labour force. (There are other issues in the case of very asymmetric incomes within the household—should the state provide the spouse of a well-to-do individual with a minimum income?—which can be solved by making the allowance means-tested.) One should preserve incentives to work. That may imply a combination of a lower minimum wage and a more generous negative income tax ( la Prime d’activité  in France, and the Universal Credit scheme in the UK), because too-important social transfers at the bottom discourage workers from taking poorly paid economic activities. In France, there are cases in which people prefer to be unemployed and to receive social benefits rather than taking a job which would, in the end, be less financially advantageous than not working at all.   AI is bringing new challenges and crucially, it is making the labour market even less welcoming to unskilled people. Here, the universal basic income is not the solution either because work is a source of dignity, a means of social recognition, and a structuring occupation. Places where unemployment rates are high exhibit more social trouble and crime. That is why more governments should be eager to develop continuing education programmes for the unskilled and those whose jobs will be affected by the AI revolution.   Finally, there is the issue of the youths—students, apprentices, etc. There could be support measures that are conditioned on milestones, such as passing the exams—in France university scholarships are too often unconditional. One can also envision low-cost loans to be reimbursed later on (up to some limits, to avoid over-indebtedness), with again the money handed out conditional on progress in the selected track. One of the major forms of inequality among students, together with the lack of information about the skill premium and the good tracks at school and university, is the need for poor students to have a part-time job on top of their studies.   CJLPA : In the UK, there are calls to set up a wealth tax to reimburse the COVID debt. In France, the wealth tax is a recurring source of debate. What do you think of a wealth tax and how effective is it in bringing new sources of revenue for the states?   JT : I am not an expert on this, and will content myself with a couple of remarks. First, regardless of one’s stance on the issue, there is agreement that the recent abolition of the wealth tax in France involved only small amounts of money: the cost of the switch to a tax on real estate wealth is estimated at around 2 or 3bn € per year, about a thousand times smaller than GDP. One may be in favour of or against the wealth tax on symbolic grounds, but the economist has little to say on that. Second, to have a better idea about the implications of a wealth tax, other issues need to be discussed, such as its relationship to other existing taxes such as capital taxation and the inheritance tax, as well as the likely fraction of successful citizens who emigrate to escape the wealth tax, a fraction on which we don’t have good estimates. We don’t have international agreements that would allow us to levy a uniform tax, say, in the West. Most economists concur on the idea that taxing better would be facilitated by international cooperation.   CJLPA : How has the COVID crisis impacted the gap between the Souths and the Norths, within the EU and beyond? Do you think the pandemic has accelerated the divergence between China and the West?   JT : Like traditional wars, the pandemics will redistribute the cards, although we have little knowledge on the magnitudes. So, if you are willing to take the following with a grain of salt, I would expect Germany to strengthen its economic role within the European Union. It entered the pandemic with much stronger public finances than most other member states, and so it could afford spending much more money to protect its firms, which were already more successful than European firms.   At the international level, the monetary and economic hegemon, the US, has suffered a blow through its mismanagement of the pandemic, and a much higher blow still from the Trump years more generally. The policies of the last four years have been very short-termist: denial and inaction on the climate front, loss of international credibility and undoing of the world multilateral order, protectionism, high public spending, tolerance of high inequality. The US has resources though, in particular access to the world’s top universities and a flourishing innovation ecosystem. It also has much leeway in raising taxes to stabilise public finances, and its currency is still internationally dominant.   But China will probably emerge strengthened on the international scene, and it has been massively investing in education and R&D so as to become an innovation powerhouse. The times are long over in which it focused on commodities. Emerging and less-developed countries will be penalised if they don’t gain quick access to cheap and easily deliverable vaccines. This is really a concern. China and Russia have noted this and are using soft power by providing vaccines (they had earlier provided medical supplies) to a number of countries in Latin America, the Middle East, Turkey, Brazil, and the Balkans. Vaccine diplomacy is also used by India with its neighbours. In contrast, the WHO COVAX initiative of vaccine procurement for poor nations has had a slow start.   CJLPA : This pandemic has shed light on the EU and the UK industrial dependency on China and other emerging economies, with all the consequences we know. Some politicians have called for a targeted reindustrialisation. But is it really possible in practice?   JT : Globalisation progressed very rapidly from the seventies to the global financial crisis. This growth is due to a number of factors: technological evolution (the ICT revolution, containers), multilateral and especially regional trade agreements, and the accrual of a new labour force from communist countries (China, Eastern Europe…).   