Search results

Every year a flower painting finds its way into my art. The Sunflowers  started with a creature I drew in charcoal straight onto the unprimed linen surface of a large painting. The rabbit-skin glue then fixed it into the fabric of the canvas and the sunflowers evolved around this creature, but before I finished the flowers in the vase were completely wilted. I took some of the petals and pushed them into the paint and moved the painting from the wall to the floor and then painted around the painting in a circular fashion. During the process I took trips to the National Gallery to examine Van Gogh’s sunflowers and carefully observed his brushstrokes, which later found their way into my own movement of the paint. I left areas of the canvas unpainted. I noticed that every time I do that the painting retains something of its original feeling. Its incompletion makes it breathe. A few years later, during the Australian bushfires, the enigmatic charcoal creature in the centre of the painting startled me. All of a sudden I saw a shrivelled, burned animal hanging onto a branch, not unlike the images from the media of little koala bears clasped onto trees in a landscape of devastation. Fig 1. The Sunflowers (Gabriella Kardos 2017, oil and sunflower petals on linen, 170 x 170cm). In March this year I picked up a bouquet of spring flowers, blue, yellow, violet, and white. I wanted to paint an explosion of joy, something akin to another painting I created the year before and which I titled ‘ Watteau ’. But that didn’t happen. As soon as I started painting the flowers a face found its way underneath them. When I showed it to an old friend over a FaceTime call he said, ‘It’s you.’ I did not look in the mirror. The face was something I knew from long time ago, or rather it knew me. Now, every time I happen to catch a glimpse of the painting, its gaze pulls me in. There is something bare and honest about it, as if I’m starring into my own soul. This is one thing I thank the lockdown for: paving the way for a slower pace, less noise, more time to think and be alone. And as I’m thinking this a song by Leonard Cohen goes through my head: ‘I’m slowing down the tune / I’ve never liked it fast / You wanna get there soon / I wanna get there last. / It’s not because I’m old / It’s not the life I led / I always liked it slow / That’s what my Mamma said.’ Time stretched during lockdown. It unleashed an internal valve to long-forgotten ways of being human. I remember something Marcel Duchamp said in a late interview with Calvin Tomkins when asked about artists like Robert Rauschenberg and Jasper Johns who went on to work with ideas he developed. His response was that he was pleased, but could not understand the fast pace at which they were producing and showing their work. His time was much slower, he said, 50 years before theirs, and it was important to take time to think. It is that period of ‘not doing’ which regenerates the work of an artist. I can say this forms part of my process too, even though I agonise about it. Cy Twombly would sometimes spend three months not painting at all, only to go into his studio at the end of a summer and fill it up with paintings. I know that verve of accumulated energy, it feels so liberating and you can see it straight away in the work when it happens. Fig 2. Red Studio with Money Plant (Gabriella Kardos 2014, oil on linen, 170 x 170cm). I can’t just look at the flowers and paint them. I lose interest looking at where the shadow or the light falls. Rather, I need to embody the flowers, dance them onto the surface of the canvas where they start creating something else. This is how I painted Watteau , the large burst of flowers I mentioned earlier. And taking the conversation back from the inference that I am unable to recapture something from a painting I’ve done before into a new one by mimicking a similar ethos, I totally mean that. I don’t know how others do it—repeating something over and over from one painting to another, what some call ‘branding’. My only branding is the truth. I don’t hold a monopoly on truth, but my creative process is steeped in the experience of openness in the moment. It relies on a state of receptivity within a condition of uncertainty, not knowing where the painting is going to take me. I try to abandon my assumptions and rely solely on my intuition, yet of course as I say this I’m also aware that, in a Bergsonian fashion, this intuition is nothing but ‘instinct educated by the intellect’. Fig 3. The Bouquet (Gabriella Kardos 2021, oil on linen, 60 x 60cm). In the studio I leave the world behind—no radio station chatter, no news. Here I can descend, or ‘ascend’, into vulnerability and let myself feel my own mortality. The key word here is ‘feel’. I can’t proclaim that I can do away with thought, but what I do has to be felt. EE Cummings understood a poet’s absolute need to feel, which I extend to being an artist:   A lot of people think or believe or know they feel - but that’s thinking or believing or knowing; not feeling. And poetry is feeling - not knowing or believing or thinking. Almost anybody can learn to think or believe or know, but not a single human being can be taught to feel. Why? Because whenever you think or  you believe or you know, you’re a lot of  other people: but the moment you feel, you’re nobody-but-yourself.[1]   This process is valid not only in making art but also in looking at it. So often we go to exhibitions and read the labels near the paintings before we give them a chance to be experienced. It is as if we are incapable of looking and experiencing something for ourselves, we need to be informed, like everything else around us in this networked age of distraction where our experiences consist of little snippets. Do we need to know the recipe before enjoying a meal? I think it is important to situate a work of art in its context, yet often what the viewer leaves with is only that information, having looked at the work only in passing.   And what is the purpose of an artist’s statement? We have to say something which encapsulates us, in half a page. I find this quite restrictive and dumbing-down, for both artist and audience. Yet we all go along with it because it is expected of us. It is a form of advertising. In a nutshell: if you identify yourself with your work, who are you? What are you after? We don’t ask this of any other profession. We somehow seem to know. But I don’t want to be disgruntled. I want to concentrate not on what is lacking in life but on the richness of life. I used to be down each time I got up in the morning and spent the day trying to lift myself up. Over the past couple of years I have started a gratefulness journal where I look for things in my life I’m grateful for, simple things—the coffee on the table, memories, books, the work I’m still planning on doing, the people in my life. I place one foot in front of the other, and in the space of an hour I traverse a bridge from pessimism to looking forward to the things I’m going to accomplish in the day. A long time ago I used to dump my feelings of hopelessness into my paintings. But I also decided, a long time ago, that I didn’t wish to stare those experiences in the face. A painting has to be the truth. If it is a lie it remains on the surface like an ornament. So I work with myself to get to a state of receptivity. This basically involves making space within my head, creating an opening for things to emerge. Because of this, I don’t produce a huge number of works. But when a painting succeeds in showing me something about myself I didn’t know, when it shines with an inner life of its own, I know I’ve got somewhere. I’m asking that the painting transcend me, that it connect me to the past and to a deep humanity. Fig 4. Free (Gabriella Kardos 2018, oil on linen, 30 x 30 cm). I took up etching only recently, after my father’s death. My etchings are more planned, yet each plate has become a treasured moment from my past. Drawing on a small scale, with delicate markings while I sit at a table and try to recall my father, is not so different from writing in a journal—something the flâneur in me has been doing all my life, wandering into cafes in various cities I’ve lived in. As I fish thorough disjointed memories—the emigration with my parents and sister in 1976 (the  séjour  in Vienna, the arrival in Montreal)—I rediscover a lost world I completely ignored for so many years. Like small pieces of a puzzle these memories become embodied in the images of my etchings, they become alive, they give substance to so much of my life I’ve forgotten or unwillingly shut away by moving from country to country.    I would like to end with a quote from TS Eliot which made an impression in my student days and which still resonates with me:   In order to arrive at what you are not You must go through the way in which you are not. And what you do not know is the only thing you know And what you own is what you do not own And where you are is where you are not.[2] Fig 5. My Father in his Bedroom as I Remember Him (Gabriella Kardos 2021, etching, 45 x 35cm). Gabriella Kardos   Gabriella Kardos is an artist and art historian. Her 35-year career spans painting, photography, and printmaking. Her works feature in national collections across Europe and North America. ‘Her concerns are not at all matters of the tired conceptualizing and ironic simulacra that characterize much of current culture and polity, but rather a fervent attempt to find a space again—even an imaginary one—for beautiful things and genuine human responses’ (Michael Joyce). [1] EE Cummings, A Miscellany Revised (as cited in Maria Popova, ‘The Courage to Be Yourself: E.E. Cummings on Art, Life, and Being Unafraid to Feel’ ( brainpickings ) < https://www.brainpickings.org/2017/09/25/e-e-cummings-advice/ > accessed 1 March 2021). [2] TS Eliot, ‘East Coker’ in Four Quartets (first published 1943, Faber and Faber 1995) 18.

Michael Sandle RA is a sculptor and one of Britain’s foremost living artists. He is an outspoken critic of many facets of today’s art world, and has ruffled feathers in Downing Street and Buckingham Palace. He left the Royal Academy of Arts in protest in 1997, but was called back and has been referred to as ‘the living soul of the RA’. His artistic focus is on war, death, and destruction.   CJLPA : Your family home was bombed during the Second World War. Do you have any recollections of this? Has this incident affected you throughout your childhood and has it found its way into your work?   Michael Sandle : I remember very clearly the Second World War blitz on Plymouth when I was aged four to five years old. I wasn’t frightened or suffering any hardship and never saw a dead body, but I remember picking up my mother’s panic as we ran to the shelters. One was an Anderson shelter in a neighbour’s back yard and the other one was a large concrete one not far up the hill from Warleigh Avenue, where we lived. My mother claimed that we were machine-gunned as we were running to the larger one up the hill—could be embroidery on her part, although there was a row of holes in the zinc coal bin and shrapnel in our backyard. The thing that sticks in my memory the most is that after we had moved to the comparative safety of Bodmin (because my mother decided it was time to get out of Plymouth—she was right as our house got bombed) is that she had occasion to go back to Plymouth by train and she took me with her (I’d say this was sometime in 1942). As the train came into Plymouth station my mother pointed through the carriage window and said, ‘Look, Michael—that is where we used to live’. There was hardly a building left standing and I have never ever forgotten this scene of devastation. I am convinced that these memories are behind my interest in war as a theme and my interest in aerial warfare in particular. However, as the reverberations from the First Word War are still being felt as it was the beginning of slaughter on an industrial scale, and the fact that the Second World War brought about increased scientific and technical advance which has changed the lives of so many people, you would have to be rather dim not to recognise war’s importance and its obscenity.   CJLPA : War and destruction form a recurring theme of your work. I am intrigued by your design of the Belgrano Medal  from 1986, showing Margaret Thatcher with the inscription ‘imperatrix impudens’, which translates as ‘shameless empress’. The medal shows the Argentine Navy cruiser Belgrano  as it sunk, having been hit by a Royal Navy submarine  HMS Conqueror  in the Falklands War, with the loss of 323 lives. Who commissioned the medal and for what purpose?   MS : The Belgrano Medal , or ‘Medal of Dishonour’, was influenced by the superb German medallists of the First World War, such as Karl Goetz, in the British Museum. I saw an exhibition of these biting and extremely powerful medals and decided to try and do one myself. I then decided it would be a medal of dis honour. I did not know at the time that the American sculptor David Smith had also seen much earlier these very same German medals in the British Museum too and had decided to make some medals himself, which he also called Medals for Dishonor . They did not go down too well in America. For my medal, which had been commissioned on behalf of BAMS [the British Art Medal Society] by the then-Curator of Coins and Medals at the British Museum, Mark Jones (he said I could do whatever subject I liked) I decided on the sinking of the Belgrano , which seemed dishonourable to me—Margaret Thatcher with her arrogance was like a red rag to a bull to someone like me. There were questions raised about this medal, and Mark Jones could have been in a lot of trouble. However, he went on to be the Director of the V&A and is now Sir Mark Jones. Incidentally, a counter-medal was made against mine by a proponent of the Falklands War. Fig 1. Belgrano Medal—A Medal of Dishonour (Michael Sandle 1986). Courtesy of Michael Sandle. CJLPA : I love your 1999 proposal for the ‘Animals in War’ memorial, which sadly was not chosen as the final memorial for the location in Park Lane, London. It would have been a powerful public monument. Has it since been built in another location, or would you still go ahead with it in another location if the opportunity should arise?   MS : I put my heart and soul into the ‘Animals in War’ proposal but, like many competitions in Britain, I thought it was ‘stitched up’. The organisers appeared to have decided that David Backhouse was going to win as he was allowed to re-submit, which is normally unheard of, after seeing my proposal, which had a mule carrying a screw-gun going up some steps (I always do a lot of research)—so what does the Animals in War Memorial have but a mule going up steps with a screw-gun on its back! I have been shafted on two other occasions, I might add. In Germany you are not allowed to put your name on anything submitted, in order to limit favouritism, and the submissions are judged purely on merit. If another city or country even wanted to have my proposal realised, I would of course be delighted. Fig 2. Animals in War (Michael Sandle 2000, maquette wood and epoxy, 75 x 75 x 75cm). Courtesy of Michael Sandle. CJLPA : I remember when I first saw your sculpture at the Royal Academy Summer Show, titled Iraq—the Sound of Your   Silence  (2009, carved limewood), a Madonna-like mother holding a bandaged baby with a bag over her head. It was like nothing I had seen before. Can you talk a little about this incredibly powerful work?   MS : Iraq—the Sound of your Silence is only the second wood carving I have ever attempted. The first was as a 16-year-old studying at the Douglas School of Art on the Isle of Man. It was a small relief in elm wood and the subject was Pegasus. I wanted to do a more ambitious carving in limewood because I came to admire the German medieval masters when I was living and working in Germany. The subject—a mother holding a bandaged, wounded child—came from an image I saw on the internet which jumped out at me, and I had previously drawn the Iraq Triptych , pillorying Blair, which had on the right-hand panel a drawing of the British soldier Corporal Payne beating hooded detainees, whom he called his ‘choir’ because of their cries and to amuse his mates. He beat one of his victims to death. Anyway, in my Iraq sculpture, I deliberately gave it a resonance with a pietà as I find organised Christianity staggeringly hypocritical—as I do most politics, particularly when it comes to foreign policy.   This sculpture was one of the most taxing works I have ever attempted; it took ages to do. Originally, it was going to be something quite different when I started it in Germany, many years before the invasion of Iraq, as it was going to be another work based on Kali, the Hindu goddess of love and revenge. However, I left Germany, brought it to my studio in Devon, divorced my wife, and moved the unfinished mass of wood to my London studio. After seeing photos of the horror unleashed in Iraq, it suddenly became crystal clear what I had to sculpt, and Kali was no longer my subject. I had already made a sculpture related to her anyway, called the Queen of the Night . Fig 3. Iraq—The Sound of your Silence (Michael Sandle 2009, limewood, 180 x 140 x 90cm). Courtesy of Michael Sandle. CJLPA : Regarding art and social media, the huge number of artworks out there, what can one make out of that? The world of art has changed enormously since you taught at Karlsruhe (1980-99). What do you make of the chaos and speed with which the art world is moving, and its identity with the market? When art schools now take their references from the market, is there hope that we’ll ever come out of this?   MS : When I started off my career as an artist there weren’t as many artists or galleries—Winston Churchill might well have said, ‘Never in the history of mankind has so little art been made by so many!’ I was once asked by a journalist from The Times  for a quote about the work of the German artist Thomas Schütte, which was on the Fourth Plinth in Trafalgar Square at the time. I replied with, ‘It would look better outside of Specsavers’, which was duly printed. I got a wonderful email from an artist from ‘up north’ who said, ‘Thank God for you, Mike, standing up for us mortals against the blizzard of shite masquerading as art’—blizzard of shite indeed! Anyway, what I loathe about the present-day art world is how the artists I grew up with have been totally forgotten. Who talks of Frank Brangwyn or of Dame Laura Knight or of Muirhead Bone, for example? They could all draw. Terry Atkinson, who was a colleague of mine, said some time ago (but it is still relevant), ‘What matters today is how well you draw badly’.   It is not all doom and gloom—there are some real artists around, who are not part of the mainstream but don’t get much notice from the media because they are only interested in ‘celebrity’ artists who have come to the fore by the machinery of the taste-makers who decide what is in—not unlike a form of cultural Stalinism, where the rules are arbitrary but absolute. I am a dyed-in-the-wool pessimist and I think the West is decadent. As Gore Vidal opined, we are living through the decline of the American Empire. With advancing age, I seem to have developed the mindset of a taxi driver when I look at a lot of contemporary art—‘Do you call this rubbish art?’ I think to myself, ‘My two-year-old daughter could do better’. There are, though, two artists who have my greatest respect. They are Giles Walker, who is a brilliant animatronic sculptor and a scathing critic of post-Brexit, post-Thatcherite Britain; and Tim Shaw, who is an equally scathing commentator on the dystopian society we live in.   CJLPA : You were obsessed with the fear of death as a child. How does memory play into your work?   MS : My work is all about memory—in a nutshell it is about sex and death. It is true, too, that I was very obsessed with death as a child.   CJLPA : You call yourself a pessimist, distraught over the state of the world, yet you have a happy disposition. Is that because in spite of the way things are going in the world, you find yourself to be happy to be alive and in the company of people?   MS : I have already said I am a pessimist, but I do love my friends and would not want to be a hermit. I am very lucky with friends—the only downside is that as you get older you lose them through death, but I have a lot of younger friends too.   CJLPA : Are you a Romantic?   MS : Am I a Romantic? I suppose so but maybe I am too conflicted to be one—I am pathologically lazy most of the time and ridiculously neurotic. I think real Romantics would have to be surer about themselves. Alexander (Sami) Kardos-Nyheim, the interviewer, is the Founder and Editor-in-Chief of CJLPA .

