Professor Andreas Rahmatian is Professor of Commercial Law at the University of Glasgow School of Law. Originally from Vienna, he obtained his first degree in law and a PhD in Private Law from the University of Vienna, and completed another degree in musicology and history there. He holds an LLM from the University of London. He worked as an associate attorney-at-law in Vienna and qualified as a solicitor with a City firm in London before he became a full-time academic. He has been a fellow at the Institut d’études avancées in Nantes, France. His research focuses on intellectual property law and commercial law. His books are  Copyright and Creativity: The Making of Property Rights in Creative Works (2011),  Lord Kames: Legal and Social Theorist (2015), and Credit and Creed: A Critical Legal Theory of Money (2019).    CJLPA:  Do you think all forms of creativity should be protected by the law? Professor Andreas Rahmatian : It’s a difficult question, of course, because it depends what you mean by creativity. Here we probably talk about creativity in relation to copyright in particular, because creativity can otherwise be in relation to all sorts of things. Now the problem with copyright creativity is that it’s not necessarily dealing with artistic creativity. Obviously, artistic creativity is also part of copyright creativity, but the understanding of creativity in copyright is based on a normative definition, if not a completely clear one. Whether that is artistic creativity as an artist understands it is actually immaterial. So the question is, when you ask, ‘Should all forms of creativity should be protected by the law?’, it is already the case that non-artistic creativity is protected by the law. Whenever you have got a kind of selection or arrangement which somehow points back to some individual, then you have got, as it were, creativity in the sense of copyright as ‘originality’.   The judgment of Infopaq [1] and the following cases of the CJEU in the EU didn’t change very much the originality ideas in the UK, in my opinion. In the United States the understanding of originality is pretty much the same, but whether that original work is also artistic in any way is rather irrelevant. It [the work] can be rather trivial. That is actually immaterial for the protection. And this is how copyright laws envisage creativity—even on the Continent, where they operate with all sorts of devices to water down the (theoretically) more personal requirement of the author’s input. In theory there is an approach more geared towards creativity in the sense of artistic creativity, but in reality this is much less so. There is, for example, this nice legal concept of ‘small change’, or kleine Mü̈nze —it is really called like that in Germany—where you have works of everyday use, really ordinary works which can have some notional modicum of creativity put in, and you still get protection. Then below that level you quite often have neighbouring rights, for works which do not fulfil the required creativity level or originality level, but the neighbouring rights still protect them. Then below these, you have under certain circumstances protection against parasitical competition in the sense that you actually have a prohibition to copy someone else’s work. So you have got all sorts of protection levels, both on the Continent and in the UK (or in the common law countries), and they achieve protection in different conceptual ways.   Now some people will say ‘creativity’ also means creative investments, or even ‘creative’ accounting, which is usually illegal but perhaps also creative. So it’s very hard to pin down ‘creativity’. A typical problem is restoration work in the arts, by a picture restorer, or a restorer of musical pieces. The classical case in that area in the UK was the Sawkins v Hyperion  case, 2005,[2] which shows that for copyright protection you need not be creative in the sense that you are actually creating anything new. Artistic creativity, if you go to an art school or to a conservatoire as a composer, has a tinge of novelty, but we are not interested in novelty in copyright law. So the restorer, who actually writes his counterpoint in the style of the music of the late seventeenth century, as Sawkins did, in order to restore the missing parts to produce a performing edition, did exactly not [sic] mean to be creative but faithful to the work to be restored. It’s meant to be in the style of the Baroque composer. And yet it is protected as original for copyright purposes, and there’s no doubt that this also applies on the Continent: the result in such a case would have been, and in fact was, the same, because in France, in a parallel case, Sawkins’ work was viewed as being original. That was decided under French copyright law, although the French authors’ rights system is supposed to be totally different. It’s a very nice case where we have two different legal systems with essentially the same facts, the same claim in both cases, and the same result, based on a different conceptual system. Although it may be quite difficult to appreciate this from an ‘artistic’ viewpoint, the creativity or the skill of a restorer should get protected. In fact, in France and in Italy there are quite a few cases in relation to restoration, especially in the visual arts, and there is no doubt that they get protection.

In his seminal 1961 work The Destruction of the European Jews , Raul Hilberg proposed a thesis that sought to explain a perceived lack of Jewish resistance. Jews in the ghettos of Europe, he suggested, ‘hoped somehow that the German drive would expend itself. This hope was founded on a 2000-year old experience. In exile the Jews had always been a minority, always in danger, but they learned they could avert or survive destruction by placating and appeasing their enemies’.[1] In the case of the Nazis, this, for Hilberg, became a fatal assumption. It was, however, an uncomfortable argument, one which undermined suggestions of Jewish defiance and appeared to install an image of almost supine historical passivity in its place. Two responses in particular can be said to have emerged. One was to emphasise the immense difficulty involved in open resistance, particularly when armed. Weapons were nearly impossible to source in ghettos and camps, German forces were fully capable of destroying any rebels, and it was far from clear what the Nazis intended until for many it was too late. The second was to broaden the meaning of ‘resistance’ beyond narrower definitions. A process undertaken by scholars such as Meir Dworzecki and Nachman Blumental through the 1960s, it was often encapsulated by the Hebrew term amidah  (roughly, ‘stand’). Defiance, it was argued, could in fact be ‘spiritual’.[2] Now, it seemed, Jewish victims had claim to resistance after all.   Predictably, the bounds of ‘spiritual resistance’ have since then remained amorphous, relying less on a set inventory of actions, and more on perceived intent. Shirli Gilbert’s description of the concept’s historiographical usage, though focussed on music, is essentially valid for all activities which are said to comprise it, namely anything that serves as ‘a life affirming survival mechanism through which they [victims] asserted solidarity in the face of persecution, the will to live, and the power of the human spirit’. Acts which supposedly expressed this range from clandestine education and the creation of art and music, to the writing of diaries or chronicles and the splitting of rations.[3] Though it could be as simple as a general resolution to live with dignity, it is particularly these cultural and intellectual activities, so well studied in the context of the ghettos, that have dominated discussion of spiritual resistance and which appear more in redemptive post-war narratives from survivors—as Yiddish poet Leivick Halpern declared, ‘In mines, in bunkers, in sewage pipes, on the threshold of the gas chambers Jews sought strength in prayer, in poetry, in song’.[4] Central too to the idea, therefore, is its status as a collective phenomenon, enacted on behalf of all Jewry. For Nechama Tec, ‘what they [Jews] shared was a belief that no one was alone and that, with the help of others, resilience could turn into resistance—acting not just on behalf of oneself to survive, but on behalf of an entire community of people’.[5] Spiritual resistance by extension takes on an almost indestructible quality, which transcends the death of any one victim or the destruction of the body, and which characterises at the very least a broad swathe of Jewish victims’ lives under National Socialism.   In some respects, this has marked a welcome shift. Unlike unrealistic expectations of armed rebellion, spiritual resistance allows a more varied appreciation of how Jews might present defiance in the face of enormous persecution. There remains, however, much to criticise in the concept. By moving away from the often redemptive, expurgated accounts of post-war testimonies, whose narratives are perhaps inherently exceptional by virtue of their tellers’ survival, we can instead consider material written during the period in question. These sources contain an immediacy, uncertainty, and even banality of experience which better characterises the lives of most Jews in Nazi ghettos. This shifted focus can then let us identify the concept’s various flaws. Central among them is its tendency to overlook the physical reality of the ghettos and camps, assuming a sort of immortality to spiritual resistance which ignores how bodily exhaustion and degradations severely limited one’s capacity to engage in its practice. In turn, this extreme scarcity produced nearly inescapable divisions and hierarchies, precluding any simply collective face to resistance. Not only did this limit access to acts which might constitute spiritual resistance, such as cultural performance, it also affected their content. While statements from the likes of Halpern assume these activities were somehow innately dignifying, they could in fact reflect the grim, despairing reality of the ghetto. When what little remained of spiritual resistance is placed in this holistic context, it emerges as a fleeting, uncharacteristic experience in lives defined instead by hunger, division, and degradation.   *   Jacob Clemenski, member of the socialist Jewish Labour Bund, described post-war a particularly striking visit to a Warsaw Ghetto cabaret.   When we reached the nightclub the street was dark. My escort suddenly said to me: ‘Be careful not to step on a corpse’. When I opened the door the light blinded me. Every table was covered by a white tablecloth. Fat characters sat at them eating chicken, duck, or fowl … The audience crowding the tables was made up of the aristocracy of the ghetto - big-time smugglers, high Polish officers, and all sorts of big shots … The audience ate, drank, and laughed as if it had no worries.[6]   Though likely an embellished account, it approximates the truth—in the ghetto, spaces to escape its realities were often exclusive to the point of the grotesque. While a majority starved, a select caste could at least momentarily enjoy comforts that staved off the spiritual degradation others experienced. Indeed, by April 1941, Emmanuel Ringelblum, organiser of the secret Warsaw Ghetto archive Oneg Shabbat (‘Sabbath Delight’), could list 61 different cafés which provided food and music to a privileged clientele, often dependent on authorities in the Judenrat or even the Gestapo.[7] Nor was this unique to Warsaw. The Łódź Ghetto Chronicle, which documented life in the second largest of the Nazi ghettos, noted on 24 November 1943 how ‘small centres for the cultivation of music have sprung up over time; to be sure, only for a certain upper stratum’.[8]   Even more open performances tended to be marred by reminders of these inequalities. Dawid Sierakowiak, a young communist whose diaries provide invaluable insight into Łódź, recorded his attendance on 27 May of a Krawiecka Street concert. ‘The whole of select society gathered, bloated and dressed up. The gap between various classes of people in the ghetto grows wider and wider. Some steal to feed themselves, others feed themselves officially, while the rest are swelling up and dying of hunger’.[9] Hierarchy of a more formalised sort was also used to intrude upon cultural and educational efforts in the ghettos, often rendering them exercises in self-promotion. The Łódź Chronicle, which was almost certainly vetted by Judenrat head Chaim Rumkowksi, provides numerous examples of this. A September 1941 entry reporting on a children’s play ended by noting that, ‘After the Chairman’s speech, the little children made a ring around him on the stage and danced joyously accompanied by the sound of music and cheers for the ghetto’s first citizen’.[10] For Łódź diarist Leon Hurwitz, the motivation behind cultural programming was clear—‘the dictator [Rumkowski] organises concerts so that he can deliver speeches’.[11] Such divisions, however, were not solely the impositions of a ghetto elite upon a silently resentful majority. Indeed, what could morally constitute spiritual resistance was often disputed at the time. This would also refute any monolithic image of Jewry as presenting solely unified defiance, and it complicates easy assumptions that certain acts are necessarily resistive. For Hermann Kruk, a conservative Bundist in Vilna, proposals to open a ghetto theatre amidst such suffering appeared outrageous, and he resolved to boycott the event alongside the local Bund—‘the streets of the ghetto are to be strewn with leaflets: “About today’s concert. You don’t make a theatre in a graveyard!” The police and the artists will amuse themselves, and the Vilna ghetto will mourn’.[12] Riven by internal acrimony and inequality, spiritual resistance almost never presented the straightforwardly collective defiance that its historiographical proponents demand.   Under these pressures, it is perhaps unsurprising that the content of such cultural performance rarely tallied with a model of spiritual resistance. Shirli Gilbert’s powerful study of music in the Holocaust moves beyond Romantic notions of art as an inherently pure expression of high emotion. Though some concerts would play Beethoven and Mahler (in the Warsaw orchestra’s case, only to earn extra money for food), many of the most widespread and inescapable forms of ghetto music were far from uplifting or affirmatory of human dignity.[13] One song particularly popular in Warsaw, titled ‘Money, money’, focussed on the squalor and materialism of the ghetto, with lines such as ‘Money, money, money is the best thing, / Back home I ate oranges / Today I am eaten by lice and bedbugs … / The Jewish policeman is just a scoundrel, / Puts you on the train and sends you away to a camp’.[14] Though perhaps tinged with gallows humour, its basis remained a sense of grief and desperation. Indeed, in a survey of original songs composed in the Warsaw Ghetto, Gilbert concludes that ‘their spirit was most often one of sadness, despair, and cynicism’.[15] Their performance by street beggars and children in many case only compounded their depressed tone, and the activity was evidently one motivated by desperation for some sustenance rather than any desire to display spiritual defiance. The Łódź Chronicle documents a similar episode in an entry of 5 December 5 1941 on ‘the ghetto’s latest hit song’, the content of which ‘tells of the yekes  [recently arrived German Jews], forever hungry and searching for food, and the “locals” who make fun of them and quite often take advantage of their naïveté and unfamiliarity with local customs’.[16] Cultural performance here, far from being innately defiant, could in fact express contempt for the ghetto’s outgroups.   Moving beyond artistic creations to the practice of prayer furthers this picture of how content often became divorced from spiritual resistance. While prayer might appear an exemplary case of the phenomenon, the exhortation involved often tended more towards pleading for salvation than towards any pledge to resist Nazi oppression. Many of the best-preserved sources on the ghettos are from socialists and intellectuals less likely to be fervently religious, but indications nonetheless exist of a primary focus upon salvation rather than resistance. As Chaim Kaplan, a Warsaw Ghetto diarist and educator, recorded, the city’s Jews ‘poured its supplications before its Father in Heaven in accordance with the ancient custom of Israel’ following the announcement of the ghetto’s creation.[17] The rabbi of Grabow’s letter to the Łódź ghetto, warning inhabitants of the existence of the Chelmno death camp, finishes meanwhile with the lines ‘O Man, throw off your rags, sprinkle your head with ashes, or run through the streets and dance with madness. I am so wearied by the sufferings of Israel, my pen can write no more. My heart is breaking. But perhaps the Almighty will take pity and save the “last remnants of our People.” Help us, O Creator of the World!’[18] Characterised by supplication more than defiance, even prayer eschews easy identification with spiritual resistance.   An examination of the act of writing can bring together these two criticisms of spiritual resistance—that of compromised collectivity and that of compromised content. Often construed as a form of witnessing that promoted solidarity in the face of Nazi erasure, it is generally exemplified by the creation of Oneg Shabbat or by the likes of Kaplan, who declared in his diary his undying duty to ‘write a scroll of agony in order to remember the past in the future’.[19] It is in this context that historians such as Zoë Waxman can refer to ‘the collective response of other ghetto diarists’ as compared to those embedded in ghetto hierarchy, whose morally compromised roles ensure, according to Waxman, that they ‘“write not of a shared sense of suffering, but of isolation and disconnection’.[20] It would, however, appear that many Jews unconnected to ghetto hierarchy felt no particular impulse to express a sense of collective solidarity or dignified resistance. Sierakowiak’s diary is a case in point. His entries castigate ‘the rotten, bourgeois-bureaucratic basis on which the ghetto exists, and on which it will perish’, though he himself is quick to take advantage of it where possible. Entries range from angry documentation of popular abuses of the ghetto’s coupon system, to decrying Rumkowski’s creation of an exclusive and well-supplied ‘rest home’ for ghetto officials as ‘a disgraceful blotch on the carcass of the administration’.[21] Already possessing little faith in ‘native’ Łódź Jews, his initial consideration of new Western arrivals as ‘all Christians and Nazis’ is hardly indicative of common feeling either.[22] Yet perhaps his most startling repudiation of solidarity comes with his frail mother’s deportation, upon which his loyalties narrowed to her, and his misanthropy broadened to almost everyone remaining. His blame immediately fell upon foreign Jews as well as the Nazis. Her fate had been sealed ‘solely because of the evil hearts of two Czech Jews, the doctors who came to examine us’. His grief was compounded by the fact that others, even the dozens of children elsewhere in their apartment block, were not seized in her place. Wishing for a pogrom if the confusion might release her, he noted, ‘What do I care about another mother’s cry when my own mother has been taken from me!? I don’t think there can be ample revenge for this’.[23]   Sierakowiak’s increasing disregard for any collective empathy was something observed and acted out by many other diarists. Two other diaries from Łódź, written respectively by an unknown boy and unknown girl, come to similar conclusions. As the anonymous girl wrote, ‘You may fall and nobody will pick you up. A human being is worthless, dozens of them are not important. People are disgusting. Everybody cares only for himself’.[24] The anonymous boy, who wrote his entries in four languages in the margins of a French novel, saw events as a general condemnation of mankind. Though he sensed at points a ‘collective suffering’ among the Jews, his outlook was grim. ‘I am already unfortunately convinced’, he remarked, ‘that humanity (without exception, I believe, and the rest of it could behave in similar circumstances much like the Germans) is a sordid rabble of greedy beasts devoid of any pity or mercy’.[25] Perhaps particularly telling, however, is the fact that even projects such as Oneg Shabbat, which Waxman identifies as an exemplar of collective testimony, denounce the Jewish community for cowardice and division. In an entry for the archive entitled ‘The destruction of Warsaw’ documenting the massive deportations of later 1942, Yiddish novelist Yehoshua Perle declared, ‘Three times, 100,000 people lacked the courage to say: No. Each of them was out to save his own skin. Each one was ready to sacrifice even his own father, his own mother, his own wife and children’.[26] Though the Ghetto Uprising of April 1943 did substantially change subsequent narratives, it is a passage that illustrates well how collective form did not necessarily imply content to match. Instead, it could speak exactly of that ‘isolation and dislocation’ which Waxman attributes solely to compromised, hierarchical voices.   Given the unromanticised content which written sources tended to record, it follows that their motivation was rarely as simple as bearing collective testimony. Instead, the reason for keeping a diary was often an attempt to ensure one’s own emotional survival. This approaches an individualised, introspective sort of spiritual resistance. As Jeffrey Shandler notes in his study of the autobiographies of Jewish youth before the Holocaust, contemporary literary culture often impelled the opposite of a collective response—‘the act of reading almost invariably correlates with a marked turn toward introspection’ and ‘the discovery of a language with which to depict the inner self’, a development which in turned spurred the keeping of diaries.