There have been many calls, especially since COVID, to re-localise the value chain. I doubt that this will happen on a large scale. Indeed, the fixed costs of offshoring have been incurred already. They are in large part sunk: the value chains are in place and they are sticky. Besides, the solutions to supply disruption can often be found abroad: even in the health sector, French citizens benefit substantially from their access to foreign vaccines. Relocation is not synonymous with resilience: disruptions in France were linked to China in January 2020, to Europe in April 2020.   CJLPA : Are the benefits of globalisation worth the cost?   JT : There are two distinct issues that are often confounded. The first relates to globalisation in general. Globalisation is overall beneficial, but it creates winners and losers. It provides consumers with access to the best the world has to offer; it frees them from being captive to powerful domestic producers and distributors. It creates jobs in exporting industries. But it also destroys jobs in exposed sectors, as workers in the US, the UK, and Europe have learnt the hard way with the ‘China trade shock’. The new jobs that are being created often are not created in the same region, or necessitate different skills. Furthermore, we have not been very good at protecting workers after they lose their jobs, and also before they do (by reskilling them), again with differences: continental Europe has a more extensive welfare system than the UK and especially the US. The problem, therefore, is that trade has major distributional effects that are salient, more so than technological progress, and lead to bad politics.   Advanced countries must move upmarket. They cannot compete on wages, so they need to go for high-value-added segments, what Germany has done better than anyone in Europe (or what the US has done in the tech and pharmaceutical segments). But this requires substantial R&D, worker training, a better education, top universities, making industrial jobs more attractive in school…   The second issue is that of bringing back home a number of ‘essential activities’ that were offshored in the last 40 years. The goal of such ‘reshoring’ is to protect ourselves from disruptions in the value chain, geopolitically motivated or resulting from a natural disaster. For me, ‘home’ means Europe, which has a more reasonable scale than member countries. Production is often subject to high returns to scale, and member states often do not have the required scale to sustain a competitive industry.   We need to make a distinction between supplies that are essential in times of crisis, and ordinary consumer goods. For the former, the market just doesn’t work. It generates extremely high prices and market power in periods of shortages. Those familiar with electricity systems will note the analogy with power plants which are used for a few hours—ultra peak—a year. For the latter, the diversification of the supply chain is the prerogative of companies.   The issue for public policy will be to resist lobbies, which will seek either protection or preferential treatment in public procurement, claiming that their activity is ‘essential’. It is not clear to me for example that food or supermarkets are part of countries’ sovereignty, especially in Europe which has maintained its agriculture. But of course, military equipment and critical healthcare resources may allow our countries to be less subject to geopolitical blackmailing or be more resilient in case of a world shortage of supplies. My point here is that we need to be flexible. Do we need to relocate or simply constitute stocks to protect ourselves against temporary shortages? Is the supply chain sufficiently diversified across the world? Can we use refitted equipment or 3D printing to make up for a temporary shortage? There is no universal answer and a case-by-case approach must be used.   CJLPA : Are economic activity and action against climate change compatible?   JT : Almost 30 years after the Rio summit, we still have done little to address the truly existential threat of global warming. Solutions exist, and I do not believe in the end of growth, but we must accept some temporary cost in our standards of living. At the opposite end of the spectrum in the debate, I do not believe in the concept of green growth, according to which we could have our cake and eat it too, either. If such a win-win were to hold, why is almost every country in the world concerned about reducing its carbon imprint? Let’s have the courage to say that our planet is worth some effort.   The solution will come primarily from incentives. A sizable carbon tax will induce households, corporations, and administrations to do something serious for the planet: even a relatively small carbon price can have large effects in some cases, as the UK’s exit from highly polluting coal since 2013 demonstrates. To be certain, some of these actors have already started to act because they are afraid that their assets end up stranded when carbon will be phased out totally. But this is not sufficient.   And pricing carbon must be complemented with multiple measures. These include compensation of households who lose from carbon pricing (the absence of compensation played a role in the ‘ gilets jaunes ’ revolt in France), the use of standards whenever carbon   pricing is difficult to implement, a very intense R&D effort, and of course a multilateral approach. ‘My country first’ is a sure recipe for an ecological disaster.   CJLPA : How do you understand the role of the economist in the polis?   JT : Economics is a deeply normative field. To produce a policy framework and try to make this world a better place, it analyses situations in which individual interests are in conflict with the collective interest and how to set these individual interests to music so that they work for the common good.   