Born in Portsmouth in 1951, Sir Christopher Le Brun is a painter, printmaker, and sculptor. As President of the Royal Academy 2011-19, he oversaw the most significant redevelopment in its history, and is widely acknowledged as having revitalised its reputation. He served as a trustee of many major British art institutions, including Tate and the National Gallery. He was knighted in 2021 for services to art.   CJLPA : What do you think about the current state of the world, and art’s part in it? Sir Christopher Le Brun : The topic is so vast I’m sure you’ll understand if I keep my remarks specific to art. Apart from the very many of those bravely working to keep us safe, or overwhelmed by misfortune or circumstances, our enforced isolation this year has allowed for those moments of quiet observation or exercise of imagination that have always characterised art. Many of us have become uncoupled in this period from outside work or social obligations as the circle shrank to family and home and we have come to rely more on ourselves. By contrast, the cultural world in its public aspect has been busy, seeming to queue up to embrace what might be thought of as the opposite—art as an adjunct of social or political activism.   CJLPA : Arts funding: a public or private affair?   CLB : One of the reasons I have been so committed to the Royal Academy as a private institution follows my experience of the practical difficulties faced by our publicly funded institutions. Their funding comes with considerable and, to some extent necessary, bureaucracy. The tension between these two is becoming increasingly acute. I want to stress that my remarks concern the visual arts specifically, without comment on the merit of any causes. It is primarily about their effect on the training of young artists and the practice and display of art. Those who have not sat around the table when these funding and policy conversations take place would be surprised to find that there is an almost universal consensus amongst key decision makers for what deserves support. That it renders silent a group normally so disposed to awkward individualism and freedom of thought is a further puzzle.   But current issues are bringing rapid changes, to question which few are brave or reckless enough to even try, so much so that there is now a diminishing relation between what is said or thought privately and in public. While this continues, the general understanding of what art is and how people spend their own money, remains consistently (stubbornly some might say) attached to the same few forms—primarily of painting and sculpture—and they continue, and this is the important point, to be loved not for the issues they raise, but for their own sake.   There are surely sound reasons for the special regard in which they are held and which the events we are living through have clarified. Perhaps these reasons now deserve renewed respect. The so-called ‘plastic’ arts are all characterised by touch and presence—they are personal—all qualities that people are naturally attracted to and instinctively trust. Almost everyone feels what it is like to draw, to write, to make something by hand. Isn’t it remarkable (and literally ‘touching’) that in every infant’s drawing we find the least technological and most innocent of beginnings sharing the very same media that in other hands are miracles of sensibility?   It is perfectly reasonable for the income derived from popular exhibitions to cross-subsidise the introduction to the public of new things of real quality. However, it is unsettling, and unsustainable in the long term, for the intellectual basis of public funding to be tolerated in a passive sense, rather than welcomed.   CJLPA : In a revolution, statues tumble. Are we witnessing a revolution?   CLB : No, this is more like a permanent tendency that is no longer being resisted or at the least challenged properly. Art and its history are a delicately balanced system that has suffered from the continual chopping away at and clearing the ground of the larger trees, as it were. What is needed is integration rather than substitution. As the American poet Archie Ammons put it: ‘How many shocks of enlightenment burn out a tradition!’.   Groups and their leaders seek causes that unite them. It might be seen to be a waste of time discussing and disagreeing over aesthetic merit rather than demonstrating art’s subservience to meaning and message. I’m distressed to see art’s essentially spiritual nature thus dismissed.   CJLPA : Institutions such as the Royal Academy are the shapers of taste. How did you view this responsibility during your time as President?   CLB : I’m impressed that you think that is still the case! I would like to think it’s true in the context of our exhibition and education programmes. I certainly had an ambitious vision for what the Academy could once more become, and I am proud to say we did drive through and transform the Academy’s reputation utterly. My aim was to consolidate the RA’s prestige and influence, so that artists and architects would have their own strong platform and their independent voices could contribute more fully to public policy. In relation to contemporary art, I was absolutely focussed on getting the very best artists and architects to become Academicians, not to represent our time, which would turn us into mere delegates, but to raise the quality of art—which in fact is our founding mission. We were certainly getting there by the time of the 250th anniversary celebrations in 2019, when we opened the new united campus on Piccadilly at the heart of London… I wanted the Royal Academy to be central again, both here and internationally.   But you ask an important question about the shaping of taste. If ever you wanted instant controversy, then debating ‘taste’ is an ideal way of getting it. If you are even able to agree broadly on terms (whose taste?), then that nicely undisturbed green field would get instantly trampled to mud, with all the participants and spectators too. It would draw attention to division because we are living through a time that is experiencing an accelerating form of ‘context collapse’. Like all controversial things, taste is somehow central. In my mind I associate it with what in German is called Bildung , the individual soul’s journey of self-improvement. What could be more important?   CJLPA : In 1863, the Paris Salon rejected the works of Courbet, Manet, Pissarro, Jongkind, and Whistler. Today’s great art contests, such as the RA Summer Show, are sometimes viewed not as competitions but as lotteries. Do you think there is a risk of great works falling through the cracks? And might there be scope, as there was in 1863, for a Salon des Refusés?   CLB : Of course, things are missed. To deal with the RA Summer Exhibition first, we received over 18,000 submissions this year in all categories, and we hang about 1,000 pieces in our very large galleries, so apart from the purgatory it might inflict on spectators, the statistics alone show how overwhelmed a Salon des Refusés would be. The question I would put is rather different. What is the equivalent, what has the authority of the Salon now? It is far more likely to be state organisations and museums tasked with the collecting and promotion of art on behalf of the public. Unquestionably over the last ten or 20 years a majority of significant works will have been uncollected. To be fair, without foresight and unlimited funds, this is almost impossible to get right. But it is not helped by the increasing tendency to make decisions based on the artists themselves, rather than the quality of their works, on whether they do or do not fit the officially acceptable progressive criteria. Another difficulty may be because the already limited budget and time spent fundraising must now, as a matter of policy, accommodate collecting representative samples of art from across the entire world.   CJLPA : How do you view your place in the discourse of contemporary art?   CLB : In the musing around words and phrases that can occasionally come into the mind while painting, an imaginary essay title in the form of a rhetorical question presented itself. Most of the time, the sententious nature of these things doesn’t last five minutes, but in this case, it stayed. ‘What is the responsibility of English painting?’ Surprisingly, the beginning of an answer came too: ‘Nature is the simple responsibility of English painting...’   I feel this is a way of answering your question—which is the most difficult and that you have saved until last. The first surprise is that I even mention responsibilities, since I strongly resist the idea of burdening art with anything. The next is that the question specified ‘English’ painting. Why should I put it that way? We are definitely more reluctant to identify our art like this than many other countries. We have grown used to art being removed from any but the broadest of contexts, but there are few things that touch us as much as a sense of belonging. Indisputably the word carries a charge. Remove it and the question moves from major to minor, it no longer seems to matter. It is the particularity in the phrase that is striking and in fact forms the essential content. It is the lack of particularity that increasingly characterises art now.   Expanding on this topic would take me further than this interview allows. In the twentieth century, the presence of an avant-garde was the sharpest indication of an active discourse. The last time this was broadly recognised or even possible was in the late 1970s and early 1980s, when the canon was essentially Western European, and the cities of its sway in the contemporary art world could be numbered on one’s fingers. Exhibitions such as ‘A New Spirit in Painting’ in London and ‘Zeitgeist’ in Berlin, in which I participated, are amongst the last examples of how a close argument based on an uninterrupted history is shared from hand to hand. I have a place in that continuing discourse. It could be said it has its limitations (although that seems unduly negative for such a vast and rich field) but that is the point—that is precisely what enables depth. Depth, with its nuance and difficulty, preserves the imagination and the rare individual accent within history. It forms an effective resistance by pushing back at coercive (and frequently commercial or political) visions of reality. The many positive virtues of an ever-widening canon have to be balanced, sadly, against how much we can truly understand or experience in person. As for Nature as an answer, surely its importance is self-evident (hence the reinforcing ‘simple’ in the answer) and ‘a sense of nature’ ever more essential.  Alexander (Sami) Kardos-Nyheim, the interviewer, is the Founder and Editor-in-Chief of CJLPA .

Anthony Julius is a solicitor advocate who has represented Princess Diana and Deborah Lipstadt. He is Deputy Chairman of Mishcon de Reya, and Chair of Law and the Arts at UCL. He has published prolifically, including on art, literature, and the history of anti-Semitism.   Having finally mustered the courage to call first (to call or to be called…an old dilemma rehashed for our pandemic times), Anthony Julius blips into view, an impressive wall of crowded bookcases looming up behind him. Looking past my own screen, I am confronted by the sight of my own second-hand Ikea bookcase squatting emptily in the corner—and am struck by a faint premonition that this is going to be an apt visual metaphor for the conversation to come.   After all, Anthony Julius is a man whose intellectual and professional reputation precedes him—in deeds at least, if not in name. ‘I’m interviewing Anthony Julius this week’, I tell my non-law friends. ‘Who?’, they ask. ‘Princess Diana’s divorce lawyer…he might be in The Crown  next season’, I tell one. ‘Andrew Scott—you know, Hot Priest—played him in Denial’ , I tell another. Sudden flashes of recognition. ‘Oh!’, they say. I smile, just a little smugly. But we are not here today to talk about Julius’ public profile, or the legal cases that made his name.   Today it’s Professor  Anthony Julius, Chair of Law and the Arts at UCL, who’s in the hot seat. Bespectacled, even donnish (though I’m not sure he’d like the term), he seems unexpectedly mild-mannered given his reputation as a fearsome negotiator. I’m here to ask him about his multidisciplinary teaching and research, the rumours of a new book that have been doing the rounds, and any advice he might have for those seeking to follow in his illustrious interdisciplinary footsteps. Julius tells me he has been busy teaching at UCL since 2017. His courses range across such diverse topics as: the censorship of the novel from Flaubert to Rushdie; the nineteenth-century English industrial novel and tort law; and, in the Jurisprudence strand, Shakespeare’s sonnets.   The last of these sounds especially enticing, but Julius is dismissive of approaches to ‘Shakespeare and the Law’ which focus on the accuracy of Shakespeare’s depictions of legal matters. Addressing Shakespeare through this legalistic lens is, he explains, ‘at the level of the trivial…it is to speak within the perspective of a lawyer’. Approaching Shakespeare with a more consciously multidisciplinary mindset led Julius, instead, to design a unique course for law students that juxtaposed literary interpretation with legal interpretation, and literary form with legal form, using the sonnets as the central reference point.   Why the sonnets in particular? ‘I have not felt in the 40-odd years that I have been practicing that any case or statutory provision has the same complexity and challenge as a Shakespeare sonnet’, he says. Ruefully? A little regretfully? Anthony Julius, academic manqué ? Well, not quite—after all, he does have a PhD in English Literature, and is the author of nearly half a dozen serious tomes. But his comment is certainly provocative—and would make an excellent exam question in the final paper of the fantasy ‘Law and the Arts’ undergraduate degree rapidly taking shape in my imagination.   A broader, more expansive approach to legal education is critical, argues Julius, ‘if we are meant to take law seriously as a humanistic discipline’. Yet law schools are notorious for their suspicion of, and even resistance to, ‘Law and…’ subjects. How would Julius state the case, then, for more interdisciplinarity? Or does he think lawyers already have enough of it? After all, legal history and legal philosophy have been going strong for decades—even if some would accuse these subdisciplines of starting to creak a bit. ‘I am sure they don’t have enough of it!’, he replies, laughing. (Admittedly it was a leading question.) ‘But’—more serious now—‘in a way, the question you are asking me is just an institutional one…understanding intellectual endeavour in a more generous and non-institutional way, how can one not proceed interdisciplinarily?’   For Julius, it seems, the natural state of the intellectually engaged individual is fundamentally one of interdisciplinary curiosity and engagement. ‘Legal and literary activities, in their own distinct ways, represent creative engagements of the “rule-governed” and the “rule-breaking”…to consider them without [reference to each other] is to go against the grain’. He pauses. He muses. Anthony Julius then delivers (live on camera!) one of the characteristically pithy summations he is famous for, neatly inverting my question in the process. (I can see why he so impressed his Cambridge examiners, and continues to impress the courts.) ‘It’s the unnaturalness  of the disciplinary…the confining, not the unconfinement that needs to be justified’. He sits back, pleased.   This theme of the contrasting, sometimes antagonistic, but ever-present relationship between law and literature threads its way through Julius’ academic work. Returning to the Bard, Julius explains that he is presently excavating what he calls an ‘antinomian literary sensibility’ found in Shakespeare. I contemplate reaching surreptitiously (if such a thing is possible on camera) for a dictionary, but realise with despair that it is located out of reach on the shelves of my Billy bookcase (et tu, Ikea?). Thankfully, Anthony Julius is still in full flow: ‘[W]hat does it mean to treat law disrespectfully?’, he continues, sketching a fascinating account of the ways in which literature disrespects law and, in doing so, draws the boundaries of its own domain.   