[27] For the anonymous girl, the idea of writing on behalf of Jewish community was evidently foreign; as she noted on 10 March 1942, ‘I talked to Mrs. Robard for a long while and quite involuntarily I let slip that I was writing a diary. She said she would like to read it. I’d made a silly mistake. I don’t want anybody to know about it and nobody is going to read it’.[28] Sierakowiak, meanwhile, dismissed the idea of leaving the ghetto for ‘work in Poznan’ partly because of his weakened strength, and partly because of the literary life he sporadically sustained: ‘I would miss my books and “letters”, notes and copybooks. Especially this diary’.[29] Even Kaplan, significantly older and self-consciously a historical witness, found at points a similar role for his diary, noting, ‘This journal is my life, my friend and ally. I would be lost without it. I pour my innermost thoughts and feelings into it, and this brings relief’.[30] Oneg Shabbat, meanwhile, again presents an unexpectedly mixed picture. For Ringelblum, his group’s exposure of Nazi exterminations to the foreign press was far from a universally redeeming achievement. It only meant that their deaths would not ‘be meaningless like the deaths of tens of thousands of Jews’.[31] Israel Liechtenstein, a contributor to Oneg Shabbat, reasserted its collective creed, asking in his last will and testament amid the Summer 1942 deportations, “May we be the redeemers of all the rest of the Jews in the whole world”. However, his conflicted sentiments are revealed in a reversion to a model of testimony as an individualised, exclusive act later in the document. He declares, ‘I only want remembrance, so that my family, brother and sister abroad, may know what has become of my remains. I want my wife to be remembered … Now together with me, we are preparing to receive death’.[32] Motivation for writing was never, therefore, as clear-cut as a simple desire to represent and immortalise all Jewry. Instead, its basis was often deeply and exclusively personal.   Moving beyond the psychology of the individual to consider that of the ghetto as whole further indicates why spiritual resistance foundered. The ephemerality of hopeful moods, dissipated by constant panics or disasters, posed particular challenges. Indeed, Jews within the ghetto often lacked what might be termed emotional autonomy—that is to say, a capacity for self-constructed, selective ‘spiritual’ development independent of terrible events which forced a response, often of grief or despair. For all Sierakowiak’s attempts to use literature and learning to provide comfort and find purpose, the final anguished lines of his entry on his mother’s deportation testify to its limits: ‘even the greatest rainfall can’t wash away a completely broken heart, and nothing will fill up the eternal emptiness in the soul, brain, mind, and heart that is created by the loss of one’s most beloved person’.[33] Josef Zelkowicz’s account of Łódź ghetto deportations in September 1942 demonstrates on a broader basis how quickly collective hopes and efforts might be raised and then dashed. Following news that the ill were to be deported, Zelkowicz records a strange, unified energy as the ghetto inhabitants set out to warn the rest of the community: ‘No one walked through the streets—everyone ran. And who had the strength or the time to run—No one at all!—So we took to the air ... Our wings were clipped at their roots, and yet we flew’. The endeavour was, however, quickly spoiled, in large part by the actions of the Jewish Police. ‘Hundreds of Jewish policemen stand guard; the executioners can do their work in peace. No one will hinder them … Now all who come running find their wings truly clipped … their throats issue such strange, crude, entirely non-human sounds ... It is incomprehensible how so many tears can come from weakened and exhausted people who haven’t the strength to breathe’.[34] Zelkowicz’s metaphor of wings collapses as the futility of the effort is revealed, and almost animalistic grief and helplessness returns. It was a reaction similar to that which the anonymous boy in Łódź recorded in more muted tones on 15 July 1944. Having been relieved at the end of deportations, his happiness was dashed by reports of a letter which described the mass execution of Jews. ‘I was overcome with joy but a few hours later’, he noted, ‘this joy of mine was spoilt’.[35] If spiritual resistance had to be sustained to truly characterise Jewish life in the ghetto, then it was this emotional fragility and shifting mood which often hindered it. As the Łódź Chronicle remarked, ‘The ghetto… lost the habit of thinking more than a few hours ahead’.[36]   What, therefore, was left of spiritual resistance in the ghettos? The admission that its practice was never remotely as collective, straightforward, or characteristic of ghetto life as historiography often suggests, does not demand its existence be entirely discounted. For certain individuals, such as Yitshok Rudashevski, it was a genuine and central mode of thought. Engaged deeply in Vilna communist youth clubs, he spoke with an optimism very rare in other diaries. As he noted on 11 December 1942, ‘We sat at meagre tables and ate baked pudding and coffee and were so happy, so happy. Song after song resounded… We have proved that from the ghetto there will not emerge a youth broken in spirit’.[37] Indeed, it appears that those involved in such groups were perhaps most likely to feel a sense of solidarity and defiance. It was in similar circumstances that Sierakowiak could lecture on Lenin to his young comrades or contemplate active resistance, even if he eventually rejected it.[38] Another strong case for spiritual resistance is made by charities such as ZTOS (Jewish Society for Social Welfare), CENTOS (Federation of Associations for the Care of Jewish Orphans in Poland), and TOZ (‘Safeguarding the Health of the Jewish Population’), which continued to operate in the ghettos, with German permission.[39] CENTOS, to take one example, was by the summer of 1941 serving 30,000 hot meals a day, with hot milk for 1,000 undernourished children.[40] Judging from Kaunas ghetto’s charitable sanitary organisation, the motivation may well have been consciously resistive. As one of its volunteer doctors put it, their activities aimed to ensure ‘that the young people should emerge from the ghetto in the glorious future, not sick, broken or weakened, but healthy, both physically and spiritually’.[41] It is also important to recognise the remarkable extent of reading and learning in the ghettos. Sierakowiak could devour Schopenhauer and learn several languages at once, while the anonymous girl from Łódź recorded how her friend, before being deported, passed her ‘many scientific books’ along with ‘the diaries of her friend and her friend’s brother’.[42] For some, this could present a method of mental escape, just as how certain inhabitants might find imperfect solace in the flawed cultural events of the ghetto. To discount such ghetto cultures in an effort to present an exclusively ‘dark’ reading of events tends towards the ahistorical.   Such admissions, however, should not prevent considering these phenomena in careful context. While Jewish charity efforts were impressive, they were rarely prohibited and could do little to prevent extreme hunger and desperation for a vast number. In Łódź, the Chronicle could baldly state by May 1942 that ‘the great majority of the ghetto is starving’, while Corni estimates that by the year’s close 760,000 had already died of ‘natural causes’ in Polish ghettos alone.[43] Moreover, whether many of these activities, particularly reading and schooling, were genuinely conceived of as spiritual resistance by those who engaged in them, can seem dubious. This suggests the term is better understood as a retrospective label applied by historians, but comparatively unrecognised by those in the ghettos. Indeed, it is very hard to find more than one or two authors who explicitly employ terms such as ‘resistance’ or ‘defiance’ in this context. For both Sierakowiak and Rudashevski, these activities were often simply a way to pass the day. As the former noted in typical fashion on 19 April 1941, ‘There is no work, only rain. I’m wandering around, idling all day long. Together with a group of friends, Communists, we’ve started to learn Esperanto’.[44] For Rudasehvski, meanwhile, writing on 17 September 1942, ‘It is a terrible time when you cannot settle down to some kind of work and you waste days on nothing’.[45] While defiance did enter the latter’s rhetoric as his involvement in communist youth clubs continued, it appears that those elements of ghetto life which might seem to survive as spiritual resistance, were often the least conscious or articulated. To categorise them as resistive, therefore, may simply divorce them from the reality in which they were actually understood.   Even had reading and learning always constituted defiance, however, they were still restricted. Attempts at schooling, for example, often cited as spiritually resistive, still constituted a severely limited enterprise undertaken in totally unfit classrooms. In Łódź, the proportion of children in elementary education was slightly higher than the fifth or so taught in Warsaw, but schools were banned by Rumkowski by the summer of 1942 amid massive deportations and fear they reduced the number available to work.[46] For the high school classes of 1939-41, only 700 students registered in the ghetto ‘gymnasium’. In a population of 160,000 or so, these were not significant figures.[47] Ghetto writing was, similarly, almost certainly a minority activity. As Waxman admits, ‘no study of testimony can be comprehensive, as the vast majority of victims perished without ever writing down their experiences’.[48] The fact, moreover, that some attempted to represent all Jewry in their accounts had little relevance to the experience of the vast majority to which they laid claim, unaware as it was of activities such as Oneg Shabbat. Even more formalised events only constituted at most a few hours a month for the majority of inhabitants, marred by unwelcome reminders of reality. Sierakowiak’s remark that the Krawiecka Street concert ‘was just better background for meditation on the theme “what I would be eating now if there were no war…”’ is but one example which belies the Chronicle’s more hopeful assessments.[49] Ultimately, spiritual resistance could do little in its limited expressions to cure the ghetto’s iniquities. As Adam Czerniakow wrote on 8 July 1942, ‘I am reminded of a film: a ship is sinking and the captain, to raise the spirits of the passengers, orders the orchestra to play a jazz piece. I have made up my mind to emulate the captain’.[50]   *   In this vein, it is worth briefly exploring what did  characterise Jewish lives in the ghettos. This will further demonstrate the minimal salience of ‘spiritual resistance’ to the large majority of inhabitants. While it is perhaps dangerous to identify any experiences of too specific a sort, the most common on a general level appear to be hunger, division, and degradation. It was the first of these, hunger, and especially the murderous scarcity that emerged in all ghettos (with the partial exception of Theresienstadt), which induced many of these communities’ worst dysfunctions. It is not therefore surprising that food became the central, endlessly recorded preoccupation of almost all ghetto sources. As Kaplan remarked, ‘Our constant song—potatoes! ... It is our whole life. When I am alone in my room for a few moments of quiet, the echo of that word continues in my ears. Even in my dreams it visits me’.[51] The desperate tactics to obtain more rations were grimly noted by Adam Czerniakow, head of the Warsaw Judenrat. ‘In the public assistance shelters’, he wrote, ‘mothers are hiding dead children under beds for 8 days’.[52] Indeed, such were the pressures created by extreme shortage that resentment within the ghetto fractured the family unit, extending beyond the usual targets of foreign Jews and the Judenrat. The Chronicle’s very first entry, for example, recorded an eight-year-old boy informing on his parents to the Jewish Police, demanding they be punished for stealing his food.[53] It was an experience shared by the anonymous boy too, consumed by guilt over eating his younger sister’s food, and one which Seriakowiak recorded with increasing anger towards his father, whose greed he blamed for ‘pushing mum into her grave’.[54] Division did not, it must be noted, imply ‘atomisation’—that is to say, a total breakdown of all networks. Vital connections remained which sustained Polish Jews and excluded their Western peers, ensuring that the former were at points literally half as likely to die of hunger.[55] Yet these networks were hardly likely to lead to sustained armed resistance, which characterised ghetto life even less than its spiritual counterpart. Undertaken at desperate moments where the choice was liquidation or a last-stand fight, it generally involved small numbers. Of the 50,000-60,000 Jews still living in Warsaw’s ghetto in April 1943, between 250 and 800 took up arms.[56]   It is in this context therefore, that common feeling and compassion tended to dissolve. The general reaction to the ending of deportations provides a particularly striking case of this. Rather than prolonged grief for those taken, the typical response was happiness at survival and delight at the greater amounts of food to go around. As Zelkowicz noted in the Łódź Chronicle following giant actions in September 1942, ‘There is not the slightest doubt that this was a profound and terrible shock, and yet one must wonder at the indifference shown by those … from whom loved ones had been taken. It would seem that the events of recent days would have immersed the entire population of the ghetto in mourning for a long time to come and yet, right after the incidents, and even during the resettlement action, the populace was obsessed with everyday concerns—getting bread, rations, and so forth—and often went from immediate personal tragedy right back into daily life’.[57] Writing privately, he remarked that ‘nearly three years in the ghetto have schooled the people well. They have learned to feel so at home with death that death has become more obvious and more ordinary than life’.[58] Even Sierakowiak, admittedly grief-stricken at his mother’s deportation, was soon forced to return in his diary to his preoccupations of work, food, and reading. The anonymous boy from Łódź remarked that ‘It is the best indicator of our unbelievable psychological degradation that in the ghetto people are equally upset by the disappearance of a few bites of bread and by the death of their own father’. While this may have been an exaggeration, it certainly caught some of the truth.[59]   The extent to which communal feeling might collapse even beyond the context of food is demonstrated by the case of Jacob Gens, head of the Vilna Ghetto. When his Jewish police participated in the Nazis’ extermination of fellow Jews in October 1942, having bargained the number to be killed down, many responded with weary sympathy. As the Bundist Herman Kruk remarked, ‘The tragedy is that the … public mostly approves of Gens’s attitude. The public figures that perhaps this may really help’.[60] A sense of humiliation was therefore to be expected among many ghetto inhabitants. Again and again, the language of bestialisation arises in witnesses’ accounts. The anonymous girl in Łódź declared, ‘Our life is so tragic, so degraded. They treat us worse than pigs’.[61] Sierakowiak wrote, ‘We are not considered humans at all; cattle for work or slaughter’. The anonymous boy noted, ‘We are slaves devoid of free will, who are happy when trodden upon and beg only that ignore not be trodden to death’.[62] Even Rudashevski found pessimism hard to escape in holistic assessments of the ghetto: ‘Our life is a life of helpless terror. Our day has no future’.[63] All four, moreover, are presumed to have been eventually exterminated along with their relations. As even Robert Rozzet, an advocate of an enormously broad view of resistance, will admit, no optimistic account can hope to ‘overshadow our understanding of the heart of the Holocaust, which is comprised of terrible suffering, impossible dilemmas and death’.[64]   Spiritual resistance is therefore of limited utility in understanding life in the Nazi ghettos. In particular it underestimates the suffocating pressures which tended to break efforts at collective defiance, foster internal divisions, and irreparably colour all activities which are assumed to have constituted its practice. Within the broader context of the vast majority of inmates’ lives, it was at most an ephemeral phenomenon, subordinated to greater concerns. Indeed, perhaps most troubling of all is the concept’s tendency to ignore the physical pressures upon ghetto inhabitants. The march of starvation, disease, and fatigue disintegrated attempts at spiritual resistance, if they were even recognised as such by those who performed them. Whilst Warsaw’s Rabbi Nissenbaum may have declared that ‘[t]he enemy wants the soul but the Jews offer their bodies instead’, most found the two to be fatally interlinked.[65] Sierakowiak constantly noted his failing capacity to write and learn as his body degraded—on 29 April 1942, he wrote, ‘I don’t have any will, or rather any strength, for studying … Time is passing, my youth is passing, my school years, my power and enthusiasm are all passing’. Eight days later, he remarked, ‘we are in such a state of exhaustion that now I understand what it means not even to have enough strength to complain, let alone protest’.[66] Oneg Shabbat, meanwhile, records volunteer teachers despairing at the difficulty of teaching to the starved. As one put it, ‘How do you make an apathetic, hungry child, who is all the time thinking about a piece of bread, interested in something else?’[67] No dichotomy existed between ‘body’ and ‘soul’—as the former failed, so did the latter. If spiritual resistance can be salvaged, therefore, it must be placed within a context of physical suffering and applied sparingly, conceived more as an individual and often failed attempt   to preserve the self. It is typified by the introspective writers of the ghetto, rather than the collective, consciously defiant framework often used. What was needed in such an environment was not resistance but a brutal process of adjustment—the narrowing of compassion, the repression of the emotional damage wrought by the personal tragedies almost all underwent in the ghettos, and a doomed focus on survival. Trapped between such impulses, spiritual resistance was for most a tainted and fleeting experience. Nathaniel Rachman   Nathaniel Rachman is a recent History graduate of Magdalen College, Oxford. He will start an MPhil in American History at Christ’s College, Cambridge, this October, with a focus on the New Deal era. In In his spare time he is an amateur cat fancier. [1] Karel C Berkhoff, Harvest of Despair (Harvard University Press 2004) 69. [2] Or Rogovin, ‘Between Meir Dworzecki and Yehiel Dinur: amidah in the writing of Ka-Tzetnik 135633’ (2018) 24(2) Holocaust Studies 203, 203-05; Robert Rozett, ‘Jewish Resistance’ in Dan Stone (ed), The Historiography of the Holocaust  (Palgrave Macmillan 2004) 345. [3] Shirli Gilbert, Music in the Holocaust (Oxford University Press 2008) 2, 7. [4] ibid 11. [5] Nechama Tec, Resistance: Jews and Christians who Defied the Nazi Terror  (Oxford University Press 2013) 15. [6] Saul Friedländer, The Years of Extermination (HarperCollins 2008) 149. [7] Gilbert (n 3) 28. [8] ibid 12. [9] Dawid Sierakowiak, The Diary of Dawid Sierakowiak (first published 1960; Kamil Turowski tr, Oxford University Press 1998) 174. [10] Lucjan Dobroszycki, The Chronicle of the Łódź Ghetto 1941-1944  (Yale University Press 1984) 75. [11] Gustavo Corni, Hitler’s Ghettos  (Arnold 2003) 154. [12] Friedländer (n 6) 383. [13] ibid 151. [14] Gilbert (n 3) 21-3. [15] ibid 39. [16] Dobroszycki (n 10) 92. [17] Zoë Vania Waxman, Writing the Holocaust (Oxford University Press 2008) 11. [18] Dobroszycki (n 10) xxi. [19] Corni (n 11) 8. [20] Waxman (n 17) 9, 25. [21] Sierakowiak (n 9) 79; Corni (n 11) 174. [22] Corni (n 11) 182. [23] Sierakowiak (n 9) 218-6 [24] Alexandra Zapruder, Salvaged Pages  (Yale University Press 2002) 236. [25] ibid 375. [26] Friedländer (n 6) 528. [27] Jeffrey Shandler, Awakening Lives  (Yale University Press 2002) xxix-xxx. [28] Zapruder (n 24) 236. [29] Sierakowiak (n 9) 174. [30] Corni (n 11) 8. [31] Waxman (n 17) 16. [32] ibid 32. [33] Sierakowiak (n 9) 226. [34] Alan Adelson and Robert Lapides (eds), Lodz Ghetto  (Viking 1989) 322-3. [35] Zapruder (n 24) 383. [36] Dobroszycki (n 10) xxix. [37] Zapruder (n 24) 217. [38] Sierakowiak (n 9) 107. [39] Dan Michman, ‘Jewish Leadership in Extremis’ in Stone (ed, n 2) 333. [40] Corni (n 11) 213. [41] ibid 215. [42] Sierakowiak (n 9) 9; Zapruder (n 24) 232. [43] Dobroszycki (n 10) 169; Corni (n 11) 218. [44] Sierakowiak (n 9) 81. [45] Zapruder (n 24) 206. [46] Corni (n 11) 211. [47] Adelson and Lapides (n 34) xiv. [48] Waxman (n 17) 2. [49] Sierakowiak (n 9) 164-5. [50] Friedländer (n 6) 395. [51] Waxman (n 17) 26. [52] Corni (n 11) 137. [53] Friedländer (n 6) 146. [54] Sierakowiak (n 9) 219. [55] Corni (n 11) 182. [56] Waxman (n 17) 46. [57] Dobroszycki (n 10) 255. [58] Adelson and Lapides (n 34) 325. [59] Zapruder (n 24) 376-7. [60] Friedländer (n 6) 436-7. [61] Zapruder (n 24) 241. [62] ibid 375. [63] ibid 198. [64] Rozett (n 2) 358. [65] Corni (n 11) 146. [66] Sierakowiak (n 9) 160-4. [67] Friedländer (n 6) 150.

