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Well-known for her book  Bananas, Beaches and Bases , exposing the embedded systemic and institutionalised patriarchy that is evident not only in global politics, but in the political science and literature of international relations, Professor Cynthia Enloe is one of the most compelling feminist theorists and political scientists of the twenty-first century. Currently a Research Professor of Political Science at Clark University in Worcester, Massachusetts, Professor Enloe has written countless articles and books on the important role gender plays in the areas of militarism, war, and globalisation. In this interview, Professor Enloe outlines the difficulties faced by feminist theorists and researchers, how to identify gender disparities during crises (with reference to the current pandemic), and the questions one should ask in order to be able to expose patriarchy, as well as the importance of asking these gender-curious questions.     CJLPA : In your most recent book, The Big Push: Exposing and Challenging the Persistence of Patriarchy , you write that, contrary to common belief, patriarchy is not weakening, but modernising and adapting to current times. Why has this happened?   Professor Cynthia Enloe:  First of all, I’m not a pessimist. I’m not somebody who says that all the efforts of women around the world in so many different countries that challenge patriarchal practices, patriarchal beliefs, and patriarchal institutions are fruitless. That’s not my message. But what I am more and more aware of is how those people who are committed to patriarchy—even if they don’t call it that; they call it ‘preserving normalcy’—constantly are updating their ways of preserving their privileges. That’s what I mean. Here’s one example: when a comics artist and a comics company, for example, together created Wonder Woman  in 1940, that looked then like a big breakthrough: a woman could be a fictional superhero! But Wonder Woman ’s creators and marketers—she was created by a man and a male-owned comics company—deliberately dressed her in a sexualised costume. Wonder Woman  didn’t look like most women in the world. Opposition to her sexualised portrayal motivated dozens of UN staff women dramatically to protest this comic book figure being named (by a male-led UN department) the ‘ambassador for women and girls’ in 2016. To these hard-working international civil servants, that UN choice looked like an updated version of patriarchy. So, on the one hand, the creation of a woman superhero seemed to challenge the patriarchal presentation of the usual masculinised superhero; on the other hand, though, the creative innovation seemed designed to perpetuate the sexualisation of women with power. Patriarchal imagination was simultaneously being challenged and confirmed.   Here’s another example of patriarchy’s adaptability. There used to be no women cabinet officers in virtually any government. I have a friend whose mother was the first woman to be a cabinet minister in Chile, becoming the Minister of Education back in the 1960s. She was a Chilean feminist pioneer. Women’s breaking into the masculinised world of government cabinet officers has been indeed a real gender achievement in any country. Nevertheless, while we recognise that, we still have to keep asking when and how the male political elite transformed their cabinets so as to feminise some cabinet posts—for instance, now routinely appointing women to the posts of Ministers of Environment, Culture, Health, and Education, while carefully ensuring that the most powerful cabinet posts have remained in the hands of male ministers (Defence, Interior, and Finance today still are the most commonly masculinised).   You’ll notice that the ‘patriarchal sustainability formula’ relies on masculinising some things, while feminising other things, and—this is key to any patriarchy’s perpetuation—always acting as though the things that are masculinised are more serious, more valuable, more significant than the things that are feminised.   With this understanding in mind, we can take a fresh, feminist look at the still-unfolding history of women and men in governments’ cabinet posts. Patriarchal people’s preferred scenario is: first, men (and a few ‘Margaret Thatcher’s) with political power stubbornly resist women being allowed to take up senior cabinet posts. But then, though, when women begin to stick their collective feet in the political door, thereby managing to gain a few senior cabinet offices, the male political elite begin to appoint them to ministries that, in their shrunken masculinised political imaginations, are deemed less politically important.   Now is the point where you probably want to intervene and ask, ‘But nowadays, in our current era of climate crisis, how can even patriarchal politically powerful men imagine that their own government’s environment ministry is less important for their country than, say, their defence ministry?’ Or, put another way, you might ask, ‘With climate change threatening entire populations’ ways of life, how can patriarchal men kid themselves into thinking that environmental policy-making can be feminised, that is, shoved to the political margins?’.   These are exactly the sorts of questions feminists— as thinkers, researchers, and activists— pose. So we have to stay on our toes. Will ministries of environment today start to acquire more political saliency? As they do, will the proportion of all of the world’s ministers of environment who are women begin to drop? As climate change acquires the precious mantle of a ‘state security issue’, will male political elites begin to deem environmental policy ‘too important’ to be left in the hands of mere women? Stay tuned!   People who are invested in patriarchal ways of doing things, I’ve learned, are always trying to update their strategies, trying to convince the rest of us that their revised formulas amount to ‘progress’. Patriarchal people, in other words, are never just old fusty men in pinstripe suits, smoking cigars in their private clubs. Patriarchal people are now the hip Silicon Valley guys working out, eating salads, and sporting black T-shirts. I think it’s a big mistake for us ever to imagine that patriarchy is old-fashioned. It can be as up-to-date as tomorrow.   CJLPA : In your opinion, what current challenges do feminist thinkers like yourself face more generally, and more specifically within the field of international relations?   CE:  Lots of people who ask feminist questions about international politics face not so much direct hostility as in attention. Feminist questions—and their answers—about the gendered causes and consequences of Brexit, Iran’s weaponry, Palestinian rights, Myanmar’s military coup, the world trade in Xinjiang cotton, implementing the Paris Climate Accord, the trials at the International Crimes Court, too often are met with ‘Who cares?’ The scores (really scores!) of us who are seriously pursuing these and many similar questions (nothing is out of bounds for feminist international politics specialists!), have become convinced, as a result of what we’ve uncovered in the workings of international politics, that we can help citizens and policymakers be more effective by helping them become more realistically informed about the complex workings of power.   Our findings over the last 50 years of gender-curious research have shown us, first, that there are a lot more wieldings of power in more sites (especially efforts to control women—as mothers, wives, girlfriends, daughters, sex workers, factory workers, plantation workers, domestic workers, refugees, and widows) than non-feminist commentators want to admit. Non-feminist commentators constantly underestimate power. Second, our collective investigations have revealed that power takes many more forms than most commentators acknowledge. That’s one of the findings that all the activists and their academic allies who’ve made #MeToo into a genuinely global movement have lit up in neon.   In the academic field of what is called ‘IR’, gender-curious scholars have made a lot of headway. There are now new books and whole book series by publishers like Cambridge University Press, Oxford University Press, Palgrave, and Routledge focused on gender and international politics. That’s big. Major transnational NGOs such as Human Rights Watch, The International Crisis Group, and Refugees International now fund and publish gender-conscious investigatory reports. In no small part that is due to there being a lot more feminist-informed staff people inside those NGOs. We also have created or transformed dozens of academic journals that publish very interesting articles that explore the workings of gender and power—that explore the relationships between diverse women, men, and power, as well as the contests over the norms of masculinity, femininity, and those contests’ implications for gaining, losing, and wielding power.   Furthermore, we’ve created academic associations and caucuses within academic associations around the world. Both the US-based International Studies Association and the British International Studies Association have large and lively gender studies sections. Just recently, I was talking with women who have created a Women and Gender Caucus inside the Brazilian International Relations Association. Last week, I was talking with a professor in Bucharest who has launched a new network of South-eastern European feminist security experts. There also are now at least two separate Feminist Foreign Policy groups.   Still, it can be hard for feminist researchers to get a hearing in the most prestigious media or most prominent international politics academic forums. What oftentimes happens is that you look at undergraduate and graduate course syllabuses and what do you see? The faculty member teaching the course doesn’t think of themselves as knowing much—or, frankly, caring much—about the workings of gender in international politics, yet nowadays feels they’ve got to give at least a token nod toward gender and IR (this is progress!). So, they squeeze the topic of gender and international politics into just one week. One week for the world’s workings of masculinities: really?  One week for exploring women’s resistances to abuse and   privilege:  really?  And, of course, this single week is put at the end of the term. This means that by the time the faculty member gets to the end of the term, she—or usually he—hasn’t covered everything else they consider important and therefore zips over gender political analysis without serious consideration.   