But public policies require voters’ support, and therefore information about the tradeoffs involved in the choice of specific policies. The second role of economists, and experts more generally, is as conveyors of knowledge. This is not an easy task, as many policies are complex and have unintended consequences. Most academic economists spent their entire life in a research environment and, with their jargon and caution in the presence of complex effects, do not always communicate well. And because, like all scientists, their DNA is doubt, they are not at ease with the soundbites and certainties characteristic of much communication today. In any case, a properly functioning democracy is one in which citizens have sufficient knowledge of tradeoffs. There is a role for acculturation. It is therefore important to make economics widely accessible and even fun, for economics resembles any culture. Like music, literature, or sports, the better we understand it, the more we like it.   Before the Nobel, I spoke to economists and experts in ministries, regulatory authorities, companies. The Nobel was a tipping point. I met quite a number of people, sometimes just unknown people in the street, who simultaneously demonstrated a real interest, but had many questions about what economists do, whether they are useful, whether economics is a science, whether the key challenges we face can be solved. This made me aware of my responsibility to get out of my laboratory, explain my job, and share more of my knowledge, not being a news commentator but simply talking about what economic research has to say about our world.   CJLPA : But experts can also fail…   JT : Experts’ judgment may be impaired by money, friendships, a desire to become a ‘public intellectual’ and occupy the media space, a political agenda. A ‘neutral expert’ is of course a bit of an idealisation. Transparency rules about financial conflicts of interest are useful but necessarily imperfect, and the other forms of conflict of interest are even harder to detect. So in the end, individual and collective ethics—including the obligation of not saying in the public space things one would not stand for in a seminar room in front of peers—are needed. But experts are the best we can avail ourselves of for our democracies to function well. Without them, any argument, any narrative, goes.   In these times of populism, people with expert knowledge are dismissed. Populists exploit the ignorance and prejudice of voters. They fan widespread hostility to immigrants, distrust of free trade, and xenophobia, and play on people’s fears. They excel at exploiting real and justified anxieties about technological change and employment, the financial crisis, the slowdown in economic growth, rising debt, and increasing inequality. No wonder that all over the world their speech often echoes Michael Gove’s pre-Brexit ‘people in this country have had enough of experts’. And of course, populist programmes have contempt for elementary economic mechanisms. Hence, whatever their field of study, experts—provided that they are humble and transparent about what they know and don’t know, that they recognise they are not familiar with everything but have a rather specialised knowledge—are more valuable now than they have ever been. Gabrielle Desalbres, the interviewer, is a first-year undergraduate in History at Trinity College, Cambridge, interested in politics, the arts, and early modern history.

Christopher A Marinello is an expert in recovering stolen, looted, and missing works of art. A lawyer for over 28 years, Marinello began his legal career as a litigator, negotiating complex title disputes between collectors, dealers, museums, and insurance companies. In 2013, he founded Art Recovery Group, a specialist practice providing due diligence, dispute resolution, and recovery services for the art market and the cultural heritage sector. Marinello has overseen the development of the ArtClaim Database, the most technologically advanced system in existence for identifying and recording issues and claims attached to works of art. Marinello has recovered over $400 million of stolen and looted artwork, and has worked on some of the most important recoveries of Nazi-looted art. CJLPA : I thought we could start with a bit about your career. How did you start off as an art lawyer? Christopher Marinello : I started off a while ago at art school, but I wasn’t particularly talented and was encouraged by others to try the law instead—with a law degree you can always go back to painting. So I went to law school and became a litigator, and worked in the courts of New York City for almost 20 years, and I developed my love for keeping my clients. I worked for artists, for galleries, collectors, museums, and whatnot. And then, in around 2013, I founded Arts Recovery International.   CJLPA : How did you come about doing that?   CM : I was working for the Art Loss Register as their General Counsel, and I started in New York and, at their request, moved to London. Then I left to start my own business. Of course, it’s very hard to tell a British businessman how to run their business when you’re an Italian American lawyer.   CJLPA : You’ve worked on the cases of some highly famous works of art. Would it be fair to say that fame and public intrigue around some of the cases you’ve worked on have been impediments to objective investigation?   CM : I don’t think so at all. In fact, some of the high-profile cases I have handled will never be disclosed publicly. The cases that we do disclose are for a reason: either because we are trying to publicly pressure a government or a certain party to resolve the matter in some fashion, or because we are trying to put pressure on the public to tell us the whereabouts of a stolen or looted painting. As lawyers, we do what our clients ask us to do. If they want the publicity we go forward. If not we remain confidential. If clients do decide to go forward publicly, it’s to apply pressure to somebody, or so the public knows that the painting is no longer subject to a title dispute, because they want to sell it or the painting has to be   sold, and they want the art market to feel comfortable that a title dispute has been resolved.   