What does he mean, exactly, by disrespect? First, he explains, there is a ‘simple antinomianism’ (anti (against) plus nomos (law)), which instrumentalises the law by treating it ‘not as an end in itself…but instead as a set of devices or tropes to be deployed for one’s own purposes’. I am reminded of Shakespeare’s brilliant manipulation of trial scenes in plays such as King Lear and Measure for Measure , and the legally inflected machinations of the characters in Jonson’s Volpone . Second, there is a ‘Pauline antinomianism’, which, Julius argues, offers a kind of ‘liberation from law as part of a new [literary] dispensation…law-breaking as constitutive of the literary regime’. Similar reflections on the relationship between law-breaking and literature-making (and perhaps, vice versa) surface elsewhere: in the published version of his inaugural lecture as Chair of Law and the Arts, Julius concludes that the title of his Chair is ‘no more, then, than a hybrid of two other titles—Union, Contest; Law with Arts, Law vs Arts—Law and Arts United, Law and Arts in Conflict’.[1] Disrespect, according to Julius, is one of the central, animating forms of engagement between law and the arts.   Of course, this is no one-sided brawl, in which puny Law is getting pummelled by brawny Literature. Referring to Dworkin’s famous metaphor of law as a chain novel, Julius notes that this is a fine example—’an idea of genius!’—of using ‘a totally instrumentalised literary metaphor to advance an entirely jurisprudential argument’. Two, it seems, can play at the disrespect game. Ultimately, however, I sense Julius’ sympathies lie more with literature. Dworkin’s use of this literary metaphor is, Julius suggests, finally ‘a kind of wry acknowledgement of…the sovereignty of the metaphor in terms of its power and authority to mobilise political action’. One has the inkling that, for Julius, literature is the exciting enfant terrible , after whom fusty Old Man Law is hobbling down the street, waving his walking stick and issuing prohibitions. To volunteer another pithy Julius summation (an Anthony Aphorism?) sourced from his inaugural lecture: ‘art exasperates law, law oppresses art’.   So, at last, this is the interdisciplinarity Julius has in mind! Not the nice, domesticated, ‘kumbaya’ variety, but something wilder and more muscular (and potentially far more interesting). This conflictual relationship between law and the arts is not only richly generative, but also of immense contemporary relevance. Julius highlights several modern flashpoints in his lecture: ‘Should artists who abuse actors, even commit crimes against them, be banned? […] Should literary works that express sentiments implicated in systems of oppression—documents of barbarism as well as of civilisation—be suppressed? […] Should trigger warnings be added to novels and plays?’[2] I’m starting to feel slightly jet-lagged, given we have just traversed several continents’ (and centuries’) worth of theoretical material—but the show must go on! The next stop? Julius’ forthcoming book, provisionally titled Shameless Authors . Here we arrive at a sobering example of (to translate the theme now for a different demographic) the on-again-off-again relationship between Law and the Arts: censorship.   ‘It’s a history of the censorship of literature and the arts in liberal democracies from 1857 to the present’, Julius explains, ‘and it’s also a normative account of the defence of literature and the visual arts’. The historical section is divided into two parts: 1857–1989, and 1989–the present. Why draw lines under 1857 and 1989? Even through the screen, I can see Anthony Julius’ eyes gleam with enthusiasm. He first describes the prosecutions, in the name of public decency, of Flaubert’s Madame Bovary  and Baudelaire’s Les Fleurs du mal ; and the enactment of Britain’s first Obscene Publications Act, all in 1857. Then, in 1989, there is the notorious fatwa issued against Salman Rushdie for the publication of his novel, The Satanic Verses ; and on the global stage, the Tiananmen Square protests and the fall of the Berlin Wall—two momentous events heralding the rise and fall respectively of regimes deploying systems of censorship Julius describes as fundamentally ‘Other’ to the self-understanding of liberal democratic censorship. ‘The coincidences of events in 1857 and 1989 would almost encourage one to think that God was an overplotting novelist’, he laughs.   But beyond the careful historical analysis, Julius is also a man with a mission—or at least, a bone to pick with the direction taken by Anglo-American liberalism. ‘Liberalism needs to be revised so that literature and the arts [are] moved from the despised margins of the [free speech] defence, right to the centre’, he argues. ‘Free speech is liberalism’s signature doctrine, yet liberals are very bad when it comes to defending art and literature’. He gives a potted history of the trajectory so far: liberalism first gave a special place to religious free speech, before exalting political free speech in the nineteenth and twentieth centuries. In this century, Julius suggests that ‘a liberal theory of free speech now worth the name has to give a special place to a defence of art free speech’. The book elaborates eight defences, but in a moment of weakness, and swept into a fascinating aside about  Borat Subsequent Moviefilm  (‘ Borat 2 ’), I fail to ask him about them. The only option left to quench your burning curiosity will surely be to buy the book and read it yourself. (This sentence has not been sponsored.)   ‘Art matters more now’, Julius says earnestly. We are talking about the threats posed to art free speech by our current cultural and political climate. ‘Literature and the arts are peculiarly immune to fake news and other news-inundation censorship techniques. There’s something about their singularity and fictionality which makes it very difficult for them to be drowned out’. Julius suggests this resistance to ‘corruption and contamination’ by fake news emerges from the distinctive aesthetic properties of creative works, signalling their value as potent means of confronting the insidious effects of fake news.   This is heady stuff. Can he offer an example? ‘Take the second Borat film—’, he begins. Borat ? I am not sure if I have heard correctly. I attempt valiantly to picture Anthony Julius, of all people, watching Borat 2 , and fail (spectacularly). Oblivious to my inner struggle, Julius   continues enthusiastically: ‘what a tremendous intervention that was in American politics! Because of its…playful blurring of the lines between the fictional and the real, but in a way that was open and acknowledged, it had a kind of purity and integrity…which ordinary political interventions, op-ed pieces and all the rest of it, just could not claim’. I nod along, freshly persuaded of the political value and intellectual complexity of Borat 2 . ‘It had strength!’ he exclaims, with his distinctive emphatic intonation. Unbidden, the image of Borat in nothing but a face mask mankini (a maskini?) enters my mind. Strength, indeed…   Whilst Julius has been talking, I have been facing off with my relentless adversary, the clock. I am losing this stand-off, 51-9 (minutes). There is just time to squeeze in a final question: what advice does Julius have for those hoping to cultivate interdisciplinarity in their own intellectual and professional lives? ‘Don’t give up!’, declares Anthony Julius. Is that all? I wait, hoping he has not selected this inopportune moment to be laconic. Anthony Julius does not disappoint. ‘You have to make your career’, he tells me. ‘That’s important. You can’t be a dilettante. It’s no good playing at law because you’re too busy with your novel and playing at your novel because you’re distracted by your legal practice. If you can’t commit in a way that’s uncompromising to whatever you’re doing, then you shouldn’t be doing it’.   I wait (once more). I am patient. I am poised to pounce upon the next quotable tidbit to dart out from the warren of Anthony Julius’ mind. ‘The thing about disciplinary career commitments is that they’re often misunderstood as being like marriages’, he continues, ‘whereas I think they should be better understood as being like friendships’. Career advisors—(please) take note. ‘It is not written into the understanding of friendship that it has to be exclusive. Yet it’s intensely serious as a relationship. It has its own duties and boundaries, its own intensities and obligations’. I spot myself nodding along furiously like a bobble-head in my little video thumbnail. And with that final, exquisite pearl, the interview is over.   Anthony Julius gives a cheery wave, before he and his magnificent bookcases disappear from view. I feel as if I have just emerged—slightly stunned—from a particularly strenuous supervision, despite having asked all the questions. Phew. That’s the Anthony Julius effect for you, I suppose. Yet I am struck by how little I have seen of Anthony Julius, Lawyer. Where does he live? How does he think? Does Professor Anthony Julius take off his glasses and transform, Clark Kent-like, into Anthony Julius, Mishcon de Reya Deputy Chairman? Certain mysteries must remain unanswered, at least for now. A lovely quote from Madame Bovary  slips into my mind. ‘Every lawyer’, wrote Flaubert, ‘carries within him the debris of a poet’. But within Anthony Julius, there is no debris in sight. Instead, there is a splendid house of many rooms, each with its own enigmatic order. Elizabeth Huang, the interviewer, completed her undergraduate degree in Law at Trinity College, Cambridge, before reading for the BCL at Magdalen College, Oxford, where she was the Vinerian proxime accessit . She is particularly interested by the intersections of law, technology, society, and art (sometimes all four at once!) and has written elsewhere on the ‘audience as jury’ in Shakespearean theatre. Outside of her academic interests, she has edited several publications, including The Mays Anthology. [1] Anthony Julius, ‘Dedications’ (2018) 71 Current Legal Problems 1, 15. [2] ibid 14.

Vittoria Mastrandrea is writer and presenter of the Christie’s Education Art Law course and a PhD candidate in Law at the London School of Economics. She was previously a UK solicitor and has worked in the Art Transport department at Christie’s. She is a member of both the Institute of Art and Law and the Association of Critical Heritage Studies.   CJLPA : Tell us a little about your background. How did your experiences culminate in a career in the law and teaching?   Vittoria Mastrandrea : I began my legal career as a trainee solicitor. I studied law at university and absolutely loved it, and also really enjoyed my Legal Practice Course. Whilst I learnt a huge amount during my training contract, I realised quite quickly that a life as a solicitor wasn’t for me. I enjoyed the academic side of the law much more than its application and knew I wanted to get back into academic study in some form.   I had also always wanted to study art history, and to keep up this interest, I attended the evening lectures of an art history course with the University of Buckingham whilst I was training. Shortly after qualifying as a solicitor, I discovered the Art, Law and Business MSc course at Christie’s Education, and realised this would enable me to combine my interests in a further academic degree. Following this, I worked at Christie’s auction house in London for a year before I began teaching on the Art, Law and Business MSc. It was in this role that I discovered my passion for teaching as well as researching.   CJLPA : Can you tell us about what you are studying now?   VM : My current research as a PhD candidate at the London School of Economics interrogates the construction of objects declared as ‘national treasures’ in the United Kingdom, a designation that takes place as part of the export control process for cultural goods. I consider how such attribution can be understood theoretically, as well as investigating the change in status of the object as regards its legal, social, and political meanings. The aim of my research is to understand more fully the implications of a system that determines whether items are nationally significant—both for the owner of that object, and for the public who may then consume that object as representative of their nationhood.   CJLPA : Why have you taught Art Law? And do you intend to go back to that?   VM : ‘Art law’ is an interesting term, because there is no specific body of law that we can point to and say ‘that’s art law’. It encompasses a significant range of legal practice areas, including contract, tort, property, administrative, and criminal law (amongst others). What I find fascinating is how the law is applied and adapted to work in an ever-changing field that can be unpredictable and fast-moving. Oftentimes, because of the nature of the art world, the law has to play catch-up, which is really interesting to observe. I definitely want to continue both teaching and researching in this field.   CJLPA : Where does your passion for law come from?   VM  : My father is a quantity surveyor, but also qualified as a barrister and dispute resolver. When I was younger, we would often discuss legal issues at length over the dinner table. I consequently became fascinated by the law from a young age, and when it came to choosing university courses, my decision to study law came to me quite quickly. The only other subject I was interested in exploring was art history, but luckily my chosen career path now allows me to combine the two!   CJLPA : What are some career highlights for you?   VM : When I began teaching art law, it was clear to me that I had found what I loved to do. Deciding to apply for that position was a big step for me, as I hadn’t taught before. I’m so glad I did it, so that’s definitely a highlight. And, of course, writing and presenting the Art Law course for Christie’s Education Online is a recent highlight!   CJLPA : What key aspects of art law did you want to communicate when you were planning Christie’s Education’s Art Law online course?   VM : I wanted the course to be quite a broad overview of the key issues that often come up in the field. The wide scope of the course demonstrates that the subject encompasses a wealth of different legal practice areas, and I wanted this to come across to the students. From the start it was clear in my mind that the first lecture would need to cover key transactional issues. Whilst I wanted to cover the issues people frequently seem most interested in, such as authenticity and art crime, it was important for me to communicate to the students that the first thing to be concerned with is the regulation of art transactions and how important it is to be compliant with legal regulations.   CJLPA : What tools do the students take from this course into their professional careers? And do you have learning outcomes in mind?   VM : I hope that students who don’t have a grounding in this area of the law will be able to use the course as an informative introduction. It is designed to be an overview from which students of the law can decide a route for further study, or for those who are involved in the art world but who do not have much knowledge about the legal implications of transacting in this field. The main learning outcome I want students to take from this is an understanding of key issues, and an interest in exploring further the topic (or topics) that interested them most.   CJLPA : What is the most rewarding part of teaching law for you?   VM : By far, the most rewarding part of teaching is seeing passion for a topic you are discussing ignite in students. Inspiring their interest and encouraging their own research is wonderful, because I find the field so interesting myself. The interviewer, Alexander (Sami) Kardos-Nyheim is the Founder and Editor-in-Chief of CJLPA .

