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

A word from the Editor-in-Chief, Alexander (Sami) Kardos-Nyheim   The last edition of the Journal ended with these words, from Léon Bloy:   ‘Man has places in his heart which do not yet exist, and into them enters suffering, in order that they may have existence’.   This edition is ultimately about human suffering and how it has affected the domains of law, politics, and art. These three domains have been shaped to a significant extent by what Robert Burns might have called ‘Man’s inhumanity to Man’, and the urge to limit it and prevent its reoccurrence. Law, politics, and art are not just three fields that are external products of a society. They are projections of what is going on within us as human beings; of the instinct to understand the world, structure it, control it, express oneself upon it, appreciate its complexity and beauty, and to live a fuller life. Human rights abuses have brought tragedy to the world; but they have also prompted huge developments in the fields of law, politics, and art. Amidst the destruction—past and present—there is a human instinct to learn from mistakes and achieve a higher level of consciousness. This is one interpretation of Bloy’s words: that inhumanity forces us, in turn, to forge new levels of humanity.     I started the Journal because I wanted to create a forum for balanced and calm thinking at a time of clash and chaos. Nowhere is this harder to achieve than with this subject matter. As illustrated by the actions of American soldiers against German officers during the liberation of Dachau in April 1945, it is difficult to remain calm and balanced when faced with human atrocities. Undoubtedly this edition reflects that difficulty. But this edition also constitutes an important collection of individuals from our three fields of focus who have wrestled with this challenge throughout their professional or personal life, and significantly contributed to the world.   I am pleased to present our first Special Edition, and our third published edition since I started the Journal three years ago. These have been three rich years in which we have grown a community of contributors spanning Nobel Laureates to Cypriot monks, Supreme Court Judges to national museum curators, artists to law students. We are also blessed with a wide community of engaged readers from around the world.   To that community, I present the risk that this Special Edition also carries. Focusing on a specific theme requires curation. That is precisely what I was trying to get away from when the Journal began. I wanted to allow for free thinking not constricted by categorisation or intrusive editorial intervention. On the other hand, to address a theme coherently, a level of structure is required—and we have ensured that our editors continue the Journal ’s practice of light-touch revisions. To break up the structure and introduce space to think, we have woven in freestanding arts articles that do not fit into specific chapters, but which are relevant to the wider subject matter of this Special Edition. See these as an opportunity to draw breath between powerful and at times heavy articles.   ‘The Sleep of Reason produces Monsters’, reproduced below, is the 43rd plate from an album of prints by Francisco de Goya entitled Los Caprichos  (‘The Fantasies’). It can be found in the Fitzwilliam Museum in Cambridge and is perhaps Goya’s best-known etching. The point, while overused, is clear: reason promises an escape from base human instincts. My fear, however, is that we are ‘over-reasoning’ in today’s political and legal discourse, which at times feels disembodied from the heart and the creative instinct—or whatever you call that which cannot be explained but makes us human.   What is less known about this particular plate of Goya’s is this added inscription, by the artist:   Imagination abandoned by reason produces impossible monsters: united with her, she is the mother of all arts and the source of their wonders.   Just as reason should not abandon imagination, nor should imagination abandon reason. With only one of these, we are indeed liable to become monsters; with both, we become capable of something better. This is why we are The Cambridge Journal of Law, Politics, and Art . The Sleep of Reason Produces Monsters (Francisco Goya y Lucientes 1799, etching and aquatint, 30.48 x 20.32 cm). © Paul Rodman Mabury Trust Fund

We are all responsible for what happens in our world.  ​ In the intricate tapestry of global affairs, we face a stark reality: amidst a global crisis, fundamental human rights are besieged, as the gravest international crimes are perpetrated by both state and non-state actors. In this tumult, what can be done?   The development of international law (including in public international law, international human rights law, international humanitarian law, and international criminal law) since World War II has been fundamental for averting another world war. It constitutes the universal framework safeguarding individual rights and establishing a rules-based international order (RBIO) that mandates states to uphold principles such as territorial integrity and peaceful conflict resolution.   Yet, despite the promise and hope imbued by the post-World War II or ‘never again’ generation, international law is increasingly branded as too weak or even a failure altogether. Many are of the impression that international law is ‘regularly side-lined’ and ‘ignored or depreciated’ when matters of great political and economic importance arise.[1] Whilst most states abide by international law most of the time, outrageous violations by powerful states create the perception that the law lacks ‘compliance pull’, fostering an expectation that states will not abide by their international obligations and an environment where international law is likely to deteriorate.[2]   Whilst not unjustified , such a wholly negative narrative f ails to capture the full breadth and complexity of international law’s role in shaping global affairs. Beyond the realm of visible failures and shortcomings, there exists a vast network of customary international norms and treaty obligations that underpin the fabric of our RBIO. The invisible but present day-to-day functioning of customary international law and the international treaties that drive global political and diplomatic relationships is too often disregarded. Thanks to the ​Convention on International Civil Aviation, you can enjoy air travel; thanks to international agreements through the WTO, you could enjoy your orange juice this morning; thanks to territorial sovereignty, many of you likely did not wake up in an armed conflict. Further, the language of the law enables leaders to speak of the ‘enemy’ not just as barbarians and killers but as criminals, transgressors of established international standards of conduct.[3] This consensus is paramount not only for establishing liability but also for deterring future violations. Finally, the law’s universality creates ‘the expectation of expectation’ that builds and maintains society. The regularity of state behaviour is what consequently creates stability, makes planning possible, enhances security, spreads the cost of enforcement, and regulates conflict.[4]   We must be assiduous in upholding and enforcing these rules. Undermining the value of international law in our RBIO has the dangerous consequence of establishing a world that is too forgiving, one becoming gradually indifferent to gross human rights violations and international conflicts. Otherwise, the direction we are heading will be unimaginably grave: an RBIO driven and enhanced by emotions, military power, inhumanity, and violence without restraint. This is a moment of truth for the integrity of our RBIO.   We therefore have an opportunity and a duty  to reshape our understanding of our relationship to international law, in order to continue to strengthen its frameworks and address its shortcomings. All states have a legal (and moral) duty to address human rights violations and international crimes, to seek accountability, and to serve justice for victims. This duty, however, does not solely rest with the decision makers. The most powerful catalyst to inspire change is one who is able to draw attention to conflicts and violations, and influence and pressure decision makers to act: the everyday civilian. The civilian that can provoke discussion in their community, the civilian that can vote, the civilian that can protest against non-human rights-abiding corporations and controversial government policies, the civilian that can help refugees coming into their country, the civilian that can support the legitimacy of international courts, the civilian that can support institutions and NGOs exposing the violations and can help spread awareness. That civilian is You .    In this spirit, I am pleased to present the forthcoming volume, ‘The Human Agenda’. Through an interdisciplinary lens taking in Law, Politics, and Art, this volume draws upon the insights of leading practitioners, judges, politicians, scholars, and artists. It aims to spread awareness and to deepen our understanding of the root causes of conflict and injustice, while also exploring potential pathways towards lasting peace and reconciliation. It further collects interviews and artwork from heroic survivors of human rights abuses, to share their stories and provide a personal understanding of what is at stake for humanity.    Ignorance is a perilous refuge. By awakening to the realities of our world and assuming our role as conscientious stewards, we can compel decision-makers to honour their obligations under international law, safeguarding the promises of peace forged in the aftermath of World War II.   It is my hope that, in reading this volume, you not only are able to enhance your understanding of the current imminent threats to our RBIO, but also understand your role in it.   We are all responsible for what happens in our world.   Nadia Jahnecke Legal Editor and Founder of ‘The Human Agenda’   Acknowledgements: I wish to express my sincere gratitude to our Editor-in-Chief, Alexander Kardos-Nyheim,  whose   belief in my vision and steadfast support was instrumental in bringing to life CJLPA ’s Special Edition on human rights. A very special recognition is owed to our Managing Editor, Jack Graveney , without whom this volume would not have become a reality if it were not for his endless devotion in helping me manage the team and getting over 100 articles and interviews across the finish line, both online and in print. Thank you to our exceptional Legal Researchers, whose passion and commitment to human rights shine through every page of this volume: Nour Kachi, Shahad Alkamas, Aidan Johnson, Anaëlle Drut-Desombre, Solomon Njombai, Sarthak Gupta, Angelina Spilnyk, Abigail Dore, Eleanor Taylor, Kenan Korn, and Alexandra Marcy Hall . Finally, I want to express my deepest gratitude to all our contributors . Your belief in this mission and your willingness to share invaluable insights, knowledge, and perspectives have made this volume a profound contribution to the discourse on human rights. [1] Gerry Simpson, ‘International Law in Diplomatic History’ in James Crawford and Martti Koskenniemi   (eds), The Cambridge Companion to International Law (CUP 2015) 26. [2] Thomas Franck, Fairness in International Law and Institutions  (Clarendon Press 1995) 99. [3] Vivek Bhatt, ‘A Visible College: Pub lic Engagement with International Law(yers) During the Ukraine Invasion’ ( OpinioJuris , 8 March 2022) < https://opiniojuris.org/2022/03/08/a-visible-college-public-engagement-with-international-lawyers-during-the-ukraine-invasion/ > accessed 10 April 2024. [4]   Isabel Hull, A Scrap of Paper: Breaking and Making International Law During the Great War  (Cornell University Press 2014).