CJLPA : Can the fame or hype around a piece affect those determining the provenance of the piece? Especially, for instance, art historians. Especially when there’s a lot of money involved. We might think of the Salvator Mundi .   CM : I try to divert attention away from that aspect of a case, and I don’t allow it to happen. For example, we’re currently involved in a case regarding a copy of La Joconde , or the Mona Lisa , and every single story that’s come out about the case has been like, ‘Is this a copy? Is it another version, an earlier version by Leonardo? Is it worth 500 million?’, and I keep saying, ‘Look, I don’t care if it’s painted on velvet, it’s not about whether it’s a significant earlier version of the Mona Lisa , it’s about my client owning 25% of whatever this is and the 75% owners refusing to acknowledge that despite a written contract.’ So, I won’t let the press turn that around, as much as they try to create an attribution. We don’t do that, create something out of thin air, and I completely state emphatically that we don’t know or care what it is, but we own 25% of it! But we can’t keep the press, as you said, from their salacious bits they want to chomp on.   CJLPA : What’s the role of AI and machine learning going to be in all this?   CM  : Well now you’re getting into attribution areas which I don’t feel comfortable discussing. It’s just not our thing. We recover what it is, we resolve the title dispute, and we turn it over to the experts in attribution for that kind of thing.   CJLPA : Something a little more in your ballpark: what is the state of regulation in the art market at the moment? Is there too little? Too much?   CM : People want to say that the art market is the Wild West, with no regulation, but it isn’t true. There are plenty of regulations covering art transactions. The main problems are in enforcement. Getting the art market to behave and comply with the laws that are on the books has always been a problem, and getting law enforcement to enforce activities in the art world is extremely difficult. There are many challenges, especially in the middle of a pandemic. There are so many times where I’ve called law enforcement about a crime in the art world, and they’ve responded to me with, ‘We’re dealing with international terrorism issues, we can’t deal with this, it isn’t something we handle.’ It’s a regulated industry. Compliance and enforcement are the problem. However, those in the art market have been given an opportunity to police themselves in the last few years, where law enforcement has been backing off. They had a choice between enforcing themselves or committing crimes with reckless abandon, and they’ve unfortunately decided on the latter. So, there’s a lack of due diligence, a lack of complying with regulations, and so now things are starting to tighten. We have new money laundering laws requiring due diligence, where it was voluntary before. Now it’s coming into effect. And they’re upset about it, but too bad. You had the opportunity for years, and you failed. Now you have to deal with the heavy-handed government regulations that are overly broad. Look what happened with the ivory trade. Those in the art market had decades of opportunity to sort themselves out, and they didn’t. Then the government came in and imposed an overwhelming ban, and now they’re all screaming about it being heavy-handed. Too bad. You had a chance, and now the government is going to screw it up.   CJLPA : You work across the world, with different legal systems and enforcement systems. How do they compare? And what challenges does the global nature of art regulation pose for somebody like yourself?   CM : Well, of course the first thing to consider is civil law jurisdictions versus common law jurisdictions. I love to deal with cases in common law systems, because the theft or looting victim has the upper hand. It’s always frustrating working in civil law jurisdictions, where the alleged ‘good faith’ buyer has the upper hand. I’ve a case going on right now in Canada, which is a common law jurisdiction apart from bloody Quebec province. Of course that’s where my stolen painting is! The dealer’s saying he bought it under the civil law jurisdiction of Quebec province, and of course he’s right, so I have to make a deal with the guy now. One of the first things we do is look at the various jurisdictions we’re dealing with and sort that out. I’ve another case in Serbia where I have to sort out the different laws of the different countries, and obviously we have partner attorneys in different countries because we don’t know the legal system of every country we operate in. What was the second part of your question?   CJLPA : What challenges does the global nature of your work bring?   CM : OK, challenges are easy. Firstly, jurisdiction issues. Statute of limitations issues change from jurisdiction to jurisdiction. We have law enforcement willing to engage in some countries, like Italy, which has a good-size cultural heritage team, as opposed to the UK, and London, which has maybe two full-time officers and one part-time officer in their art crime team. They’re overwhelmed, and quick to dismiss anything that isn’t going to be a major case. So, law enforcement issues, funding, enforcement problems. In many cases, we need that law enforcement backup, I need a police report, I need to let the possessor know that if they don’t cooperate there might be a criminal investigation, so there’s some challenges. And then you have gangs of criminals operating internationally, which poses a problem, and I guess other issues can be sorted out, like language problems. One of the biggest hurdles we’ve come across is cultural differences. I find a lot of these six-figure watches lately, Patek Phillippe or something, for over £100,000, which get stolen from the wrists of collectors in the UK and end up in Hong Kong or the Middle East. When I confront someone in the UAE about it, they’ll be like, ‘The fact I have it on my wrist doesn’t mean it’s mine.’ I’m like, ‘Well, no, “finders keepers” isn’t the law!’ But culturally they believe this. There was a Joshua Reynolds painting stolen from a country home in Sussex, and then it’s there on the wall of the Tokyo Fuji art museum, and the Japanese are like, ‘That’s nice, but we bought it.’ And that’s just not acceptable! It was on the cover of the Sussex Times in, like, 1988 as stolen, and you bought it from a dealer without asking questions, and they’re like, ‘Well under Japanese law it’s not stolen.’ These are some of the many challenges we have.   CJLPA : What are the specific challenges legally and culturally, especially with our unique press, in Britain?   CM : Law enforcement is the biggest challenge. They’re overwhelmed and underfunded, and they’re told to deal with matters of terrorism, which is a reality of today’s world. When I find there’s a big book heist in Mayfair, and they show up in Italy, I’ll find them, and the Italian police will ask for a copy of the British police report. I’ll contact the UK police, and they’re like, ‘We’ve closed the case, we can’t give it to you.’ ‘Why did you close the case? The books have shown up in Italy.’ ‘Once they left the UK it’s no longer a UK matter, so we’re closing the file.’ It’s absurd, all I need is a copy of the report so I can get a result to the victim. It’s just that ‘get it off my desk’ mentality that’s so frustrating. It’s not the fault of the extremely hardworking and talented individual British officers. It’s because they’re told to focus on other things, and they’re funded for terrorism issues and the reality of life in London, and they couldn’t care less about manuscripts that have shown up in Italy. Eventually I got them back, but boy, not without pulling some strings and some teeth. That’s one of the challenges. One of the pleasures, believe it or not, is working with the press. They love art stories, and we are able to work with the press, they’ve assisted us. I was working pro bono for a church in the city, and BBC was following the case closely. I had to go to the Netherlands to meet the possessor of this stolen sculpture, and I was like, ‘I’ve got the BBC on the phone, do you want to speak to them about this?’, and he’s like, ‘Wait, no, I don’t want any press on this!’ He had to strike a deal with me, and I was able to return the piece unconditionally to the church. The press has always been very helpful to us.   CJLPA : In your analysis, has the marketisation of artworks, especially those of cultural or historical value, gone too far?   CM : There are people who say cultural property should never be in private hands, it should only be in museums. That’s one extreme. On the other hand, people say it should be a wild free-for-all where everything has its price and we should empty out our museums, spend the money on education. Both extremes are ridiculous. Not every piece is a museum piece. We’re now seeing issues around the world of museums deaccessioning works of art, and people are screaming and yelling. But honestly, if a painting spends its entire life in the basement of a museum, I support the museum’s right to deaccession it, either to bring in new works of art for display, or, I don’t know, to fix their roof. There must be some happy medium. I’m sorry, but not everything belongs in a museum.     CJLPA : Tell me about the processes behind investigating Nazi-looted art.   CM : I have researchers that I work with who find works of art—in museums, or private collections, or auction houses—that had been looted by the Nazis. The first step is to prepare the documentation, then put it into a claim letter, then write to the museum or to the auction house. We’re very transparent. We produce all our documentation, then we request a sit-down, according to the Washington Principles, and say, ‘We want to resolve this’, show them our proof, ask them for the provenance of their piece, and discuss it. These cases take years. It took me four years to pull something out of the Gurlitt hoard, and a few years for a restitution for something from Norway. I’ve been battling the German authorities for four years now over a Nazi-looted piece in a private collection in Germany. I actually had to file a criminal case against the art dealer who tried to extort my client into paying three and a half million Swiss francs before he told them where it was. I’m not, as usual, getting much cooperation out of Germany, and even Austria isn’t particularly cooperative. It’s shocking that 75, 80 years after the war, we’re dealing with Nazi-looted art issues. I get letters from lawyers all over the world like, ‘Oh, why are we still talking about Nazi-looted art? Shouldn’t there be some sort of deadline where we stop talking about this?’ No, there shouldn’t be, until you actually deal with it! If we’d begun dealing with it straight after the war, maybe you could begin to say, ‘Enough is enough’. When we’re still fighting the Germans and the Austrians and museums and collectors and people who don’t want to cooperate or be transparent, then we’re not dealing with the situation. They have no right to say, ‘Enough is enough’, when they have never dealt with the situation or complied with international norms with respect to Nazi-looted art. This interview was conducted by Alex Charilaou, a writer, artist, and second-year undergraduate in English and Drama at the University of Kent, interested in radical political theatre. Alex is an organiser with the Progressive International and has bylines in several publications, writing on the intersections between politics, economics, and theatre.