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

Shakespeare understood much about the role of law in society, possibly thanks to his direct links with London’s Inns of Court. The Inns were primarily places of learning, but between All Saints’ Day and February they regularly had revels. The students enjoyed these, and they were probably as thespian as young barristers today. They cut their teeth on the great speeches in drama.   Up to 1587, the plays performed were written by members of the Inns, but after that date professional players were hired and one of the groups engaged was a company of players known first as the Lord Chamberlain’s men and then as the King’s’ Men, for whom Shakespeare wrote plays. Twelfth Night  was famously first performed in the Middle Temple and The Comedy of Errors  was probably premiered in Gray’s Inn. Some of the lines that Shakespeare wrote might have been intended to provoke reactions from those he knew in his audience. There are famous scenes set in the Inns, such as the Temple Gardens scene in Henry V , which set the scene for the commencement of the Wars of the Roses.   Despite his considerable understanding of the law, Shakespeare’s knowledge was not perfect. Nor was his knowledge of history. For instance, he wrote a play about King John which does not mention Magna Carta. But Shakespeare was certainly worldly-wise and, however he gained his knowledge, he certainly knew a thing or two about the law.   *   We know little about Shakespeare’s life in general. He lived from 1564 to 1616, was brought up in Stratford-upon-Avon, and spent much of his working life in London. He never travelled outside England and yet his works are surprisingly European. Venice had a particular fascination for the English because of its trading reputation and multicultural community, and it is there that Shakespeare develops themes based on religious and racial identity and the status of immigrants and strangers. As we shall see, all these issues have legal overtones.   Shakespeare was a person of genius. He wrote some 37 plays, many of which are regularly read and performed 450 years after the playwright’s birth, not just in the land of his birth but in many countries across the globe, in English and in translation.   Shakespeare had experience of the plagues that beset London between 1560 and 1603. Romeo and Juliet is one of the plays where he writes about searching for plague victims and in it he introduces into the English language the expression ‘a plague on both your houses’.[1] He must have known what a real threat that was, because his landlady in London, Miss Mountjoy, is thought to have died of the plague, and he had to leave quickly if only to avoid the fleas and the quarantine.   The year 2020 was a surreal experience for many of us, and anyone who has missed the theatre during the pandemic might enjoy knowing more about the law during Shakespeare’s day, and discovering that his plays raise numerous legal issues that remain relevant today.   What was the legal system like in Shakespeare’s day?   By modern standards, the legal system in Shakespeare’s day left much to be desired. The concept of justice had become secondary in a system preoccupied by form rather than substance.   Civil wrongs were often denied justice and criminal offenders frequently received punishments wholly out of proportion to the offence committed. Claimants who were unable to fit their complaint within one of the established writs simply went without a remedy. Still others obtained unenforceable judgments because of the jurisdictional disputes between the courts. For example, the Court of the King’s Bench originally could only hear cases between the King and his subjects, leaving many without recourse. Sometimes claimants failed to get any remedy because they filed their complaint in the wrong court.   To combat this evil, the Courts of Exchequer and Chancery sought to extend their jurisdiction, but many used the courts as a place to participate in an elaborate intellectual game. Court proceedings were not a means to an end but an end in themselves. Legal procedure was often pedantic and inflexible, and pleadings used an impenetrable mix of Latin, French, and English expressions.   Criminal law was pretty uncompromising too. It was an offence to live with someone as husband and wife without having obtained the sanction of the church. That is a point to remember when we come to Measure for Measure . In the case of some serious offences, such as treason and murder, the penalty was always death. London had record numbers of hangings. The Star Chamber used torture to extract confessions.   The Court of Chancery, which was in full swing by Shakespeare’s time, was very influential among lawyers. It set the pace in producing documents in a legal form of English, rather than Norman French. In due course, the legal terminology developed by the Court of Chancery became standard.   Even non-lawyers would have been conscious of the disputes at this time between the Chancery Court and the Courts of the King’s Bench. In particular, Lord Ellesmere, the Lord Chancellor, strove to maintain Chancery’s ability to override the common law courts. The common law judges took the view that Chancery did not have the power to override their decisions. But litigants continued to flock to the Court of Chancery. Sir Edward Coke, Chief Justice of the King’s Bench from 1613 to 1616, tried to stop the Chancery Court from overruling his decisions, but Lord Ellesmere did not agree. In 1614 he heard the case of Courtney v Glanvil .[2] Ellesmere ordered Glanvil to be imprisoned for contempt of court for failing to perform a decree granting relief to Courtney on the ground of Glanvil’s deceit. Sir Edward Coke overruled him in the Court of King’s Bench by issuing a writ of habeas corpus. Lord Ellesmere tried to intervene again in the Earl of Oxford ’s case two years later, but Sir Edward Coke was able to reverse him once more. Ellesmere then appealed to the King, who upheld him.   Sir Edward Coke was one of the great figures of English legal history. He raised the importance of the common law and held that it controlled the other sources of law, a view that was in due course eclipsed by the doctrine of Parliamentary sovereignty. Coke developed the concept of judicial independence and Professor Maitland[3] called him the ‘dividing line’ between the mediaeval and the modern.[4]   To get a sense of what Shakespeare was saying from a legal point of view and what resonance it has for today’s Britain, it is worth looking at a selection of his great plays, four of which are featured here: The Merchant of Venice  (1596-98), Measure for Measure  (1603), Coriolanus (1607-08), and Henry VI Part 2  (1591-92). In these plays, Shakespeare dealt with a range of legal topics, from relatively specific ones such as penalties for the non-payment of debt, to the obligations of those who administer justice, and wider constitutional issues such as the power and responsibility of government to the people.   Recovery of debt: The Merchant of Venice   One theme in The Merchant of Venice  is how contracts should be interpreted, in particular contracts related to lending and debt. This was the subject of much jurisprudential debate in Shakespeare’s day, and the contract of a loan in The Merchant of Venice  is a parody on that debate.   The action takes place in sixteenth-century Venice. A merchant called Bassanio hopes to marry Portia, a rich heiress. But to have a chance at winning her hand in marriage, he needs to have money. Bassanio’s rich friend, Antonio, is unable to help. His wealth is tied up in ships, and the ships either have been lost or are far from Venice. So, out of friendship with Bassanio, Antonio makes a deal with a moneylender, Shylock, and it is material to the plot that Shylock was not himself a Venetian and moreover was Jewish, and not a Christian. Antonio will get his money and will not have to pay interest. But if he does not repay the loan on time, he will owe Shylock a pound of his flesh, to be taken near the heart.   Antonio is not able to repay on time, and Shylock sues Antonio to enforce the obligation to allow Shylock a pound of flesh. Bassanio, funded by Portia, offers late payment on Antonio’s behalf of an increased sum. Shylock refuses that too.   The human flesh condition surely ought to have meant that the contract was invalid and unenforceable. The reason why Shakespeare thought of a bond of this nature is not known, but it is possible he had in mind an unpopular practice of moneylenders at that time to exact conditional bonds which provided for penalties in the event of late repayment. There was no relief for late payment and, if the borrower failed to repay the loan on time, whether in whole or in part, the common law could not offer relief. There were no regulated banks engaged in the business of lending money, so moneylenders could seek to impose the terms they wished.   The common law courts tended to enforce conditional bonds blindly, but in civil cases a party could petition the King to intervene. By the sixteenth century, this meant that a person could apply to the Court of Chancery presided over by the Lord Chancellor. The Court of Chancery developed rules for intervening in cases where in the judgment of the Lord Chancellor the outcome in the common law courts was unconscionable.   Back in Shakespeare’s Venice, however, there was no Court of Chancery, and Shakespeare has to find another means to produce a result whereby this horrendous contract is rendered unenforceable. The scene shifts to the trial of Shylock’s suit, which takes place before the Duke of Venice. Shylock makes his argument that Venice would suffer if contracts were not strictly enforced. He submits to the Duke: ‘If you deny me, fie upon your law! / There is no force in the decrees of Venice.’[5] Strict adherence to the law allowed for the routine consummation of commercial transactions, and Shakespeare highlighted the dilemma Shylock’s bond presented to Venetian law. Commercial lawyers down the ages would recognise the force of the argument that commercial law has to be certain and predictable. It must be remembered, however, that the law that Shylock was trying to enforce was deeply objectionable, mirroring the deeply objectionable law which in turn treated Shylock as unequal because he was an alien in Venice.   Bassanio’s betrothed, Portia, dressed up as a man, pretends to be a lawyer representing Antonio. She urges Shylock to show mercy:   The quality of mercy is not strained. It droppeth as the gentle rain from heaven Upon the place beneath. It is twice blest; It blesseth him that gives, and him that takes. ‘Tis mightiest in the mightiest. It becomes The thronèd monarch better than his crown… It is enthroned in the hearts of kings…[6]   Shylock, who nurses a long-standing grudge against Antonio, who has made a habit of berating Jews for their usury, declines to be merciful. But Portia then points out that the contract does not provide for him to take any blood, only flesh. Shylock changes his mind and offers to take the amount of his loan, but Portia makes it clear that he can only have what is due to him under the bond. Shylock then decides to withdraw from the courtroom.   Before Shylock can leave, his position is completely upended by Portia, who relies on another Venetian law, one that makes it illegal for a foreigner such as Shylock to attempt to kill a Venetian who follows the Christian religion. One penalty for the offence, if the Duke so orders, is execution of the offender, but the Duke immediately pardons Shylock. The other penalty is confiscation of the offender’s goods, with half going to the victim, in this case Antonio, and the other half to the state. Antonio agrees to give up his share of Shylock’s goods on two conditions, to which Shylock agrees. On his death, Shylock must give his property to his daughter Jessica, who has eloped with Lorenzo, a friend of Antonio and Bassanio. Shylock must also become a Christian. Shylock feels ill but agrees to sign the necessary deed. Antonio’s ships eventually arrive in port laden with precious cargo but there is no suggestion that he is going to repay Shylock what is due to him. The trial ends happily for everyone but Shylock.   There are many great lines in The Merchant of Venice . One is especially worth mentioning because it speaks to lawyers: the Prince of Morocco, another suitor for Portia’s hand in marriage, says: ‘A golden mind stoops not to shows of dross’[7] (or, great minds are not distracted by things of little worth). This is a phrase which comes to mind when advocates indulge in flowery language to say little of relevance or consequence (dross).   Modern resonance of The Merchant of Venice   1. The pound of flesh issue   The debate as to how contracts should be interpreted has flourished until quite recently in the Supreme Court of the United Kingdom. Should they be interpreted liberally so as to produce a just solution? Or should they be interpreted strictly to enable parties to be certain in advance about their rights and obligations, so that people bear responsibility for what they have agreed, whether knowingly or not? This question has always been particularly important in commercial law: pacta sunt servanda (agreements must be kept), and views about how to interpret contracts have varied over time.[8]   2. Mitigating the effect of conditional bonds   In The Merchant of Venice , Shakespeare exposed shortcomings in the law, particularly with respect to penalties and the lack of protection for the lender, in this case Shylock. In the fullness of time the common law addressed the problems of penalties in its own characteristic way. The courts refused to enforce penalties, and only enforced clauses which provided for an amount that was a genuine pre-estimate of the loss which the lender suffered through late payment. The common law settled on this distinction between penalties and contract terms which the courts were prepared to enforce.   In due course that rule also proved unsatisfactory, and it has now been seamlessly replaced by proportionality. The present position is that a term of a contract which imposes a detriment on a party if that party breaches a term of the contract, is a penalty if the detriment is out of all proportion to any legitimate interest that the other party might have in that term being performed.[9] This is a more nuanced test than the distinction that used to be drawn between genuine pre-estimates of damage and penalties. Many more factors are now considered.   Proportionality has been introduced into English law over the last 50 years under the influence of European Union law and human rights, which probably adopted the concept from German law. All the developments in the law of penalties were brought about by the courts. The courts were left to develop the law as they thought appropriate and incorporated it into various aspects of the common law. There was no need for a code or legislation. The adoption of the concept of proportionality in the context of contractual penalties is a good example of how EU law, if applicable, may continue to influence English law even though the UK has left the EU. 3. The Shylock dilemma   By leaving Shylock in the position where he is deprived of his religion and his wealth, Shakespeare exposes a legal void in the then law: first the lack of any judicial protection against the arbitrary actions of the state in relation to an obnoxious banking transaction, and then the lack of any proportionate response to the events in contention. Shakespeare did not portray any solution to this. He simply points out that such voids exist. In a well-organised legal system, such voids should clearly not be present, and there is nothing to suggest Shakespeare approved of these voids. It was simply part of the role of the playwright to point them out.   Party-based requests for mercy may be rejected for personal motive   Portia’s timeless lines about the quality of mercy are directed not to the Duke (the judge), who plays a nominal role. They are aimed at Shylock, and they fall on stony ground. He wants his revenge on all those people who have belittled him in the Rialto.   The point to note is that when it comes to showing mercy Shakespeare did not invoke the common law. In this play, it was not his expectation of the law that it would show mercy. In the Elizabethan age, the law was seen as having a relatively formal role and rules were inflexible. To save Antonio, Portia relies on statute law, which she pulls out of her papers like a rabbit out of a hat. Despite Portia’s great lines, mercy has no impact on the result whatever.   Judicial independence and integrity: Measure for Measure   In Measure for Measure , the story starts when Duke Vincentio, the Duke of Vienna, decides to take leave of the city for a period of time. For several years, he has neglected to enforce the laws of Vienna. This has led to the city’s becoming a lawless place, and he has fallen down on his duty to adjudicate on offences. The Duke makes arrangements for his deputy, Angelo, to enforce the laws in his absence. He confers on Angelo his ‘scope ... to enforce or qualify the laws As to your soul seems good’.[10]   One of the citizens of Vienna, Claudio, is then found to have committed an offence by making his fiancée, Juliet, pregnant. It is apparently no defence that Juliet is his fiancée and that they will be married as soon as her dowry arrives. The only punishment provided for this offence is execution. Claudio is sentenced to be executed and Angelo refuses to mitigate the penalty. It may be that Shakespeare was here parodying the law I mentioned earlier which made it an offence in Elizabethan England to live with someone as husband and wife without having obtained the sanction of the church.   Claudio then asks his sister, Isabella, who is about to enter a nunnery, to plead with Angelo on his behalf. She does this but Angelo rejects her plea: ‘It is the law, not I, condemn your brother’.[11] Angelo explains that the law has not been enforced recently but this was only because it ‘hath slept’.[12] Isabella continues to plead for her brother, saying ‘O, it is excellent / To have a giant’s strength, but it is tyrannous / To use it like a giant’.[13]   Eventually Angelo offers Isabella a bargain. If she agrees to have sex with him in his garden at night, he will release and pardon Claudio. (Angelo clearly did not live in an age of the free press and kiss and tell!) Angelo gives Isabella overnight to make her decision. Isabella is dismayed because that would be contrary to her principles and prevent her from entering the nunnery. (What, one wonders, would she have said to the Mother Superior if she had become pregnant?)   Isabella meets a Friar (the Duke in disguise), who explains that Angelo was himself formerly engaged to be married to a woman called Mariana but that the engagement was broken off when the ship bearing Mariana’s dowry was lost. Mariana is assured by the Duke that, while it may be a crime under the laws of Vienna to have sex while unmarried, it is not a sin to do so in the circumstances:   Nor, gentle daughter, fear you not at all, He is your husband on a pre-contract. To bring you thus together ‘tis no sin …[14]   Mariana agrees to take Isabella’s place, with the result that Angelo has sex not with Isabella but with Mariana, although rather surprisingly he does not realise it. But he still refuses to stop the execution of Claudio. Meanwhile, however, the Friar/Duke prevents it from taking place and arranges instead for the similar head of another person in the prison—someone who has died from a fever—to be sent to Angelo. The Duke changes his plans, makes an early return to Vienna, discovers what Angelo has done, and requires him to marry Mariana and then return to his presence. After the marriage, Angelo returns with his new wife, and the Duke then condemns him to death for having ordered the death of Claudio:   The very mercy of the law cries out Most audible, even from his proper tongue, ‘An Angelo for Claudio, death for death’. Haste still pays haste, and leisure answers leisure; Like doth quit like, and measure still for measure. Then, Angelo, thy fault’s thus manifested, Which, though thou wouldst deny, denies thee vantage.