In Indianapolis in 1984, an unusual political alliance was formed. On one side was the staunchly conservative city council and on the other were two of America’s foremost radical feminists, Catharine MacKinnon and Andrea Dworkin. The issue at stake was pornography—the council saw it as an obscene offence against Christian morality, whilst MacKinnon and Dworkin argued that pornography was responsible for violence against women and their subordination to men. At the invitation of the council, MacKinnon and Dworkin drafted an ordinance banning ‘the production, sale, exhibition, or distribution of pornographic materials’. Critics assailed the ordinance as an attack on freedom of speech and a little more than a year after the ordinance was passed in Indianapolis, it was struck down in federal court on First Amendment grounds. But that was not the end of the argument. MacKinnon[1] did not just argue that pornography subordinated women, but that it silenced them too, a claim developed by Rae Langton[2] and Jennifer Hornsby.[3] Langton, on whose work this essay focuses, suggests that pornography itself might plausibly violate the free speech of women. Therefore, invoking free speech does not provide a straightforward defence of pornography—rather, pornography presents a clash between the free speech rights of pornographers and those of women.   At first glance, the claim that pornography silences women might seem confused. Pornography does not seem to stop women speaking, so how can it silence them? Langton disagrees. Drawing on JL Austin’s[4] notion of speech acts, she argues that pornography literally silences women. I elaborate Langton’s argument below and then offer some objections.   Langton’s account   Langton draws heavily from Austin’s notion of speech acts. A speech act is an utterance which performs an action. This action can be further split into three components: a locutionary act, a perlocutionary act, and an illocutionary act. The locutionary act refers to the very uttering of a meaningful utterance. The perlocutionary act refers to the production of certain effects in the listener by the utterance. The illocutionary act refers to the action performed in making some utterance, the action the utterance constitutes. Take the utterance ‘I do’, said by the bride to the groom during a marriage ceremony. The locutionary act comprises saying ‘I do’, meaning she takes this man to be her husband. By  saying that, the bride may delight the groom—this is the perlocutionary act. In  saying it she marries the groom—this is the illocutionary act. Speech acts are ubiquitous and varied, reflecting the diverse uses of language. Illocutionary acts, for example, range from warning, to predicting, to questioning, to boasting, and so on. It is this category Langton primarily focusses on. She argues pornography silences women by preventing their illocutions.   What illocution some utterance performs, if any, is determined by certain conditions set by convention. Some illocutions, eg sexual consent, require that the speaker intend to perform that illocution. Others require that certain authority perform—only a judge can sentence a criminal. Langton[5] (as well as Hornsby[6] and Austin[7]) notably holds that, excepting illocutions bound up with formal institutions (eg sentencing), ‘uptake’ is a necessary condition for the performance of an illocution. That is, the listener must recognise the intention of the speaker to make some illocution, for the speaker to successfully do so.[8] Donald Davidson[9] gives a famous example of where uptake is not secured. An actor in a play might intend to warn the audience of a fire by shouting, ‘Get out! Fire!’, but the audience might not recognise this intention, rather believing the utterance to be part of the actor’s performance. Davidson suggests that here the actor tries  to warn the audience, but fails, because uptake is not secured.   Langton argues that speech acts can silence other speech acts, and notably silence persons’ illocutions. One is illocutionarily silenced or ‘disabled’ when one can make some utterance, but it not only fails to have its intended effect, but also fails to perform the very action it was intended to. The foreperson of the jury might intend to sentence the defendant (having got confused about court procedure), but their utterance, ‘I sentence you to three months imprisonment’, does not perform the illocution of sentencing as they lack the authority to sentence in the first place. Only the presiding judge has the requisite authority to perform the illocution of sentencing a defendant. Plausibly, a party’s speech acts can silence another’s illocutions, if they set the conditions for an illocution, such that the other party’s utterances fail those conditions. This is the case in the foreperson example. The speech act constituting the law governing courtroom proceedings, sets the conditions for an utterance to perform the illocution of sentencing someone, such that a foreperson cannot perform that illocution.   Accordingly, pornography will illocutionarily silence women if it sets the conditions on certain illocutions, such that women cannot perform them. Legal speech sets very clear conditions on certain illocutions, such as sentencing. But speakers can set conditions by their utterances more informally, by gradually building up precedents and conventions. This is what Langton suggests happens in the case of pornography. In the sexual context, pornographic speech sets the conditions of refusal. Pornography portrays women as always sexually available, or as incapable of agency. It thereby teaches some men simply not to recognise that women’s utterances such as ‘no’ are intended to perform illocutions of refusal. It is not that they recognise women’s refusals but ignore them. Instead, they quite literally do not take women to intend to refuse sex by saying ‘no’, thinking they are instead being ‘coquettish’, for example. Given successful illocution typically requires uptake, the influence of pornography thus prevents women’s utterances in the sexual context from counting as refusals.   Importantly, Langton also argues that pornography perlocutionarily silences women. Pornography frequently presents sexual violence as titillating and woman as sex objects. It thereby inculcates in certain men desires to rape women, and induces them to see women as mere things, undeserving of respect. These attitudes influence how men treat the women they encounter in sexual contexts. In these cases, although men recognise that women’s utterances such as ‘no’ are intended to refuse sex, and so women successfully perform illocutions of refusal, men ignore these refusals. The intended effect of women’s utterances, to prevent men having sex with them, is not realised, and so they are perlocutionarily disabled, ie raped.   Objections to Langton   An initial worry for Langton’s argument is that if, by failing to recognise their intentions, men prevent women’s utterances during sex from counting as refusals, then women do not refuse sex with men who rape them and so are not ‘genuinely’ raped. I believe this worry is misplaced. Firstly, simply not refusing sex may be insufficient for sex to be consensual—that may require an active act of consent by each partner. But more importantly, in these situations, women do not refuse sex with men only insofar as their utterances cannot constitute refusals. They still obviously intend  to refuse sex by such utterances, intend not to consent, and I suggest that is clearly enough to establish that they have been raped.   A second worry is that there is tension between the claims that pornography both perlocutionarily and illocutionarily silences women. In the first instance, pornography teaches men to override the refusals of women, (ie to ignore what they recognise as women’s refusals), whilst in the second case pornography teaches men not to recognise women as refusing at all. It might be unclear how pornography can do both, albeit one may argue that pornography can teach men different attitudes, depending on the sort of pornography they consume or on the sexual context in which they find themselves.   But the contention that pornography illocutionarily disables women relies on a further empirical claim we may doubt—that rapists do, at least sometimes, sincerely and consciously believe that women’s utterances during rape are not intended to refuse sex. Perhaps the closest documented example of this is the UK court case DPP v Morgan ,[10] where the defendants claimed that they believed their   victim wanted to have sex with them, as they had been assured by her husband that she was ‘kinky’ and would merely feign refusal. Even here, however, the judge notably ruled that the men could not have genuinely believed her protestations were insincere. So, one may think that women do  secure uptake on their intentions to refuse sex, and so do genuinely refuse – it is just that men disregard such refusals. The rape of women is then an instance of perlocutionary not illocutionary disablement. This might seem irrelevant; after all, whether women are perlocutionarily or illocutionarily silenced by pornography, they are still silenced. But as noted, anti-pornography feminists often want to argue that the pornographic silencing of women violates their rights to free speech. Literally being rendered incapable of refusing, ordering, advising, etc, as in cases of illocutionary silencing, plausibly violates free speech. But as Alexander Bird[11] argues, it might appear perlocutionary frustration is not a free speech infringement. A right to free speech would imply one’s arguments, intended to persuade, can never permissibly be found uncompelling, for example. Therefore, if pornographic speech perlocutionarily silences women, but not illocutionarily, then it plausibly does not violate their free speech.   But one might argue that given massive underreporting of sex crimes, it is unsurprising that there is little documented evidence of men failing to recognise the refusals of women. Indeed, victims may be especially unlikely to report their rape when the rapist did not apparently realise their crime, for fear that such ignorance would be deemed to exonerate their attacker, or from rationalising their rapist’s actions as ‘not really meant’ or less serious for being unintended. Langton[12] draws on surveys of British adolescents to argue that rape may well occur where the rapist does not realise the woman intends to refuse. These surveys suggest that pornography is, to some extent, taken as epistemically authoritative in the sexual domain, ie taken to accurately depict sexual desires and dynamics. Multiple respondents said that porn ‘gives you the idea that girls are easy’, or that ‘all girls want sex’. This may suggest pornography does propagate the notion that women never refuse sex.   Leaving this empirical question aside, there is a further objection to Langton’s claim that pornography silences women. Following Bird[13] and Peter Strawson,[14] one can deny uptake is necessary to produce illocutions. Accordingly, even if pornography teaches men not to recognise women’s intentions to refuse sex, this does not illocutionarily silence women. We have already seen uptake is not necessary for institutional illocutions such as sentencing, which Langton and Hornsby argue are an exception. But consider whining and rejoicing, both of which are non-institutional illocutions and neither of which require uptake. One can whine without intending to, and one can rejoice without any audience present. In neither case does any listener recognise one’s intentions to perform these illocutions.   Even considering the classic example of warning, it is unclear that uptake is necessary. Recall Davidson’s actor—Davidson maintains that the actor is illocutionarily disabled, and so fails to warn the crowd of the fire. As Bird[15] argues, however, this plausibly runs contrary to our intuitive assignments of moral responsibility. If the audience eventually sees the smoke and flees, they could not afterwards reasonably complain that they were not warned of the fire, precisely because they were  warned. But perhaps this point is not decisive. One could maintain that the audience was not  warned, and that they cannot complain about this, simply because no third party was responsible for their not being warned. Rather it was the audience itself, by obtusely failing to take up the actor’s intention to warn, that caused themselves not to be warned. I think the point is brought out by a comparison between two cases: the original case where the actor exclaims ‘Get out! Fire!’, intending to warn the audience but uptake is not secured, and a case where the actor intends to warn with their utterance, but uptake is not secured as they only utter terrified gibberish. Langton deems both cases equivalent; neither actor warns because neither secures uptake. But I suggest that, intuitively, the cases are different. The former actor succeeds in doing something, whereas the latter does not—namely, they manage to utter a genuine warning. That warning is not heeded, and so they are perlocutionarily disabled, but they are not illocutionarily silenced.   As there are not obvious examples of illocution requiring uptake, we should perhaps doubt uptake is necessary for refusal. An arrogant chef who cannot even conceive  of someone disliking their food, might never recognise a person’s intentions to refuse more food from them. But if one says ‘No, thank you’ in response to such an offer, as Bird argues, it is intuitive that one has still refused, even if this refusal is not registered. Analogously, even if a man does not recognise that a woman intends to refuse sex by her utterance, and so rapes her, she still performs the illocution of refusing sex. Again, she is perlocutionarily disabled, not illocutionarily. As established, perlocutionary disablement cannot constitute the sort of silencing Langton attributes to pornography.   Conclusions   Given free speech defences of pornography, it might seem politically advantageous for feminists to claim that pornography silences women in some near-literal sense, and so unambiguously violates their free speech. But given the above problems, perhaps the claim should be taken less literally. As Finlayson[16] suggests, we can understand the claim simply to emphasise the intimate and powerful way in which pornography prevents women from making themselves understood and determining how they are perceived. I suggest it is in this sense, not a strict illocutionary sense, that pornography silences women in inducing men not to recognise their refusals of sex. This recasting need not close off politically powerful arguments for regulating pornography. By silencing women in Finlayson’s sense, pornography plausibly leads to sexual violence. And opponents of pornography can still invoke free speech—perhaps the most influential justification of free speech is that it is conducive to the spread of truth. That is surely not true of pornography, which perpetuates myths about female sexuality, and so plausibly merits less protection under a right to free speech. I suggest that although the claim that pornography silences women cannot be understood in illocutionary terms, there are other philosophically and politically powerful ways of construing it, which offer more promising results. Adam Rachman   Adam Rachman graduated from Peterhouse, Cambridge, with a degree in Philosophy in 2020. He will be pursuing graduate study at Oxford or Cambridge in October 2021, with a focus on political philosophy. [1] Catharine A MacKinnon, Only Words  (Harvard University Press 1993). [2] Rae Langton, ‘Speech Acts and Unspeakable Acts’ (1993) 22(4) Philosophy and Public Affairs 293. [3] Jennifer Hornsby and Rae Langton, ‘Free Speech and Illocution’ (1998) 4(1) Legal Theory 21. [4] JL Austin, How to Do Things with Words . (Oxford University Press 1975). [5] Langton (n 2) [6] Hornsby and Langton (n 3). [7] Austin (n 4). [8] The defendant need not recognise the judge’s intention to sentence them with some utterance, for the judge to do so. [9] Donald Davidson, ‘Communication and Convention’ (1984) 59(1) Synthese 3. [10]  DPP v Morgan  [1975] UKHL 3. [11] Alexander Bird, ‘Illocutionary Silencing’ (2002) 83(1) Pacific Philosophical Quarterly 1. [12] Rae Langton, ‘Is Pornography like the Law?’ in Mari Mikkola (ed), Beyond Speech: Pornography and Analytic Feminist Philosophy  (Oxford University Press 2017). [13] Bird (n 11). [14] Peter F Strawson, ‘Intention and Convention in Speech Acts’ (1964) 73(4) The Philosophical Review 439. [15] Bird (n 11). [16] Lorna Finlayson, ‘How to Screw Things with Words’ (2014) 29(4) Hypatia 774.