The three broad categories of the title express overlapping perspectives of human difference. Read together they comprise the topic of Human Rights which is the focus of this volume. It exemplifies Lady Arden’s appreciation that The Cambridge Journal of Law, Politics, and Art is likely to expand our horizons by bringing together subjects which often sit in splendid isolation from each other. The premature loss of Michael Taggart leaves to others his insight that Norman Birkett’s judgment in the case of the slave’s grandson and peer Leary Constantine against Imperial Hotels in 1944[1] for not accommodating him because of his colour,[2] could and should have evolved into an overarching human rights principle of entitlement to equal treatment. The point was taken up by Lord Bingham in A(FC) v Secretary of State for the Home Department  (2004),[3] where he held disproportionate and unlawful the detention of non-UK suspected terrorists, when UK terrorist suspects were exempt from such arrest. In the first Oxford Essays in Jurisprudence ,   Professor Donald Harris QC (Hon) endorsed the opinions of Jeremy Bentham and Herbert (HLA) Hart that there is no concept of law beyond what is humanly created, to which in a New Zealand Privy Council appeal Lord Hoffmann added Kant’s similar conclusion: there is no law an sich . Harris responded to my initial Oxford tutorial essay about a political philosopher, reproducing what had been written about him by others, with the real point—‘yes, but what do you  think?’ That for me gave Law’s answer to its own question of source, which in physics is ‘where does the universe come from?’—namely, by simply creating it. In numerous contexts,[4] the Court’s law-making role is described as ‘incremental’, which mathematicians define as ‘denoting a small positive or negative change’. But while using that term, dissenting, in JD (FC) v East Berkshire Community Health NHS Trust ,[5] the next year in, Barclays Bank , Lord Bingham wrote: I incline to agree with the view…that the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test of principle which identifies the legally significant feature of a situation.[6] In the same case Lord Mance, reviewing prior authority, considered: ‘Incrementalism’ was…viewed as a corollary of the rejection, now uncontroversial, of any generalised liability for negligently caused economic loss, rather than as necessarily inconsistent with the development of novel categories of negligence. Having said that, caution and analogical reasoning are generally valuable accompaniments to judicial activity, and that is particularly to in the present area. Lord Mance’s ‘caution’, read with Lord Bingham’s rejection of ‘incremental’ as a definitive limit to judicial law-making, recalls Chief Justice Corstens’ criteria, using French in his final speech in The Netherlands: ‘la prudence et l’audace’. The Corstens / Bingham / Mance policy, of adopting an approach sensitive and appropriate to context, promotes optimum law, with legislative and judicial contributions forming a seamless whole, the judges discharging their duty to ‘do right’ by developing the common law ‘after the laws and usages of the realm’, especially when those are evidenced by recent legislation. Anthea Roberts’ best-seller Is International Law International? ,   sees the Australian scholar, experienced also in England and the USA, describe the range of senses in which ‘international law’ is employed; as is sharply evidenced by the law of England, which in some spheres regards international law as binding, in others as optional.[7] In Keyu v Secretary of State for Foreign and Commonwealth Affairs , Lord Mance wrote: Speaking generally, in my opinion, the presumption when considering any such policy issue is that [Customary International Law], once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration.[8] He later added: The role of domestic courts in developing (or…even establishing) a rule of customary international law should not be undervalued. [T]he intermeshing of domestic and international law issues and law has been increasingly evident in recent years…The underlying thinking is that domestic courts have a certain competence and role in identifying, developing and expressing principles of customary international law. [9] In summary, Law concerns the rules needed to manage human difference; Politics their creation and change; and Art connotes the cultures that contribute to and illuminate each. The categories are not discrete. The first category—decent Law—reflects the elements of the judges’ treble undertaking under the Promissory Oaths Act 1868: [1] I will do right to all manner of people; [2] after the laws and usages of this realm; [3] without fear or favour, affection or ill will. In the United Kingdom, as to the second category—Politics including rule-making—Parliament has and executes plenary authority. Yet the judges’ role of making, applying, and where necessary updating the common law is a major feature. Its functions include the assertion of Parliament’s role, and adjudication of disputes in accordance with the values of the rule of law. These include principles of international law which in practice largely requires enforcement by the domestic laws of individual states. Fundamental to both first and second categories is the third—the Art of understanding the evolving cultures of society, which is also essential to political success. This special edition of the Journal  addresses current profoundly troubling situations of human difference, each engaging Law, Politics, and relevant Art. Overarching all of them is the crucial need to achieve Reconciliation of difference, the capital denoting its importance. Each of the situations discussed entails competing claims for inconsistent rights, which may be procedural or substantive. Lord Mansfield’s celebrated procedural conclusion in Somerset v Stewart  (1772),[10] that alien status was no bar to habeas corpus for a slave held in custody on the Thames, was endorsed by the US Supreme Court in the Guantanamo Bay case Boumediene v Bush .[11]   There has been procedural delay of international Law and Politics since the end of WWI in finding Art to protect former Palestinian residents of the Ottoman Empire   There is then the substantive inability of the law to date to respond to aggression—allegedly committed in Ukraine by the then chair of the Security Council—which, though in Nuremberg singled out for response, awaits answer.   That our generation has been slow to respond to the ultimate challenge of global warming is of a piece with the appalling human rights statistics, including 108.4 million people around the world who are forcibly displaced; failures since 1937 to implement the Terrorism Report for the League of Nations, and more generally to grip the death toll in international migration; the disgrace of modern slavery; the division in the General Assembly between North (or West) and South; and the continued abuse of civil rights of women and children.   The tragedies of Ukraine, Israel, and Palestine recall, in the case of the Russian Federation, its obligations, as Permanent Member and in February 2002 Chair of the Security Council with primary responsibility under Article 24 of the UN Charter, to use Chapter VII powers to enforce Article 2’s prohibition of the use of force against any state; in the case of Israel the country readings from whose Old Testament inspire decency throughout the world; and, in the case of Palestine, the Prophet whose advocacy of non-violent means to resolve disputes exemplified the rule of law. The Swiss theologian Hans Küng’s writings on the close relationships among the three monotheistic religions point to the Art of Reconciliation among them. Each society, and the other members of the world community, well know that the promotion of peace by human creativity and achievement is essential to answering the greatest challenges their peoples face.   That is the context of the following essays identifying urgent problems of Human Rights, and potential responses by Law, Politics, and Art, which contribute to the classic University function as critic and conscience of society. Sir David William Baragwanath KNZM KC Sir David William Baragwanath KNZM KC is a retired New Zealand judge. He was a member of the Appeals Chamber of the Special Tribunal for Lebanon at the Hague, serving for a term as President. [1] [1944] KB 693. [2] In New Zealand, a deserved response to description by a pompous speaker as being among ‘coloured brethren’ was ‘I reply to my colourless brother’. [3] [2004] UKHL 56, [2005] 2 AC 68. [4] As by Lord Steyn in his much-cited opinion in Marc Rich & Co. A.G.   v Bishop Rock Marine Co. Ltd [1996] AC 211, 234 B-C. [5] [2005] UKHL 23, [2005] 2 AC 273 para 50. [6]  Her Majesty’s Commissioner of Customs and Excise v Barclays Bank plc [2006] UKHL 28, [2007] 1 AC 181. [7] Anthea Roberts, Is International Law International?  (OUP 2017). [8] [2015] UKSC 69, [2016] 1355. [9]  Al-Waheed v Ministry of Defence [2017] UKSC 2, [2017] AC 821 . [10] Lofft 1. [11] 553 US 723 (2008).