[15]   In these famous lines, the Duke as judge says that Angelo must be treated like anyone else—a person in authority is not above the law. Quite so. That is a very important aspect of the Rule of Law, and Shakespeare here reflected its importance. Angelo acted with haste, and without deliberation. And ‘Like doth quit like’, so there must be the like penalty for the like actions. In the phrase ‘measure still for measure’, the word ‘measure’ is being used in its sense of treatment meted out to someone. So, Angelo should receive the same punishment as he imposed on Claudio. The law, as the Duke sees it at this point and perhaps as many contemporaries of Shakespeare saw it, is about retaliation.   The newly wed Mariana is horrified at this turn of events and is not consoled by the fact that she will as Angelo’s widow inherit his assets. She and Isabella seek mercy for Angelo.   But then the keeper of the jail where Claudio was held reveals that Claudio was not executed after all. He is alive and is brought before the Duke with Juliet. So, at the end of the play Angelo is not executed but is disgraced. The Duke offers to marry Isabella.   The story can be summed up in this way. The play starts with the problems caused by the Duke who had neglected to enforce the laws so that people broke them. But Angelo enforces them without exercising judgment and does so corruptly. He must be punished, but when it turns out that Claudio was not executed, the Duke exercises his judgment. It is no longer a case, as in the old code of Hammurabi of Babylon, of an eye for an eye, or a tooth for a tooth, or measure still for measure.   Modern resonance of Measure for Measure   The power to grant mercy is not party-based but an aspect of the judicial function   We saw that, in The Merchant of Venice , Portia’s plea of mercy was directed to Shylock and it was he who rejected it. Shakespeare gave him the right to refuse to give mercy. The judge stood on the side-lines.   In Measure for Measure , we see Shakespeare returning to this issue and picking up where he left off in his earlier play. How does he resolve the issue? He gives the power to grant mercy not to any party but to the judge, the Duke, and he gives him discretion as to how to administer the law. The Duke is able to grant mercy on the particular facts of the case because Claudio comes to no harm.   It follows that there are dangers when judges do not respect the obligations of their office, for example because they are corrupt or act for personal motive. Judges must not act in this way. The obligations of judges performing a judicial role constitute their responsibility when they are asked to adjudicate on disputes. They must enforce the law appropriately and disinterestedly and not allow society to become lawless. They are the servants of the law. In that capacity, their function includes dispensing mercy in appropriate cases. Shakespeare rightly showed that the role of judges was important in all these respects.   There are lessons here for every modern judge. The message is about what has become known as judicial independence. Judges must be completely independent and objective. This doctrine was starting to emerge in the writings and judgments of Coke when Shakespeare was writing his plays.   So we find that the resolution in Measure for Measure  comes in the final scene, when the Duke uses his judicial discretion to produce a solution. It is by no means a perfect solution. I for one have some sympathy with Isabella, faced with the proposal of marriage which she would not have sought. But the resolution of the play is probably as good as the Elizabethan age could hope to produce. It is the judge who pronounces the sanctions and he does so on his own authority and good judgment, not the supernatural power of Prospero in The Tempest  or the powers of darkness in Macbeth .   The idea that the legal system should produce solutions that were moderated to the individuals involved was relatively revolutionary for Elizabethan times. Shakespeare’s thinking had evolved from mercy to statute law and then to judges and the law they create in individual cases. The end objective for Shakespeare was thus that the law should produce a just solution.   2. The problem of the dysfunctional legal system   The play starts with the problems caused by the Duke, who has neglected to enforce the laws. No wonder the citizens of Vienna were caught out when Angelo started enforcing them to the letter. He stands at the opposite extreme to the Duke. He enforces the laws without exercising judgment and does so corruptly.   Shakespeare compares unenforced law with headstrong horses who had shaken off their bridles, and overgrown lions in caves. Such law is unruly, arbitrary, and unpredictable. The problem is resolved by restoring a properly working legal system, in which judges perform the essential and independent role of dispensing mercy.   3. The role of lawyers in a properly functioning legal system   You cannot have a system of justice that functions well unless you have lawyers who are well trained and mindful of their obligations and judges who have independent judgement and the freedom to produce just solutions. The late Justice Ruth Bader Ginsburg of the United States Supreme Court beautifully described the vocation of lawyers in a passage that I recently cited in a tribute in memory of her:   To me the highest obligation of someone in the legal profession is to recognise that you have training and talent […] that equips you to make things a little better in your local community, your nation and your world, that is, to devote your talent not just to being the counterpart of an artisan or bricklayer who does a day’s work for a day’s pay but with someone who sees himself or herself as a true citizen of the community.[16]   Angelo was not such a lawyer, but we saw in The Merchant of Venice  the role that Portia played in bringing the Venetian law that saved Antonio’s life to the judge’s attention.   Sovereign power: Coriolanus   Here we find that an idea that animated Shakespeare was how the ordinary people curbed sovereign power. Coriolanus is one of the plays which Shakespeare wrote about classical times.[17] The plot revolves around a Roman general called Caius Martius, who has defeated a Latin tribe called the Volsces at Corioli and earned the new name Coriolanus.   The question arises of how the state is going to reward him. The usual method was for the general to be taken back in honour to Rome and then to be placed in front of the people, to explain how he had won the battle and how he would look after them. The people of Rome would then elect him a consul. The whole process was started by the patricians—that is, the existing senators.   In the play, the patricians initiate the process on Coriolanus’ behalf, but he is reluctant to waste any time on talking to the people. He is after all a great doer of battles. In the play, he speaks to the citizens in scornful terms and threatens to sell or to kill them. Not surprisingly, the people then turn against Coriolanus, deciding they do not want him as a consul after all. The situation is unprecedented. But Coriolanus is proud, and he simply cannot see the problem.   The Tribune says, ‘What is the city but the people?’,[18] and the citizens shout, ‘True, / The people are the city.’[19] Coriolanus’ mother, the strong-minded Volumnia, tries to persuade him to apologise to the people and to seek their forgiveness, but he absolutely refuses. He is angry at the charges the people have made against him and he declines to apologise. In the end, the people change their mind about his being a consul and banish him from Rome. He is banished as ‘enemy to the people’.[20] Coriolanus calls back: ‘You common cry of curs’[21] and goes into exile.   The tale then takes a remarkable twist. Coriolanus goes to find his old enemy, Aufidius. Together they start on a succession of acts hostile to Rome and they end up besieging the city. The inhabitants try to get Coriolanus to change his mind about this, but even Coriolanus’ father cannot persuade him otherwise. In the end it is his wife, mother, and young son who come to visit him in the camp and win him over. They persuade him to go to Rome to negotiate a peaceful conclusion to the war.   There is then yet another twist in the story. Aufidius does not accept this chain of events and he arranges for Coriolanus to be lynched and killed. Thus ends the story of someone who tried to ignore and reject the peoples’ wishes.   Modern resonance of Coriolanus   1. The rights of the people against sovereign power Shakespeare had far-sighted views about the rights of the people. In the sixteenth century, absolutism was the general theory. Sir John Fortescue, one of the early legal writers, wrote that whatever the Prince wished was lex , or law. In England, this theory changed shortly after Shakespeare’s time. The seventeenth century saw a rapid growth of parliamentary powers, and the Glorious Revolution of 1688, when King James II, having suspended Parliament, was forced to flee from the country, and his protestant daughter Mary and her husband William of Orange became the King and Queen of England.   2. The role of the ordinary citizen   Coriolanus is particularly revealing on the role of the ordinary citizen in the governance of society. Considering that the British constitution had not yet really developed, Shakespeare was before his time in his attitudes. He felt that power should be responsive to people and not that the Prince’s word was law. Shakespeare had a touching faith in the people.   In all his plays, Shakespeare wrote about common people who enter on to the scene and provide enormous enlightenment against all the odds. Thus, in A Midsummer Night’s Dream , King Theseus is to be married to Queen Hippolyta and local people decide to put on a play for them as part of the celebrations. The Queen considers that as the play has been arranged by working men from Athens it will probably not be much good.[22] But when the play starts it becomes clear that the actors are literate. They have learnt their lines and they know about classical mythology (the play tells a love story from Ovid’s Metamorphoses ). They also know how a theatre should operate. Here, as with the gravediggers in Hamlet , Shakespeare was holding up the wisdom of the common person.   Autocracy: Henry VI Part 2   Henry VI Part 2 is another example of Shakespeare working out the theme of the relationship between the ordinary person and the sovereign in the state. In the play, there are rival claims to the throne. The Earl of Suffolk organises a rebellion in England against the King. The leader of the rebellion is a man called Jack Cade. Shakespeare portrays Cade, when he gets power, as an absolute and arbitrary ruler. As soon as he becomes the leader, he sees to it that he is appointed as a Lord. This is a somewhat strange thing for someone who is an ordinary citizen to demand. Besides, the real grievance motivating the common citizens to get together is that they distrust the ruling class.   Jack Cade is full of his own importance. He states: ‘My mouth shall be the Parliament of England.’[23] He fully expects his rebellion to be successful and, when it is, to be anointed King. And he intends to be an autocratic king.   Cade has to set out the list of things that will change when he gets to power. One of his supporters, Dick the Butcher, says: ‘The first thing we do, let’s kill all the lawyers.’[24] This is a well-known passage that always causes a wry smile when it is quoted to lawyers, but its meaning is far from clear. No doubt lawyers were linked with the nobility and caught up with grievances against the nobility. It is also possible that all Shakespeare was trying to do was to get some reaction from his audience. As mentioned, his plays were performed in the Inns of Court, of which the members were barristers, and where legal education was provided.   Not surprisingly, Jack Cade does not come to a happy end. He is ultimately deprived of all his supporters when one of the members of the nobility urges the people to support the King.   Several references are made to Parliament. The Earl of Warwick states that: ‘The commons, like an angry hive of bees that want their leader, scatter up and down and care not who they sting in his revenge.’[25] Anyone who has seen or heard UK Parliamentary debates may think that this was particularly insightful of Shakespeare.   Jack Cade was a historical figure. His rebellion in 1450 against Henry VI did not last long, and England returned to a feudal society in which the power was vested in the nobles and the poor had to obey. In Shakespeare’s eyes, that was the natural order of things. The poor accepted that the nobility should rule. What they expected, however, as appears in Coriolanus , was that the rulers would respond to their requests and seek to uphold their wishes.   Modern resonance of Coriolanus  and Henry VI Part 2   Shakespeare examined sovereign power in both these plays. He lived under an absolute monarch and foresaw that this had to change, and in these plays he suggested the direction in which it had to evolve.   Coriolanus seeks to become a consul of Rome, and the people turn him down because he refuses to acknowledge that he has to look after them and attend to their needs. In Henry VI Part 2 , the rebel Jack Cade seeks to challenge the nobility on the grounds that they have done nothing for the common man. But his plans for taking power include making himself a Lord and making arbitrary decisions about executing people and so on. Both Coriolanus and Jack Cade come to grief. Shakespeare lived in a time of absolute monarchs, but his insight was to recognise that there was a bargain made between the citizens and the sovereign as to how the sovereign’s power should be used. It is this bargain that drives the evolution of the constitution from absolute monarchy to the present-day Parliamentary democracy.   Shakespeare saw the corrupting effect of power politics—what happens when those in power seek to serve themselves rather than the community from which they are appointed. The citizenry loses out and the legal system is endangered. When Dick the Butcher says that the first thing to do is to kill all the lawyers, Shakespeare is underlining the point that, for an autocrat to have control of the state, the rule of law must be set aside, and that this places judicial independence and the role of judges and lawyers in jeopardy. The words of Dick the Butcher are not said just for theatrical effect.   Shakespeare knew that society needs a properly working system of justice, with judges and lawyers performing their special roles. Those who exercise power have to accept that the law is above them, and that sometimes the decision will go against them. They then have the power to alter the law if it is right to do so.   Conclusion: A legal system that evolves   The matters of law addressed in the four plays discussed here all remain worthy of consideration today—repayment of debt, the obligations of those who administer justice, and the wider constitutional issue of the power and responsibility of the government to the people.   What shines out most from the legal issues that intrigued Shakespeare in his plays is the ability of our system to continue evolving. By relying on precedent, the courts can modify the law gradually in a way that avoids abrupt or ideological change. The common law is not like a civil code imposed on the people. We all own it and it belongs to us all.   Similarly, with our constitution, its unwritten nature means that it has the capacity to continue and yet change in the light of experience. Since Shakespeare’s day, the country has evolved organically from absolute monarchy to constitutional monarchy with Parliamentary sovereignty. It has also been able to embrace international law and (during membership) the laws of the EU, and to draw on the European Convention on Human Rights. It has progressed from the legalistic system that Shakespeare knew to one that is more focussed on justice.   It was part of Shakespeare’s genius that through the dramatic medium he could capture the depth and diversity of humankind. But his genius was far greater than that. As I have sought to show in this article, he could also provide thoughtful insights into the evolution of the law of England and its constitution. The Rt Hon Lady Arden Mary Arden, The Rt Hon Lady Arden of Heswall, is a UK Supreme Court Justice. She was the first female High Court judge assigned to the Chancery Division, and is also President of the Trinity Hall Law Society, Cambridge. Lady Arden gave the Denning Lecture at an event organized by the Honourable Society of Lincoln’s Inn in London on 25 November 2020 and this article is based on the text of that lecture. Lady Arden thanks the Denning Trustees for their generous invitation to her to give the lecture. Lady Arden retains the copyright to this article. [1] See William Shakespeare, Romeo and Juliet  Act 3, scene 1, line 91. [2] [1614] Cro Jac 343. [3] Professor Frederick William Maitland was Downing Professor of the Laws of England from 1888 to 1906, and he is widely regarded as one of the ablest legal historians of modern times. [4] See William Holdsworth, Some Lessons from Our Legal History  (Macmillan 1928) 31, citing a letter he had received from Maitland. ‘Of Coke perhaps the truest thing ever said was said by Maitland in a letter which he wrote to me: “Coke’s books are the great dividing line, and we are hardly out of the Middle Ages till he has dogmatized its results.” … [He] assured the continuity of the development of the common law in this century of change—the century of Renaissance, Reformation, and Reception of Roman Law. He was the founder of the modern common law …’ [5] Act 4, scene 1, lines 105-06. The quotations and citations in this article are taken from William Shakespeare, The Complete Works  (Stanley Wells and Gary Taylor eds, Oxford University Press 1986). [6] Act 4, scene 1, lines 181-86. [7] Act 2, scene 7, line 20. [8] There is a similar debate about whether equitable obligations should be implied into contracts. I referred to this in in the context of quasi-partnership companies in Lau v Chu  [2020] 1 WLR 4656 [4630-31] (PC): ‘92. In short, in quasi-partnership companies, deadlock often covers some of the same territory as failure to observe the equitable obligations which are not written into the articles but which are owed by one quasi-partner to another. A quasi-partnership is not a commercial transaction in which, to borrow the words of Judge Learned Hand, “it does not in the end promote justice to seek strained interpretations in aid of those who do not protect themselves”’ ( James Baird and Co v Gimbel Bros Inc  [1933] 64 F 2d [344] and [346]). The implication of equitable obligations in a quasi-partnership is the way in which the courts secure that justice is done between quasi-partners who have not taken every contractual protection that they might have done to prevent the misuse of corporate powers. The contest between law and equity in this type of situation has been fought over many years and is graphically illustrated by the contest between Shylock and Portia in Shakespeare’s The Merchant of Venice . [9] See Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis  [2016] AC 1162. [10] Act 1, scene 1, lines 64-65. [11] Act 2, scene 2, line 83. [12] Act 2, scene 2, line 92. [13] Act 2, scene 2, lines 109-11. [14] Act 4, scene 1, lines 69-71. [15] Act 5, scene 4, lines 404-09. [16] Lady Arden, ‘Remembering Justice Ginsburg’ ( Counsel Magazine , 30 November 2020) < https://www.counselmagazine.co.uk/articles/remembering-justice-ginsburg > accessed 15 February 2021. [17] Others included Titus Andronicus , Pericles , and Timon of Athens . Shakespeare’s classical knowledge was limited. Nonetheless there is plenty of detail in Coriolanus . [18] Act 3, scene 1, line 197. [19] Act 3, scene 1, line 199. [20] Act 3, scene 3, lines 121-22. [21] Act 3, scene 3, line 124. [22] William Shakespeare, A Midsummer Night’s Dream Act 5, scene 1, lines 85-88. [23] Act 4, scene 7, lines 13-14. [24] Act 4, scene 2, line 78. [25] Act 3, scene 2, lines 125-27.