The application of print privilege (pre-copyright) legislation to Venetian cartography came about by chance.[1] While the Venetian Republic was not the first state in Europe to construct a system of printing privileges, it was the earliest to grant limited monopolies for cartography and artwork. Intended originally for bestowing printed book privileges, the wording of the sixteenth century legislation and printing culture of Early Modern Venice enabled the expansion of the privilegio  from texts to cartography, and, finally, to independent images. Print legislation decreed by the Venetian government did not differentiate between print categories: books, cartography and independent images. These classifications have since been projected onto the then singular medium. The laws only stipulated that compositions eligible for exclusive reproduction rights must be ‘works on paper’. The broad phrasing enabled a legal realist approach to requesting cartographical print privileges; a linguistic loophole. Rather than remain within the confines of the intended material—printed books—the government steadily began to receive an influx of applications for ‘works on paper’ of other types.   Throughout the sixteenth century, mappamondi  (world maps) were often proposed for special protection by the Venetian Republic. In mid-1555, Floriano (d 1560/75) submitted a request to privilege a circular world map.[2] The Mappamondo  (c 1556 or 1555 mv) was greatly inspired by ancient mathematical philosophy and by contemporaneous cartographical designs in an attempt to update the mapping of the globe (fig 1).[3] Although this map is far less well known than its primary source of inspiration, Gerard Mercator’s (1512-94) Orbis Imago  (c 1538, fig 2) printed in Rupelmonde near Antwerp, Floriano’s Mappamondo is significant when examined in the context of Venetian art legal history.[4] Many privileged prints are not currently considered the finest examples produced, nor even the highlights of an individual’s oeuvre . Censorial licenses were mandatory for print circulation, whereas privileges were optional, costly legal procedures. Additional resources required in applying for exclusive reproduction rights meant that printmakers and publishers were selective in their requests for privileges. Mercator did not seek a Venetian privilegio  for Orbis Imago  while Floriano did obtain a limited monopoly for his Mappamondo .[5] Applications for the legally designated privilegio were based on the privilege holder’s speculation regarding which multiples would be successful, or in an effort to prevent others from copying designs from other media that had proven worthwhile. As today, one could not predict with certainty which map styles would sell or influence the next generation of designers. For a privilege in Early Modern Venice, authorship was less imperative than timely bureaucracy. Fig 1. Mappamondo (Antonio Floriano c 1556 (1555 mv), copperplate engraving, 46 x 84cm). Osher Map Library, University of Southern Maine, Portland; 263. Courtesy of the Osher Map Library, University of Southern Maine.

Manuel Rabaté is Director of Louvre Abu Dhabi. He has taught Arts & Cultural Management at Paris-Dauphine University and Paris-Sorbonne University Abu Dhabi. He is a Knight of France’s National Order of Merit.   Dr Souraya Noujaim is Scientific, Curatorial & Collections Management Director of Louvre Abu Dhabi. She has studied the British Museum’s Arabic weights and measures, and has been Islamic Art History Chair at the École du Louvre.   Louvre Abu Dhabi sits at a tense but enriching cultural crossroads. The museum brings the name of France’s most treasured cultural institution to the desert of the United Arab Emirates. The museum is innovative but its geopolitical context is difficult: a background of continuous government negotiations, and the cultural friction between East and West. The institution’s Director, Manuel Rabaté, and Curatorial Director, Dr Souraya Noujaim, discussed their creative vision and difficulties with honesty.   Manuel Rabaté, Director   CJLPA : Louvre Abu Dhabi arose in 2017 out of a 2007 agreement between France and the UAE. What was the intention behind the agreement?   Manuel Rabaté : This agreement was extraordinarily visionary. You cannot read it in isolation. It was part of a master plan to make Abu Dhabi an important international centre of knowledge, education, sustainability, and tourism. It was made in tandem with other agreements that led to Sorbonne Abu Dhabu, Berkley Abu Dhabi, New York University Abu Dhabi, Zayed University and National Museum, and Guggenheim Abu Dhabi. Tourism was undoubtedly an important motive. The government of Abu Dhabi was keen to ensure diversification of economic assets, and found that strong investment in its educational and cultural fibre was an excellent way of achieving this. The UAE federation dates only to 1971, but the place has a rich, much older heritage. The UAE wants to preserve this and create a cultural legacy. There is much more there than just the sun.   The community is built on other institutions and ideals too. Many of the buildings in which Abu Dhabi’s cultural institutions sit have been designed by Western architects, and many institutions bear Western names. But they are not necessarily extensions of Western points of view and ways of doing things. A key part of the vision behind Louvre Abu Dhabi, as well as the wider cultural objectives of the Abu Dhabi government, was to promote a universal story. Much like the British Museum in London and the Louvre in Paris are not museums of British art or French art, Louvre Abu Dhabi is place where you invite the world to come and see how you perceive human interconnectedness. We want to tell the story of the world through artworks and objects of beauty, at the same time raising points about Arab identity and the interaction of East and West. This may sound like a cliché, but I mean it truly.

Abstract Expressionism emerged amid a tense post-war climate, as a new genre of art that seemed so devoid of representational form or meaning that it could not be political. However, it was precisely this apparent apoliticality that made it so intensely political. Historiography on the topic has followed what I am inclined to call a ‘top-down’ trend. As outlined by Eva Cockcroft and Frances Stonor Saunders, those in power consciously used the art of the Abstract Expressionists as a means of cultural diplomacy or propaganda to influence the opinions of both Western and Russian intelligentsia. In this sense it provided a riposte to Soviet Socialist Realism.[1] It is important to note that this view was precipitated by the 1967 exposé which revealed the CIA’s political involvement in the Cultural Cold War, and it has been supported since.[2] By contrast, revisionist interpretations, such as Kozloff’s Artforum  piece, have sought to present the parallels between ‘American Cold War rhetoric’ and the individualistic philosophy of Abstract Expressionism as purely coincidental. They cite the lack of evidence of political manoeuvres and agreements between arts institutions—such as the Museum of Modern Art (MoMA)—and the US government.[3]   To evaluate the extent to which Abstract Expressionism was an ideological weapon, one must explore the intentions of the actors involved in the structure of the cultural-diplomatic operation— if that is how one characterises the movement. It is necessary to analyse the objectives of artists within the movement, as well as subsequent interpretations by critics and those at the forefront of the American conservative backlash. It is more plausible that the political significance of Abstract Expressionism was created by those with influence—such as art critics and the heads of cultural institutions, whose opinions carried intellectual weight—than by artists. MoMA enthusiastically supported Abstract Expressionism through exhibitions abroad, and there were suspicious links between its leadership and that of the CIA, as highlighted by Louis Menand and David and Cecile Shapiro. These facts further endorse this view.[4] Abstract Expressionism was in many ways a riposte to Soviet Socialist Realism, but the discourse between these two movements is beyond the scope of this essay, which instead interrogates the institutional processes behind this politicisation of the American art movement. Although individuals at all levels of influence had the political agency to engender combative ideology, those in the upper echelons of the political structure were markedly energetic in their promotion of art as a tool of war. They ensured Abstract Expressionism was rendered a weapon in the Cultural Cold War.   In many cases, artists did not produce work with a political purpose in mind. Art critics were largely responsible for constructing the combative personality of Abstract Expressionism. ‘Abstract Expressionism’ encompassed such a wide range of abstract art that those within it were reluctant to label themselves a collective. Yet, a common feature of Abstract Expressionist works was the absence of distinguishable or referential subject matter, and therefore any apparent political leaning. However, if one were to emphasise the significance of the artist’s agency, as Stonor Saunders does in her view that it is ‘hard to sustain the argument that the Abstract Expressionists merely “happened to be painting in the Cold War and not for the Cold War”’, then the artist’s political affiliation would become of interest to the historian.[5]     Harold Rosenberg, an influential art critic and outspoken supporter of Abstract Expressionism, proposes an argument from individualism for the artist’s personal agency. However, this interpretation of Abstract Expressionism is flawed. Rosenberg asserts that the new ‘American Action Painters’ were distinct because of their ‘consciousness of a function for a painting’, tacitly implying the possibility of the politicality of Abstract Expressionists.[6] However, his argument that the ‘act-painting is of the same metaphysical substance as the artist’s existence’ contradicts this. It suggests that the artist’s work is inextricable from biographical influences, and therefore that one is incapable of creating work with a meaning or motive different from those of their artistic upbringing.[7] Furthermore, when applied to Abstract Expressionism in the context of the Cold War, the argument invalidates that of Stonor Saunders. The infamous Jackson Pollock had previously worked in the workshops of Communist-sponsored artists. He had also collaborated with Mexican muralist David Alfaro Siqueiros, a Mexican Communist Party member and supporter of Stalinism. Had Pollock’s artistic life been truly inseparable from his work, his art could be read by Rosenberg as ‘communistic’. Cockcroft believed that the alignment between American Cold War ideals and ‘the way many Abstract Expressionists phrased their existentialist-individualist credos’ was ‘consciously forged’. This is unconvincing, yet so is Max Kozloff’s argument that it was coincidental.[8] New York School artists were more probably concerned with creating the first internationally influential American artistic movement than with using their art as a propaganda weapon. This was instead done by those in power. We must therefore view the artist and the influencer as working within individual yet intersecting spheres.   The compelling rhetoric of American freedom that critics and officials applied to Abstract Expressionism engendered a pugnacious artistic climate. There was debate between art critics such as Alfred Barr and American conservatives on the movement’s ‘communistic’ leanings. This debate demonstrates how art was not merely ‘for art’s sake’, but was viewed as a propagandistic battleground. Barr countered conservative assertions, such as those of Representative Dondero, in a 1952 New York Times  piece. It exemplifies the rhetoric of individualism that both critics and state figures repeatedly used as a riposte to Socialist Realism and the oppressive nature of Soviet totalitarianism.[9] Barr stated that ‘the modern artist’s non-conformity and love of freedom cannot be tolerated within a monolithic tyranny and modern art is useless for the dictators’ propaganda’. These statements dismiss the ‘communistic’ leanings of Abstract Expressionism and reframe it as a symbol of political freedom.[10] Moreover, Socialist Realism came to be included in the US artistic sphere, for example with MoMA’s 1946 retrospective exhibition of the Lithuanian-born American Socialist Realist artist Ben Shahn, strengthening the US’s philosophy of freedom. Giants of capitalist business, such as Rockefeller, appeared open to funding art like that being displayed on the other side of the Iron Curtain. Although the US government itself exported art, without critics such as Barr and Rosenberg, as well as the actions of MoMA, Abstract Expressionism would have been a futile and apolitical ‘weapon’.   MoMA’s economic connections exemplify how a Manhattan-based oligarchy used Abstract Expressionism to further the political interests of American capitalism. MoMA’s funding, leadership, and very foundation were supported overtly by American financiers, and covertly by the CIA. The establishment of MoMA in 1929 was enabled by the support of Abby Aldrich Rockefeller, and Nelson Rockefeller controlled it throughout the 1940s and 1950s—the peak of its cultural-diplomatic ventures. Cockcroft compellingly asserts that one must look to patronage and the ‘ideological needs of the powerful’ when analysing the success of an artistic movement.[11] It is difficult to maintain that MoMA would have had free rein without its Rockefeller benefactors. As giants of American capitalism, the Rockefellers would surely have supported the exhibition of a movement which advertised the US’ rhetoric of freedom. One might disregard the connection between a person’s wealth and their politics. Nonetheless, it is not a far-fetched possibility that Nelson Rockefeller, a high-profile Republican and one-term Vice President, would have supported US cultural-diplomatic ventures against the Soviet intellectual threat. The US arts sector was privatised, unlike its European counterparts. This let what David Caute describes as ‘the pantheon of ever-ready demons of patronage’ influence American psychological warfare, and thus Cold War politics.[12]   MoMA’s International Council energetically displayed Abstract Expressionism abroad, demonstrating how the movement was used as cultural propaganda directed at Western European intellectuals. MoMA’s purchase of the US Pavilion at the Venice Biennale, and subsequent curation of its exhibitions there between 1954 and 1962, was the first time a Biennale pavilion had been autonomous from government ownership and influence. However, much like for Abstract Expressionism itself, the apparent apoliticality of this was more likely a front. MoMA’s leaders had vested interests in the fight against communism. Abstract Expressionism already had a support base in Venice at Peggy Guggenheim’s palazzo—she had given Pollock one-man shows in 1943, 1945, and 1947. MoMA exhibited Willem De Kooning’s work in a US pavilion at an international event in 1948. Cockcroft argues that its private ownership made this pavilion free of ‘the kinds of pressure of unsubtle red-baiting and super-jingoism applied to official governmental agencies’.[13]   MoMA aggressively exported Abstract Expressionism across Europe through exhibitions in the late 1950s. ‘Modern Art in the United States’ toured Europe in 1956. The largest of its five sections dedicated to ‘Contemporary Abstract Art’ comprised 28 paintings by 17 Abstract Expressionists. In 1959, ‘The New American Painting’ was shown in eight European countries. The tour would have exposed Western European intellectuals, many of whom might have been Soviet travellers, to an artistic movement which stylistically promoted American ideals of freedom of personal expression. It ran contrary to the Socialist Realism of the USSR, an explicit form of propaganda.   The US government passionately endorsed cultural diplomacy through art, both covertly and overtly. As mentioned, there is evidence, albeit dubious, of CIA influence on MoMA’s leadership. Thomas Braden, executive secretary of MoMA in the late 1940s, went on to join the CIA as Supervisor of Cultural Activities in 1951. Braden enthusiastically supported the export of Abstract Expressionism as a weapon in the ‘propaganda war’.[14] He defended this in his 1967 article ‘I’m Glad the CIA is “Immoral”’: given that the Cold War was ‘fought with ideas instead of bombs’, ‘to choose innocence [was] to choose defeat’.[15] Furthermore, René d’Harnoncourt and Porter A McCray, both from Roosevelt’s Center of Inter-American Affairs, later joined MoMA. McCray, described by Cockcroft as a key figure in the history of ‘cultural imperialism’, joined as director of the museum’s international programmes.[16] However, state intervention was more direct in some instances, with open government sponsorship of exhibitions. In 1946, the Office of International Information and Cultural Affairs curated ‘Advancing American Art’, an exhibition which used $49,000 of government money to purchase 79 paintings. Although its art was not exclusively abstract, the collection was overwhelmingly Modernist, providing an apt riposte to Soviet Socialist Realism.   The most explicit and successful example of Abstract Expressionism’s deployment as a Cold War weapon was at the American National Exhibition’s visit to Moscow’s Sokolniki Park in 1959. Its open sponsorship by the USIA (United States Information Agency) is significant. The USIA helped censor the work of ‘avowed communists … or persons who publicly refuse to answer questions of Congressional committees regarding connection with the communist movement’.[17] David and Cecile Shapiro assert that almost anything was a potential target for ‘congressional pot-shots’. This supports traditional interpretations that emphasise the role of Abstract Expressionism as a weapon in the Cold War. Critics had so successfully fostered a connection between Abstract Expressionism and the ideals of the American psyche that the State was willing to promote it. Marilyn S Kushner asserts that despite Pollock’s Cathedral  (1947) and Lachaise’s Standing Woman  (1932) being seen   as ‘grotesque and mocking’, the art at the exhibition was seen as a ‘manifestation of a free society, much as was originally intended by the USIA’.[18] Pollock’s brash handling of paint, his cold colour palette, and his non-representational subject matter may have contributed to Soviet disdain. They were antithetical to the vibrant colours used by artists such as Taslitzky, and the highly naturalistic scenes, frequently of a political subject matter, painted by Gerasimov.[19] This display of American values in the heart of the Soviet world sparked questions of political freedom, particularly from young Soviets who were interested in what forbidden ideals they had been sheltered from. It was an aggressive form of propaganda.   Abstract Expressionist works were not, therefore, inherently weapons of the cultural Cold War. Harold Rosenberg, in ‘American Action Painters’, said that Abstract Expressionists created an ‘environment not of people but of functions’, that ‘his paintings are employed  not wanted ’ (my italics).[20] Abstract Expressionism was not   created with the purpose of being a psychological weapon against communism, but those with intellectual influence politicised it and made it such. It was this ‘middle stratum’ that engendered and buttressed cultural diplomacy through art. I have taken a hierarchical approach to analysing the impact of different strata within the cultural-diplomatic structure—from the artists, to the critic, to the museum, to the state. This approach demonstrates that critics created the weapon through politicising the apolitical Abstract Expressionism and aligning it with American ideals. Furthermore, MoMA, allied with the state, physically exported and mobilised art as propaganda, using the weapon created by critics. First came the fashioning of a culture that was anti-communist, and thus anti-Socialist Realist. Along with this came the dissemination of a belief among US art critics that Abstract Expressionism was the superior movement. Second came the aggressive physical exportation and touring of the artworks across Europe, including to Moscow in the late 1950s, in an attempt to woo Western intellectuals with the ‘benefits’ of capitalism. These currents were mutually supportive, bolstering the idea that art could be political. Regardless of whether the US government was successful in its psychological war against the Soviet Union, the argument that Abstract Expressionism was used as a weapon in the Cold War is persuasive. Mina Polo   Mina Polo is a second-year undergraduate in History at University College London, interested in cultural history. In 2021, she hopes to take further her research on jazz diplomacy and its impact on the American Civil Rights Movement. [1] Eva Cockcroft, Abstract Expressionism: Weapon of the Cold War. Pollock and   After: The Critical Debate  (Harper and Row 1985) 125-33; Frances Stonor Saunders, Who Paid the Piper?: The CIA and the Cultural Cold War  (Granta 1999). [2] In March 1967, Ramparts Magazine  exposed links between the CIA and the National Students’ Association (NSA), revealing the extent of the alleged Operation Mockingbird. In May of that year, Thomas Braden’s Saturday Evening Post article ‘I’m Glad the CIA is “Immoral”’ unveiled the   connections between the CIA and US cultural programs. [3] Max Kozloff, ‘American Painting during the Cold War’ in Francis Frascina (ed), Pollock and After: The Critical Debate (Routledge 2000). [4] Louis Menand, ‘Unpopular Front: American Art and the Cold War’ The New Yorker ; David Shapiro and Cecile Shapiro, ‘Excerpt from “Abstract   Expressionism: The Politics of Apolitical Painting” Part 3’ in Reading Abstract Expressionism: Context and Critique  (Yale University Press 2005). [5] Stonor Saunders (n 1) (as quoted in David Caute, The Dancer Defects: The Struggle for Cultural Supremacy during the Cold War (Oxford University Press 2008) 546). [6] Harold Rosenberg, ‘The American Action Painters’ (first published 1952) in Harold Rosenberg, The Tradition of the New (Horizon Press 1959) 24. [7] ibid 28. [8] Cockcroft (n 1) 126. [9] Alfred H Barr, ‘Is Modern Art Communistic?’ The New York Times  (New York, 14 December 1952). [10] ibid 22. [11] Cockcroft (n 1) 125. [12] Caute (n 5) 541. [13] Cockcroft (n 1) 129. [14] Shapiro and Shapiro (n 4) 441. [15] Thomas W Braden, ‘I’m Glad the CIA is “Immoral”’ The Saturday Evening Post  (20 May 1967) 14. [16] Cockcroft (n 1) 127. [17] As quoted in Shapiro and Shapiro (n 4) 339-40. [18] Marilyn S Kushner, ‘Exhibiting Art at the American National Exhibition in Moscow, 1959’ (2002) 4(1) Journal of Cold War Studies 19. [19] See the paintings The Strikes of June, 1936 (Boris Taslitzky 1936), and Stalin and Voroshilov in the Kremlin  (Aleksandr Gerasimov 1938).   Gerasimov won the Stalin Prize in 1941 for this painting. [20] Rosenberg (n 6) 38.