Introduction   Legal dramas often focus on the climax of courtroom arguments and verdicts. In doing so, they gloss over crucial aspects of the legal process: determining the appropriate jurisdiction for a claim, and the subsequent enforcement of a judgment or award.   Determining jurisdiction takes place at the start of every claim. It is the process of deciding which court or adjudicatory body has authority to decide a particular legal claim. This determination can play a fundamental role in whether justice is achieved. Determining jurisdiction is not always easy, however. Indeed, it can be an extraordinarily complex question, and there may be no clear right answer.   Enforcement occurs at the end of a claim. It involves the practical application and execution of a court’s ruling or judgment, whereby the successful party can monetise the judgment.   The two key questions of where to file a lawsuit and how to effectively enforce a judgment are at the forefront of every practitioner’s mind. The unique characteristics of cryptoassets, including decentralised control and often pseudonymous ownership, mean that significant challenges can arise in answering these questions. Addressing such challenges is the focus of this article.   Are cryptoassets property?   Cryptoassets have become a distinct category of digital asset. They primarily use blockchain technology—a decentralised ledger system—and record transactions over a software network of participants and network-instantiated data (ie, data that comes into existence through interactions within a network, rather than being pre-existing), providing security and anonymity. Cryptocurrencies such as Bitcoin and Ethereum are the most well-known forms of cryptoasset. They operate across borders and are independent of central banks. The scope of cryptoassets extends to other assets such as ‘utility tokens’, which provide access to services, and ‘security tokens’, which represent stakes in assets or ventures, such as a company. English law’s classification of cryptoassets is nuanced. Traditional English legal thinking divides property into ‘things in possession’ (tangible objects), and ‘things in action’ (the enforceable rights associated with the property). Cryptoassets such as non-fungible tokens (NFTs) challenge this binary classification. They lack the physicality of ‘things in possession’ and do not give rise to the typical enforceable claims or rights of ‘things in action’. The UK Jurisdiction Taskforce—a body established by the UK Government, the Judiciary, and the Law Society to promote the use of technology in the UK’s legal sector—has therefore proposed a third category that treats cryptoassets as a novel form of property. This classification is consistent with the standards set out in the landmark National Provincial Bank v Ainsworth   [1965] AC 1175  case, which require that property be definable, identifiable, transferable to third parties, and have a certain degree of permanence or stability.   Despite their intangible nature and volatility in value, cryptoassets generally meet the National Provincial Bank  criteria. This is reflected in the pragmatic approach that the English courts have taken. For example, in AA v Persons Unknown & Ors, Re Bitcoin  [2019] EWHC 3556 (Comm), an insurance company that was the victim of a ransomware attack and was forced to pay the ransom in Bitcoin applied for a ransom injunction. The English court granted the injunction, recognising Bitcoin, for the purposes of the injunction, as property that can be protected by law. While cryptoassets do not meet traditional definitions of ‘things in possession’ or ‘things in action’, their recognition as a potentially new form of property signals broader legal and conceptual acceptance. AA v Persons Unknown  set a precedent in UK law for treating crypto-currencies as property, opening the way for legal protection and enforceability of crypto-currencies in disputes over theft, fraud, and other legal actions. Unsurprisingly, English courts have followed this trend, repeatedly citing AA v Persons Unknown  and orienting the common law towards the needs of the modern digital world—going as far as allowing new claims to be served via NFTs. The fact that the English law on the nature of decentralised networks is rapidly evolving is also demonstrated by the pending Tulip Trading Ltd v van der Laan  [2023] EWCA Civ 83, where one of the main questions in dispute is whether certain networks are sufficiently decentralised that the programmers who created, updated, and ultimately developed them could be deemed to have a duty towards those who had assets on those networks. The answer to this question has significant ramifications, including the creation of a potential fiduciary duty owed by developers to Bitcoin owners.   Rights relating to property under English law   English law recognises two sets of rights in relation to assets: rights in personam , and rights in rem . Rights in personam , or personal rights, are specific rights that exist between particular individuals. For example, if a person enters into a contract with another person, a personal obligation arises to perform that contract. This obligation is a right in personam  for each person that enters into the contract, is enforceable against the other, and generally cannot be enforced against anyone other than the parties involved. In contrast, a right in rem  extends beyond the parties involved. A common example is the ownership of a piece of property. The right in rem  means that if someone trespasses on your property, you can enforce your property rights against them, regardless of whether you have any personal legal relationship with them.   Whether a right is a right in personam  or a right in rem  is critical in determining jurisdiction over that right. Jurisdiction over in personam  rights depends on connecting factors between the claimant and the defendant, the cause of action, venue, and the consent of the defendant. In contrast, jurisdiction over in rem  rights depends on whether the property in question is within the jurisdiction of the court. This distinction highlights the importance of having practical control over an asset—a concept that has become increasingly complex in the cryptoasset space due to its intangible and decentralised nature, as explored in more detail below.   Establishing jurisdiction through connecting factors   Traditional legal systems governing assets are often based on geographical boundaries and physical presence. Private international law usually adopts the principles of lex loci  (the law where the property is located) and the forum situs  (the jurisdiction where the property is located) to regulate the jurisdiction of property and the applicable law. This is simple for real property (eg, land) and generally applies to personal property as well (eg, a motor vehicle).   For intangible assets that have no physical location, a legal fiction is created to tie those assets to a specific location. The approach taken by English private international law generally looks at two elements: effective enforcement and specific access to remedies. For example, for assets that require registration, such as securities, shares, and intellectual property, the court where the relevant register is located has jurisdiction. Likewise, a debt is located at the debtor’s usual place of residence. The pattern emerging from the case law is that courts look to adopt a connecting factor for intangibles that is meaningful and will give validity to a future judgment. For a connecting factor to be meaningful, the court must have some degree of actual control over the intangible asset.   The ubiquitous and virtual nature of the Internet challenges these traditional jurisdictional principles. In EU Internet cases, the European Court of Justice has considered relevant factors such as place of residence, place of business, place of causal events, place of damage, and place of performance of the contract.[1] But practice shows that online communication spaces lead to a lack of useful connecting factors. In some cases, artificial connecting factors (eg, the location of the digital wallet) can be partly sufficient if the virtual location cannot be transposed into the real world; in others, using geographical connecting factors (eg, the location of the owner) can be useless because there is no obvious location to tie a cryptocurrency asset to a specific jurisdiction. This becomes even more apparent for cryptoassets related to distributed ledger technology (‘DLT’) (eg, Ethereum).[2] The current international legal framework, including the UNCITRAL Model Law on Electronic Commerce and the United Nations Convention, does not contain specific jurisdictional provisions for the Internet. Its reference points, such as ‘place of business’ and ‘habitual residence’,[3] do not fully take into account the non-territorial nature of the Internet and intangible assets.   Cryptoassets may be a special type of intangible asset. An artificial situs  (or site) of the property may have to be established because there may be no direct, natural connecting factor. There is already precedent in English law to permit this. In Ion Science Limited v. Persons Unknown ,[4] for example, it was stated that the location of a cryptoasset is ‘the place where the person or company who owns the coin or token is domiciled’. This is a useful starting point; however, it arguably remains an overly territorial approach to the issue of Internet jurisdiction. In this approach, the concept of ownership is tied to aspects of physical ownership and/or exclusive control. If someone claiming to be the rightful owner cannot access a cryptoasset—for example, because they no longer possess the private key, which is a decryption code—how can they prove ownership? If ownership cannot be determined, it may not be possible to determine domicile and jurisdiction. Such top-down judicial solutions may, therefore, not be experimental or iterative enough to keep pace with technological developments. The Law Commission recognised this in its February 2024 ‘Summary on the Call for Evidence’ for the ‘Digital assets and ETDs in private international law: which court, which law?’ law reform project,[5] where it concluded that lex situs  is far easier to apply to tangible objects than to digital objects. Applying the lex situs  rule to decentralised objects, in particular, is one of the most difficult problems raised by DLT. This is because decentralised cryptotokens are an ‘omniterritorial’ phenomenon: the object does not simply exist ‘nowhere’, but ‘nowhere and everywhere, at the same time’. In this way, cryptotokens exemplify the challenges that digitisation and decentralisation pose to the principle of territoriality, which underpins private international law.   Territoriality, de-territorialisation, and re-territorialisation New ways of thinking about jurisdiction over the Internet and digital assets are needed. In 2024, territoriality remains the common denominator of both private and public international law. Some scholars have gone as far as to say that our current legal paradigm operates under the tyrannical spectre of territoriality.[6] Extraterritoriality—that is, the application of a given jurisdiction’s laws outside of its own jurisdiction—as a possible response can be expected ultimately to face the same limitations. States asserting extraterritorial jurisdiction typically refer to a territorial reference point, usually one which is based on effects or impact within their own territory.