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

I became an atheist at the age of eight. After one of my Hebrew-school teachers devoted a 90-minute class to recounting her experiences in a Nazi concentration camp during the Second World War, I went home and read a lengthy encyclopaedia article on Nazi Germany. Within four hours of reading that article, I had irretrievably lost my belief in God. Over the years, my disbelief in God has become even more robust than my disbelief in Santa Claus and the tooth fairy. However, unlike some atheists and most agnostics, I am hardly uninterested in God and religion. For one thing, my attitude toward God is not one of indifference; rather, it is one of revulsion. That attitude stems partly from my systematic study of the Bible for the past 40 years. Although my main areas of scholarly expertise are political and legal and moral philosophy—rather than theology or the philosophy of religion—my principal avocation since the early 1980s has been the writing of a commentary on the Bible. Why would an atheist engage in such an endeavour? I began to read the Bible systematically in early 1982 because I wished to enhance my understanding of philosophy. From the mediaeval period through the early twentieth century, virtually every Western philosopher of any consequence presupposed that his readers were intimately acquainted with the Bible. While studying Philosophy as an undergraduate, I was particularly struck by the fact that nearly all the great figures of the early modern era—Thomas Hobbes, John Locke, Baruch Spinoza, George Berkeley, and so forth—were thoroughly grounded in the Scriptures. Their philosophical works invoke Biblical passages and characters with easy familiarity. Even the fervid atheist Friedrich Nietzsche in the nineteenth century displayed an impressive knowledge of the Bible. (Nietzsche’s The Antichrist is a tour de force of Biblical exposition, however far-fetched some of it may be.) Thus, while I was still an undergraduate, I recognized that I could not fully understand many of the premier texts of the Western philosophical tradition without an excellent knowledge of the Scriptures. I began to study the Bible systematically during my first year as a postgraduate. (For the first decade of that study, I devoted 2-3 hours every day to the endeavour. Thereafter, I have devoted 60-90 minutes to it each day.) I had acquired a pretty good knowledge of the Hebrew Scriptures as a boy, but now I was setting out to read both the Hebrew Scriptures and the New Testament with the eye of a philosopher. During the first 18 months, I read the Bible from cover to cover three times without writing anything beyond marginal annotations. Thereafter, however, I began to compose a passage-by-passage commentary to make sense of the text as I went along. The commentary—which for the first several years was handwritten—has now grown to approximately 3,600 pages. I have written it purely for my own edification, but over the years I have gradually polished it into something that might eventually be suitable for publication. At very few junctures in my commentary does my atheism become apparent. Poking holes in Biblical claims about God is far too easy and is thus uninteresting. Instead, my commentary seeks to understand those claims from the perspectives of the people who advanced them. I am continually asking why the writer of some book of the Bible would think that the ascription to God of a certain property or command or action or accomplishment is so important. Very often, the answer to the question just broached is that the Scriptural authors were resolutely concerned to differentiate their God from the gods of surrounding peoples. For example, the Torah’s prohibition on boiling a kid in its mother’s milk (Exodus 23:19, 34:26; Deuteronomy 14:21)—a prohibition that is the basis of the strict separation between meat dishes and milk dishes in modern kosher cooking—is best explained by reference to the pagan fertility rites that were widespread in the ancient Middle East. Instead of deriving principally from hygienic considerations or from solicitude for animals, the Torah’s prohibition almost certainly stemmed principally from a determination to distinguish sharply between the Hebrew religion and the neighbouring creeds whose adherents paid homage to fertility goddesses by sacrificing kids and calves in their mothers’ milk. My original aim of improving my understanding of Western philosophy has been realised. Though I do not write on the philosophy of religion, my study of the Bible has significantly shaped my thinking about a number of issues in the areas of philosophy on which I do write. Over the years, however, that original aim has come to be supplemented by other reasons for my avocation as a Biblical scholar. Such a pastime not only improves one’s understanding of Western philosophy, but also greatly enhances one’s understanding of Western culture more broadly. While the Bible has heavily influenced many philosophers, it has likewise heavily influenced countless artists and writers and composers (among others). Some of the richness of Western art and literature and music is lost on anyone who does not possess a good knowledge of the Scriptures. Let me offer a single fine-grained example to underscore this point. In the famous scene in Tess of the d’Urbervilles where Alec d’Urberville rapes or seduces Tess, Thomas Hardy writes as follows: ‘But, might some say, where was Tess’s guardian angel? Where was the providence of her simple faith? Perhaps, like that other god of whom the ironical Tishbite spoke, he was talking, or he was pursuing, or he was on a journey, or he was sleeping and not to be awaked’.[1] Now, unless readers know that the phrase ‘ironical Tishbite’ refers to Elijah, and unless readers are familiar with the story of the confrontation between Elijah and the Baal-worshippers in 1 Kings 18, they are likely to miss the full ironic significance of Hardy’s wording. (Indeed, they will probably be rather puzzled by his wording.) In particular, they will not readily grasp that Hardy in his brief discussion of God’s providence—‘the providence of her simple faith’—was redirecting against God a classic and sardonic expression of disbelief in the existence of an alternative deity. A further benefit of Biblical study lies in the literary magnificence of many parts of the Scriptures. The exquisite story of Joseph and his brothers in the final quarter of Genesis is itself sufficient to ensure the Bible a place among the greatest works of world literature, yet a number of other Biblical narratives—such as the story of David and Absalom, and the Parable of the Prodigal Son—are at almost that same level of supreme excellence. Much of the Bible’s poetry (in Job, quite a few of the Psalms, Hosea, Isaiah, Jeremiah, Micah, the Song of Solomon, and so forth) is among the finest produced in any language. Thus, although long stretches of the Bible are tedious or repellent or baffling, a student of the Scriptures encounters many literary jewels as well. Familiarity with the Bible broadens one’s mind in a number of respects. Coming to grips with cosmological assumptions and ethical assumptions very different from one’s own is an edifying venture. Moreover, anyone who examines the Bible with intellectual honesty cannot fail to be aware of its many shortcomings, some of which are egregious. One’s awareness of those shortcomings can temper one’s criticism of other religions. Consider, for example, the current propensity of Muslim extremists in various parts of the world to engage in murderous mayhem. On the one hand, the claim that their evil acts of carnage have nothing to do with Islam is simplistic at best. Anyone who has perused the Koran with intellectual honesty will be aware of the hideous passages on which the Islamist fanatics can and do seize in order to ‘justify’ their terrorism. On the other hand, the perception of a basic divide between the Koran and the Bible in this respect is likewise simplistic. The Bible teems with as many ghastly passages as the Koran. It lends itself to being cited in support of iniquities just as readily as does the Koran. Hence, given that there are no grounds for thinking that the sacred texts of Christianity and Judaism are indissolubly linked to terrorism, there are no grounds for any corresponding accusation against the sacred texts of Islam. An acquaintance with the Bible enables one to recognize this point clearly. The abundance of rebarbative passages in the Bible is another reason for atheists to familiarise themselves with it. Although my commentary seldom gives voice to the atheistic repugnance that I feel toward God, my systematic study of the Bible has made me thoroughly familiar with the numerous discreditable aspects of the Biblical texts. Thus, I can retort knowledgeably to believers who suggest that moral principles are in need of God and the Scriptures as their foundations. Even if the correct basic principles of morality were somehow in need of foundations beyond themselves, the Bible would be too nefarious for the purpose. Those principles would not be strengthened by being associated with the genocidal directives of the God of the Hebrew Scriptures, or with the scurrilous fulminations of Christ against his opponents, or with the Stalin-like gloating of the God of the New Testament at the thought that everyone who has not been sufficiently deferential toward Him will suffer torture for all eternity. Lest the foregoing paragraph may seem too glum, I shall conclude with a relatively light-hearted reason for studying the Bible. A survey of the Biblical texts reveals a host of common sayings that have taken on meanings very different from their original meanings. Hence, a knowledge of the Bible is invaluable for anyone inclined to be pedantic. I could offer more than twenty examples of the sayings that I have in mind, but I have space here for only a few. In Deuteronomy 8:3 and in Matthew’s and Luke’s gospels (with Christ’s response to the first temptation), we encounter the aphorism ‘Man does not live by bread alone’. In the present day, that maxim is almost universally taken to mean that bread is necessary but not sufficient for human flourishing. In its original Biblical context, by contrast, the maxim means that bread is sufficient but not necessary for human flourishing. (In Deuteronomy, bread was unnecessary because God sent manna instead; in the gospels, bread was unnecessary because Christ was able to survive on purely spiritual sustenance.) Another expression almost universally used today with a meaning markedly different from its meaning in its original Biblical context is the claim that certain people are—or behave as if they are—‘a law unto themselves’. When such a formulation is invoked today, it is almost always employed disapprovingly to indicate that certain people arrogantly regard themselves as unbound by the legal or moral restrictions that apply to other people. However, when Paul coined that phrase in his Letter to the Romans 2:14, he was using it commendatorily with reference to righteous Gentiles. Those Gentiles conducted themselves in accordance with the moral requirements of God’s Law even though the Law had never been revealed to them through the Scriptures. Such people were not in need of any acquaintance with the Scriptural presentation of the Law, because they were ‘a law unto themselves’. One further example of a saying that has taken on a meaning at odds with its original Biblical meaning is the assertion that ‘the left hand does not know what the right hand is doing’. In contemporary usage, such an assertion indicates that some endeavour or situation has become muddled as a result of a dearth of coordination between different individuals or between different components of an organisation. Quite dissimilar was the message of Christ when he enjoined his followers in the Sermon on the Mount to refrain from making public their charitable deeds: ‘But when you give alms, do not let your left hand know what your right hand is doing, so that your alms may be in secret; and your Father who sees in secret will reward you’ (Matthew 6:3-4). Christ was counselling his disciples that they should not ostentatiously exhibit their virtues in order to win the esteem of their contemporaries. Instead, they should be so modestly discreet in their almsgiving that even their left hands would not know what their right hands had doled out. To be sure, the Bible is by no means the only source of commonly misconstrued adages. Shakespeare’s works, which are another preoccupation of mine, are likewise such a source. (For example, Hamlet’s remark about ‘a custom more honoured in the breach than the observance’ is hardly ever quoted in accordance with its original meaning.) Still, precisely because the Bible has wielded such an immense influence on virtually all aspects of Western culture, it is a uniquely rich provenance of sayings that have entered into everyday discourse. And because the Bible today is much more often echoed than read, its sayings are frequently misunderstood. Thus, I recommend Biblical study not only for the serious reasons recounted above, but also because it is a wonderful basis for pedantic one-upmanship! Matthew H Kramer Professor Matthew H Kramer is a legal philosopher and a leading proponent of legal positivism. He is Professor of Legal and Political Philosophy at Churchill College, Cambridge, and heads the Cambridge Forum for Legal and Political Philosophy. [1] Thomas Hardy, Tess d’Urbervilles (Broadview Press 1996) 103.

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

In the 1967 gangster road movie Bonnie and Clyde , the often-horrific events of the real-life story are cut with ingenuous humour and sheer innocence. In the bleak landscape of dust bowl America, we are rooting for Faye Dunaway and Warren Beatty from the start, even though we know their love is doomed and they will die in a summary execution in a car riddled with bullets. The historic couple themselves knew this, as Bonnie Parker wrote in a poem: ‘It’s death to Bonnie and Clyde’. Yet we come out of the cinema, or off Netflix, convinced the couple are innocent, if not heroic. As Albert Camus says in The Rebel : ‘Every act of rebellion reveals a nostalgia for innocence and an appeal to the essence of being’.[1] Faye Dunaway and Warren Beatty in 'Bonnie and Clyde' (1967). Used with permission from Warner Bros. One of the things the film, inspired by French existentialist new wave cinema, illustrates is that present-day legal systems have not caught up with philosophical thinking, in the same way the hapless police cars pursue the bank-robbing duo to state lines. Innocence has never been just a passive result of justice when guilt is not found, but a subjective phoenix-like state of childlike being. Camus’ thinking owes much to Arthur Schopenhauer’s book, Die Welt als Wille und Vorstellung : the world as will and representation.[2] For Schopenhauer, as with Bonnie and Clyde, existence is meaningless except for our river of wantings ( Wille ) and what we individually and subjectively make of them. In Bonnie and Clyde’s case, this is their tender love affair and increasingly catastrophic robberies. Schopenhauer in turn was inspired by the poet Johann Wolfgang von Goethe, especially his Faust , where Goethe inverts morality, the true innocent, Gretchen, goes to the gallows, and even the devil Mephistopheles cannot be sure of his outcomes: ‘That power I serve, which wills forever evil, yet does forever good’.[3] In its humanism the Enlightenment turned everything upside down, but not the law. The Faust legend partially derives from the story of Eve and the garden of Eden, where Eve eats of the Tree of Knowledge, and discovers not just sin and the fig-leaf bikini, but free will. This wickedness, paradoxically, led to science, individual reasoning, democracy, the public meeting, and its natural corollary, the jury trial. But the law itself has not embraced either existentialist thinking or, say, the Marxist-inspired structuralism of Michel Foucault, who said we should applaud criminals for keeping the justice system in work. The courts prefer instead to stress guilt, traceable to Eve’s original sin, and dress up in spooky 17th-century costumes to reinforce the point. The call is for ever tougher sentences, yet there is little evidence these would have any effect on crime.[4] In Clyde Barrow’s case they certainly did not, and he even cut off one of his toes to get released early. In the UK, the legal system has a Ruritanian monarchy at its head and is proud of ancient feudal rituals and traditions; in Kafkaesque court documents, it is always R or Rex against the supposedly innocent accused. No former prisoner I have met will admit fully to his crime, even if he has pleaded guilty. The very act of thinking makes us feel like Gods, even if we know nothing of Descartes and cogito ergo sum. Possibly the beauty of the world and looking out at the helter-skelter wantings of Schopenhauer’s Wille make us feel innocent again, whatever we have done, but the law does not take this into consideration. There is this innocent joy of life and appreciation of art, in particular music and language, in the character of Alex in Anthony Burgess’s A Clockwork Orange , so much so that the reader is sickened by his reprogramming at the hands of the state. ‘Oh it was gorgeousness and gorgeosity made flesh. The trombones crunched redgold under my bed, and behind my gulliver the trumpets three-wise silverflamed, and there by the door the timps rolling through my guts and out again crunched like candy thunder […] I was in such bliss, my brothers’.[5] Burgess saw the book as a sermon on free will. Jean Genet, in The Thief’s Journal ,[6] likens convicts to flowers, and his demi-monde is inverted in a way that underscores Schopenhauer’s ideas and those of Jean-Paul Sartre, to whom the book is dedicated. In Genet’s jails and mean streets, as Mick Jagger sings in ‘Sympathy for the Devil’, written after reading Mikhail Bulgakov’s Faust- inspired Master and Margarita ,[7] ‘All the cops are criminals, and all the sinners saints’. To view the legal system as a zero-sum game, where innocence is defined or denied ‘objectively’ in a brief timeframe by a court, or by the police, can have consequences. When the law comes into contact with the ‘street’, occasionally the reaction can show just how philosophically out of step on innocence we have become. The ‘outlaw’ Mark Duggan, of Irish Afro-Caribbean descent, was shot by police on 4 August 2011 after the police had decided he was guilty, but the more humanist ‘street’ thought otherwise and, helped by mobile phone connections, there were days of nationwide rioting and a bill of 100 million pounds.[8] Messing with subjective perceptions of innocence can be costly as well as fatal. Wearing a hijab in Iran is a mark of chastity and obedience. But the killing of Mahsa Amini by the morality police for not wearing one correctly also sparked riots, led by fifteen-year-old girls who are Eve-like in their rebellion and innocence. Paradoxically, rehabilitation of serious offenders could be improved by using, not denying, this mantle of presumed innocence and accepting violent rebellion as part of being human. The Law Society has tried to modernise with publications like ‘Law in the Emerging Bio Age’ and the linked ‘postcards from the next normal’, but seems to shy away from a modern philosophical rethink of jurisprudence.[9] In the picture from the film, Bonnie Parker is wearing a chaste head covering, but she also, wisely, has her finger on a trigger of her Colt Detective Special .38 revolver. Paul Pickering Paul Pickering is the author of seven novels, Wild About Harry, Perfect English, The Blue Gate of Babylon, Charlie Peace, The Leopard’s Wife, Over the Rainbow and Elephant . The Blue Gate of Babylon was a New York Times notable book of the year, who dubbed it ‘superior literature’. Often compared to Graham Greene and Evelyn Waugh, Pickering was chosen as one of the top ten young British novelists by bookseller WH Smith and has been long-listed for the Booker Prize three times. Educated at the Royal Masonic Schools and the University of Leicester, he has a PhD in Creative Writing from Bath Spa University where he is a Visiting Fellow, presented his doctoral thesis to the Bulgakov Society in Moscow, recently completed a Hawthornden Fellowship Residency on Lake Como and is a member of the Folio Prize Academy. The novelist J.G. Ballard said Pickering’s work is ‘truly subversive’. As well as short stories and poetry, he has written plays, film scripts and columns for The Times and Sunday Times . He lives in London and the Pyrenees. A major theme of his novel Elephant , published by Salt in 2021, is innocence. [1] Albert Camus, The Rebel (first published 1951, Vintage 1991) 54. [2] Arthur Schopenhauer, The World as Will and Representation (first published 1819, Dover Publications 1958). [3] Johann Wolfgang von Goethe, Faust (first published 1808/1832, Macmillan 1965) passages 1335-6. [4] See Daniel S Nagin, Francis T Cullen, and Cheryl Lero Jonson, ‘Imprisonment and Reoffending’ (2009) 38(1) Crime and Justice 115-200. [5] Anthony Burgess, A Clockwork Orange (Heinemann 1962) 28. [6] Jean Genet, The Thief’s Journal (Penguin 1967) 1. [7] Mikhail Bulgakov, The Master and Margarita (Vintage 1967). [8] Paul Lewis, ‘'All hell broke loose': Oxford graduate held at gunpoint by police’ Guardian (London, 7 August 2011) < https://www.theguardian.com/uk/2008/jul/09/ukcrime.ukguns > accessed 10 September 2022. [9] Wendy Schultz and Trish O’Flynn, ‘Law in the Emerging Bio Age’ ( The Law Society , August 2022) < https://www.lawsociety.org.uk/topics/research/law-in-the-emerging-bio-age > accessed 11 October 2022.