Camilla Perera-de Wit is the Secretary-General and Director-General of the Netherlands Arbitration Institute (NAI). Her previous experience in dispute resolution includes her work at the Permanent Court of Arbitration (PCA) and at P.R.I.M.E. Finance. She is a board member of the Court for Arbitration of Art (CAfA) in Rotterdam.   Bert Demarsin is a law professor at KU Leuven, who has conducted extensive work on art disputes. His work particularly focuses on provenance and authenticity disputes. He is also a board member of CAfA.   Elliot Wright spoke in December 2020 with two of CAfA’s board members, Camilla Perera-de Wit and Bert Demarsin. We spoke about the nature and current state of art law, including difficulties in recent years, and the role CAfA can play in this field, as well as arbitration more generally.   Art law   Demarsin started by explaining that ‘there are actually four big fields within art and cultural heritage law’. First, art has to be created—so there can be issues with attribution and copyright. Second, art has to be preserved—this is not so true for contemporary art perhaps, but for cultural heritage there are a whole host of regulations, for instance on whether it can be exported or on how it should be restored or preserved. Third, circulation, which Demarsin describes as being the basis of the art business. This field covers auctions, authenticity, theft, and smuggling and other issues relating to the movement of art. Fourth, and finally, is the field Demarsin calls valorisation—which is how one can take advantage of one’s ownership of art, and realise its value through exhibitions or merchandising, and the conflicts that might arise from this.   Whilst conflicts can, and do, arise in all these areas, most arise in respect of circulation, as this is where the business of art trading is carried out. The vast capital in this market means disputes are more likely to arise from any disagreement, and the number of transactions means disagreements are not uncommon. There are also circulation issues in respect of restitution of art, and questions of looted art and cultural heritage. Even now there are cases arising from asserting ownership of art which was unlawfully confiscated in the Second World War, as well as ongoing disputes in relation to cultural heritage such as that surrounding the Elgin Marbles, and more recent debates on the restitution of colonial heritage. Here, Demarsin refers to his native Belgium’s colony in the Congo, but of course other European states, such as the UK, similarly seized art in that period. These are the disputes which feature more prominently in the public press, and therefore also the public conscience more generally, but for art dealers authentication is a more common and important problem.

This is the text of the Introductory Address read at the conference on temporary exhibitions held at the Musée des Beaux-Arts de Rouen on 22 November 2017 and organised by Sylvain Amic, Director of the Musées métropolitaines de Rouen. I am pleased to have been asked to give an address on the topic of loan exhibitions, because I edited The Ephemeral Museum , the book which Francis Haskell was working on during the last year of his life, and I shared his concern—his alarm—at the way in which the priorities of European and North American galleries and museums have altered.   At the same time, I am somewhat ashamed to admit that, as a senior member of the curatorial staff of several major museums—in Oxford, in London, and in Washington DC—and as the Director of the National Gallery in London between 2008 and 2015, I have not been able to do anything to halt the steadily increasing dominance of the temporary loan exhibition over the older ideal of the ‘permanent collection’, of the ideal of the collection as a sort of public treasury of art, which was certainly the idea behind the foundation of the National Gallery, as also the British Museum and many such institutions worldwide.   ‘Steadily increasing dominance’ is no hyperbole. The clouds in the sky provide the best example of something moving so constantly that it is hard to mark the successive stages and therefore difficult to notice how much has actually altered. The changes that Francis Haskell had noticed have in fact continued steadily since the publication of his book. Here are some examples from my own experience.   25 years ago, if you were visiting a major museum, whether in San Francisco, Copenhagen, or Budapest, you would not normally have bothered to check whether a famous work of art in that collection was on display. You would have assumed that it would be. 15 years ago, it would have been prudent to check. Today, it would be mad not to do so.   And here is another test: 25 years ago, if you announced to friends in London that you were proposing to visit the Victoria and Albert Museum, or told friends in Washington that you were hoping to spend some time in the National Gallery of Art, it would not have elicited the response ‘What’s on?’, or ‘Oh, are you going to see the show of so and so’, which is what you will almost always hear today.   And then again, and most significantly, 25 years ago it would have been considered very extraordinary for a National Gallery to clear out a large number of its rooms to make space for a temporary exhibition, but, over the last 15 years or so, this has been quite common. It happens regularly in the National Gallery in Washington, and it has happened several times in the National Gallery in London: with the big Velazquez exhibition shortly before I became director, with the Veronese exhibition while I was director, and with the Michelangelo and Sebastiano exhibition since I retired.   There are other ways in which one can monitor the increase in the importance attached to loan exhibitions. Many institutions smaller than those I have mentioned so far, such as the Frick Collection in New York, the Isabella Stewart Gardner Museum in Boston, the Wallace Collection in London, and the Poldi Pezzoli Museum in Milan, were founded with the idea that they would remain the same or much the same, and also often with an injunction against any work being lent. But, despite this, almost all of these institutions have found a way to accommodate loan exhibitions.   And it is no exaggeration to claim that, if any museum is now thought to be ‘moribund’ or ‘sleepy’, the first remedy to be prescribed is to introduce or greatly enlarge a program of loan exhibitions. The trend is not inhibited by the obvious unsuitability of the space available. The most extraordinary example of this is the Villa Borghese in Rome, where our ability to appreciate some of the most beautiful interiors in Europe has often been sacrificed for the display of temporary loans.   I want to analyse here what has been happening in the UK, and chiefly in London, not only because it is what I have observed most closely but also because it is influential on the practice elsewhere in Europe.   In London, the most remarkable change is to be observed in the Tate—as the Tate Gallery is now known. For many years the works on exhibition in Tate Britain were rotated on an annual basis so that there was no ‘permanent’ collection at all. This was not popular and there has been something of a reaction against it, but in Tate Modern today everything is either a ‘display’ or a loan exhibition. It may be that this development has been encouraged by the large gaps in Tate’s holdings of modern art, when those holdings are compared with those to be found in Paris, Berlin, or New York. These gaps would be immediately apparent were a chronological arrangement of the permanent collection to be attempted.   What may have originated in a pragmatic solution to a British problem has come to be considered as an exemplary curatorial solution for the display not only of modern but of nineteenth-century art. The most recent imitator is the National Gallery of Modern Art in Rome, which is abandoning its previous lucid chronological arrangements in favour of a series of short-lived displays with startling juxtapositions.   I am dwelling on institutions devoted to the presentation of modern art deliberately, because one of the biggest changes since the publication of The Ephemeral Museum  has been the increasing popularity and institutional enthusiasm for contemporary art. In the United Kingdom you cannot easily obtain a grant for improving the display of Old Masters or ancient art unless you do something to demonstrate its contemporary relevance—which is most easily achieved by ensuring that a living artist add something to the display. The prestige attached to the contemporary can only encourage the tendencies which Francis Haskell most feared.   In the UK there is of course a long tradition of museums and galleries being open to the public free of charge—a concept not entirely unknown in France, as I have found on recent visits to Dijon. Fundamental to this tradition is the idea that these institutions belong to the public rather than to the state. This is not the place to explore the complicated question of museum governance and the British distrust of state control which resulted in the establishment of trustees. But it explains why there was a public outcry when some of London’s institutions decided to impose entry charges—so much so that all political parties now regularly declare themselves to be opposed to those charges.   However, since the publication of The Ephemeral Museum , there has been a massive change in museum funding, perhaps especially in the UK where the government grant has been drastically reduced almost every year for nearly a decade. Commercial activity to compensate for this has greatly increased. Finding sponsorship had already become a large part of a director’s job towards the end of the 1990s, and it has become steadily more important ever since. Sponsors understandably require publicity, and reliable major publicity can only be obtained by a museum with a temporary exhibition or a new building. (The press notice obtained by acquiring one of the greatest paintings of the sixteenth century—Titian’s Diana and Actaeon —was minute beside the coverage devoted to the Leonardo exhibition.)   Once the National Gallery has entered into a partnership with Credit Suisse, has secured Shell’s support for the Rembrandt exhibition, has persuaded private foundations to pay for a new roof and new curator, and has increased its revenues by enlarging its shops, by mounting small paying exhibitions, and by hiring out galleries for parties, then no Government—even a Labour government with a strong belief in funding public services which have been starved by the Conservatives—would seek to revert to former arrangements. Once institutions have learned to help themselves, they will have to live with the unanticipated consequences.   One needs to put this in the context of public amenities generally—at least in the United Kingdom. In front of the National Gallery there is Trafalgar Square which was created as a breathing space and, as it were, an assembly room for the use of the general public. The Mayor’s office, in collusion with Westminster’s local government officials, uses it as a space which can be hired. Much the same attitude is taken to London’s parks and commons. Across the river there is London’s largest concert hall, the Royal Festival Hall, built with public funds for the public, but now so full of shops and cafés that it resembles the retail labyrinths of the modern airport and the quality of its architecture is completely invisible. There has been very little protest at this ugly commercialisation.   What is happening may perhaps be best described as a shift from the Museum and Gallery as Library to the Museum and Gallery as Theatre. No one ever expected theatres to provide performances free of charge, but such remains the case with libraries, even in countries where you normally pay to enter a museum. One might expect the director of a great library to be a person of great learning, but the director of a theatre is expected to be an impresario—if possible one with ‘charisma’.   The British Museum, the Victoria and Albert Museum, and the National Gallery are still thought of by many of us as something akin to a National Library (indeed, the British Library was not so very long ago embedded in the British Museum). Of course, they remain places where you may go to educate yourself and where you can usually find the unique or rare work which you wished to consult. You can drop into the National Gallery to see a familiar masterpiece; the very definition of a masterpiece must surely be something that you revisit. But these museums are now gradually becoming more and more like theatres where something new and exciting will be found. Indeed, in the case of the Victoria and Albert Museum, a large amount of the gallery’s energy appears to be devoted to the most popular elements in the performing arts. You enter the National Gallery without charge, but you may find that a great work by Raphael or by Van Eyck has been inserted into a paying exhibition or lent abroad as a reciprocal loan (as was the case sadly when I was Director), or indeed to raise money.   I do not wish to be alarmist. If the modern museum directors are no longer likely to be scholars, that does not mean that they will not be sympathetic to scholarship. If the modern museum director is going to be a modernist, that need not mean that they will always be averse to older art. The curator who prefers organising loan exhibitions to cataloguing the permanent collection may still be making a major contribution to art history. I do not regret the Barocci exhibition, nor indeed ‘Sacred made Real’ (devoted to Spanish polychrome sculpture), mounted during my Directorship at the National Gallery, both of which, I believe, altered the way that the history of European art is understood. The Ephemeral Museum was entirely fair on this point. One could even read parts of it as an exposition of the huge contribution to art history made by the loan exhibitions held in Italy and France in the first half of the twentieth century. But it is not only getting harder to mount really worthwhile exhibitions designed to alter, rather than to meet, popular taste; there is also more and more pressure to mount exhibitions which are primarily mercenary in motive.   Francis Haskell certainly would have liked to put the clock back. In private he even allowed himself to wonder whether, if a terrible accident were to occur, it might not have the beneficial consequence of forcing institutions to reconsider current loan policies. I have listed many reasons why the likelihood of a return to the situation that prevailed in the 1970s or 1980s is now improbable: the increase in institutions hoping to mount exhibitions and thus demanding ‘loan-backs’; the decline in government funding, stimulating dependence on sponsorship, which in turn requires the publicity achieved by popular exhibitions; the priority given to modern and contemporary art. But suppose there was a terrible accident to a great work when on loan. Damage to the works of art that has been occasioned by loan exhibitions has been very successfully suppressed, but a really large accident might affect the way that works of art are insured.   Without Government indemnity, most large loan exhibitions in the UK would not be possible, especially so-called blockbusters with extensive international exhibitions. The threat on the part of the current [as of 2017] Republican administration in North America to abolish the National Foundation for the Arts, which supplies indemnity, is a real one. In Europe there could be a similar reaction, and indeed in the UK there have long been officials in the Treasury who have worried about indemnity. These worries could lead to a sharp reduction in loan exhibitions and conceivably to a supervisory board deciding on which exhibitions were most eligible for government support.   Who knows who would be appointed to such a board! Perhaps there would be someone there who would propose that it was desirable to identify those works which any member of the British public and every British schoolchild should normally be able to see. But given the political pressure to do more for the regions, touring exhibitions of such works might well be high on the list of those exhibitions which would be encouraged. In addition, political support might be given to the idea of global ‘soft power’, following the French example. This is of course conjecture. But any forecast of the future should take into account the fact that loan exhibitions can support more explicit political agendas than those that have prevailed until now in the United Kingdom. Sir Nicholas Penny   Sir Nicholas Penny is an art historian and former Director of the National Gallery. He was Slade Professor of Fine Art at Oxford, and was keeper of the department of Western art at Oxford’s Ashmolean Museum. He is an alumnus of St Catharine's College, Cambridge.