That’s how patriarchy works. It was a big success to get most people who teach international politics—especially in the introductory undergrad or grad courses—at least to assign one reading on gender in international politics, and to devote at least one week to the topic, but neither in a way that might infuse the entire course and its students with a deeper feminist curiosity. Despite tokenisms, though, there are nowadays more and more graduate students in more and more countries—South Korea, Japan, India, Sweden, Poland, Argentina, Brazil, Romania, Turkey—who are really serious about investigating and teaching about the multiple gender dynamics shaping international politics. There’s where hope lies.   CJLPA : That’s exactly why I wanted to ask that question because I have spoken about it quite a lot recently with some of the female peers in my course. We have asked in seminars, for example, why should feminist critiques not be incorporated in other module topics?   CE:  You are so right: ask ‘Why?’ See if you can get the instructor in the course to be a little uneasy about their own segregating of gender dynamics into a separate section, as if it had nothing to do with everything else you all are investigating. I call this ‘patriarchal siloing’. It’s a teaching practice that is designed to foster the risky notion that most of international political life is pristinely un-gendered—as if contests over manliness do not shape militarism, as if practices of making women’s factory labour ‘cheap’ does not affect international trade, as if efforts to control women’s reproduction do not play roles in migration, development, or nationalism. You could even suggest that the instructor reorganise the course. Everyone is very possessive about their own course syllabuses. Still, you might suggest, ‘Next term, couldn’t you place the gender-curious analytical questions up in the second week of the course so that then we will be prepared throughout the rest of the course to ask those probing questions?’ That’s not asking the faculty member to completely reorganise his or her thinking, though it might have that effect on the students! Give it a try, and then tell me what happens!   CJLPA : What has been the effect of COVID-19 on gender inequalities across the world, and what are we likely to see happen to these inequalities post-pandemic?   CE:  This is so interesting. In recent months as the pandemic lockdowns have rolled across diverse countries, I’ve been hearing two things: first, that the ‘politics of care’ finally, after decades of neglect as a mere ‘women’s issue’, might be taken seriously; second, that what has happened in so much conventional (that is, not gender-curious) political commentary is that a lot of people who are treated as ‘experts’ because they presumably know how to talk about budgets, balance of payments, and national security, but haven’t a clue about the workings of child care, are having to move over and give at least a bit of authoritative space to those feminist economists, feminist sociologists, feminist historians, and feminist labour researchers who do know the broad policy implications of low-paid and unpaid gendered child and elder care.   One of the things I’m very hopeful about in the new Biden–Harris administration here in the US is that both care and experts on care are getting a lot of official attention. Joe Biden has appointed specialists in the gendered political economies of care to senior posts both in the White House and in several cabinet departments. Women representatives in the House (for instance, Rosa DeLauro of Connecticut) and the Senate (Patty Murray of Washington stands out) are finally getting the legislative and executive backing their childcare and family bills deserve.   Perhaps the biggest conceptual innovation in US politics today is that ‘infrastructure’ now includes not only the conventional bridges and highways, but also family care provision. Talk of government funding for bridges and childcare in the same policy sentence—that’s big!   Since eldercare and childcare in so many countries relies not only on women’s unpaid labour but also on the low paid labour of migrant women workers, of course, that means—as it has long meant— that the political economy of care is an international political phenomenon. This means that in the not-quite-yet-post-COVID world, all of us who do international political analysis had better get up to speed on the gendered international politics of care.   During my doctoral studies at the University of California, Berkeley, nobody ever urged me to investigate the politics of paid and unpaid care. But when I was researching what became the first edition of Bananas, Beaches and Bases , it dawned on me that I should look at the international migration of domestic workers. It was Filipinas who stirred my curiosity. I’ve been interested in Philippines politics for decades because of its experience as an American colony, because of its serving as the site of major US military bases, because of its vibrant electoral politics, and because of its prominent women’s movement. So, when researching Bananas , my attention was caught by the data showing that remittances sent back home by thousands of Filipina women and Filipino men working abroad was a significant factor in the Philippines’s balance of payments. The men were working especially as crew members on globalised cargo ships. The women were working as nurses and as domestic workers. Suddenly I realised, ‘I should pay attention to that’.   One reason that I think I was kind of ready—not an expert, but intellectually ready—for the COVID-19 era was that I had already been tutored by women in international domestic migration networks (which now include Brazilian, Sri Lankan, Ecuadorian, as well as Filipina women) to keep track of domestic work as an international political phenomenon, even if most political commentators weren’t paying much attention.   As we haltingly, stunningly, unevenly move beyond COVID, what will the gendered patterns of paid and unpaid work look like? Will the economic inequalities between women and men in post-pandemic UK, Brazil, US, India, and Australia gape even more widely than they did before 2020? What will be the consequences for both national and international politics? We had better start paying attention now.   CJLPA : Do you think that we also need to keep an eye on the kind of crisis management that goes on afterwards?   CE:  What are the gender analytical skills required today by employers of anybody who gets a crisis management job? My guess is none. That likelihood is despite a burgeoning literature on the gender differences in what happens in all sorts of natural disasters and public health crises to men and to women.   For example, feminist geographers have investigated what happens to men in earthquakes, hurricanes, and tsunamis and what happens to women. Gender differences, they have found, loom large. Who was taught to swim, who wasn’t? Whose customary attire enables them to run fast? Who must rescue the children? Who fishes in boats out the ocean, who harvests seafood close to shore? Who in any household is responsible for collecting firewood and fresh water? Who in a hastily assembled refugee camp is most likely to be threatened with sexual assault? If crisis managers don’t know of these findings or do not integrate their lessons into their organisations’ preparedness practices and their response practices, they will not only fail to address the particular needs of women and men; their gender-ignorant actions will deepen gender inequities.   CJLPA : Would you say you are quite hopeful in this instance?   CE:  Wherever any gender analytical skills are being seriously taught is a cause for hope. Any university that is making the acquisition of gender analytical skills a degree requirement gives me even more hope. We can’t wait until people are hired into policy-making or crisis management jobs, and then imagine that they’ll suddenly become gender-curious—though, thankfully, I’ve seen this happen occasionally. Far more effective is to build gender curiosity and gender analytical skills acquisition into the career-building curriculum.   CJLPA : Do you have any recommendations on how to be a conscious feminist?   CE:  Each of us is most likely to see the value of a feminist curiosity in our own lives as citizens and in our own work in any field if we can grasp how gender dynamics of any sort shapes the thing we care about. So, first, I’d suggest that everyone plunges into case studies. In most of my writings I try to mix case studies with larger analytical questions and patterns. The big picture and the small picture—I never choose one over the other. It’s the relationships between the two that I’ve found most revealing. I’m wary of those commentators who imagine that their own badges of ‘intellectual sophistication’ are earned by talking only about the big picture.   I think we all learn lasting lessons from exploring grittily detailed case studies. We learn to appreciate complexity; we learn to stay wide awake to subtleties; we train ourselves to have long attention spans. We can learn a lot too from delving into case studies of poor policy-making.   Look, for instance, at the relationships between men and women and the operations of masculinities and of femininities in London’s Grenfell Tower fire disaster, in Flint, Michigan’s water contamination tragedy. Investigate the workings of masculinities in the Boeing MAX 8 disasters. Explore the sexual abuse of local Congolese women by international male health workers during the country’s recent Ebola outbreak. Take a close look at the gender dynamics shaping responses to COVID in New Zealand, India, and South Korea.   Second, I would suggest that we all pay attention to what data are being collected and what data are not being collected—with what consequences. It’s amazing how much feminist energy has been and is still being spent trying to get national and international agencies to collect gender-disaggregated data for the sake of making better, fairer, more effective, more sustainable policies. For years, the UN collected nutritional data by ungendered household caloric intake. Households, though, do not eat! Men and women and boys and girls eat—and, lo and behold, gender-smart data collectors found that, even within poor households, adult men consume more calories and especially more protein than do adult women.   Finally, data must be gender-collected and gender-disaggregated on everything: illness, deaths, carers, students, teachers, paid work, unpaid work, bankruptcies, arms manufacturing, policymakers, budget expenditures, policing, market vendors, vaccinations, contractors, detentions, weapons possession, mining, farming, banking, peacekeepers, donors, sexual assault perpetrators, child marriage…everything. Teresa Turkheimer, the interviewer, is a final-year undergraduate in Politics and International Studies at the University of Warwick, working towards an MSc in European and International Public Policy at the London School of Economics in the 2021-22 academic year. Her interests lie in European politics, European Union foreign and security policy, and political philosophy.