Currently Professor of Government at King’s College London, Professor Vernon Bogdanor is a leading expert in British constitutional politics and history and has received a CBE in recognition of his extensive contribution to the field. In his most recent book, titled Britain and Europe in a Troubled World , published in 2020, Professor Bogdanor traces Britain’s historical relationship with the European Union in order to understand how Brexit came to be. In this interview, Professor Bogdanor tackles the constitutional issues that the United Kingdom is likely to face in a post-Brexit era, the different lessons learnt as a result of the referendum vote in 2016, and the role that the monarchy has to play in the current British parliamentary democracy . This interview was conducted across 28 and 29 April 2022. CJLPA : What brought you to research and understand British politics? What fascinated you the most about British politics or the British political system? Professor Vernon Bogdanor : Our very strange constitution. The Queen once said that the British constitution has always been a puzzle and always will be. I have tried to elucidate that puzzle. We are in fact one of just three democracies in the world which do not have constitutions. The other two are New Zealand—whose population is half that of Greater London—and Israel, although the Israelis are working towards a constitution. Now, some people in Britain ask, ‘Should we have a constitution?’ But in a sense, that is an absurd question. The real question is: ‘What is there about the air in Britain that means we should not have a constitution, not do what every other country does?’ This problem has become more acute since we left the European Union (EU). In my view, when we were in the EU, we were in fact living under a constitution, namely the treaties of the EU, which provide for a division of power both at the centre between the Commission, the Council of Ministers, the Court of Justice, and the Parliament, but also territorially between the EU itself and the member states. Also, in recent years, the EU has yielded the protection of rights in the European Charter of Fundamental Rights which was enacted in 2009. That led to a remarkable episode in British constitutional history which has not been very much noticed. In Benkharbouche v. Secretary of State for Foreign Affairs [1], Ms. Benkharbouche claimed against the Sudanese embassy unfair dismissal, failure to pay her the national minimum wage and holiday pay, as well as breaches of the Working Time Regulations. The Sudanese embassy claimed immunity under the provisions of the 1978 State Immunity Act. But the Supreme Court ruled that sections of the Act were incompatible with Article 6 of the European Convention providing for a fair trial. The remedy for this would be a declaration of incompatibility which is not a strictly legal remedy, since it has no legal effect. But Article 47 of the EU Charter of Fundamental Rights provides that if rights had been violated by the Convention, they have also been violated by the Charter. So, the relevant parts of the State Immunity Act were disapplied. For the first time in British history, the Court disapplied part of an Act of Parliament because it conflicted with human rights. That, I think, would have Dicey turning in his grave. It was something new and unprecedented. As we have now left the EU, the Charter no longer applies, but Benkharbouche, nevertheless, is an important precedent. The European Charter protects a far wider range of rights than the European Convention. The Convention was enacted in the early 1950s and human rights are, in my view, a dynamic phenomenon. For example, in those days there was no thought of the right to protect the environment which is in the European Charter. Few thought of the right to academic freedom which is in the European Charter. But the most important right is the right to equality in terms of gender, sexual orientation, race, religion and so on which is not in the European Convention. There is also a right to healthcare in the European Charter but not in the Convention. The Convention provides a right to education but not healthcare. Leaving the EU took us out of a constitutional system. We have incorporated almost all EU law into our own law, so that the government and parliament can decide what they want to keep, what they want to modify, and what they want to repeal. That is, of course, a huge task. Incorporation itself is nothing new. For example, our ex-colonies incorporated British law so that they could decide which British laws they wanted to keep. But when they did that, it was because they wanted to develop a constitution of their own. We have done something perhaps unique in the democratic world and instead of entrenching we have been dis-entrenching. We have moved away from a constitutional system to an unprotected constitution. This is emphasised by the fact that one part, almost the only part I think, of EU law that we have not incorporated is the European Charter of Fundamental Rights. This means we have moved from a system which protects rights, to one which does not protect rights. We do have the European Convention, but the way we have adopted it is rather different from almost every other country because judges are not given the right by the Human Rights Act to disapply legislation conflicting with the Convention. All they can do is to issue a declaration of incompatibility. That is just a statement which has no legal effect, and it is then up to Parliament to decide whether to take action. Parliament has a special fast track procedure by which it can take action if it so wishes, but courts in other European countries have much greater powers because they can disapply legislature. This raises a very interesting question because the other 27 member states of the EU do, of course, retain the European Charter. So, I would ask this question: Are our Members of Parliament (MPs) so much more sensitive to human rights than the legislators of other countries in Europe that they can be entrusted with this very important function? I will leave the answer to this question to those reading the interview! It is worth stressing that rights are not solely for nice people like ourselves, but also for very small minorities who may not necessarily be very nice, for example, prisoners, suspected terrorists, suspected paedophiles, and so on—also, asylum seekers, a very small minority not effectively represented in Parliament, also have rights. Brexit raises this issue of whether we should continue to live under an unprotected constitution which does not effectively protect human rights. And there is a further question arising from Brexit. Does the devolution settlement need further protection in Scotland, Wales, and particularly in Northern Ireland? I will discuss devolution a little later. With our strange constitution, law and politics are closely intertwined. Much more of our constitution than in other countries is based on convention. These conventions, in turn, often depend upon popular feeling. For example, we have the case now of Boris Johnson and Partygate. A Prime Minister who has deliberately misled Parliament must, so the Ministerial Code declares, resign. But this convention depends in large part on popular feeling. Are people angry enough to protest to their MPs or do they say that it does not matter too much? A great writer on the constitution, not as well-known as Bagehot, but well worth reading, Sidney Low, author of The Governance of England first published in 1904, said, ‘We live under a system of tacit understandings, but the understandings are not always understood’. That seems to me a very perceptive point about the British constitution. CJLPA : I am assuming on the basis of the points you have just mentioned, do correct me if I am wrong, you are a supporter of a codified constitution in the UK. In light of this, has this been received or acknowledged by figures in the political system? Are there supporters for a constitution at the moment? I can imagine that the current opposition might not be keen on that idea. VB : When we had a Labour government, Gordon Brown who was Prime Minister from 2007 to 2010—and I think it no accident that he came from Scotland—favoured a constitution. If he had been re-elected in 2010, he would have tried to enact one in 2015 which was the 800th anniversary of the Magna Carta—but he was not re-elected. The Liberal Democrats have long been in favour of a constitution, and I think some in the Labour Party are. Perhaps the longer Labour is in opposition, the more likely it is to support a constitution. But the Conservatives are, in general, not in favour, partly because they are the natural party of government in the sense that they tend to be in power most of the time. I mentioned that it was not an accident that Gordon Brown, being Scottish, was in favour of a constitution, for many Scots have never accepted the idea of the sovereignty of Parliament. They say that it is the Scottish people who are sovereign, and that point has been tacitly accepted by Westminster. There was a referendum in Scotland on independence in 2014. The Scots voted against it, but had they voted for it, they would have become independent. There was also a referendum before devolution was introduced. In both cases it was accepted that it was for the Scots to decide, even if their decision went against the wishes of Westminster. So, for the Scots, the central principle is perhaps less the sovereignty of the Westminster parliament than the sovereignty of the Scottish people. That is also accepted in Northern Ireland. If a majority in Northern Ireland were to decide that it wished to join with Ireland, that would be accepted by Westminster. An American once said that in politics where you stand depends upon where you sit. Perhaps that is true in Britain because it may be that the sovereignty of parliament is primarily an English concept. The Welsh government favours a quasi-federal system for the United Kingdom (UK). The Scots believe in the sovereignty of the Scottish people. In Northern Ireland there is a divided community, but there also, the principle of the sovereignty of parliament is overtaken by the principle of the sovereignty of the people. There are, however, two different views about the Northern Ireland constitution depending on whether you are a unionist or a nationalist. CJLPA : Say Gordon Brown is attempting to get re-elected again and he has the idea of codifying the constitution within his manifesto. What is the extent of the risk of the codification of the constitution becoming a politicised issue in the media? VB : I doubt if there is much risk. Enacting a constitution would be a long process because it would require popular consent. Most people in England do not think much about the constitution, although they do in Scotland and Northern Ireland. We would first have to have a body to draw up an agenda; then you would need a Royal Commission which would have to travel around the country having evidence sessions. That would be a kind of learning exercise for the public. Then the government would draw up a constitution and then there would have to be a referendum, probably with a majority needed in all parts of the UK, unlike the Brexit referendum. So, it would be a long process. I do not think it would necessarily be party political. I think, however, that it will be a long time before we get a constitution. It is not an immediate issue, and it is very low on most people’s priorities. Human rights also are very low on most people priorities, though one lawyer, former MP and former attorney general Dominic Grieve, has made the interesting suggestion that the European Convention should include a right to healthcare as the European Charter does, in addition to the right to education. The reason is that the right to healthcare would affect large numbers of people, and therefore it would be more likely that more people would feel they own the Convention, which they do not at present now because they think of it as defending disreputables such as criminals. But they would then own it and there would be more respect for human rights. Otherwise, constitutional issues are a minority concern. There are no mass meetings in Trafalgar Square with crowds clamouring for a constitution! CJLPA : If a human rights issue is quite prominent and has a lot of media following, perhaps it could grab some attention? VB : Only amongst a small group of the intelligentsia, the academics—the chattering classes if you like, not amongst the people as a whole. I do not think academics are very representative of public opinion in general or necessarily have much insight into public opinion. Opinion polls show that enacting a constitution is not a priority. CJLPA : I think you would agree with me that there have been many, but not all, British politicians who have been out of touch with the citizens that they are trying to represent: take the recent Partygate scandal that you mentioned earlier and the fact that it is currently difficult to punish a misbehaving government, or Brexit where even though the referendum was a close result, MPs were evidently not representative of the UK because a majority of them actually wanted to remain. In light of that, to what extent is the current UK political system truly a representative democracy? VB : I think your introduction of the referendum is very important. For, as you say, the majority of MPs were against Brexit, and the government was against Brexit. For the first time in British history, Parliament was enacting legislation in which it did not believe. Legally, Parliament is still sovereign, it could have ignored the referendum, it would not have been unlawful to do so. But, in practice, it was not possible to ignore the referendum. So, Brexit is a milestone in our constitutional history. Not only was Parliament no longer in practice sovereign, it was shown not to be representative of the people. As you know, many in the British political elite were fervent Remainers and did not want to accept the result. The EU does not like referendums either. In 1974, shortly before we were to have our first referendum, the ex-President of the European Commission Monsieur Jean Rey said these matters should be left to trained people. ‘You cannot’, he said, ‘have a system in which housewives should be allowed to decide the future of Britain!’. A lot of the arguments against referendums, in my opinion, are similar to the arguments used against extending the suffrage—that the people are ignorant, that they do not understand the issues, and that political decisions are best left to elites. A French reactionary, Joseph de Maistre, declared that the principle of the sovereignty of the people—which is now a part of our constitution I believe—is so dangerous that even if it were true, it would be best to conceal it! Not only is the referendum now part of our constitution, but there are, what we might call, ‘shadow referendums’, referendums which were not held because of fear of the result, but which nevertheless influenced the political agenda. For example, when Tony Blair was Prime Minister from 1997 to 2007, he very much wanted Britain to join the Euro, but he believed that this required a referendum. However, he never put the issue to referendum because there was not one single opinion poll which showed a majority in favour of the Euro. You may say looking at the experience of continental countries, particularly Mediterranean countries such as Spain, Portugal, Italy, and Greece, that we were lucky not to join the Euro! CJLPA : On the topic of democracy, I would like to ask a question specifically about the role of the British monarchy because monarchs by now are the exception, not the rule. Especially now, in Britain, it is quite difficult to support the monarchy when its role in the UK constitution might be minimal but its influence, as we have seen, has proven to be plenty. What role, if any, does the monarchy have to play in a democratic system? VB : The main role of the monarchy is not constitutional. Its constitutional powers are almost nil. But as well as being head of state, the Queen is head of the nation. She can, as it were, represent the whole country to itself. By contrast, if you have a president, you either have a president such as Macron in France or Biden in America who is head of the executive. They represent not the whole country, but just half of the country. Or you can have a constitutional president without political power which, for example, Italy and Germany have. I suspect that very few people could name the presidents of Italy and Germany, I certainly could not, and the position is usually given to a harmless retired politician who is put out to grass. Do we want that here? President Cameron or President Blair? They could not represent the whole country. This is particularly important with the devolution settlement because any elected person would be either English, Scottish, Welsh, or Northern Irish. The Queen is none of these and all of them at the same time. We are lucky in the Queen because she instinctively understands, what you might call, ‘the soul of the British people’, which it would be very difficult for a politician to do. Unlike a politician, she has no party-political history. No one knows whether she is Labour, Liberal Democrat, or Conservative, or what her views are on politically controversial matters. I think we are fortunate to have a constitutional monarchy. The constitutional monarchies in Europe are very stable, moderate countries: some Scandinavian countries, Britain, the Benelux countries, and Spain. We are lucky that we have never had a revolution because revolutions or defeat in war tend to get rid of monarchies. For example, in Italy the monarchy was removed after the defeat in the Second World War because the king was thought to be associated with fascism, in Germany after the First World War, and in France after the revolution. We are lucky, perhaps because we are an island, that we have never been involved in revolutions or upheavals. In 1945, when we had the first Labour majority government, the American president Harry Truman was visiting Britain and he said to King George VI, ‘I see you’ve had a revolution here’, and the King said ‘Oh no we don’t have things like that’. CJLPA : You say that the monarchy is the ‘soul of the British people’. I would perhaps counter that. You mentioned the Nordic countries and the role that their monarchy has to play. I would say that the level of influence is completely unparalleled. It is true that the power is minimal, but the influence and the presence is not. VB : I do not know if the Queen has much political influence. When has she exerted political influence? I do not think that is right. CJLPA : I was thinking more of the case of Prince Charles. VB : Yes, that is interesting. He has had influence, but not on party political matters. His technique is to raise an issue which he thinks has been hitherto ignored by politicians, for example, the environment and climate change. When the politicians do take up the issue, he steps back. He has also spoken on a number of other issues that he thinks important which are not party political, for