[7] Extraterritoriality is, therefore, not a meaningful solution but a palliative reformulation. But what would a solution look like? The solution may lie in rethinking the concept of space and its relationship to norm-making or rule-making. Traditionally, connecting factors in private international law tie back to a physical, centralising factor. This factor can be either rather obvious (such as the place where the damage or injury occurred) or artificial (such as the place of the register in which the relevant entitlements are maintained). Therefore, when it comes to digital assets, the temptation might be to rely on the physical infrastructure of the Internet (the place of the cables, servers, and data centres) in order to solve the connecting factor issue. However, identifying these material pillars does not necessarily provide a reliable starting point for responsibility. This is because practical control over the physical infrastructure within the territory does not necessarily result in access to data.[8] For example, the debates over where data is stored[9] (such as on a server in a data centre) and where it can be accessed (such as on a laptop) are governance issues more than they are clear-cut geographical issues. The fact that a server is located within the territory of the United States does not automatically mean that the US government has access to data on that server.[10] If the government does not have access to the data underpinning the digital asset, then enforcement becomes uncertain. Additionally, in the DLT context, nodes supporting the crypto network can be located anywhere in the world—begging the question of whether jurisdiction would then be determined by where the majority of nodes are located, by using geofencing such as identification on the basis of IP address or GPS, or by treating the DLT network as a legal entity and resorting to its place of incorporation as a connecting factor?   The emergence of new asset classes—such as cryptocurrencies, protocol tokens, utility tokens, security tokens, natural asset tokens, crypto collectibles, crypto-fiat currencies, and stablecoins—has exacerbated this unresolved problem. DLT is not territorial; rather, it is peer-to-peer and decentralised. Furthermore, DLT introduces novel concepts such as multisignature and divided control.[11] Multisignature refers to a security mechanism whereby multiple signatures (or private keys) are required to authorize a transaction. For example, if three people have the keys to a multisignature address, and two-thirds of the people are required to agree for a given thing to happen, it is not clear who has custody of the funds.[12] What happens if the key-holders are living in different countries? Assigning a general rule to create a connecting factor may seem sufficient to provide a starting point for case law, but it may not be suitable for enforcement purposes. For example, you may get a connecting factor that allows you to commence proceedings in England, but if one of the key holders lives in Somalia and Somalian law does not recognise the basis on which the English courts agreed to take jurisdiction, the Somalian courts may not permit enforcement of the English judgment—particularly where one or more of those countries may not recognise the jurisdiction of the courts in another of those countries.   Further difficulties are faced given the pseudo-anonymous nature of blockchain. Indeed, without a clear understanding of who the parties are, it becomes difficult to enforce contracts or legal obligations across jurisdictions. Cross-border enforcement mechanisms, such as Mutual Legal Assistance Treaties, often fail to keep up with the rapid pace of DLT transactions. Moreover, decentralised systems, intentionally designed as they are to operate without central intermediaries, lack the means to enforce such decisions.   The best solution for determining jurisdiction over cryptoassets likely lies in developing a unified international legal framework that addresses their unique characteristics as digital assets. Given the global and decentralised nature of cryptoassets, the framework should be based on principles that transcend traditional geographical boundaries and that recognise the digital and often borderless realm in which these assets exist. International cooperation and consensus-building among different jurisdictions are needed to establish common standards and definitions for cryptoassets. This approach could include criteria such as the residence of the asset holder, the location of important nodes in the blockchain network, and/or the principal place(s) of business of the parties involved. Additionally, integrating technological tools such as blockchain analytics into legal proceedings can provide empirical data to support judicial decisions. Such a unified framework would not only ensure clarity and consistency in legal procedures related to cryptoassets but would also create a stable and predictable environment for their use and trading, thereby improving legal compliance for all participants in the digital asset ecosystem. Given the geo-political issues at play, and the varied stances taken by each jurisdiction, such an internationally harmonised approach is unlikely.   Challenges in enforcement against cryptoassets   Jurisdictional issues are inextricably linked to issues that arise in real-world cases. In the UK, judgment creditors have a number of options for enforcing a judgment. These options are each tailored to particular circumstances and are governed by different sections of the Civil Procedure Rules (CPR), the rules that govern the procedural aspects of civil court proceedings in England and Wales.   One method is for the court to appoint a receiver, a person responsible for recovering assets for creditors if the debtor does not pay.[13] Another method involves a third-party debt order, whereby the creditor forces a third party that holds assets for, or is indebted to, the debtor to pay the creditor directly.[14] In addition, charging orders can be obtained against the debtor’s interest in the property, securities, or company assets.[15] A party may also request an ‘attachment of earnings’ order directing the debtor’s employer to periodically withhold amounts from his or her income and forward those amounts to the court for payment to creditors.[16] These diverse mechanisms provide judgment creditors with flexible and effective tools to pursue their claims and ensure that they are satisfied.   In addition to the various enforcement methods available to judgment creditors, the English legal system also provides effective interim relief including in the form of injunctions. Examples include freezing orders, worldwide freezing orders, disclosure orders, and other forms of interim injunction. These injunctions are effective tools to facilitate enforcement. For example, a freezing order can prevent a party from dissipating its assets until a legal dispute is resolved, or judgment enforced, such as by freezing a defendant’s assets other than those the defendant reasonably needs to carry on business. This ensures that assets are not siphoned away to avoid enforcement.   Identification and location of assets   One of the biggest obstacles to enforcing judgments against cryptoassets is the difficulty in identifying and locating such assets. This problem is exacerbated because the decentralised ledger technology underlying cryptocurrencies means that assets are not held in a single location, but rather are distributed across a global network and, in many cases, cannot be traced back to a server, file, or device. Additionally, as stated above, blockchain transactions often allow users to remain anonymous or use pseudonyms, making it difficult to identify the actual person behind the transaction. To complicate matters further still, cryptoassets can be controlled by multiple individuals or entities, resulting in complex ownership structures that obscure the identities of legitimate defendants even more. In fact, much of the existing case law regarding cryptoassets involves court orders against ‘Persons Unknown’, highlighting the limitations of traditional legal tools in identifying responsible parties and holding them accountable.   Cryptocurrency exchanges are at the heart of managing global crypto assets. A large portion of cryptocurrency investors use wallets hosted on these exchanges. As a custodian, the exchange assists investigators and analysts by providing critical information. Asset trackers can request due diligence documents from exchanges and other cryptocurrency institutions, either voluntarily or through court-ordered disclosure. If tracing efforts lead to the identification of a public key address maintained by a third party, such as a cryptocurrency exchange, the injured party can take legal action. This is usually done by applying for a Bankers Trust Order (BTO)[17] or a Norwich Pharmacal Order (NPO) (so named after the claimants in the respective cases in which the orders were first made).[18] The purpose of these orders is to compel third parties to disclose information that can assist the investigation of claims and enforcement of laws.   Cryptocurrency exchanges often hold critical ‘Know Your Customer’ information and other relevant data about their customers. A BTO or NPO can help to determine ownership of wallets containing disputed digital assets. For example, the court in Fetch.ai Ltd and another v Persons Unknown and others  [2021] EWHC 2254 (Comm) (15 July 2021) granted a BTO and an NPO against the relevant entities to assist the claimants in tracing the assets. This is particularly helpful where a crypto exchange is found to hold assets on constructive trust for the benefit of the wronged party, making crypto exchanges a route to recovery ( see   Jones v Persons Unknown  [2022] EWHC 2543 (Comm)) .   Cross-border enforcement   A number of international agreements and conventions have been concluded in an attempt to address cross-border enforcement. These include, for example, the New York Convention on arbitral awards, the Hague Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments on court judgments, and the EU Brussels regime. Yet, despite these attempts to address cross-border enforcement, enforcing a judgment (or arbitral award) in another country can pose significant legal challenges due to differences in national legal systems.   Different national legal systems can have different procedural requirements and standards of fairness, which can engender potential conflict with the domestic law of the country in which enforcement is sought. In Payward Inc et al. v Chechetkin  [2023] EWHC 1780 (Comm), a UK court refused to recognise and enforce an arbitral award in favour of a California-based cryptocurrency exchange and trading platform because it was inconsistent with consumer rights protection under UK law and the UK Financial Services and Markets Act 2000—something that would likely not have been a hurdle had enforcement been sought in California.   Whether cryptoassets are treated as property is a matter of international debate, and how they are treated is influenced by each jurisdiction’s legal principles, technical understandings, and public policy considerations. In those jurisdictions where the courts have proceeded on the presumption that cryptoassets are property—such as England and Wales, Singapore, and Hong Kong—enforcement may be relatively straightforward. This is not, however, true for all jurisdictions.   Further, countries such as Tunisia or Nepal, for their parts, have implemented blanket bans on crypto assets.[19] These inconsistencies mean that a claimant who needs to enforce a judgment in a country that refuses to recognise cryptoassets as property, or which makes the transfer, dealing, or owning of such assets illegal, may find itself in choppy waters.   