When writing critically about the Russian avant-garde, one finds oneself inexorably drawn towards cosmism, as inexorably as the Earth towards the Sun. Russian cosmism has nothing to do with the thematisation of cosmic feeling, unity with the cosmos, or other kinds of mystical experience as we know them in, for example, the esoteric, occultist Theosophy that made its way through Russia at around the same time. What concerned cosmists the most was, in fact, the natural universe, of stars and Sun and Earth. To them, nature was an enemy. Nature, after all, let men die. Some might even say it killed them.   Like the Marxists, the Russian cosmists practised philosophy not as an explanation of things as they are, but as a project of their transformation. Unlike the Marxists, they relied not on the ‘natural’ development of technology, but the envisioning of a new, radically different kind of technology. At this point, philosophy begins to move into the terrain of science fiction, a genre which has always concerned itself with man’s relationship with technology. This was also, as it happens, one of its entry points into the avant-garde movement. This piece will not be an exhaustive appraisal of their intersections, though it will touch on them where relevant. It will instead be an analysis of what Russian cosmism has to say about the human condition, about our relationship with space, and about our relationship with time.   Science fiction has traditionally also concerned itself with time, and with humanity’s relationship with its past and future. The Russian avant-garde was similarly occupied with these questions. The Russian artists who called their art Futurist, Suprematist, Constructivist, and later Productivist understood the present time as a point of transition from the past to the future, and so they tried to liberate themselves from the past as far as possible. They created their art not for the audience of the present, infested as they were by the bacteria of the past, but for the audience of the future. This audience, a humanity of a constructed future, was to be liberated from the oppressive energies of the past. But a liberatory ideal on this scale raises questions. Will mankind exist in the future at all? And if yes, how? There were no obvious answers. As Nietzsche had proclaimed, God was dead: the survival of mankind lost its ontological guarantee. The human race became subordinate to cosmic forces which cared not whether it lived or died.   The Russian cosmists understood the cosmic order as regulated by the force of gravity. However, gravity can also lead to a destruction of this order, a destruction of life. We might think, for example, of an asteroid drawn to Earth by the force of gravity, leaving devastation in its wake. If art and culture were made for the audience of the future, not the present, then one should take measures to guarantee the existence of this audience. However, to protect the Earth and its population means to liberate mankind from the ambivalent force of gravity. This is a necessary and urgent task—not least because gravity is a burden of the past, which the avant-garde despised— but an implausible one. A similar construction of social liberation was established in the mid-nineteenth century by Auguste Comte in his book System of Positive Polity: Treatise on Sociology Instituting the Religion of Humanity . At the beginning of the book, Comte   formulates the main principle of this new ‘religion of Humanity’: reason must be subjected to sentiment, to feeling.[1] Here Comte redefines and expands the main principle of his philosophy, which rejects everything spiritual and inaccessible to our feelings, not least reason. Comte understands feeling not only as an empirical experience, but as a principle unifying human society. Social feeling is what binds humanity together.   Comte was, however, keenly aware of the limitations of social feeling. He believed that the intensification of social feeling leads to communism, which destroys a human society that, as we know, is based not on feeling but on the power of gravity. Individual human existence depends on the social order, and the social order is subordinate to the cosmic order. Comte reminds us of the old laws of Newton: that we live under the same laws of gravity as the ever-active celestial bodies above us. Thus, it is gravity which orders our society. The communist revolution would be a revolution against gravity—and as such doomed to fail. Comte asserts that the ‘religion of humanity’ is the only true religion, as it is the only one whose object of veneration—humanity—undeniably exists. But if the reality of humanity in the present is a fact, its existence in the future is a matter of faith, of social myth. This social myth, or secular religion, is necessary for our species’ actions, because failing to believe in human perseverance would immobilise us. This faith relies not on the facts but solely on social feeling. Of course, gravity cannot prevent the cosmos from catastrophising humanity. The anticipation of such a possibility, Comte believes, makes the religion of humanity even more soberingly necessary. If we try to trace the source of this faith, however, we arrive once more at social feeling, which, without gravity, would become communism.   I bring up Comte because he was immensely influential, both in prerevolutionary Russia and Western academia (not least in sociology and positivism). He profoundly affected the thinking of Anatoly Lunacharsky, the first People’s Commissar for Education (whose purview included art and culture too). Lunacharsky had explicitly elucidated the relationship between communism and gravity in two volumes written before the revolution.[2] He wrote of Comte’s ‘religion of Humanity’ that it was the highest form of religious thinking because it predicted some crucial elements of materialist thought, despite being avowedly anti-communist.[3] Lunacharsky writes later that the Newtonian model of gravitation is obsolete. Referring to Nietzsche as well as to ‘new achievements of physics’, Lunacharsky proposes that the cosmos is not ordered but chaotic, and that the cosmic space facilitates a polysemy of forces that oppose and fight each other. Humans are fighters in this grand cosmic architecture, a structure which rewards the most powerful force. In this respect, Lunacharsky professes his disbelief in the power of gravity as defining cosmic and social order. It is this disagreement about the relationship between cosmic order and social order that is central to the thinking of many intellectuals and artists before and after the Russian Revolution.   Similarly, Nikolay Fedorov, in an essay called ‘Astronomy and Architecture’ written at the end of the nineteenth century,[4] calls for changing the trajectory of the Earth through the universe. The Earth should cease to be a satellite of the Sun, and should instead be turned into a cosmic ship that would travel free from gravity through the Cosmic space. Fedorov writes about the Earth: ‘it will begin sailing the celestial seas, with the sum total of the human race rendered as captain, crew, and maintenance staff of this Earth Ship’. The energy for this free movement will come from the Sun.   Imagine now that the energy sent to the earth by the sun, which presently scatters off into space, could instead be conducted onto the earth, thanks to a massive configuration of lightning rod-aerostats, implements that will drive solar light to our planet. Imagine that this solar energy, once directed earthward, might alter the density of its new home, weaken the bonds of its gravity, giving rise in turn to the possibility of manipulating its celestial course through the heavens, rendering the Planet Earth, in effect, a great electric boat.   Fedorov, we discern, sees the victory over gravity as the imposition of a new cosmic order, where humans have emerged the strongest fighters and are free to subjugate their universe with mighty, inconceivable technologies. To create this new order humans must be liberated from nature, an ambivalent power that manifests itself in gravity, sexuality, and death. That is why Fedorov wanted to turn the Earth into a museum of mankind in which every human being was guaranteed immortality—an hauntological gallery of ghouls. At first glance, the structures of the ‘ship’ and the ‘museum’ might seem oppositional—one travels while the other is fixed. Here, though, we might recall Foucault’s notion of heterochronic space. According to Foucault, both museum and ship are heterochronic spaces where we can witness the accumulation of time, where ‘time never stops building up and topping its own summit’.