The UK’s National Health Service (NHS) was set up in 1948 following the 1942 Beveridge report, a cross-party report which established its core principles. Since then, the two main political parties in the UK, the Conservative and Labour parties, have had differing approaches to how the NHS ought to be managed and financed. Today, healthcare is the largest single item of government expenditure, accounting for 24% of public spending compared with only 7% in the 1950s. This article will map the UK’s healthcare spending over the past 25 years, surveying the approaches of the various governments during this time. It will soon be clear why the NHS is struggling to meet its own performance criteria and why it has battled to deliver much-needed elective care during the coronavirus disease (COVID-19) pandemic.   Fig 1 shows the share of gross domestic product (GDP) attributed to healthcare expenditure between 1997 and 2018. Healthcare spending has risen considerably over the last 24 years, starting out at 6.9% of GDP in 1997 before plateauing at 10% from 2009 onwards. However, while UK health-related spending stagnated, the ratio of healthcare expenditure to GDP rose over the same period for four of the six other G7 countries. Simply looking at healthcare spending as a percentage of GDP can, however, be a poor prognostic tool in determining how successful a healthcare system is. For example, in 2017 the US outperformed all G7 nations in this metric, with a total healthcare spend of 17.1% of GDP, but performed poorly in key healthcare success metrics such as healthcare outcomes, equity, and access. Instead of looking at this solely as a stand-alone percentage, it is important to look at its growth over time. Fig 1. The share of UK GDP attributed to healthcare expenditure, 1997–2018. Data: ONS.  Adjusting for economy-wide inflation, fig 2 shows the annual average growth rates in UK public spending on health between 1949 and 2018. Growth in healthcare spending has fluctuated over time, with peaks in spending over the past 40 years largely attributed to Labour governments, as evident in fig 2. Under the Labour governments of Tony Blair and Gordon Brown, UK public spending on health averaged a real growth rate of 6%, six times the rate of growth under the coalition government which followed. Fig 2. Average annual growth rates in UK public spending on health, 1949–2018. Data: ONS. The 2008 economic crash   The 2008 economic crash and the subsequent period of austerity severely impacted the economy, contracting the UK’s GDP by 6.3% in Q1 2008. The continued impact of the crash resulted in a Department of Health and Social Care budget that continued to grow, only at a much slower pace than in previous years. Adjusting for inflation, the healthcare budget rose by 1% each year on average in the five years between 2009–10 and 2014–15, compared to the average 3.6% rise since the NHS was established.   The NHS’ five-year deal   In June 2018, then-Prime Minister Theresa May announced a new five-year funding deal that would see NHS funding rise by £20.5bn in 2023–24 compared to 2018–19. An increase of around 3.3%, this is closer to the long-term average of 3.6%, though still lower than it. This long-term commitment to improving NHS funding only applied to services within the mandate of NHS England, and was only sufficient to let it meet its immediate demands. It excluded important areas of the Department of Health and Social Care budget such as capital investment, public health, and the education and training of NHS staff. The government chose not to invest more heavily in innovation, health promotion, and its workforce. This choice has worsened the NHS’ ability to keep up with increasing demand and to adopt new medical technology, and it has contributed to the NHS’ staffing crisis.   Using the lower bound of healthcare spending models means that budgets are almost always increased by the government, with predictions falling short of actual demand levels. This often means making ad hoc budget announcements outside of the usual budgetary process and redirecting money away from capital budgets to fund day-to-day financing of the NHS. This leads to a cycle of poor strategic planning, negatively impacting the quality of investment in the health service. Fig 3. Budget of the UK’s Department of Health and Social Care in real terms (£bn), 2019–22. Data: ONS.   The impact of the pandemic   The nation-wide lockdown aimed at curbing the impact of the COVID-19 pandemic has caused significant harm to the UK economy, contracting the UK’s GDP by over 20% in Q2 2020. The government, in attempting to mitigate the economic impact of the crisis, launched the largest public stimulus program in the post-war period. Vast sums of money have been spent propping up businesses across the country, furloughing staff, and making sure the public sector meets its bottom line. However, the government’s public spending spree, alongside reduced tax revenue and a contraction in GDP, pushed the UK’s debt-to-GDP ratio to its highest in more than 50 years. Unsurprisingly, in less than a year, the eight years of fiscal retrenching under the coalition and Conservative governments has been undone.   The impact of the pandemic on future NHS funding is uncertain, although there could well be an increase as the public becomes more conscious of the importance of healthcare spending and a well-functioning NHS. In the short term, the UK has attempted to manage the pandemic’s negative health outcomes by spending an extra £63.4bn on health and social care. However, with the Chancellor already speaking of the need for ‘hard decisions’, it seems likely that the significantly worse position of the UK government’s finances may cause NHS spending to grow at a slower pace. This is already evident in the reduction of COVID-19 healthcare spending by 65% (from £63.4bn in 2020–21 to a proposed spend of £22.4bn in 2021–22) despite uncertainty surrounding whether the pandemic is likely to end soon. This is without considering the long-term negative impacts of the pandemic, such as the longer waiting lists for hospital treatment. Concerningly, a large proportion of the patients facing longer waiting times are those on waiting lists for elective surgery, such as surgery relating to cancers and cardiovascular disease. The number of people on these lists topped five million during the pandemic, the highest since records began in 2007. This new data suggests that over 9% of England’s population is waiting for care. On top of core NHS spending, the proposed budget to tackle the backlog drawn up by the Cabinet Office has proposed that the government may have to commit anywhere between £2bn and £10bn over the next four years on top of core spending. Recently, core NHS spending has risen from £150.4bn in 2019–20 to £159bn in 2021–22. This only represents a 3.3% annual average growth, which fails to match historical growth of the NHS budget. This is despite the NHS battling through an unprecedented pandemic and recovering from a challenging year. Neither current nor predicted growth matches the 6% average annual real growth achieved during the 14 years of Labour government between 1996–97 and 2009–10.[1]   The rise in the waiting list for non-urgent NHS treatment and the worsening mental health crisis underline the struggle the NHS faces as it tries to return to normal following a year battling COVID-19 pandemic. Short-term increases in healthcare funding have been used to meet new obligations, such as virology services to combat virus mutations, an incredibly successful COVID-19 vaccination campaign, and the ‘Track and Trace’ initiative. Improved funding will make the NHS more resilient to surges in demand, and it is likely to require pandemic-level spending to manage the long-term pressures from COVID. However, with the worsening position of the UK’s finances and the need to save money, it would be challenging for any Chancellor to reduce spending without impacting the health service, as the NHS accounts for 24% of government spending, a figure which is predicted to rise. Fatima Osman   Fatima Osman is a fifth-year medical student at Imperial College London. She completed an intercalated degree in Management at Imperial College Business School where she became interested in Health Economics. She has worked with clinicians and health economists to lead two publications in the field. She is excited to use her skills to formulate approaches to improve the cost effectiveness of healthcare provision by harnessing the power of artificial intelligence and healthtech. [1] Matt Hancock, ‘Secretary of State’s oral statement on the NHS Long Term Plan’ (oral statement to Parliament, London, 7 January 2019) < https://www.gov.uk/government/speeches/secretary-of-states-oral-statement-on-the-nhs-long-term-plan--2 >; HM Treasury, ‘GDP deflators at market prices, and money GDP December 2019 (Quarterly National Accounts)’ (7 January 2020) < https://www.gov.uk/government/statistics/gdp-deflators-at-market-prices-and-money-gdp-december-2019-quarterly-national-accounts > both accessed 1 March 2021.

The family is often presented as an opponent to the state as the location of power, or as an alternative to state institutions. The 2004 law which banned French public school pupils from wearing religious symbols, implicitly focusing on the veil, exposed a ‘tension between abstract universalism and embodied particularism’.[1] That is to say, it centred the debate on laïcité (secularism, roughly) onto the issue of an imagined conflict between a universal French republican identity and a specific religious identity which was embodied by the veil, taken as a synecdoche of Islam. Family is significant to this, as the French doctrine of laïcité essentially dictates that religious freedom is welcomed but only so long as it remains in the private arena. Balibar (2007) perfectly exemplifies the laïque  (secularist) view by arguing that it is religion which organises the private sphere, specifically family and sexuality.[2] While a private–public binary is clearly artificial and religion does in fact shape both, he demonstrates the French assumption of the republican ideal of religion, as something that stays in the family. Therefore, when we talk about the ‘religion versus the state’ debate in a French context, we are exploring the ideas of private versus public spheres, even when family is not explicitly mentioned. Bowen argues that the foundation of laïcité  is the existence of a public space where there is freedom of expression. La croyance  (belief) must stay out of it, as a threat to free expression, while le culte , organised religion, must be regulated within it.[3]   I propose that an anthropological exploration of French experiences of family and religion would enable us to identify what is really at stake in the French headscarf debate. I first explore Foucault’s theory of biopolitics and discipline and how this interacts with ideas of the private sphere and family. I then examine Iteanu’s theory of hierarchy and values as inherently linked, suggesting that the veil debate centres on a perceived hierarchisation of familial/religious values over state/ republican values. Finally, I critically discuss Abrams’ approach to the state as an idea, which suggests that a reification of the state leads to essentialised categories of religious family and state, further obscuring the fault lines in this debate. I prove that an ethnographic focus on families sheds light on the insecurity of the French state, and its reliance on the public/private dichotomy.   Firstly, Foucault suggests that as the modern state emerges with its distinctive habits of biopolitics and discipline, the family as the main unit of governance is forced to retreat. He argues that the modern state makes the family into an instrument of governance, rather than a model of the state, as information required to control the population is gained through the family.[4] Before the modern state emerged, Foucault theorises, the state had had the power to make die and let live—that is, to execute or not. In practice, this is a weak form of power because the state ended up having little control over the living.[5] Killing someone may have been a power, but it was one that was abruptly ended when that person actually died. Therefore, a biopolitical shift to making live  and letting die  empowered the state by creating the arena of power as one where the state could actually act— the realm of the living.[6] However, Foucault’s perspective on the state is limited in its usefulness in a discussion of religion because it attributes atheism to the citizens. It relies on them being focussed on life over death, assuming they ultimately desire to stay alive as long as possible and surrender up freedoms to the state so as to be made to live.   Talal Asad, an anthropologist of religion and secularism, highlights that religion causes subjects to look to ‘other-worldly’ concerns, meaning that the state needs to assert its place as a ‘worldly’ power.[7] This may explain why the French republican state is so concerned with keeping acts of religious belief out of its public sphere. An assertion of worldly power is evidenced in the discourses around the alleged oppression of Muslim girls by their families, who boundary their sexuality by ‘forcing’ them to veil. For example, the 2003 Stasi commission argued that Islamism threatened secularism and women’s rights in the banlieues (suburbs).[8] The family and its transcendent religious values infringe on state power in state institutions such as schools, and in areas like the banlieues . They limit state sovereignty within their territory. The French state is essentially insecure about its grip on power, and transcendent religious values highlight that its power of making live is only relevant so long as people desire material life above all other things.   It is commonly argued that the French state’s choice of headscarves as the religious symbol to target is born of racism and imperial mores. Returning to Foucault, he argues that racism is a natural result of the biopower of making live and letting die so far discussed.[9] The state racialises groups within the human ‘species’ which allows it to leave some ‘inferior’ subspecies to die or be dominated, with the ultimate aim of strengthening the overall population. I argue that this is not the case in the veiling debate. Rather than dehumanising Muslim girls so as to abandon them to oppression and subordination, the French government is instead trying to force them up from the family  level of identity to a universal  French republican level of identity. It is trying to strengthen the republic as a whole by integrating  everyone rather than excluding  some.   The anthropologist André Iteanu demonstrates that banlieue  Muslim girls, who are at the heart of the veiling discourse, actually do better than the boys at school, losing their accent more easily and integrating more into the urban world of work.[10] He suggests that their Islamic revival and return to veiling has arisen not because they feel excluded from wider French society, but in fact because they feel comfortable in this context and able to express themselves and their religious identity. Another anthropologist of secularism, Mayanthi Fernando, described Muslim French youth, second- or third-generation immigrants committed to citizenship and gaining academic qualifications beyond the Baccalauréat (taken at the same age as A levels), in such a way as to support this picture.[11] Iteanu suggests that the predominantly North African immigrant communities of the banlieues , low-status as they may be in mainstream French society, are relatively free from state influence, as police are less present or effective with them than with other groups. However, this freedom is reliant on the banlieusards ( banlieue -dwellers) accepting a subordinate position.[12] The French state banning headscarves in school may be an expression of discomfort and insecurity at the fact that socially devalued girls are managing to achieve by its own measure of success—the Baccalauréat—even as they also embrace religious values in wearing the veil.   The anthropologist Didier Fassin (2006) suggests that this is a kind of racism without race. It culturalises biological difference so that it can be presented in a form more palatable to a nation that thinks of itself as egalitarian—a clash of Muslim family values versus laïque French society, rather than brown versus white.[13] While biopolitics’ racist method of biologically constructing an Other is irreversible, ‘culture’ is allegedly something one can be integrated into or out of. This explains a French state policy which seems to be at best hypocritical and at worst foolhardy. The state simultaneously legislates to keep individual Muslim signs out of its institutions and  to integrate Islam into its institutions, for example by giving it a Sunday morning slot on the French Two television station. The French state is trying not to force out  the banlieue  Muslim population, but to force it into  the ‘family’ of   the nation state. Muslim identity is acceptable when it is subordinate to French identity, and so an institutionalised religion which one picks up as a hobby, or listens to on the radio on Sundays, is no threat. What is a threat is a hierarchy of values where one’s duty to (Muslim) family comes first. The French state has read this prioritisation of values into Muslim girls choosing to wear the headscarf to school.   Iteanu demonstrates this link between values and hierarchy by proposing that values necessarily imply hierarchy, as one thing is valorised over another.[14] He argues that this idea of hierarchy is unpopular in Euro-America and so the link between the two is concealed in an ‘ideological twist’.[15] In fact, there is an ideological twist at the heart of laïcité , and this mystification explains why the French mainstream appears incapable of seeing the ludicrousness of the claim that children’s clothing threatens the nature of the French state. Underlying the debate, I argue, is an assumption that state values of secularism come into conflict with family values of religious duty, along with state insecurity about the hierarchy of values being established with state below family. Such insecurity leads the state to assert itself by, for example, banning the veil in public schools. All the while, it has to reject the idea that there is a hierarchy or even an alternative source of identity for citizens to itself, as this would threaten the claim of the unity of French society.   It is perhaps hard for a non-French person to understand how deeply this desire for unity runs. As an example, the historian Camille Robcis argues that both sides in the French debates over legalising same-sex marriage drew on this ideological notion to support their argument. The ‘anti’ side argued that writing into law the legality of gay relationships reified difference, thus hurting unity. The ‘pro’ side argued that not allowing gay marriage singled out a group and reified difference thus hurting unity.[16] The French republican ideological project cannot openly acknowledge that there is a threat to its internal one-ness.   Iteanu draws parallels between the debate over giving the women the vote and the headscarf debate. Formerly, the state argued that women couldn’t have the vote, not because of a lesser humanity, but because they were not as educated as men, which meant their choice of their vote might be swayed by their husband or priest.[17] The anxiety at the core of this position is that the private sphere would invade the public sphere which people enter when they vote, causing them to become ‘occasional politicians’, in Weber’s words.[18] In the case of the veil, the state’s argument is that Muslim women are not rationally fit to be French citizens because they subscribe to dogma and are spiritually and materially (in terms of their clothes) controlled by their families. The state’s designation of the headscarf as a religious symbol is about psychological as well as visible differences. It assumes that Muslim women desire to wear the headscarf and so to belong to a particular system of values. The state conceals the fact that it is attempting to place its own values higher in this perceived hierarchy by labelling the debate as one about égalité  (equality) and rescuing oppressed women. Herein lies the ideological twist.   Why the veil particularly? As one anthropologist joked to me: when in doubt, use Foucault. Foucault’s expansive theorising on state power includes a version of power premised on discipline, which works on the individual body and can coexist with a biopolitics focussed on controlling the population.[19] I argue this disciplinary kind of control better explains the veil situation, a conflict in which the French state has essentially taken against an embodied sign (the veil) and required individuals to change how they use their body as a result.   Fernando highlights the small scale of the issue at Jean Nouvel school, where there were around 20 veiled girls in a school of a thousand people. With only 20 bodies to remember and control, a girl called Nawel was repeatedly targeted, with or without her veil, because her name was remembered.[20] Iteanu argues that as conversion is treated by the state as an individual choice, the punishment can be individual. Indeed, the state had to view the banning of the veil in public schools as bodily discipline rather than spiritual control, as the latter would breach the principles of laïcité .[21] Asad builds on this by suggesting that the debate essentially boiled down to a misunderstanding of religious signs.[22] The state saw wearing the veil as merely a choice to demonstrate belonging to a community, while Muslims saw it as a duty  to God and to their families. The state took a material sign and tried to assume a transcendent, familial meaning behind it, a choice to belong to one community more than the French national community.   Furthermore, Foucault argues that discipline and biopower as two forms of power overlap in the case of sexuality, something highly relevant in the case of the veil. Foucault suggests that sexuality is the meeting of biopolitics and discipline because it combines both population-wide focuses on fertility and reproduction, and individual focuses on the body and its experience of pleasure.[23] While the biological focus is not there in the case of the veil, there is a combination of two different scales of approach. Sometimes the state’s discourse zooms in on individual Muslim women’s bodies, allegedly constrained in their sexuality by being forced to veil by family. Sometimes it zooms out to the privatisation of sexuality through the covering of hair and body, considering this a threat to the concept of a sexually free, rational French citizenry. On the one hand, Nawel was told by a teacher not to cover her ‘beautiful hair’, in a comment on her individual beauty and attractiveness perhaps intended to boost her confidence and empower her to free her sexuality from her male family’s control (a caricature of Nawel’s actual motivations for wearing the veil).[24] On the other hand, we can connect the conversation around sexuality, as does Iteanu, to a broader pattern of French politicians being almost expected to have affairs, and to chastity being distinctly un-French. Iteanu uses the example of Rachida Dati, a highly significant French politician of North African heritage. Dati garnered a frenzy of popular interest when she announced her pregnancy but would not say who the father was.[25] Iteanu proposes that the French tabloids were ecstatic to see Dati, a woman who grew up in a conservative Muslim home, choosing a supposedly French ‘free’ sexuality over family rules. The veiling debate reveals an interest in sexuality both at the level of the individual body and in broader conceptions of French identity.   A final remark is necessary on the risks of reifying the concept of the ‘state’. I suggest that a more productive route is to follow the sociologist Philip Abrams’ logic of the state being an incredibly powerful idea, rather than a concrete object. Much discussion of family in relation to the state assumes the existence of a state that its values can clash with. In fact, the state is a ‘unified symbol of actual disunity’, something very evident in the headscarf debate.[26] For example, the argument that conflict over the veil emerges from complex colonial relationships implies that, before colonialism, the French Republic was unified in its identity. In fact, ‘France’ as an imagined community is very new. In 1794, only 11% of people living in its territory spoke French as a first language, which implies provincial identity was a much more powerful source of belonging than the nation.[27] One was, say, Basque, rather than French. Even the idea of laïcité , treated by the French as a cornerstone of their history, was not legally enshrined as a term until the 1946 constitution.[28] The state considers itself ancient and unified, despite all the historical evidence to the contrary. Bowen suggests that the French state idea emphasises ‘continuity over rupture’, assuming universal, historical French values such as laïcité  so that so-called private—familial, religious—values can be treated as new impositions on a unified whole. The debate is therefore constructed as ‘Muslim communities versus[29] the State’—’State’, that is, with a capital ‘S’, reified in its institutions, in this case the education sector. In fact, if the state exists, it is as a series of interwoven ministries and people and ideas, all of which cannot be expected to be ideologically cohesive. In the case of the headscarf, for example, the Education League, the largest teachers’ body, with two million members, opposed  the 2004 law.[30] Conversely, we cannot homogenise ‘Muslim community’ as holding one driving ideology.   It may be too obvious a point that the three and a half million Muslims living in France are not unified in their position on the headscarf. First-generation immigrants encourage their children and grandchildren to pursue integration and financial success, while those in the younger generation criticise their parents for being ‘bad’ Muslims.[31] Bringing the family into an exploration of the construction of a state idea lets us examine essentialised categories and expose the lie of unity in the state. In this way, an ethnographic focus on families allows a deeper examination of the public– private sphere binary, and of the insecurities and falsities that such distinctions attempt to cover up. Mary Osborne   Mary Osborne is a second-year undergraduate in Human, Social, and Political Sciences at Christ's College, Cambridge, specialising in Sociology and Social Anthropology. She is particularly interested in the anthropology of ethics, sexuality, and intellectual disability, and hopes to pursue postgraduate research in the anthropology of disability after she graduates in 2022. [1] Mayanthi Fernando, The Republic Unsettled: Muslim French and the Contradicitions of Secularism  (Duke University Press 2014) 7. [2] ibid 16. [3] John R Bowen, Why The French Don’t Like Headscarves: Islam, the State and Public Space  (first published 2006, Princeton University Press 2010) 21. [4] Michel Foucault, The Foucault Effect: Studies in Governmentality  (University of Chicago Press 1991) 100. [5] Michel Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975–1976  (Mauro Bertani and Alessandro Fontana eds, David Macey tr,   Penguin 2004) 241. [6] ibid. [7] Talal Asad, ‘French Secularism and the “Islamic Veil Affair”’ (2006) Spring/Summer 2006 The Hedgehog Review 94. [8] Bowen (n 3) 11. [9] Foucault (n 5) 254. [10] André Iteanu, ‘The Two Conceptions of Value’ (2013) 3(1) HAU Journal of Ethnographic Theory 165. [11] Fernando (n 1) 13. [12] Iteanu (n 10) 166. [13] As cited in Fernando (n 1) 17. [14] Iteanu (n 10) 156. [15] ibid. [16] Camille Robcis, The Law of Kinship: Anthropology, Psychoanalysis, and the Family in France  (Cornell University Press 2013). [17] ibid 167. [18] Max Weber, The Vocation Lectures  (David Owen and Tracy B Strong eds, Rodney Livingstone tr, Hackett Publishing Company Inc 2004) 39. [19] Foucault (n 5) 242. [20] Fernando (n 1) 3. [21] Iteanu (n 10) 166. [22] Asad (n 7) 98. [23] Foucault (n 5) 252. [24] Iteanu (n 10) 167. [25] ibid 167. [26] Philip Abrams, ‘Notes on the Difficulty of Studying the State’ in Aradhana Sharma and Akhil Gupta (eds), The Anthropology of the State: A Reader  (Blackwell Publishing 2006) 124. [27] Fernando (n 1) 9. [28] Bowen (n 3) 31. [29] ibid 14. [30] Fernando (n 1) 8. [31] Iteanu (n 10) 165.