Enforcement using the blockchain — the cure is in the illness   Blockchain technology is a double-edged sword: while it challenges traditional judgment enforcement methods, it also provides solutions that promote innovation and efficiency in legal development. Its complexity highlights the growing need for innovative legal solutions, technological advancements, and global collaboration in order to effectively manage and enforce legal judgments in this digital age.   Asset tracing on the blockchain   Blockchain records are publicly accessible and cannot be deleted. Such transparency allows asset ownership to be tracked from the beginning. Still, some people who want to hide their activities use services like cryptocurrency tumblers or mixers, which mix ‘tainted’ funds with other funds, making the tracing process difficult. This is where the expertise of professional cryptocurrency recovery analysts is crucial. Specialist tracing companies use advanced tools and methods to unravel complex transactions and find their origins.   Unsurprisingly, blockchain analysis tools have become essential tools for lawyers and law enforcement. These sophisticated tools use the immutable nature of the blockchain to analyse transaction patterns, identify wallet addresses, and track asset flows, providing key benefits for tracking and recovering crypto assets. Despite the sophisticated nature of tracing tools, however, blockchain analysis still faces obstacles when dealing with privacy coins like Monero or Zcash, which are specifically designed to enhance privacy and obscure transaction details. Tracing transactions on these networks requires more sophisticated technology and expertise. As new methods and technologies are developed to improve the privacy and security of crypto transactions, blockchain analytics tools must (and will) evolve accordingly to keep pace. The use of blockchain analytics also raises important questions about privacy, data protection, and regulatory limits in digital finance. Some of the features of blockchain technology, such as encryption and data integrity checks, smoothly align with data protection principles. However, issues such as perpetual data storage, a lack of centralised control, and the inability to restrict cross-border transfers still have to be reconciled.   Enforcing judgments through smart contracts   A smart contract is a self-executing contract that automatically executes once preconditions written in code are met. This technique is particularly effective at executing judgments. For example, smart contracts can ensure that judgment conditions are automatically met. If a court orders a payment settlement, a smart contract can automatically transfer funds from the debtor’s cryptocurrency wallet to the creditor on issuance of the judgment. In cases where assets are frozen, smart contracts can also be used to lock funds or assets, only to be released once certain conditions are met (such as the issuance of a final judgment). This mechanism would permit the automatic release of assets to their rightful owners, streamlining the execution process. Smart contracts are also able to facilitate cross-border enforcement of judgments. Since blockchain operates globally, smart contracts can conduct transactions without being restricted by geographical boundaries, simplifying the process of international enforcement. While these applications hold great promise, they require strong legal frameworks and technical infrastructure to ensure smart contracts are enforceable and comply with legal standards. Moreover, incorporating smart contracts into the legal system requires foresight and collaboration between lawyers, technology experts, and policymakers to address challenges related to coding, contract interpretation, and dispute resolution. Further, unless obligated by law, they also require the consent of all parties to a cryptoasset transaction. All other things being equal, English law appears to be one of the most attractive governing laws for smart contracts, as it is sufficiently flexible to address both legal and business concerns (see the November 2021 Law Commission advice to the UK Government on the legal status of smart contracts, which highlights that principles of contract law in England allow for the recognition and enforcement of smart contracts, and that courts in England have demonstrated a willingness to adapt and engage with new technologies).   Need for international cooperation in enforcement It is clear that what is needed is international cooperation, which, when done properly, is very effective. The Silk Road case is a good example. In that case, the notorious online black market Silk Road used Bitcoin to conduct transactions, attracting the attention of law enforcement agencies around the world. The investigation, conducted by the FBI in partnership with multiple international agencies, resulted in the arrest of Ross Ulbricht, the inventor of Silk Road, and the seizure of approximately 170,000 Bitcoins.   To achieve this result, there was extensive international cooperation, with authorities sharing information, resources, and expertise. The agencies involved had to navigate a web of legal systems, each with a unique approach to cryptoassets.[20] This collaboration dismantled a major criminal syndicate, set a precedent for future cases, and highlighted the importance of developing an international legal framework and cooperative mechanisms to effectively track, freeze and enforce judgments against cryptoassets.   Conclusion   The legal environment surrounding cryptoassets must not only address their current state, but also anticipate future developments. A proactive approach to updating existing laws and regulations will be required—one that reflects the nuances and complexities of cryptoassets. This includes clarity on the legal status of different types of digital tokens (such as utility tokens or security tokens) and the recognition of smart contracts in legal proceedings. In addition to updating existing laws, there is a need to develop new legal tools and methods that specifically address the unique challenges posed by the decentralised and digital nature of cryptoassets, such as issues related to cross-border transactions, asset tracking, and judgment enforcement. Helpfully, English common law provides a useful, flexible tool for addressing many of these issues, and English courts have proven to take innovative approaches where necessary to address the nuances of the new cryptoasset world.   Another flexible tool is international arbitration. International, consensual, and private by nature, international arbitration provides a framework conducive to resolving cryptoasset-related disputes. This is particularly as it is supported by the New York Convention, a successful international agreement assisting enforcement across the world. An agreement to arbitrate, however, is just that: a consensual agreement. Unless built into the network so that all users must pre-agree to arbitrate any disputes, many cryptoasset-related claims—particularly those to do with fraud—are unlikely to be subject to a mutually negotiated contract. Addressing the challenges posed by cryptoassets will require a concerted effort that transcends traditional legal boundaries. An interdisciplinary approach that brings together legal practitioners, technical experts, and policymakers is crucial. This collaboration could provide a more comprehensive understanding of the technical underpinnings of cryptoassets and their implications in the legal realm. Effective enforcement of legal judgments against cryptoassets requires a deep understanding of blockchain technology and its applications. Lawyers armed with these technical insights are better able to develop effective strategies for tracking assets, understanding smart contract disputes, and resolving issues related to digital identity and privacy. The global nature of cryptoassets also highlights the importance of international dialogue and policy development. Forums and conferences that bring together stakeholders from different areas of the law can facilitate the exchange of ideas, best practices, and regulatory experience. This kind of international engagement will go a long way toward ensuring a consistent and unified legal approach to cryptoassets. Ioana Bratu, Aleksandra Dziki, and Michael Davar   Ioana Bratu is currently a doctoral researcher with joint supervision from the University of Exeter and the Open University. Her research focus is on jurisdictional issues related to digital platforms and the Internet.   Michael Davar is a Partner at the global law firm Squire Patton Boggs. He specialises in litigation and international arbitration. The Legal 500 2024 highlighted Michael as ‘excellent in his field’, a practitioner who is ‘known for his meticulous attention to detail’, and one who ‘embodies the team’s commitment to excellence’. Michael is named as a ‘Next General Partner’ and is listed as a key lawyer for international arbitration, commercial litigation: mid-market, and commodity disputes.   Aleksandra Dziki is an Associate in the International Dispute Resolution team at Squire Patton Boggs. She specialises in international commercial arbitration, investment treaty arbitration, and shipping disputes. Cryptocurrency-related legal issues are a key focus of her academic writing as cryptocurrency is her retirement plan. [1] Tobias Lutzi, ‘Internet Cases in EU Private International Law – Developing a Coherent Approach’ (2017) 66 ICLQ 690. [2] Examples of non-DLT-related cryptoassets are those backed by a bank or central body, such as China’s Digital Yuan, which operates on a central ledger controlled by the central bank. [3] Faye Fangfei Wang, Internet Jurisdiction and Choice of Law: Legal Practices in the EU, US and China  (CUP 2010) 19. [4]  Ion Science Limited v Persons Unknown  (unreported, 21 December 2020). [5] The Law Commission, ‘Digital assets and ETDs in private international law: which court, which law? Summary of the Call for Evidence’ (February 2024) 16-17 < https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2024/02/Digital-Assets-and-ETDs-in-Private-International-Law-SUMMARY.pdf > accessed 1 July 2024. [6] Dan Jerker B Svantesson, Solving the Internet Jurisdiction Puzzle  (OUP 2017) 13. [7] Julia Hörnle , Internet Jurisdiction Law and Practice  (OUP 2021) 5; Cedric Ryngaert, Jurisdiction in International Law  (OUP 2015) 6-7.  [8] Jason Healey, ‘The spectrum of National Responsibility for Cyberattacks’ (2001) 18(1) The Brown Journal of World Affairs 63. [9] See  United States v Microsoft Corp ., 584 U.S. (2018). [10] Amanda Holpuch, ‘Tim Cook says Apple’s refusal to unlock iPhone for FBI is a ‘civil liberties’ issue’ The Guardian  (London, 22 February 2016) < https://www.theguardian.com/technology/2016/feb/22/tim-cook-apple-refusal-unlock-iphone-fbi-civil-liberties > accessed 10 September 2024. [11] Don Tapscott and Alex Tapscott, Blockchain Revolution  (Penguin 2018) 291. Multi-signature arrangements are also referred to as M-of-N arrangements, with M being the required number of signatures or keys to authenticate an operation and N being the total number of signatures or keys involved in the arrangement. [12] Interview with Jerry Brito, 29 June 2015, cited in ibid 32. [13] Civil Procedure Rules [SI 1998/3132 (L. 17)], Part 69. [14] ibid, Part 72. [15] ibid, Part 73. [16] ibid, Part 89. [17] Norwich Pharmacal Co. v. Customs and Excise Commissioners  [1974] A.C. 133. [18] Bankers Trust Co v. Shapira [1980] 1 WLR 1275. [19] See ‘Cryptocurrency Regulation Tracker’ ( Atlantic Council ) < https://www.atlanticcouncil.org/programs/geoeconomics-center/cryptoregulationtracker/ > accessed 1 January 2024. [20] See Marie-Helen Maras, ‘Inside Darknet: the takedown of Silk Road’ (2014) 98 Criminal Justice Matters 22-23.