[5]   As a result of this museumification (or heterochronification) of humanity, one reaches not only freedom from gravity but total power over death. The totality of this power provides a possibility—perhaps even an obligation—to resurrect our ancestors too. This signifies the collectivisation not only of space but also of time. In eternity, the conflicts between individuals and society will be eliminated where they could not be eliminated in time. The goal of immortality and resurrection is the highest goal for every individual. For this reason, the individual will always remain faithful to society if society makes this individual’s own immortality a given. Only in such a transtemporal society can one live without either spatial limitations imposed by private property or temporal limitations. However, the communist society of immortals must also be ‘interplanetary’—that is, it should occupy and control the entire space of the universe. This is the only way that the security of mankind can be guaranteed. The theological guarantee prefigures the technological guarantee. After all, technology so often looks like divine magic.   But who can make such a guarantee? Socialism promised social justice, but socialism also promised progress. The latter implies that only our genealogical successors would live in an advanced socialist society and enjoy social justice. The generations of the past and of the present, by contrast, are left to play the role of the passive victims of progress. There can be no justice for them. In this hypothesis, future generations can enjoy socialist justice only by cynically accepting an outrageous historical injustice: the exclusion of all previous generations from the realm of the future. Socialism thus exploits the dead in favour of the living, as well as exploiting those alive today in favour of those who will live later. The socialism of the future can only be just if it artificially resurrects all those who established the foundation for its success. The perfect socialism must be established not only in space but also in time.   We can understand progress as the substitution of old things for new ones. Can we find a technology that would not be subjected to this logic? Fedorov asserts that such a technology exists in preservation, as used in the gallery and the museum.[6] Fedorov is right that the very existence of the museum contradicts the utilitarian, pragmatic spirit of the nineteenth century. That is because the museum preserves with great care that which is useless or superfluous—things of the past that no longer have any practical utility. The museum does not accept death and decline of the object as they are accepted ‘in real life’. The museum is fundamentally at odds with progress, little more than a machine for making things last, for making them immortal. Because each human being is also a body among other bodies, a thing among other things, humans can also be blessed with the immortality of the museum. For Fedorov, immortality is not a paradise for human souls but a museum for living human bodies. Divine grace gives way to the museum curator, to the ambivalent technology of preservation.   From this, we see that technology as a whole must become the technology of art. Just as the museum administration is responsible not only for the general holdings of the museum’s collection but also for the physical integrity of every given work of art, making certain that the artworks are conserved when they threaten to decay, the state should bear responsibility for the resurrection and continued life of every individual person. The state can no longer let individuals die privately, or let the dead rest peacefully in their graves. The state must overcome the limits placed by death. Power over life and death must become total. This totality is achieved by equating art and politics, life and technology, state and museum, chronic and heterochronic. This overcoming of the boundaries between life and death leads not to the introduction of art into life, but to the very transfiguration of life into art. Human history becomes art history, after a fashion—every human being becomes a passive vessel of aesthetic beauty. Humans will understand themselves in terms not of biology but of the technology of art.   In their first manifesto, the representatives of the biocosmists—a political group from the sphere of Russian anarchism—wrote: ‘We take the essential and real right of man to be: the right to exist (immortality, resurrection, rejuvenation) and the freedom to move in cosmic space (and not the supposed rights announced when the bourgeois revolution was declared in 1789)’.[7] Aleksander Svyatogor, one of the leading biocosmist theoreticians, pointed out that the classical doctrine of anarchism requires a central power to ensure every individual’s immortality and freedom of movement in the cosmos. He thereby criticised the doctrine’s foundations. Svyatogor took immortality to be at once the goal and the prerequisite for a future communist society, since true social solidarity can only be cultivated among immortals. Death separates people, and private property cannot truly be eliminated if everybody owns a private share of time.[8]   The first proclamation of the new cosmic humanism was made by the radical Russian avant-garde even earlier, through the performance of the mystery-opera Victory over the Sun (1913).[9] The opera was written and staged with the participation of some of the most prominent members of the prerevolutionary Russian avant-garde movement: Kazimir Malevich, Velimir Khlebnikov, Alexei Kruchenykh, and Mikhail Matyshin. At once, we encounter the usual themes of the cosmists: capturing the Sun and liberating the Earth from gravity, establishing revolutionary anarchy instead of the traditional cosmic order. One can say there is no notion of immortality in Victory over the Sun . Nonetheless, the text of the opera begins with the words ‘everything is good that begins good and never ends’. Even if an individual is mortal, the reign of anarchy will never end. And men, at least the four strongmen who capture the Sun in the play, will never end, because they made the Sun their eternal prisoner. With this, we come some way to articulating a cosmist vision of humanism. Professor Boris Groys, adapted by Alex Charilaou   Professor Boris Groys is a philosopher, essayist, art critic, media theorist, and expert on Soviet-era art and literature, who specialises in the Russian avant-garde. He is a Global Distinguished Professor of Russian and Slavic Studies at New York University, a Senior Research Fellow at the Staatliche Hochschule für Gestaltung Karlsruhe, and a professor of philosophy at The European Graduate School. His work engages with traditions from French poststructuralism to modern Russian philosophy, but is situated at the juncture of aesthetics and politics. It is influenced by modern and postmodern philosophers and theoreticians including Jacques Derrida, Jean Baudrillard, Gilles Deleuze, and Walter Benjamin.   Alex Charilaou is a writer, artist, and second-year undergraduate in English and Drama at the University of Kent, interested in radical political theatre. Alex is an organiser with the Progressive International and has bylines in several publications, writing on the intersections between politics, economics, and theatre. [1] Auguste Comte, System of Positive Polity: General View of Positivism and Introductory Principles  (John Henry Bridges tr, Longmans, Green and   Company 1875). [2] Anatoly Vasil’evich Lunacharsky, Religiia i sotsializm: Tom 1  (Shipovnik 1908); Lunacharsky, Religiia i sotsializm: Tom 2  (Shipovnik 1911). [3] ibid. [4] Nikolai Fedorov, ‘Astronomy and Architecture’ (first published 1906; Ian Dreiblatt tr) in Boris Groys (ed), Russian Cosmism (e-flux and MIT Press 2018) 56f. [5] Michel Foucault, ‘Des espaces autres’ (1984) 5 Architecture, Mouvement, Continuité 46. [6] Nikolai Fedorov, ‘The Museum, 1st Meaning and Mission’ (first published 1906) in Arseny Zhilyaev (ed), Avant-Garde Museology (e-flux and Minnesota University Press 2015). [7] ‘Kreatorii Rossiiskikh i Moskovskikh Anarchistov-Biokosmistov, Deklarativnaia rezolyutsiia’ (1922) 1 Biokosmist 1. [8] Alexander Svyatogor, ‘The Doctrine of the Fathers and Anarchism-Biocosmism’ in Groys (n 4). [9] Various, Victory Over the Sun , vols 1 and 2 (first published 1913; Patricia Railing ed, Evgeny Steiner tr, Artists . Bookworks 2009).