A recent study in the United States indicated that the rate of Americans identifying themselves using political terms has almost doubled in the past five years.[1] This article considers whether this shift towards stronger political identities is indicative of a wider polarisation in Western politics which is, in turn, creating a space for more autocratic decision-making.   The study, carried out by Nick Rogers and Jason Jones, analysed a random sample of Twitter bios (ie the 160 characters you use to describe yourself) for explicit and implicit political keywords. Explicit words included the terms ‘conservative’, ‘Democrat’, and ‘socialist’ and implicit political terms included ‘woke’ and ‘blue lives matter’. The aim of the study was to measure the extent to which Americans are defining themselves by political affiliations and whether they are changing their identity in a way that saliently incorporates their politics.   According to Rogers and Jones, an individual’s identity goes beyond mere attitudes and behaviour: it is the all-encompassing sense of self that informs attitudes and behaviour.   Whilst identity politics may be slightly less prevalent in the UK than in the US, the rise of political engagement throughout the Western world is undeniable. Despite the restrictions imposed on the Presidential campaigns as a result of COVID-19, the US elections saw the highest rate of voter turnout for 120 years. Similarly, for the 2019 UK elections, voter turnout was at its second highest rate since the landslide 1997 election of Tony Blair.   Arguably, this rise in political engagement has brought with it a shift towards increasingly polarised political groups. Jones and Rogers explain this as tribalism: fostering ingroup pride and outgroup animosity. In a political context, studies show that ‘deliberation tends to move groups, and the individuals who compose them, towards a more extreme point in the direction indicated by their own predeliberation’.[2] It was certainly true that in the aftermath of the US election, which saw a swathe of Republican devotees (accompanied by a number of alt-right political activists) march on the Capitol, they demonstrated an almost cultish commitment to their political ideals. Their actions marked an unprecedented assault on modern US democracy and were indicative of the strength of support held across America for its former autocratic leader.   As Jones and Rogers point out, if people define themselves increasingly by their political allegiances, ‘their feelings towards political “others” can be expected to become more negative, and debate on matters of policy will become more emotional and intractable’. Traditional methods of political persuasion may cease to be of use as changing someone’s mind on a particular issue requires ‘an adjustment to an entire sense of group identity’.[3]   The rise in autocratic leadership   COVID-19   Arguably the polarisation of political views, most marked recently in the US but also of course seen in the UK in relation to Brexit, enables autocratic leadership to flourish.   The model of representative politics, adopted by liberal democracies, generally requires the government of the day to place legislation before an elected body of representatives for debate. In this way, legislation has the opportunity to be shaped by representatives of the broader electorate rather than purely the Party in power. This model facilitates political oversight and encourages moderation through compromise. Political parties in the UK have often been accused of all seeking to occupy the centre ground: all endeavouring to strike the perfect balance between conservatism and liberalism. This is no coincidence. Decision-making, in a liberal democracy underpinned by representative politics, requires consensus.   As Lord Sumption notes elsewhere in this issue, there has been a shift away from liberal democracy towards authoritarian government. He identified the Brexit referendum as a turning point for modern representative politics in the UK. Noting the use of referendums by some of the notorious autocrats (including Putin, Mussolini, and Hitler) he explains that they undermine the system of representative politics on which a liberal democracy is based by preventing it from accommodating differences among the electorate on incredibly divisive issues. The natural consequence of this, according to Lord Sumption, is the election of a government with a strong authoritarian streak.   Recent efforts by the government to expand the remits of executive power can be viewed as a manifestation of this trait. It is widely recognised that during periods of uncertainty the electorate looks for strength and stability from its leadership. Indeed, a US study in 2016—in the run up to Donald Trump’s election—showed that 40% of Americans favoured authority, obedience and uniformity over freedom, independence and diversity.[4] Similar trends are visible in relation to the handling of Brexit and the pandemic in the UK. The 2019 Conservative Party manifesto depicted the UK as ‘paralysed by a broken Parliament’ and one of the most commonly cited reasons for supporting the Conservative Party was the promise that, by hook or by crook, Boris Johnson would ‘Get Brexit Done’.[5] Until recently (with the rise of protests concerning the ongoing restrictions), the public have willingly ceded their individual rights in favour of decisive leadership and the government’s autocratic tactics for handling this pandemic have largely gone unchallenged.   Since March 2020, the government has laid approximately 415 pieces of coronavirus-related legislation at an average rate of seven statutory instruments per week. Only 26 of these statutory instruments have been laid before Parliament in draft form.[6] The government has relied on the use of statutory instruments (rather than primary legislation) to govern by Ministerial decree. The primary legislation underpinning the coronavirus regulations is the Public Health (Control of Disease) Act 1984. Under section 45R of this Act, Government can dispense with the obligation to obtain Parliamentary approval for regulations if the regulations ‘contain a declaration that the person making it is of the opinion that, by reason of urgency, it is necessary to make the order without a draft being so laid and approved’ . [7] The advantage of this method of legislating is that the regulations can be enacted without delay. In the early days of the pandemic, Government scrambled to enact the Coronavirus Act 2020. The legislation passed through Parliament at breakneck speed but there was, at least, a forum for debate. The same does not apply to the social distancing or lockdown regulations which have, to date, been governed by statutory instruments. Whilst the section 45R urgency justification was entirely plausible at the outset of the pandemic, its continued use undermines Parliamentary sovereignty.   Despite the fact that a number of these statutory instruments have imposed unprecedented restrictions on our personal freedom, with criminal sanctions for breaching the restrictions, the legislation has regularly been published only hours before coming into force.[8] On at least one occasion, legislation was laid after Parliament was no longer in session, despite having been announced in the media several weeks earlier. Legally curious fans of Channel 4’s It’s a Sin  might have noted that the same primary legislation used by that government to issue decrees for the detention of young AIDS sufferers is now enabling the imposition of urgent legislation authorising our detention. Whilst generally the UK population seems to accept the need for such unprecedented restrictions on their freedoms given the health crisis, there remains significant unease regarding Government’s dismissive attitude towards Parliament. The Coronavirus regulations are detailed and complex statutory instruments that warrant considered analysis and parliamentary scrutiny. Parliamentary scrutiny has the dual advantage of requiring the relevant Ministers to prepare for a debate, and in doing so often alerting them to potential shortcomings with the legislation, as well as providing Members of Parliament with the opportunity to point out loopholes or potential consequences that were not immediately apparent to the Minister responsible for drafting the legislation. This process is widely believed to enhance legislation.   Curbing judicial powers   The barrister Adam Wagner recently noted that, ‘the easier it is for freedoms to be taken away, the greater the temptation to limit them again in the future’.[9] This observation may in part explain the gathering momentum behind the expansion of executive power beyond pandemic related legislation.   During the course of the past six months, the government has launched the Independent Review of Administrative Law (IRAL), to conduct a review into the workings of judicial review, the Independent Human Rights Act Review (IHRAR), to consider whether the Act is working in practice and has also now hinted that it will consider reviewing the judicial appointments process. Whilst the decision to commission both the IRAL and IHRAR already constituted red flags as to the government’s direction of travel regarding constitutional law reform, its response to the IRAL panel’s report (the Faulks Report) is even more concerning. It was notable that Robert Buckland described the consultation launched in response to the Faulks Report as a ‘once in a generation opportunity’ to broaden the conversation.[10] This explanation seems a little far-fetched given that the last government consultation of judicial review was conducted in 2013. A more plausible explanation is that the government is seeking to capitalise on the political momentum it has gathered through its recent spate of autocratic decision-making. Although both reviews were alluded to in the Conservative Party’s election manifesto for the 2019 election, the government’s efforts to push through reform at ‘breakneck speed’ have been widely remarked upon.   The Foreword to the government’s consultation stated that ‘[t]he Panel’s analysis identified a growing tendency for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction’ and that ‘the panel found courts were increasingly considering the merits of government decisions themselves, instead of how those decisions were made—moving beyond the remit of judicial review’.[11] Panel members have vocalised their concerns regarding the government interpretation of the Faulks Report with Lord Faulks himself confirming, on the Law in Action podcast, that he did not believe this was an accurate representation of the panel’s findings. He explained, ‘I think we found that there were one or two cases which we particularly pointed out where there was considerable tension between what was legitimate to be considered by the courts and what was really a matter of politics. But those were particular cases. We do not think that there was an overall trend that you could extract from those cases’.[12] The government consultation goes well beyond the Faulks Report’s recommendations, proposing reforms to the use of ouster clauses (to broaden their use and thereby limit the justiciability of decisions by the courts) and mandatory remedies that would significantly restrict the court’s ability to declare a government decision null and void.   The IHRAR panel has been tasked with considering the application of the European Convention of Human Rights (the Convention Rights) under UK law and, amongst other things, whether the courts should retain the power to interpret legislation compatibly with Convention Rights under section 3 of the Human Rights Act 1998 (the HRA). The government’s position is that the courts have a tendency to interpret legislation in a manner inconsistent with the intentions of Parliament in enacting the legislation. If section 4 declarations of incompatibility were a first instance consideration, rather than the interpretative powers used by the courts under section 3 of the HRA, it would severely hamper an individual’s access to a remedy. Mishcon de Reya’s data analysis of cases involving the HRA indicates that the average lag between a declaration of incompatibility being issued and the relevant legislation being amended or repealed is 17 months.[13] Any amendment, following a declaration under section 4 of the HRA, relies on Government making time for the issue to be considered in the legislative agenda. This would impose a significant legislative burden whilst hamstringing the court’s ability to provide individuals with a timely remedy.   Whilst, as yet, no consultation has been officially announced, Robert Buckland’s speech at Queen Mary University on 25 March 2021 gave some insight into the next administrative law issue on the government’s agenda. In February, the think tank Policy Exchange published a report titled ‘Reforming the Lord Chancellor’s Role in Senior Judicial Appointments’ which proposes reforms to the current judicial appointments system so as to grant the Lord Chancellor a greater role in determining senior judicial appointments.[14] In his speech, Robert Buckland expressed his intent to examine the role of Lord Chancellor in the context of the Constitutional Reform Act 2005. He referred to strands of reform surrounding judicial appointments that are worth examining to ensure that they ‘continue to provide the appropriate framework for the Lord Chancellor to exercise their duties in respect of our constitutional arrangements’.[15] This topic has been hotly debated in the UK in the past, not least because of the very real fear of moving towards a more political US-style system.   Following the 2018 Supreme Court decision concerning the incompatibility of Northern Irish abortion laws with Convention Rights, it was proposed that a parliamentary committee should play a role in the appointment process for the Supreme Court. Under the current judicial appointment process, judicial appointments are made by a commission, chaired by the President of the Supreme Court and including representatives of the Judicial Appointments Commissions of England and Wales, Scotland and Northern Ireland, at least one of whom must be a lay member. In fact, the Judicial Appointments Commission for England and Wales comprises a 50/50 balance of judicial members and lay members. Rightly, according to Lord Pannick, whilst ‘[s]ome candidates for Supreme Court appointment take (in broad terms) a more expansive approach to judicial protection of human rights, and others less so’ these factors are not ‘the subject of public discussion’.17 The constitution of the commission does, however, mean that those responsible for approving appointments to our high courts have a diverse professional background. Lord Pannick notes the potential perils of a political system, reflected by the experiences of the US: ‘The unsurprising reality, as Senate experience over the past 30 years has shown, is that the involvement of politicians in the appointment of Supreme Court judges results in political motives and considerations playing the primary role in the process’.[16] Any efforts to incorporate a political element into this decision-making process has the potential to disrupt the balance of the entire British constitution: removing the guarantee of judicial political independence that is essential to maintaining the separation of powers that protects the rule of law.   What can be learnt from the current political situation in Poland?   Since the fall of Communism in Poland in 1989, the country has shown impressive economic growth, record lows of unemployment and strong wages. As a result, it has become an increasingly popular prospect for international investment, with a number of US companies establishing headquarters there during the past decade. However, since the return to power of the Law and Justice party (PiS) in 2015, the Polish judiciary has been the target of policy and legislative amendments leaving it vulnerable to political influence.   Reforms include politicising the appointment of the First President of the Supreme Court (the equivalent of our President of the Supreme Court) and restrictions on legal challenges to judicial and constitutional bodies as well as law enforcement agencies. The Index of Economic Freedom showed that judicial effectiveness had dropped to 42.8 points in 2020 which places it in the ‘repressed’ category, over 15 points lower than its score in 2017.[17] This is severely impacting on the country’s ability to attract foreign investment.   It is impossible not to note here that PiS was founded under the banner of nationalism, populism and Euroscepticism: these are of course all themes that have featured, to varying degrees, in recent Conservative manifestos in the UK (and formed the basis of 2016’s Leave campaign).   According to the European Commission, ‘effective judicial institutions that uphold the rule of law have been identified as having a positive economic impact. Where judicial systems guarantee the enforcement of rights, creditors are more likely to lend, businesses are dissuaded from opportunistic behaviour, transaction costs are reduced and innovative businesses are more likely to invest’.[18] Interestingly, this sentiment has been expressed repeatedly in response to the IHRAR consultation. Respondents have expressed concern in relation to the government’s efforts to row back from its commitments to Convention Rights and limit the powers of the UK judiciary, which is widely respected across the world, to interpret legislation and provide adequate protection for Convention Rights.   