The emergence of blockchain technology is creating solutions to key issues that stateless people face. Stateless people and their communities are already discovering relief through blockchain, being able to be their own bank via cryptocurrency, incentivising community building with crypto tokens, using blockchain-built governance, and developing options for identification where there were none. Despite the promise that blockchain technology brings with it, there are notable challenges and dangers. There is an issue with how technology providers tend to be acquiescent to state authorities, rather than the vulnerable groups that stand to benefit the most from blockchain development. Harm may come from failing to receive input from the vulnerable groups, while incorporating from authorities entrenched or new discriminatory practices in regard to ethnicity, religion, origin, gender, nationality or lack thereof. To avoid this, stronger connections must be built between the blockchain sector and its most vulnerable users, to help develop technology on a fair and equitable basis. Statelessness compared to other forms of forced displacement Stateless people are among the most vulnerable and overlooked groups in the world, lacking basic human rights, including identification, freedom of movement, political rights, employment, education, and access to banking. Indeed, nationality remains a gateway to enjoying any rights. As Hannah Arendt famously wrote from her own experience of statelessness, nationality is a ‘right to have rights’.[1] Lacking it leaves a person in a limbo of vulnerability. Statelessness is a particularly vicious form of displacement, whereby one is made legally invisible in one’s own home, not welcome to stay and not exactly welcome to leave either. Being stateless should not be confused with being a refugee. The latter, for the most part, enjoy rights inherent in having a nationality and generally have an easier time of having such rights recognised, including in respect to international protection. Interestingly, the internationally recognised legal term ‘refugee’ originally derived from the experience of over 2 million refugees who were rendered stateless when the Soviet Union was established.[2] German minorities rendered stateless in the 1930s and 1940s were also in large part refugees, explaining why Hannah Arendt saw the two terms as intertwined.[3] Over time, however, these terms diverged in circumstance and common use; while the term ‘refugee’ became better known, the term ‘stateless’ became obscure. The fact that the stateless have no state actor that may put their interests on any agenda helps to explain this obscurity. Most contemporary cases of statelessness are ‘in-situ’.[4] In other words, most stateless people are stuck in the home domains that rendered them stateless, unable to become refugees and enjoy any refugee rights. State actors that manufacture statelessness tend to avoid calling this by its name, to avoid responsibility for it, worsening the information gap, visibility of the problem, and obstructing approaches toward its resolution. This can explain why 22 countries with mass statelessness do not have reliable data on this issue.[5] Since there is no authority above the state level in regard to legality—a monopoly that state actors enjoy absolutely—the tactic of any state actor in manipulating legal language to avoid responsibility is fairly effective. (This is a common state actor tactic that plays out in various ways, not just regarding statelessness, such as how Russia adamantly avoids calling its war in Ukraine by its proper name.) Using their advantages in law and information, state actors that manufacture statelessness en masse have a strong preference towards keeping the matter obscure, finding creative ways to obstruct the topic and circumvent international law standards relating to it.[6] Unlike what the media and films would make us believe, statelessness is not an accident wherein people fall through invisible cracks of legal contradictions or bureaucratic mishaps. Although such forms of statelessness exist, such as in some of the former Soviet Republics after the collapse of the USSR, statelessness is usually intentional, not accidental.[7] As the next section will discuss, much has to do with abuses that derive from the state-actor monopolies on legal identity documentation, notions of domestic belonging, and freedom of movement. All of these are tied to the modern predilection for fawning over nation-state sovereignty and its exercise of power. Lingering state actor absolute powers and monopolies It is never a good idea to place absolute monopoly or power in human hands. When we do allow it to happen, we tempt human frailties, asking for trouble. Despite the historic successes in the decentralisation of political power in countries such as Britain, the United States, and France, many aspects of social life remain centralised monopolistically in the hands of state actors. The monopoly on violence is not the only monopoly that state actors hold. To this day, there is no competition to state authority on questions of freedom of movement (post-WWI),[8] legal identification, criminality, and notions of rootedness and belonging. None of this, despite what the state actors would wish us to believe, is immutable and written in nature. Recent winds of technological change have brought serious challenges to some of the monopolies that state actors traditionally held—such as in the media, data, and currency (the advent of blockchain and cryptocurrency made decentralisation possible for the latter). Although state actors remain dominant in all of above spheres, their dominance has recently begun to encounter a healthy dose of competition, from both private enterprises and individuals. Authoritarian state actors bristle at the thought and struggle to find ways to regain control. As soon as they find ways to regain some of that control (eg internet censorship), there appear new ways to circumvent it (eg VPN). Blockchain also began to play a role in this regard, namely in decentralising website namespaces outside the control of any single entity, along with other related uses, allowing for censorship-resistant domains.[9] Statelessness itself in large part arises because of the abuse of power of two key state actor monopolies: 1) the notion of belonging to a territory; and 2) the issuance of legal identification. Both are still firmly in the grasp of state actors. Minorities are particularly vulnerable to misuses and abuses of these monopolies; it should be no surprise that 75% of the world’s stateless people are minorities on their own home territories, where they are made to feel unwelcome through the deprivation of nationality.[10] In other words, they are made to feel like they do not belong, and are not issued the same documentation as those who are branded as citizens/nationals.[11] Discrimination is at the very root of statelessness. People largely become stateless as punishment for who they are rather than for what they did: a person or their offspring can be deprived of a right to nationality simply for having a different ethnicity, perceived race or origin, religion, or gender (24 countries still do not allow women to pass on a nationality).[12] At the same time, the punitive infliction of statelessness, such as for political dissent, is also widespread. This form of statelessness was recurrent during the Cold War,[13] and very recently has seen a sharp resurgence in Bahrain, Nicaragua, Belarus, Uganda, Venezuela, and numerous other countries, including Western democracies.[14] People are increasingly being stripped of their nationality for having dissenting political views, being emphatically told that they do not belong for having such views. This goes hand-in-hand with revocation or refusal of renewal of legal identification. A serious alternative option to state actors’ monopoly in issuing legal identification is yet to arise. Nansen passports issued by the League of Nations, purposely designed for the flight of stateless refugees between 1922 and 1942, are a thing of the past.[15] It is far from certain that something like that could work in the 21st century, given the obscurity of statelessness, how unfavourable the political and socio-economic realities are for helping such people, and dependence on state actor cooperation in launching such a project (the UN, after all, is a forum for state actors). There are so-called ‘certificates of identity’, otherwise known as ‘aliens’ passports’, but these have limited use, are poorly known in application, and, most importantly, still depend on the state actors for issuance. As things stand, individual state actors and their appendages are the owners and controllers of our legal documentation. All passports have wording reflecting this fact: that it is the issuing government that is the owner of the passport, not the holder. Interestingly, the only exception is in the case of Queens and Kings of England, who do not need a passport because the British passports are issued in their names as heads of state. But even this exception is still perfectly in line with the state actor monopolisation of legal identification. The 20th century saw a growing centralisation of the power of state actors to identify and control the population, increasing to that end the use of identity documentation.[16] Increasingly, identity documentation became mandatory while its issuance did not become guaranteed or irrevocable.[17] Abuses of that centralisation of power resonate to this day, threatening human rights and domestic and international stability, with statelessness being an extreme form of that abuse. In the 21st century, governments in numerous countries around the world are increasingly targeting political dissidents, minorities, and other vulnerable groups, depriving them of identity documentation and putting them on a path to statelessness. A rising number of state actors, especially in the West, have introduced, brought back, expanded, or contemplated denaturalization laws.[18] The increasing insecurity of ‘belonging’ to only one state actor can partly explain a surge in the purchasing of additional citizenships among the rich. But very few can afford such protection, spotlighting the ethical perversion and inherent inequalities of state actor monopolies.