The Jamaican Jerk seasoning. Halloween. Kendall Jenner’s new Tequila brand. The mascot of the Washington Redskins. Rugby. Victoria’s Secret Fashion Shows. Yoga. Mickey Rooney in  Breakfast at Tiffany’s . These things seem to have little in common apart from being perceived to be part of our Western culture. Yet, another feature unites them: they have all been subject to allegations of cultural appropriation.   This article explores the issue of cultural appropriation and the harm it can cause to indigenous communities in particular. It will explain how this problem exposes a gap in intellectual property law and set out the two main approaches to fill this gap. A comparative analysis of different jurisdictions’ attempts to resolve the issue will reveal the complexities of finding a satisfactory solution. The article will conclude with the argument that despite these difficulties a legal solution is desirable. Reliance on extra-judicial initiatives should no longer be the only way this area is regulated. Instead, legislative action by the world community is needed.   Cultural appropriation? Cultural borrowing? Cultural appreciation? Defining ‘cultural appropriation’   An effective legal framework requires a clear definition of the issue that it seeks to regulate. This is where the problem starts. It is difficult to draw a line between ‘cultural borrowing’ and ‘cultural appreciation’ on one hand and ‘cultural appropriation’ on the other.   Countless definitions of ‘cultural appropriation’ have been put forward by scholars, artists, and political activists. Defining the concept goes back to the fundamental questions of ‘What is art?’ and ‘How far can art go?’. Opinions as to the correct description are formed by individuals’ experiences and socio-economic environment as well as personal conceptions of art and culture. Resolving it would go far beyond the parameters of this article.   Therefore, the definition set out by Brigitte Vézina will be used henceforth: cultural appropriation is the taking by a member of a dominant culture of a cultural element from a minority culture without consent, attribution, or compensation.[1]   The harm caused by cultural appropriation   The harm cultural appropriation can cause is best understood when illustrated with an example. In 2012, Urban Outfitters launched a Navajo-branded clothing and accessories line.[2] Amongst other items, the line included so-called ‘Navajo panties’ as well as a liquor flask, all imprinted with patterns distinctive of the Navajo Nation, a tribe of Native Americans located across parts of Arizona, Utah, and New Mexico. Urban Outfitters had not sought permission for the use of the patterns or the name, nor had it attributed them to the culture from which they originated. The Navajo-branded flask was particularly controversial as alcohol was prohibited in the Navajo reservation. Urban Outfitters’ use was thus seen as making a mockery of the Nation’s cultural traditions. Similarly, the underwear was considered as an affront to the historical and spiritual origin of the patterns. The tribe filed a lawsuit against the fashion brand, claiming, amongst other things, compensation for what it described as ‘derogatory and scandalous’ use of the Navajo name and patterns.   The case of the ‘Navajo panties’ encapsulates the wider issue of cultural appropriation and how harmful it can be. As George Nicholas, Professor of Archaeology at Simon Fraser University, Canada, explains, indigenous peoples like the Navajo tribe have historically had little control over their heritage. As a result of colonialism and Western missionary work, many of these peoples were forced to leave behind their lands, languages, and religions, along with their cultural traditions and lifestyles.[3] The cultural heritage that still exists may be a community’s last remaining connection to its origin. Taking it without permission and putting it out of context disrespects the values that often underlie this heritage, which is often considered sacred or connected to ideas of morality and spirituality.   Western companies who commercialise indigenous culture without granting the communities a share of the profit generated by their involuntary contributions exacerbate the problem. This is particularly harmful for groups that live at the margins of society, struggling to fit into the modern Westernised world and routinely subject to overt and systemic discrimination and racism. Many indigenous societies share this bitter fate, whose severity was recognised by the UN in describing indigenous groups as one of the world’s most vulnerable groups of people.[4]   By denying those groups to benefit from their own cultural heritage, companies profit off the back of the most vulnerable. This further marginalises groups for whom the commercialisation of cultural heritage might be their only way to escape the dwindling spiral into poverty.   A gap in the law? Obstacles in intellectual property law   Whenever we find out about an injustice, our natural response is to look to the law to regulate it. Here, similarly, problems arise. Our current intellectual property law system, with its concepts of copyright, trademarks, and patents (amongst other mechanisms), offers protection to artists and inventors. Broadly speaking, it prevents use of creations and inventions without permission and offers compensation in the event of misuse. Each concept exhibits flaws and loopholes, as with most legal frameworks developed over time. Overall, however, the system succeeds in many cases to offer at least some form of protection to artists and creators who are operating in the Western commercialised world. On its face, one may think this to be an ideal system for solving the issue of ‘cultural appropriation’ and protecting indigenous culture. But a closer look reveals a sobering reality.   Intellectual property law is informed by a range of fundamental principles, on the basis of which it protects creations of the human mind. Almost all of them are based on Western ideas of creativity and ownership, and an underlying purpose of facilitating the commercialisation of creations. Three foundational concepts of intellectual property law illustrate this.   Originality   A key prerequisite of copyright protection is the requirement of originality. Across most jurisdictions, a musician needs to show that their piece of music is ‘original’; the same goes for an artist’s painting and a writer’s writing.[5] Definitions of ‘originality’ vary, but generally it requires authors to prove that their works are their own intellectual creation,[6] expressing their individual creativity,[7] and are not copied.[8]   It will be a rare case that indigenous peoples’ heritage is able to satisfy this requirement. Most cultural traditions have been passed down from generation to generation. Their purpose is to keep alive what was created centuries ago, to preserve rather than create; for the community, not for an individual.[9] Because of its very nature, indigenous culture will fall outside of what the law considers ‘original’ and thereby fail to qualify for protection offered by intellectual property law.   Ownership   A further key principle of intellectual property law is the concept of ownership, which entitles the holder of an intellectual property right to a number of actions and remedies. Generally, such rights are for the owner’s personal benefit, to reward their efforts put into the creation, to incentivise future innovation, and to protect their work from derogatory and unauthorised use.   Again, indigenous cultural heritage will rarely fit this framework. Indigenous groups are often organised around a clan or a wider community; this sits at odds with the idea that only individuals can own intellectual property rights and benefit from them.[10] So far, intellectual property law rejects the idea of communal ownership in any form that would enable groups such as the Navajo Nation to hold the benefit of intellectual property rights communally.[11]   Time limits   Finally, most intellectual property rights offer protection for a limited period of time only. For example, in the UK and the EU copyright for most types of work ceases 70 years after the death of the author.