example architecture, teaching Shakespeare in schools, and so on. He has said controversial things, but they are not controversial in the party-political sense. He has never spoken publicly about Brexit or whether we should have a Conservative government or Labour government. He is very careful in all his speeches not to appear partisan. He does not speak on advice like the Queen but, out of courtesy, he shows his speeches to ministers. I suspect that if ministers said, ‘Well, look, this does entrench on government policy’, he would back down. He has known since birth what his role will be, and he has been trained and brought up in the constitutional tradition. He has not been party-political, but he has influenced opinion in other ways. I agree with you on that. CJLPA : With race and identity coming up a lot, regarding the institution itself and its imperialist past, rather than the Queen more specifically or the members of the family, I think people disagree that it is representative of the British people. VB : The monarchy in Britain is unlike the other monarchies I have mentioned because it has an international dimension thanks to the existence of the British empire, now the Commonwealth. Of the 54 countries which are members—around a third of the world’s population—15 of them, now that Barbados is a Republic, are Commonwealth monarchies. The rest are republics. The Commonwealth is a voluntary organisation of equals, while the empire was based on domination. But the empire cannot have been quite as terrible as some suggest if almost all of the colonies have voluntarily agreed to join the Commonwealth. The only former countries ruled by Britain that have voluntarily left the Commonwealth are Burma, now Myanmar, and Ireland. Two counties which were not part of the empire—Mozambique and Rwanda—have joined. The Commonwealth gives the monarchy an international dimension. The majority of people in the Commonwealth are not white and not Christian. This means that the monarchy must stand and does stand for racial and religious equality. In her Diamond Jubilee in 2012, the Queen’s first visit was to Leicester which is an example of a multiracial city where integration has proved successful. And in 2004 she made a particularly interesting Christmas broadcast. She spoke of the parable of the Good Samaritan, the implication of which was clear. ‘Everyone is our neighbour, no matter what race, creed or colour. The need to look after a fellow human being is far more important than any cultural or religious differences. Most of us have learned to acknowledge and respect the ways of other cultures and religions, but what matters even more is the way in which those from different backgrounds behave towards each other in everyday life’. She then went on to say: It was for this reason that I particularly enjoyed a story I heard the other day about an overseas visitor to Britain who said the best part of his visit had been travelling from Heathrow and into central London on the tube. His British friends, as you can imagine, were somewhat surprised, particularly as the visitor had been to some of the great attractions of the country. ‘What do you mean?’, they asked. ‘Because’, he replied, ‘I boarded the train just as schools were coming out. At each stop children were getting on and off—they were of every ethnic and religious background, some with scarves or turbans, some talking quietly, others playing and occasionally misbehaving together, completely at ease and trusting one another’. ‘How lucky you are’, said the visitor, ‘to live in a country where your children can grow up in this way’. We can also see the influence of the monarchy in the Queen’s broadcasts on COVID and in broadcasts commemorating D Day and VE Day where she was able to speak for the whole country. In my opinion, the case for constitutional monarchy is unanswerable. CJLPA : To what extent did the countries in the Commonwealth remain within the Commonwealth for economic reasons? VB : That is part of the argument, but one should not exaggerate it because, after all, when countries become independent, they do not ask whether they will be better off or worse off. If you had said to the Nigerians in the 1960s, ‘You will be economically worse off outside when you are no longer a British colony, when you are no longer ruled from Westminster’, they would have said ‘That’s completely irrelevant. We want to govern ourselves’. The Indians and other newly independent countries would have said the same. So, I would not overstress that argument. The Commonwealth is in a way a sentimental organisation which does a great deal of good because one of the main problems in the world is the relationship between people of different ethnic groups and religions. It is often forgotten that the Queen’s Christmas broadcast is not delivered in her role as Queen of Britain but as Head of the Commonwealth in which a majority are neither white nor Christian. I think it must be valuable to bring together people of different countries and different ethnic groups. CJLPA : We know that the Northern Ireland protocol is a particularly precarious issue, and a very delicate part of the Brexit process. We know it has been ruled by the High Court and the Court of Appeal in Northern Ireland as legal. If it is not constitutional, on the other hand, what does that mean for Brexit as a whole, or even just the UK constitution in general? VB : What it means is that at the very least the Protocol must be radically amended. The Protocol may or may not be constitutional. But the courts were asked to pronounce on whether it is lawful—a different matter. They have said that it is lawful, but it does not follow that it is constitutional. After all, a statute that is incompatible with the Human Rights Act is lawful, but it is not constitutional. It would be lawful for the government to have ignored the Brexit referendum, which was an advisory referendum. But most of us think it would not have been constitutional. CJLPA : What is likely to happen from here on in with the Northern Ireland protocol? What are we likely to see? VB : The Northern Ireland Protocol is a consequence of Brexit. Northern Ireland is the only part of the UK with a land border with an EU country. That has become of greater importance since Brexit because Britain will probably diverge from EU rules and regulations. The question is whether the regulatory and customs border should be on the island of Ireland or in the North Sea. Wherever it is, there is going to be trouble because if it is in the island of Ireland, the Irish nationalists are going to be annoyed. If, as is the case, it is in the Irish Sea, the unionists will be annoyed. Brexit goes against the spirit of the Good Friday Agreement or Belfast Agreement—I should say that there is no agreement on what it is to be called. If you are unionist you will call it the Belfast Agreement, if you are nationalist you will call it the Good Friday Agreement. But whatever it is called, the Agreement was an attempt to resolve the Irish problem. It enabled residents of Northern Ireland to identify as British, Irish, or both, and to enjoy Irish citizenship as well as British citizenship. But, with Brexit, if someone decides on Irish citizenship, she cannot access in Northern Ireland the rights of an EU citizen. She cannot, for example, access the European Charter for Fundamental Rights. So, Brexit does complicate the Irish problem. Both John Major and Tony Blair said in Northern Ireland that this would be a consequence of Brexit. Northern Ireland, as it happens, did not vote for Brexit: 56% voted to stay in the EU. But Britain is not a federal state and so Northern Ireland was overruled by the rest of the country. The Northern Ireland courts have been considering the contention by the unionists that the Protocol is unlawful because it goes against the Act of Union of 1800 which provided that there should be no customs barriers between Britain and Ireland. The courts have said that the relevant part of the Act of Union was overridden by the Withdrawal Act which is also a constitutional statute. Parliament well knew what it was doing when it enacted the Protocol, and in so doing, it implicitly repealed the relevant part of the Act of Union. The argument against the constitutionality of the Protocol would be that the Act of Union is absolutely fundamental because it is constitutive of the UK itself. So, it cannot be implicitly repealed but has to be explicitly repealed. That issue may go to the Supreme Court, I do not know whether leave to appeal to the Supreme Court has been given but the unionists are seeking it. CJLPA : Because of the fact that it was brought by staunch unionists to the courts, is conflict almost inevitable? VB : Yes. The withdrawal agreement is a victory for the Irish nationalists. It is a zero-sum game. The Good Friday Agreement, or the Belfast Agreement, tried to avoid the zero-sum game. Both unionists and nationalists could win, one could be both British and Irish. But, in relation to the Protocol, one can understand the unionist position, since the Protocol divides the UK economically. CJLPA : Regardless of how the Northern Ireland protocol is likely to turnout, are we likely to see a chain reaction of similar, but more sovereignty-related, issues in the other devolved nations? VB : Yes, Brexit has caused renewed conflict between Westminster on the one hand and Scotland and Wales on the other, for this reason. When the devolution settlement was made in the late 1990s the assumption was that Britain would stay in the EU. The devolution of some functions, for example, agriculture and fisheries, was fairly meaningless because almost all policy in those areas was determined by Brussels, so there was no real scope for an independent policy in these areas from Edinburgh or Cardiff or, indeed, Westminster. In theory, with the incorporation of EU law back into Britain, all EU powers relating to devolved matters should go to Scotland and Wales. But this raises a problem since we cannot have, for example, four different systems of agricultural subsidies in the UK, especially when agriculture will almost certainly be the subject of trade negotiations. Suppose we seek an agreement with America. The Americans would want to ensure that they had access to the whole of the UK market, not just England. So, in the Internal Market bill, the government reserved some powers which had been devolved. There has been much annoyance in Scotland and Wales and their governments have tried to amend the law through the courts. They have, however, not succeeded since we do not have a federal system. So, Parliament can still legislate on matters devolved to Scotland and Wales. But in Scotland and Wales many say, ‘This may be lawful but it’s unconstitutional, you shouldn’t be legislating on devolved matters without our consent’. So, Brexit has raised problems in Scotland and Wales as well as in Northern Ireland. CJLPA : On a similar note, there is the looming possibility of a second independence referendum. In Scotland, Nicola Sturgeon has promised the Scottish people that in a stable post-COVID era she would propose to them the question of independence. VB : That is possible, but contrary to what many think, Brexit makes independence more of a gamble because there would then be a hard border between Scotland and the rest of the UK. The rest of the UK is Scotland’s largest trading partner: almost all its exports go to the rest of the UK, not to the Continent. So, independence could be economically catastrophic for Scotland. In addition, Scotland gets more per head in public spending than England thanks to the Barnett formula. And she would face the same problem she faced in 2014 of what her currency should be. If it were to be the pound, she would have her monetary policy controlled from London. A similar arrangement caused Greece and Italy many problems with the EU. They were restricted in their economic policy since they had no control of monetary policy which lay with the European Central Bank. If Scotland had her own currency, interest rates might rocket sky high, since the new currency would be such an uncertain quantity. If Scotland joined the Euro, she would have to reduce her budget deficit to around 3%. Her budget deficit is now at around 7 or 8%. The cuts in public expenditure or increases in taxation would need to be huge. They would make George Osborne, the austerity Chancellor, look like Santa Claus! Scotland would not get the benefit of Margaret Thatcher’s EU rebate either, I suspect. So, independence is a less viable project than when Britain was in the EU, but, as I mentioned a moment ago, it might be argued that these economic factors are not really fundamental when it comes to independence. When India and Nigeria became independent, they did not ask whether they would be better off of or worse off. Nor did Ireland when she became independent. Pressure for independence seems to be receding a little at the moment, though it is stronger amongst younger voters than older ones. The current Conservative government will not grant a second referendum but if there is a Labour government dependent on the Scottish National Party (SNP), the SNP might insist on a second referendum as a price for supporting that government. So far, we have been talking about the British problem, but I think Brexit gives rise to great EU problems as well. Donald Tusk, the President of the European Council, said it was a mistake to believe that the factors leading to Brexit are not also present in other EU countries. Brexit, he said, should be a warning signal for the EU. President Macron of France—on the Andrew Marr Show in early 2017—could not guarantee that if a referendum were held in France that it would not yield the same result as in Britain—Frexit. The EU faces problems and I think the main problem is that the original model—the Jean Monnet model, the Jacques Delors model—has reached its limit. As the EU comes to entrench upon national sensitivities, it encourages a populist reaction, particularly in areas such as immigration and control of economic policy. I think it would be better for Europe to develop along Gaullist lines, as a Europe des etats , a Europe of states (De Gaulle has often been mistakenly accused of using the phrase Europe des Patries ). The Commission remains the only body that can initiate legislation. Many find that odd since it is not elected and cannot be dismissed by the voters. Some Gaullists have said that it should become a secretariat of the Council, and that seems to me sensible. The federalists, Jean Monnet and Jacques Delors, wanted the Commission to be eventually responsible to the European Parliament and the Council of Ministers to become the upper house of member states. But Europeans do not regard the European Parliament as their primary legislature. Their primary allegiance is to their domestic legislatures and the European Parliament is seen as part of an alienated superstructure – representing them not us. There is a conflict, exacerbated by the EU, between the political class and the rest. The political class favours integration but the people are sceptical. This is particularly so in France. It was first revealed 30 years ago when the French, thought to be at the centre of European integration, only narrowly accepted the Maastricht treaty. Then, in 2005, they rejected the European constitution. Nevertheless, the elites go ahead regardless and that seems to me foolish. They need to take account of popular feeling. The EU was founded in a different age, the early 50s, when there was much greater deference, and I am not sure it works as well today when there is a demand for greater accountability. So, Brexit contains important lessons for the EU as well as for Britain. CJLPA : What lessons have the member states themselves learnt? And do they have a responsibility for how Brexit played out? VB : I think they need to look at how to combat populism and I have tried to suggest how that might be done. What is remarkable in Britain, contrary to many predictions—and I was myself a Remainer – is that Brexit, paradoxically, has liberated Britain’s liberal political culture. Survey after survey has shown that the public is more sympathetic to immigration than it was. We have developed more liberal attitudes to immigration than most EU member states, and immigrants have more of a chance of finding employment here than in many other European countries. The present government contains six members from non-white ethnic minorities. Angela Merkel’s last government in 2017 had none at all. When we left the European Parliament, we took a large percentage of ethnic minority Members of the European Parliament with us. A number of European countries have none at all. Contrary to what many predicted, we have not become a more insular racist country, we have become a more liberal country. Populist forces seem to have been weakened. The EU must itself learn how to combat populism. CJLPA : After Brexit we saw many far-right parties recoil very quickly from their own plans to exit from the EU. What has the far-right learnt with regards to Brexit? VB : The far-right benefits from general alienation from government, particularly on immigration and on the fact that the EU makes it very difficult for national governments to control economic policy. In the Mediterranean countries—not so much in Italy but in Spain and Portugal and possibly Greece—the far-left has gained more. The far-left has gained in France as well. It is the entrenching by the EU on national sensitivities that is so worrying. If you look at past federal states, many have been built after war—the American Civil War, the German wars under Bismarck, the Swiss war in 1848—and took a long time to form, even in America where everyone speaks the same language. There is not going to be any sort of federation in a Europe comprising so many different national traditions, languages, and cultures for a long time. One might have got it and might possibly still get it if an inner core of the original six got together—Germany, Italy, France, and the Benelux. But there is very unlikely to be a federation of the 27 member states. CJLPA : In light of some of the negotiations being postponed to a later date, when will we see a post-Brexit life? Will we be seeing it anytime soon? VB : Brexit is a process not an event. I think the process will continue for a long time. And it will be some time before we can judge the economic and constitutional effects of Brexit. On these matters the jury is still out on whether Brexit will prove beneficial or not. The jury is also still out on the future of the UK. Will Scotland remain part of it? Will Northern Ireland? No one knows, and I am not going to predict. It is difficult enough for the historian to find out what has happened in the past let alone what will happen in the future. This interview was conducted by Teresa Turkheimer, an MSc student in European and International Public Policy at the London School of Economics and Political Science. Her main interest lies in understanding the causes and effects of inequalities that characterise the labour market today, and is hoping to pursue a career in research in the coming years. [1] [2017] UKSC 62.