[19] Protection, pathways to residence and even citizenship are sold by state actors, but when it comes to fulfilling the values that state actors preach so much about (human rights, justice, equality, democracy, etc), they treat the most vulnerable and persecuted populations very differently in these pathways. There is an urgent need for an accessible ‘Plan B’ for everyone, since there can never be guarantees of whether any government may turn abusive in the future. Governments are poorly positioned to provide such guarantees to their own nationals: any legal safeguards (if any are put in place) can be rewritten by a new political power, whether it comes in by force or elections. It does not help that the international instruments designed to protect human rights, such as the UN agencies, remain ineffective, while tensions between national groups attempting to dominate remain unresolved.[20] New, creative solutions are needed to match or, better yet, outmatch the creativity of state actors in manufacturing problems like statelessness. Blockchain and its novel contributions have the potential solutions. Blockchain’s potential in addressing statelessness The 21st century brought with it increasing decentralisation on the back of a decentralised system that has no owner: the internet. Blockchain appeared next in that evolution with its decentralised validation system being a unique contribution. This breakthrough, nicknamed Internet 2.0, moves along the digital revolution from information access and content creation to the stage of democratised ownership, promising greater control over own data.[21] This new technology has many uses, most of which are untapped and difficult to imagine at this point of time. In terms of human rights, blockchain offers an opportunity to alleviate the dire effects of statelessness and other forms of forced displacement. It does so through the possibility of decentralised identification issuance, validation, and self-sovereignty, while also empowering the stateless in such areas as decentralised governance, financial inclusion, and access to the numerous other services where identification is required. Application of blockchain technology in human rights is already here, with solutions for the stateless already being developed and implemented. One of the largest and better known of stateless groups, the Rohingya, have already started to enjoy the fruits of this development in a number of areas, leveraging technology to overcome barriers of exclusion. A case in point is the Rohingya Project, a stateless-led initiative using blockchain capabilities to experiment with alternatives to state actor monopoly in identification.[22] The project initiated a blockchain-based inventory archive to preserve vital records of Rohingya people, and launched R-Coin, a crypto token that encourages community service work in an informal economy setting.[23] To advocate for blockchain technology and its responsible use, the Rohingya Project joined forces with Save My Identity[24] and CoalitionVE,[25] led by Venezuelans who have had problems accessing identity documentation due to malfeasance of Venezuela, and Apatride Network,[26] a stateless-led coalition in the EU. To that end, these four organisations of forcibly displaced people partnered up for a global advocacy project, Blockchain for Human Rights,[27] launched in April of 2024. The initiative connects blockchain actors to human rights, to help guide the development of blockchain technology toward intended good and away from causing harm—to fulfil the much-promoted goal in blockchain circles of ‘value-add’ to the world. Given that businesses tend to be more connected and acquiescent to state actors (including the ones that cause harm), it is a much-needed endeavour to recalibrate the imbalances of power through the sharing of knowledge, ground-level expertise, and connections. Various charities and humanitarian organisations have also recognised the benefits of blockchain, its efficiency, cost-effectiveness, and ease of transactions. Working under difficult and volatile conditions where differences in performance can mean differences between life and death, they have been amongst the first to adopt the new technology to improve their own line of work to maximise impact.[28] More effective performance is particularly important during times of crises, when state-actor bureaucracies and old ways of doing things can be too slow, costly, and / or inapt. This explains why, during the turbulent initial months of Russia’s invasion of Ukraine in 2022, the humanitarian sector turned to blockchain-built cryptocurrency rather than fiat, to directly and quickly provide much-needed cash assistance to Ukrainian refugees and internally displaced people. The success of the initiative led Carmen Hett, Treasurer of UNHCR, to conclude: ‘The question is now, how can we do more of this? Because we know it works’.[29] The experience of vulnerable groups in Ukraine revealed how everything boils down to the question of identification in regard to access to human rights and humanitarian aid. There has been an incredible outpouring of aid to Ukrainian refugees after Russia invaded Ukraine, but some were left dangerously forsaken: Ukraine’s stateless people (many of whom are ethnic Ukrainians) have been unable to receive humanitarian aid and found it almost impossible to become refugees or even internally displaced. As reported by Ukrainian NGOs, it speaks disturbing volumes when Ukraine’s stateless make a decision to stay in a war zone, feeling ‘safer’ there, rather than face an outside the world with fear of having an inadequate form of identification or none at all.[30] This circumstance shows how state actors can fail in two respects to provide security to their own members: by failing to issue identification and prevent statelessness, then failing to recognise and resolve these issues. Both are rooted in the (mis)handling of identification. Given that state actors have held a monopoly on legal identification, the onus is on them to provide it without leaving anyone out. Yet, according to the World Bank, one billion people in the world remain without legal identification.[31] Lack of identification means lack of access to basic human rights. It also amplifies the vulnerability of affected people and places them at the mercy of human traffickers, corrupt officials, exploitative employers, and other unsavoury characters. Any form of identification can be a lifeline in such circumstances, and certainly better than having nothing. Given their discriminatory behaviour, cooperation from the malicious state actors who cause statelessness should not be expected, only the opposite. The pattern is similar across the world in different forms of mass statelessness, where stateless people, minorities, and other vulnerable groups are issued inferior form of identification or none at all. State actors struggle to adjust to the fast-pace, globalising, and multi-cultural nature of the 21st century. They continue to serve as opportune vessels for divisive ideologues, xenophobes, populists, and authoritarians (a problem that will unlikely be resolved, even for advanced democracies). Status-quo forms of documentation not only carry unnecessary risks and fragility, they are also vulnerable to state actor malpractices and irrational biases and discrimination. Blockchain-based systems of identification offer opportunities to address these critical flaws and can provide better data security in general, being notably more resilient to loss and forgery.[32] No human enterprise should trust itself with absolute and monopolistic powers. State actors themselves need to be helped in maintaining a healthier environment in identification. That alternative is now tenable with blockchain technology. Whereas before an argument could have been made that the state actor is a guarantor of someone’s identity by way of a centralised validation system (similar to the logic in fiat currency), today decentralised blockchain technology allows a viable alternative in identification that is already being put to good use. It is resolving some key problems faced by the stateless and other forcibly displaced people, and has the potential to resolve statelessness itself. Blockchain risks and hazards New technology always brings with it a set of concerns and growing pains. Serious problems can arise if developers of that technology ignore the characteristics, problems, and needs of its users. If the users are vulnerable groups such as the stateless or other forcibly displaced people, the stakes are considerably higher. For blockchain and digitalisation in general there are serious concerns going forward regarding the potential importation of structural discrimination into their development. This is already happening in different corners of the world, when state actors with discriminatory practices are involved. If precautions are not taken, the new technology may further exclude the already marginalized groups by accepting and incorporating that discrimination, causing significant harm and undermining human rights for everyone. Better connection is needed between the blockchain enterprises and its most vulnerable users. Akin to the rise of the internet, the learning curve is steep with blockchain, involving unpredictable missteps. In a decentralised system, there is no central authority to reset or restore private data keys, so the responsibility rests solely on the shoulders of the users to keep their ownership secure.[33] User negligence is relatively preventable, but problems like network outages, technical glitches, and hacking are more difficult to predict or prevent. They are a growing concern in blockchain that have no end in sight, involving numerous malicious actors eager to take advantage.[34] Hacking alone has caused widespread losses in billions of dollars over last several years, typically impacting crypto exchanges, wallets, and software. Blockchain itself being a more secure technology, hackers tend to find weaknesses in tools surrounding it, to that end utilising stolen passwords or private keys, keyloggers, phishing, and exploiting weak security protocols in software.