[12] This is so that the creation can become part of the ‘public domain’, wherein it may become freely available for artists to copy, alter, and commercially exploit, and hence facilitate future innovation and creation. A framework built around time limits is of little help to indigenous people who are seeking indefinite protection of their cultural heritage that is rooted in thousands of years of history.[13]   The above examples are but illustrations of the inherent inaptitude of the system of intellectual property law to regulate issues of cultural appropriation. Consequently, a different approach is needed.   Filling the gap: Amending what is, or creating a sui generis system?   Academic opinion is divided on the best way to address the concerns of indigenous people. Governments, too, have differed in attempts to offer at least some form of protection. Two approaches have emerged. One seeks to make space within the current intellectual property law system to accommodate for concerns of cultural heritage (I will refer to this as the ‘amendment approach’). Alternatively, proposals have been made to create a separate legal system from scratch that operates outside intellectual property law—a so-called ‘sui generis regime’.   Comparing attempts made by different jurisdictions to implement either of the two approaches shows the great difficulties of resolving the issue of appropriation of indigenous culture. A look at amendments of the existing system suggests that finding a solution within the existing IP framework is likely only ever to provide a makeshift solution—one that falls short of providing satisfactory protection to cultural heritage. Likewise, whilst promising attempts have been made to create a new system, such systems, too, are inevitably flawed because of the great complexity of the underlying issue. It is therefore unclear whether a large-scale, universal sui generis system could work.   The amendment approach: Australia and South Africa   The Australian Indigenous Communal Moral Rights Bill  (2003) opted for the amendment approach. Motivated by a number of cases involving cultural appropriation of Aboriginal art,[14] the Australian government aspired to alter the existing copyright system to accommodate the concerns of indigenous people. Although the Bill was never passed into law because of a change in government, the draft legislation is nevertheless an interesting illustration of the hurdles that legislators have to overcome when amending the existing system to regulate issues of cultural appropriation.   Amongst other changes, the Bill sought to overcome the individual ownership hurdle by incorporating community ownership. Groups of people would be allowed to hold ownership jointly to their cultural heritage. Despite this, the Bill’s introduction of community ownership received strong criticism. To overcome issues such as ownership, the Bill contained a series of requirements that indigenous communities needed to fulfil before their works of art, literature, or music could receive any protection. Copyright protection was thus not automatic, as opposed to the traditional copyright in Western systems, but tied to additional hurdles.[15] While this facilitated certainty and prevented an ‘overkill of rights’, which it was feared would lead to a decrease in value of individual rights, the requirements received strong criticism for being too onerous. In many cases, they rendered the new framework wholly impractical for indigenous communities to rely on.[16]   South Africa, too, took the amendment approach and over the years passed a number of legislative Acts seeking to make space for the concerns of indigenous communities.[17] Unlike the stringent requirements contained in the Australian Bill, South Africa incorporated wide-sweeping definitions and a system with low thresholds for copyright protection. On its face, this seemed like a welcome development, paving the way for the generous rights protection for which the communities had pleaded for decades.   Nevertheless, the amendments were strongly criticised by lawyers who were concerned that the imprecise definitions and generous requirements caused significant uncertainty.[18] It was argued that whilst such a system may restrict Western companies in their use of indigenous culture, its overly generous approach could end up working against the very people it sought to protect. Absent clear requirements that helped to establish which group was the rightful creator or community of origin of a relevant work, disputes amongst indigenous communities did not seem far off. This was a reason for concern particularly where the true place or group of origin is difficult to ascertain, as for example is the case for folklore passed down generations by word of mouth. A wide-sweeping copyright system that fuels tribal disputes can hardly be seen as a satisfactory answer to the century-old problem of cultural appropriation.   The Australian and South African attempts illustrate the difficulties of altering the existing system in a way that achieves sufficient protection without risking certainty, the value of individual rights and other undesirable side effects.   A sui generis approach: New Zealand   New Zealand attempted to create a new, sui generis system when it passed the Haka Ka Mate Attribution Act 2014.[19] The Act created a legal regime for the protection of the haka Ka Mate , a particular form of the traditional haka dance which is central to Maori culture. It gave the tribe of the Maori community who had invented this version of the dance a right to attribution. This means that (most) use of the dance requires prominent attribution of its origin. For example, filmmakers who wish to include this haka in their films are obliged to include a statement that identifies the chief and the tribe that invented it; failure to do so entitles the chief to an action of enforcement.[20]   The Act was welcomed by the legal and artist community and seen as a demonstration of how a sui generis regime is well-suited to tackle the issue of appropriation of indigenous culture.[21] However, as with the amendment approach, this solution is not without flaws. The new regime only concerns one specified Maori tribe and only for one particular part of its cultural heritage. It remains to be seen whether New Zealand’s pilot Act will be as effective when extended to indigenous communities at large.   Further, attribution alone does not protect against disrespectful use which continues to be unregulated. Although it may have this effect indirectly by deterring companies who wish to avoid public outcry after mocking indigenous culture while attributing it to its community of origin, this is highly speculative and less likely to apply to small companies with little media attention.   Finally, this form of a sui generis system anticipates a piecemeal approach by which only clearly identifiable works and sources of origin are applicable for protection. As mentioned earlier with reference to folklore, such clear identification is not always possible, and many cultural assets will not fit the frame.   The advantages of this solution are that it avoids confusion of the existing IP law system as well as any side-effects of removing the obstacles inherent in the current regime. And whilst the approach’s piecemeal fashion may appear unattractive at first, any aspiration to offer protection to all and any cultural heritage—even that which did not originate from one single, identifiable source—will inevitably risk an overly generous system, entailing similar problems like the South African amendments.   International community   The examples of Australia, South Africa, and New Zealand show that states have recognised the need for protection of indigenous culture. Despite such efforts, however, national legislatures continue to struggle to find satisfactory solutions.   In light of this, the World Intellectual Property Organisation (WIPO), an agency of the UN and the global forum for intellectual property policy, has long recognised the need for an international solution. Discussions by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) about an appropriate framework first started 40 years ago.