The expansion of executive power in Poland has seen a surge in the number of protests in the country, recently resulting in the enactment of laws restricting freedom of assembly. Advocacy groups have identified a trend amongst governments with authoritarian tendencies using the pandemic to weaken democratic standards: in particular, in relation to freedom of association and the independence of the courts. According to a 2020 survey, only 34% of the public and 27% of businesses trust the independence of the Polish judiciary.[19]   Indeed, only last year it was noted that ‘the surge of populist far-right in central and eastern Europe has meant repression which seemed unlikely just a few years ago is slowly appearing’.[20] In Poland, this has taken the form of the imposition of an outright ban on abortion and political harassment of LGBTQ groups and individuals. In a deeply concerning move towards the end of last year, the Polish state-run oil company, PKN Orlen, purchased one of the country’s private media outlets—Polska Press—with a readership of 11 million Poles per day.   Clearly, the expansion of executive power, partly through proposed judicial reforms, in the UK does not exactly align with the situation in Poland. The UK remains politically and democratically stable. However, the political situation in Poland gives cause to consider the possible consequences of constitutional reforms. Over the past year we have accepted unprecedented restrictions on our personal freedom and the current proposals, which seek to limit an individual’s ability to challenge Government decisions, should be viewed through this lens and with extreme caution.   Conclusion   The division fostered by autocratic decision-making has been particularly evident in Poland, the US and the UK. Indeed, Mikołaj Łoziński, a Polish author, observed last year that ‘No one is surprised anymore by the sight of nationalists marching with torches, throwing flares on the main streets of major Polish cities’.[21] The same is true in many cities across the US, and in recent months the UK has seen a sharp rise in the number of violent protests, primarily in relation to the ongoing lockdown restrictions.   The political situation in Poland demonstrates how quickly a liberal democracy can slip towards authoritarian rule and the impact that this instability has on foreign investment and the protection of individual rights.   However, PiS’s transition towards autocratic governance has not passed unnoticed. Concerns regarding the protection of LGBTQ rights and the independence of its judiciary have been the subject of significant media attention and the European Union is considering steps to restrict Poland’s access to European funds until an independent judiciary is restored. With a moderate President in the White House, PiS (which counted Trump as an ally) will doubtless be feeling more vulnerable in the face of the criticism of its European neighbours. Equally, Trump’s appointment of two Supreme Court justices during his single Presidential term shows the potential peril in allowing too much political influence over judicial appointments. In light of this we must all view attempts to tinker with the constitutional arrangements here in the UK with caution—particularly those aimed at providing more power to the executive at the expense of the judiciary. Emily Nicholson and Alexandra Agnew   Emily Nicholson is a Legal Director at Mishcon de Reya. She acted for Gina Miller in her successful constitutional judicial review cases concerning the Prime Minister's prorogation of Parliament.   Alexandra Agnew is an Associate at Mishcon de Reya. She has recently advised the Jewish Labour Movement in relation to its submissions to the Equality and Human Rights Commission on Labour Party antisemitism. [1] Nick Rogers and Jason J Jones, ‘Using Twitter Bios to Measure Changes in Self-Identity: Are Americans Defining Themselves More Politically Over Time?’ (2021) 2(1) Journal of Social Computing < https://ieeexplore.ieee.org/document/9355032 > accessed 20 April 2021. [2] Cass R Sunstein, ‘The law of group polarization’ (2002) 10(2) Journal of Political Philosophy 175 (as cited in ibid). [3] Rogers and Jones (n 1). [4] Matthew C MacWilliams, ‘Trump Is an Authoritarian. So Are Millions of Americans’ ( Politico , 23 September 2020) < https://www.politico.com/news/magazine/2020/09/23/trump-america-authoritarianism-420681 > accessed 20 April 2021. [5] See ‘The 2019 Party Election Manifestos and the European Union’ ( European & International Analysts Group ) < https://www.eiag.org.uk/paper/2019-party-election-manifestos-european-union/ > accessed 20 April 2021 [6] Hansard Society, ‘Coronavirus Statutory Instruments Dashboard’ (9 April 2020) < https://www.hansardsociety.org.uk/publications/data/coronavirus-statutory-instruments-dashboard > accessed 20 April 2021. [7] Public Health (Control of Disease) Act 1984 s 45R. [8] Meg Russell and Lisa James, ‘MPs Are Right: Parliament Has Been Sidelined’ ( UK in a Changing Europe , 28 September 2020) < https://ukandeu.ac.uk/mps-are-right-parliament-has-been-sidelined/ > accessed 20 April 2021. [9] Adam Wagner, ‘Taking Liberties: Covid-19 and the Anatomy of a Constitutional Catastrophe’ ( Prospect Magazine , 26 March 2021) < https://www.prospectmagazine.co.uk/essays/adam-wagner-covid-lockdown-law-democracy-essay > accessed 20 April 2021. [10] Eduardo Reyes, ‘Buckland’s Judicial Power Project’ ( Law Gazette , 29 March 2021) < https://www.lawgazette.co.uk/analysis/bucklands-judicial-power-project/5107951.article > accessed 20 April 2021. [11] Ministry of Justice, ‘Judicial Review Reform: The Government Response to the Independent Review of Administrative Law’ (2021) < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/975301/judicial-review-reform-consultation-document.pdf > accessed 20 April 2021. [12] Joshua Rozenberg, Interview with Lord Faulks ( BBC , 23 March 2021) < https://www.bbc.co.uk/programmes/m000td1g > accessed 20 April 2021. [13] Mishcon de Reya, ‘Response to IHRAR’ < https://www.mishcon.com/assets/managed/docs/downloads/doc_3246/Response%20to%20IHRAR.pdf > accessed 20 April 2021. [14] Richard Ekins and Graham Gee, ‘Reforming the Lord Chancellor’s Role in Senior Judicial Appointments’ ( Policy Exchange , 2021) < https://policyexchange.org.uk/wp-content/uploads/Reforming-the-Lord-Chancellor’s-Role-in-Senior-Judicial-Appointments.pdf > accessed 20 April 2021. [15] Ministry of Justice and The Rt Hon Robert Buckland KC, ‘Law and Politics – the Nightmare and the Noble Dream’ ( Queen Mary University Conference, London , 25 March 2021) < https://www.gov.uk/government/speeches/lord-chancellors-speech-law-and-politics-the-nightmare-and-the-noble-dream > accessed 20 April 2021. [16] David Pannick, ‘Brett Kavanaugh Scandal: a Supreme Case of Why Politics Must Stay Out of Judicial Appointments’ The Times (London, 27 September 2018) < https://www.thetimes.co.uk/article/brett-kavanaugh-scandal-a-supreme-case-of-why-politics-must-stay-out-of-judicial-appointments-bdz8m67k6 > accessed 20 April 2021. [17] ‘Index of Economic Freedom’ ( heritage.org ) < https://www.heritage.org/index/visualize?cnts=poland&type=11 > accessed 20 April 2021. [18] European Commission, ‘2020 EU Justice Scoreboard’ (10 July 2020) 5 < https://eur-lex.europa.eu/legal-content/EN/TXT/ PDF/?uri=CELEX:52020DC0306&from=EN > accessed 20 April 2021. [19] Economist Intelligence Unit (EIU) Country Forecasts, ‘Outlook for 2021-2025: Political Stability’ (2021). [20] Rima Marrouch, ‘Going Nowhere: Europe’s Right-wing Populists Will Survive the End of Trump’ The Independent  (London, 29 December 2020) < https://www.independent.co.uk/news/world/europe-trump-populism-poland-hungary-b1780027.html > accessed 20 April 2021. [21] ibid.

Elizabeth Susan Wahl suggests that during the eighteenth century, homosexual relations between women became an ‘open secret’ that was ‘embedded and even coded within a multiplicity of … medical, literary, and pornographic discourses’.[1] In Coleridge’s Christabel , the homosexual relations between Geraldine and Christabel are ‘embedded’ within the literal ‘bed’ of consummation. It is in this ‘bed’ that the ‘secret’ of homoerotic desire becomes ‘open’ to the reader. However, whilst Coleridge allows the reader inclusion to the ‘open secret’ of homosexual relations, it remains just that, a secret.   Eve Kosofsky Sedgwick in her essay ‘Epistemology of the closet’ names this idea of ‘secret’ homosexuality ‘the closet’. The concept of ‘the closet’ delineates a social construct of homosexual repression which subjugates and conceals homosexual instincts. The image of a ‘closet’ is an apt metaphor as a literal closet conceals items of clothing, removing them from sight with a physical surrounding structure. Sedgwick applies this literal structure to the social structure of homosexual repression, stating: ‘The closet is the defining structure for gay oppression in this century’.[2] However, examining Coleridge’s eighteenth-century poem Christabel  and its homoerotic undertones suggests that the figurative ‘closet’ is applicable not only ‘in this century’. In Christabel , Coleridge presents an alternative item of furniture, the ‘bed’, that ironically serves to produce an antithetical effect. Whilst Sedgwick’s ‘closet’ serves to repress homosexual transgressions, the ‘bed’ Christabel shares with Geraldine actively brings these repressive and subconscious impulses to fruition. The ‘bed’ is therefore the ‘closet’ Christabel enters unknowingly. Entering the bed sparks her sexual awakening and acts as a catalyst for her homoerotic desires, juxtaposing the function of the ‘closet’ in which an individual knowledgeable of their homoerotic desires must repress them.   And thus the lofty lady spake— ‘All they who live in the upper sky, Do love you, holy Christabel! And you love them, and for their sake And for the good which me befel, Even I in my degree will try, Fair maiden, to requite you well. But now unrobe yourself; for I Must pray, ere yet in bed I lie’.   Quoth Christabel, So let it be! And as the lady bade, did she. Her gentle limbs did she undress, And lay down in her loveliness.[3]   The rhyming couplet of ‘I’ and ‘lie’ at the conclusion of the stanza disrupts the ABCACBC rhyme scheme and attracts the reader’s attention to the rhyming relation between the personal pronoun ‘I’ and the intransitive verb ‘lie’. (‘But now unrobe yourself; for I / Must pray, ere yet in bed I lie’.) The stanza takes the form of Geraldine’s direct speech, meaning the ‘I’ is in reference to herself and the ‘lie’ is in reference to the ‘bed’ in which she will ‘lie’. The syntax ensures that the word ‘I’ visually surrounds ‘lie’ both atop and preceding, forcing the reader to associate the ‘bed’ with the image of Geraldine lying on it. This image of Geraldine following her imperative speech ‘But now unrobe yourself’ gives the bed sexual connotations, as the reader becomes aware that the ‘unrobe(d)’ Christabel and Geraldine will ‘lie’ in ‘bed’ together. The imperative but flattering rhetoric of Geraldine ‘Fair maiden, to requite you well. / But now unrobe yourself’, where ‘fair maiden’ and ‘unrobe yourself’ are in close conjunction, leads the reader to suspect that the impending relations within the ‘bed’ may not be platonic. Whether Christabel herself is aware of the suggestive nature of Geraldine’s rhetoric is unclear, but her exclamatory ‘So let it be!’ implies her eager responsiveness and unchallenging coercion to Geraldine’s commands.   Sedgwick notes the conceptual inseparability between knowledge and sex, suggesting that ‘ignorance’ becomes ‘sexual ignorance’. The ‘wide eye’ trope the poem associates with Christabel within the narrative ‘her fair large eyes ‘gan glitter bright’ and ‘raised to heaven her eyes so blue’ implies her innocence and thus lack of ‘sexual knowledge’ to the reader. The reader, according to Sedgwick, is therefore placed in a position of power. ‘The position of those who think they know something about one that one may not know oneself is an excited and empowered one’.[4] The combining suggestive factors of Geraldine’s rhetoric forewarn homosexual relations within the ‘bed’ that Christabel seems ‘sexually ignorant’ to. If the now sexually charged ‘bed’ acts as a symbol for Christabel’s homoerotic sexual awakening, the ease of her coercion to ‘undress’ and ‘lay down in her loveliness’ by an unknown woman advocates an already present but subconscious sexually transgressive desire, meaning despite her ‘sexual ignorance’ the ‘bed’ is able to awaken this desire within her.   But through her brain of weal and woe So many thoughts moved to and fro, That vain it were her lids to close; So half-way from the bed she rose, And on her elbow did recline To look at the lady Geraldine.   Beneath the lamp the lady bowed, And slowly rolled her eyes around; Then drawing in her breath aloud, Like one that shuddered, she unbound The cincture from beneath her breast: Her silken robe, and inner vest, Dropt to her feet, and full in view, Behold! her bosom and half her side— A sight to dream of, not to tell! O shield her! shield sweet Christabel!   A volta occurs when Christabel becomes active in the sexual exchange, warning the reader to her sexual awakening: ‘So half-way from the bed she rose, / and on her elbow did recline, / To look at the lady Geraldine’. Christabel begins to observe Geraldine through the male gaze in place of being the one observed, the disruption of the poem’s prosody by the spondaic foot ‘To look’ disrupts the readers iambic meter and focuses on the observational quality of the rhetoric. This volta, Christabel’s interest in observing Geraldine’s form, occurs once she physically places herself on the bed: ‘So half-way from the bed she rose’. The ‘bed’ thus acts as a catalytic symbol for the emergence of sexual awakening, bringing forth the sexual desires of Christabel, not repressing them as Sedgwick’s ‘closet’. The effect is not immediate however, with the compound ‘half-way’ suggesting a transition between ‘sexual ignorance’ and ‘sexual knowledge’.   Sedgwick’s ‘closet’ does become relevant however once Christabel’s homosexual yearnings are brought to fruition. The final stanza deconstructs the female anatomical form—‘eyes’, ‘breast’, ‘feet’, ‘bosom’—whilst employing plosive alliterative ‘b’s, rhyming couplets, and the continuing bounding iambic tetrameter to accelerate the readerly experience of the stanza. The repeated female anatomical language and hastening readerly tempo mimics Christabel’s visual digestion of the female form and subsequent overwhelming sexual desire. The consequent acceleration bounds the reader towards the poetic climax, mimicking in the prosody the acceleration towards Christabel’s sexual climax. The deconstruction of the female form insists that the female body is viewed through the male gaze, despite the lack of any male presence. The newly discovered ‘sexual knowledge’ of Christabel as a result of the sexually charged ‘bed’ insists an entry into patriarchal attitudes towards the female body as a sex object. Coleridge’s text further suggests that this sexualised attitude of the male gaze is corrupting to the feminine and virginal ‘sweet Christabel’, who must be ‘shield(ed)’ from sexual discovery.   Despite this, Christabel’s sexual desire becomes evident through exclamatory language: ‘Behold! her bosom and half her side’. This connotes exuberance, and the plosive alliterative ‘B’ of ‘Behold’ couples this exuberance with the ‘bosom’ of Christabel’s female counterpart. Now that Christabel’s sexual desires are plain, being brought to the forefront by the catalytic ‘bed’, Sedgwick’s social ‘closet’ becomes relevant. Christabel now must ‘not to tell!’ of her sexual transgressions, ‘shield(ing)’ and repressing them socially in order to uphold her socio-normative ‘sweet’ and heterosexual appearance. Therefore, although the ‘bed’ brings Christabel’s repressed sexual desires to the forefront, the realisation of these desires ultimately forces her into Sedgwick’s inevitable ‘closet’. Lily-Rose Morris-Zumin   Lily-Rose Morris-Zumin, the interviewer, is a Fashion and Arts & Culture writer, editor, and stylist interested in exploring the intersection of fashion, performance, and identity. Currently, she serves as the editor for The COLD Magazine  where she works across the art and fashion departments, attending key industry events like London Fashion Week, editing and writing features. She is also the External Arts Relations Officer at CJLPA , focused on cultivating partnerships with arts institutions and supporting editorial projects in both visual and performing arts. [1] Elizabeth Susan Wahl, Invisible Relations: Representations of Female Intimacy in the Age of Enlightenment  (Stanford University Press 1999) 14   (as cited in Catherine Craft-Fairchild, ‘Sexual and Textual Indeterminacy: Eighteenth-Century English Representations of Sapphism’ (2006) 15(3) Journal of the History of Sexuality 408, 409). [2] Eve Kosofsky Sedgwick, ‘Epistemology of the Closet’ in Daniel Boyarin, Daniel Itzkovitz, and Ann Pelegrini (eds), Queer Theory and the Jewish Question  (Columbia University Press 2003). [3] Samuel Taylor Coleridge, ‘Christabel’ (first published 1816) in Samuel Taylor Coleridge, Christabel & Kubla Khan (e-artnow 2019). Unless otherwise specified, all subsequent quotations are also from Coleridge’s ‘Christabel’. [4] Sedgwick (n 2).