[22] Despite many years in deliberation, the Committee is yet to put forward its solution.   From the IGC’s discussions, which led to the Draft Articles on the Protection of Traditional Cultural Expressions, one can infer that the Committee is pursuing a solution within the existing IP framework—the amendment approach. Commentators have suggested that it is unlikely that the Committee will introduce a sui generis regime. Brigitte Vézina argues that this is because a new system would dramatically change the way the Western world is able to interact with indigenous cultural heritage. A sui generis regime that offers strong protection could curtail many common practices across various different sectors of the economy and in society as a whole.[23]   This is an important point. We, as Western society, have become accustomed to borrowing and taking inspiration from other cultures—zombie Halloween costumes, yoga, and the Jamaican Jerk seasoning are but a few examples. An entirely new regime comes with the risk of compromising cultural exchange for the sake of protection. The question is whether we are ready to recognise the harm that this cultural exchange can do to indigenous societies and how far we are willing to let that risk curtail our freedoms in order to protect their heritage.   For now: Education and consumer responsibility   Whilst the law has been struggling to deal with the issue, others have taken action. An example of an initiative seeking to put control over cultural heritage back into the hands of indigenous people is Local Contexts, an organisation which offers customisable labels that can be attached to cultural heritage.[24] The labels allow each community to express specific conditions and guidance for using their cultural traditions. Local Contexts is currently in the early stages of developing an extra-legal licensing concept that will enable communities to commercialise their cultural heritage where intellectual property law fails to do so. The fact that a non-governmental organisation is developing what international legislative bodies have so far failed to accomplish is further testament to how far the law is lagging behind.   The IPinCH research project educates those involved in the intellectual property system about the issue of appropriation of indigenous culture.[25] A wide range of resources and information factsheets are available with information for creators, artists, and companies on the issue and advice on how to think about it. George Nicholas, who is also leader of the IPinCH project, suggests that such education efforts and as well as consumer responsibility are the best ways to tackle the issue of cultural appropriation. He pleads for a change in consumer behaviour with greater awareness of cultural origin, similar to the recent shift towards locally grown foods and sustainably produced products.[26]   It is certainly true that education and greater consumer awareness are key to tackling cultural appropriation. However, this is no excuse for national and international legislative bodies to abandon efforts to provide a legal solution. If anything, initiatives like Local Contexts and IPinCH emphasise the need for the law to finally catch up, either by amending the existing system in a satisfactory manner or by introducing a new system. They should be treated as starting signals of what needs to be a wide-sweeping reform of the international intellectual property law regime.   Conclusion   As this article has shown, cultural appropriation is a phenomenon that reveals a gap in the law, one that legislators around the world have so far struggled to close. It may be one of the most complex problems the intellectual property system has to grapple with. Resolution is urgently needed, especially in light of ever-increasing intercultural exchange fuelled by globalisation and social media.   The Navajo Nation was lucky. 15 years after Urban Outfitters first launched its ‘Navajo line’ the two parties settled and entered into an agreement for future collaboration.[27] But indigenous communities should not have to engage in decades of legal fighting to establish whether they have any claims to what is their very own cultural heritage—a fight that only few communities are able to engage in, with others being left uninformed about their rights and options of enforcement. It remains to be seen at what point the international community will finally step up and provide satisfactory legal protection. One can only hope that it is sooner rather than later. Mirjam Dietrich   Mirjam Dietrich is a third-year undergraduate in Law at Gonville and Caius College, Cambridge. Her interests lie in intellectual property law and its potential for development and growth. Throughout her studies she was involved in pro bono projects, successfully advising startups in developing countries on IP matters and other legal issues. [1] Brigitte Vézina, ‘Curbing Cultural Appropriation in the Fashion Industry’ CIGI Paper 213 (April 2019). [2] ‘Navajo Nation sues Urban Outfitters for trademark infringement’ Guardian  (London, 1 March 2012) < https://www.theguardian.com/world/2012/mar/01/navajo-nation-sues-urban-outfitters > accessed 20 February 2021. [3] George Nicholas, ‘Confronting the Specter of Cultural Appropriation’ ( SAPIENS Anthropology Magazine , 5 October 2018) < https://www.sapiens.org/culture/cultural-appropriation-halloween/ > accessed 20 February 2021. [4] ‘Indigenous Peoples at the United Nations’ ( United Nations ) < www.un.org/development/desa/indigenouspeoples/about-us.html > accessed 20 February 2021. [5] eg Copyrights, Designs and Patents Act 1988 (UK) s 1(1). [6] Case C-5/08 Infopaq International A/S v Danske Dagblades Forening  [2009] ECR I-6569, para 37. [7] ibid, paras 45-46. [8]  University of London Press v University Tutorial Press  [1916] 2 Ch 601, 608-609. [9] Brigitte Vézina, ‘Ensuring Respect for Indigenous Cultures: A Moral Rights Approach’ CIGI Paper 243 (March 2020) 11. [10] RL Gana, ‘Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual Property’ (1995-96) 24(1) Denver Journal of International Law & Policy 109, 132. [11] Vézina (n 9) 12; Yumbulul v Reserve Bank of Australia  (1991) 21 IPR 481. [12] See Copyrights, Designs and Patents Act 1988 (UK) ss 12-15A, and Directive 2006/116/EC. [13] RL Okediji, ‘Traditional Knowledge and the Public Domain’ CIGI Paper 176 (15 June 2018). [14] See Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481; Bulun Bulun v R&T Textiles  (1998) 41 IPR 5; Milpurrurru v Indofurn Pty Ltd  (1995) 30   IPR 209. [15] Patricia Adjei, ‘IP Australia and Traditional knowledge consultation process’ < www.ipaustralia.gov.au/sites/g/files/net856/f/ submission_-_patricia_adjei.pdf > accessed 20 February 2021. [16] Samantha Joseph and Erin Mackay, ‘Moral Rights and Indigenous Communities’ Arts and Law Centre Australia  (30 September 2006). [17] See Intellectual Property Laws Amendments Act 28 of 2013 (SA). [18] Wim Alberts and Rachel Sikwane, ‘South Africa: Intellectual Property Laws Amendments Bill for Indigenous Rights’ ( Mondaq , 21 November 2011) < https://www.mondaq.com/southafrica/trademark/154240/intellectual-property-laws-amendment-bill-for-indigenous-rights > accessed 20 February 2021. [19] Haka Ka Mate Attribution Act 2014 (NZ), 2014 No 18. [20] New Zealand Ministry of Business, Innovation & Employment, Haka Ka Mate Attribution Act 2014 Guidelines  (NZ) 2014 [21] Earl Gray, ‘How Indigenous Rights and Intellectual Property Can Work Together’ INTA Bulletin  (15 April 2019) < https://www.inta.org/perspectives/features/how-indigenous-rights-and-intellectual-property-can-work-together/ > accessed 20 February 2021. [22] UNESCO & WIPO, Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Action (1982). [23] Vézina (n 9) 20. [24] See < https://localcontexts.org >. [25] See < http://www.sfu.ca/ipinch >. [26] Nicholas (n 3). [27] Nicky Woolf, ‘Urban Outfitters settles with Navajo Nation after illegally using tribe’s name’ Guardian  (London, 19 November 2016) < https://www.theguardian.com/us-news/2016/nov/18/urban-outfitters-navajo-nation-settlement > accessed 20 February 2021.

It didn’t take long for the backlash against last summer’s enthralling ESPN Michael Jordan documentary The Last Dance  to arrive. Before it was even over, Scottie Pippen—Jordan’s ever-present wingman and a superb player in his own right—was apparently ‘livid’ to be described as ‘selfish’ by his former teammate. Another teammate, Horace Grant, part of the Chicago Bulls team that won the first three-peat (three-in-a-row) NBA championships, described the series, in part produced by Jordan’s media company, as a ‘lie, lie, lie’, and a number of former players and journalists later joined the chorus. Jordan didn’t exclude Isiah Thomas from the 1992 Olympic ‘Dream Team’: lie. Jordan was poisoned by a pizza during the 1997 finals in Utah: lie. The Bulls would have stayed together for another year to try to win a seventh championship: lie.   The series ran during last year’s coronavirus-postponed NBA finals, in which current star Lebron James shone. It was Jordan’s way of weighing in on the ongoing GOAT debate: who is the Greatest Of All Time. As it stands, thanks to his six championship wins, Jordan is still number one (versus four for James), and the documentary underlined his ultra-competitive nature. But it may have backfired too, with a number of players coming out to say they didn’t like him, and numerous commentators starting to wonder whether the more team-oriented and socially conscious James was in fact a better role model than the highly individualist and capitalist Jordan. Jordan once famously declared that ‘Republicans wear sneakers too’—although more recently he did come out strongly in favour of the George Floyd protests.   In the documentary itself many of his former teammates described Jordan as a ‘jerk’ or an ‘asshole’, and the series didn’t shy away from Jordan’s confrontational and bullying leadership style, especially towards team manager Jerry Krause. With everyone rounding on Jordan, however, one might wonder whether this was a case of sour grapes, or indeed of ressentiment  towards one the of the most successful sports stars of all time. A reader of Nietzsche would have asked if it was an example of herd morality .   In his classic On the Genealogy of Morality , Nietzsche divided the world into two moralities: ‘master morality’, which values strength, beauty, courage, and success; and ‘slave’ or ‘herd’ morality, which values kindness, empathy, and sympathy. The former he associated with the ancient Homeric Greeks, the latter with early Christianity: indeed, his whole point was that there had been a ‘slave revolt’ in morality during the Roman Empire that led to ‘slave’, rather than ‘master’, morality being celebrated.   So is Jordan an example of master morality, selfishly driving those around him so that he can succeed, against which others are now revolting by saying he was mean, only interested in himself and his own success? Is he even an example of the enigmatic Übermensch , the superman Nietzsche announced in his philosophical-poetic masterpiece Thus Spoke Zarathustra ? Is ‘Air Jordan’ the ‘dancing star’ who will literally jump over modern man and the morality of the day ( ü̈ber  is German for ‘over’)? Is the ‘Black Jesus’, as Jordan once called himself, the Antichrist Nietzsche called upon in his last book before going mad? The analogy is worth pursuing, not least because basketball, which is played so high in the sky, lends itself particularly well to Nietzsche’s metaphors. (If the epithet of the ‘beautiful game’ is already taken, then perhaps basketball can be the most elegant.)   Jordan is in one sense clearly not the Übermensch . We learn of the continuous personal slights and grudges (a form of ressentiment ) he held against players to fuel his game. But in another he is, at least in terms of the game itself. He is described in the last episode of the series as being essentially ‘present’, as not letting the failures of the past get in the way of future success. In this he seems to have achieved what Nietzsche was getting at with his idea of the ‘eternal return’: the challenge of living in the moment by accepting to relive every instant of your life an infinite number of times, exactly as it was, so as to free yourself from past regrets. Nietzsche describes Napoleon as a mixture of Übermensch  and Unmensch (brute)—a sort of ‘beauty and the beast’—and perhaps that’s the right figure to compare Jordan with.   The most poignant moment of the series came at the end of episode seven (out of ten). An emotional Jordan explained why he was so tyrannical with his teammates (he once punched his smaller teammate Steve Kerr in the face during practice), cutting off the sequence with a ‘break’. That this sequence came 45 minutes into his first filmed interview shows how much Jordan has been keeping in for such a long time. In fact, Jordan seems to have internalised much during his playing career, not least the murder of his father, building a protective carapace around himself from which emotion would only spill out uncontrollably upon the achievement of success. Witness the unforgettable scene of him crying on the floor of the changing rooms on Father’s Day 1996 having won his fourth championship. Since retiring, Jordan has become infamous for crying at public events, so much so it has become a meme. But here Jordan is being true (truthfulness is a characteristic of master morality): true to himself, true to who he was and how he had to be to win.   Thus Spoke Zarathustra  is composed of four parts, but the last part Nietzsche kept to himself, only distributing certain copies amongst his friends. One can read it as a warning about the pitfalls ‘higher men’ may fall into on their path towards the Übermensch . Jordan is aware of the things he had to do to himself in order to succeed, things he has to live with for the rest of his life. That drive, as the closing scene of The Last Dance  portrays, leaves him alone, smoking his cigar on a bench looking out at the sea. Only he can tell if he’s happy.   Basketball is my sport. I grew up watching recorded tapes of the nineties finals: that Jordan should make it all the way to Dublin, hardly a hotbed of budding ballers, is itself testament to his reach. The apex for me came in captaining the Cambridge Blues Basketball team. We lost to Oxford—I will never know that feeling of being on top of the world—and the only thing worth remembering from that game is a phrase uttered by an onlooking professor who knew my affection for Nietzsche: ‘Thus Dunks Zarathustra’.   Jordan needs no defenders. Not everyone can—or indeed wants to—‘be like Mike’. But that someone like Michael Jordan should be able to exist, if not be celebrated, in today’s world still seems of the utmost importance. Hugo Drochon   Hugo Drochon is Assistant Professor of Political Theory at the University of Nottingham and the author of Nietzsche’s Great Politics  (Princeton University Press 2016). He received his PhD from Cambridge in 2012 and was a Postdoctoral Research Fellow on the ‘Conspiracy and Democracy’ project at CRASSH, Cambridge, from 2013-18 before going to Nottingham. He works on Nietzsche’s politics, democratic theory, liberalism, conspiracy theories, and the far-right; he writes for the Guardian , New Statesman , and TLS ; and he managed to beat Oxford as a basketball coach in 2014.

Maggi Hambling CBE is a painter and sculptor. Subjects for many of her paintings are the sea and the dead. Her sculptures are famous and controversial: they include  A Conversation with Oscar Wilde and  A Sculpture for Mary Wollstonecraft . She has been awarded the Jerwood Painting Prize and the Marsh Award for Excellence in Public Sculpture.   CJLPA : There is a humanity in your work which is uncompromising, with no sentimentality, which seems to rise from the depth of things, whether your work depicts a laughing face, the storm at sea, or a dying man. You say you need to empty yourself of your baggage in order for the subject matter to come through you onto the canvas or into the sculpture. How difficult is it for you to achieve that state? How do you do it?   Maggi Hambling : I live in constant doubt. When something better happens in my work I cannot account for how or why, the source is always mysterious. The muse is fickle and it is always after desperation that I find courage.   CJLPA : Life, death, and love seem to be at the very core of your work, arrived at through a creative process where intuition plays a major role. One of your paintings, which has the word ‘certain’ written at the bottom, has started as an attempt to paint something like the morning dew, and then you turned it upside down, only to see the face of your father emerge from the sea of brushstrokes. Can you elaborate on this process and the issue of certainty/uncertainty?   MH : The whole business is uncertain, as every drawing, painting, or sculpture must be an experiment… If not, there is only mannerism, which is the death of art.   CJLPA : In your more recent work, you seem to be preoccupied with the fragility of humankind, wars, refugees dying at sea, the melting of the ice caps, and the mindless cruelty we inflict on animals. Are these things which make you angry? Can you comment on this?   MH : Yes, I feel anger and despair, but mostly at myself.   CJLPA : One of your sculptures—which started out as a found object, and then you made into the head of a pig, hollow on the inside—is meant to be the head of a politician. As an artist, is there a piece of advice you would give to future politicians?   MH : Listen, without an agenda, and remember that actions speak louder than words.   CJLPA : If you were to choose one thing to change in society or law, what would it be?   MH : Intolerance.   Fig 1. 2016 (Maggi Hambling 2016, oil on canvas, 84 x 72in). Fig 2. Aleppo IV (Maggi Hambling 2016–17, oil on canvas, 67 x 54in). Fig 3. Rhino without horn (Maggi Hambling 2019, oil on canvas, 48 x 36in). Fig 4. Victim II (Maggi Hambling 2013, oil on canvas, 12 x 17in). Alexander (Sami) Kardos-Nyheim, the interviewer, is the Founder and Editor-in-Chief of CJLPA .

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.