[35] Blockchain’s still young yet complex development and continued dependence on other technology leaves a lot of room for the creativity of hackers and other cybercriminals. This is why so-called cold storage remains popular for avoiding these problems, ie, keeping data offline on a device like a USB stick or a disconnected hard disk drive. Blockchain-based digital identification has its own concerns. The stronger a form of identification is made by immutability and logging of all the metadata, the more pressing the question of who controls that solution becomes. Charles Hoskinson, the founder of Cardano, a leading blockchain project that has its own cryptocurrency and is developing a national ID system in Ethiopia, put it bluntly: ‘[In authoritarian regimes], it makes no sense to build identity solutions or blockchain solutions because there’s a high probability that those solutions are going to be abused and weaponized against the population’.[36] It is horrifying to imagine how much worse discrimination and harm in various countries would be with state actor access and control of a blockchain-based identification system. As already emphasised, any state actor, no matter where and when, has a susceptibility toward authoritarian tendencies. It is naïve to assume that political winds do not change. No place is safe from these tendencies.[37] Even if state actor takeover of blockchain is avoided, corporate monopolies can also be detrimental in harbouring an unhealthy concentration of power.[38] In their blind pursuit of profit, blockchain businesses are liable to overlook the harm that they may bring about without intending it. As Friedrich Nietzsche once put it, the banker, in the pursuit of narrow interests, functions by the same logic as a rock rolling down a hill. To the affected that suffer the consequences, it may make no difference whether harm comes from centralisation and malicious intent, callousness, or good intentions. Decentralised identification built on blockchain can help mitigate a number of issues like accidental loss, data security, or even hacking, by developing a more secure, reliable way of identity verification. Ultimately, however, everything goes back to the question of decentralisation and ownership. It is a prevalent question in the development of blockchain, a tug of war between those who standby decentralisation and those that seek more centralisation for its various perceived advantages (however self-serving). One of the biggest advantages of a decentralised system is its collusion resistance and, by its very definition, deterrence to monopolisation of power, political or otherwise. Viktor Buterin, the founder of Ethereum, concluded that: it is much harder for participants in decentralized systems to collude to act in ways that benefit them at the expense of other participants, whereas the leaderships of corporations and governments collude in ways that benefit themselves but harm less well-coordinated citizens, customers, employees and the general public all the time.[39]  That harm is magnified for those who are already on the margins of society, due to failures of centralised authority. At the end of the day, the good of blockchain depends on whether it will be able to maintain its decentralised nature. Conclusion It is important to recognise why forced displacement like statelessness exists and why uncountable millions suffer from it. Much has to do with the reality of how identification and notion of belonging are in a firm grasp of state actor monopoly, which is not always competent or benign. The stateless, who have been made stateless by no fault of their own, are desperate for solutions that technology like blockchain can offer. For the time being, these solutions may not be a panacea to all the woes of a lack of nationality, but they can soften the heavy blow of statelessness and other forms of forced displacement by addressing their primary burdens. Stateless people themselves are already taking matters into their own hands to implement these solutions, partnering up with blockchain actors toward that end, strengthening their own communities, and opening a route to a more liveable life. As with any technological advancement, there are shortcomings and dangers that need to be considered. In its current state, blockchain may not be for everyone, especially in light of its complexity and underlying risks in security gaps. Cybercriminals and other malicious actors are taking advantage of these complexities and gaps to their own benefit, tainting blockchain’s reputation. All of this serves as a deterrent for many, despite the noticeable advantages of the technology. This is why some in the humanitarian field are reluctant to use blockchain for fear of the repercussions that it could have in volatile environments like natural disasters or in conflict zones.[40] In such circumstances, the appetite is low for any additional risks associated with a technology that is still developing. In the pursuit of managing risks, there is much talk of regulating blockchain, ie, of increasing state actor control over the technology. Not much is said, however, of how that coveted control is itself problematic. The biggest threat remains the propensity of state actors to abuse their powers. History offers plenty of disturbing examples of how state actors utilised new technology to commit mass atrocities and other ‘crimes’ (the notion of crime being itself monopolised by the state actors). Few of history’s examples are as poignant as that of Nazi Germany, a regime that has used modern technology to systematically kill and enslave its own minorities and others. That state’s monopoly in identification played a critical role in that regard, through denationalisation laws and with the infamous use of identification badges for the Jewish, Roma, political dissidents, and other ‘undesirables’.[41] Every state actor’s ultimate powerplay is the punitive stripping or degrading of identification. Deplorably, it is still relatively easy for state actors to do this, rationalised by entrenched deference to nation-state sovereignty. Notions of belonging and the issuance of legal documentation are powerful tools that can shelter or break human lives. Effective preventative measures are lacking to make sure that such tools are not misused. Racism, xenophobia, sexism and other forms of discrimination will not disappear any time soon—if ever. Accordingly, they will continue to plague the socio-political nature of state actors, causing harm to the most vulnerable while leaving no guarantees who will be vulnerable next. This is all the more reason to mitigate these structural shortcomings by whatever means and opportunities possible, to support development of ‘Plan B’ alternatives to the current monopolies in place. There is a need for a healthier, more competitive environment in identification issuance, for which blockchain technology may help set the ground, in its various, competitive decentralised identification projects. None of this is to say that state actors’ role in legal identification can or should be completely overwritten. Blockchain’s cryptocurrency already co-exists with current fiat structures, creating a competitive alternative and giving people more choice and autonomy, especially when the state actor system fails (as it often does). Decentralised identification through blockchain can utilise established practices to build on, but to achieve a true value-add to the world, it is imperative that blockchain maintain the decentralisation philosophy it has been built on, to avoid the same problems that it is meant to address. Toward that end, it will be important for blockchain developers to connect less to the state actors that manufacture problems like forced displacement, and more to those who suffer from these problems. Blockchain itself stands to gain, as the experience of these vulnerable users can justify the rise of blockchain technology, expanding the positive and life changing experiences that these users already began to have. Aleksejs Ivashuk Aleksejs Ivashuk is the founder of Apatride Network, a coalition of stateless individuals, communities and stateless-led organisations working on addressing statelessness in the EU. He is also an associate member of European Network on Statelessness and serves on UNHCR's Advisory Board of organisations led by the forcibly displaced and stateless. In 2024, he co-founded the Blockchain for Human Rights consortium, bringing together stateless-led and exile-led coalitions to work together to advocate for responsible use of blockchain technology in digitization of identification. [1] Hannah Arendt, The Origins of Totalitarianism  (Random House 1951)  chapter 9. [2]  Elizabeth White ,  ‘The Legal Status of Russian Refugees, 1921-1936’ (2017) 27(1) Comparativ. Zeitschrift fur Globalgeschichte und Vergleichende Gesellshaftsforschung 18-38. [3]  Arendt (n 1) chapter 9. [4]   ‘Handbook on Protection of Stateless Persons’ ( UNHCR , 1 June 2014) < https://www.unhcr.org/dach/wp-content/uploads/sites/27/2017/04/CH-UNHCR_Handbook-on-Protection-of-Stateless-Persons.pdf > accessed 25 May 2024. [5]   ‘UNHCR Global Trends 2019’ ( UNHCR , 1 May 2019) < https://www.unhcr.org/flagship-reports/globaltrends/globaltrends2019/ > accessed 25 May 2024. [6]  Neha Jain, ‘Manufacturing Statelessness’  (2022) 116(2) American Journal of International Law 237-88.   [7]   i bid . [8]  White ( n 2 ) . [9]  Harry Kalodner et al , ‘An empirical study of Namecoin   and lessons for decentralized namespace design’ (2015) < https://www.cs.princeton.edu/~arvindn/publications/namespaces.pdf > accessed 25 May 2024. [10]   ‘Minorities, Discrimination and Statelessness’ ( OHCHR , 1 October 2021) < https://www.ohchr.org/en/minorities/minorities-discrimination-and-statelessness > accessed 25 May 2024. [11]  There is an important distinction between the two terms that plays out differently in different countries. In some countries, such as Latvia and Estonia, stateless people are called ‘non-citizens’ but are allowed, as a blank formality, to declare a non-functional ‘nationality’ in their identity papers that is equivalent to an ethnicity rather than any nationality. In the United States, stateless American Samoans are also called ‘non-citizens’ but hold a status of being American nationals with some special rights, like not having to pay federal taxes. Generally, the terms ‘citizen’ and ‘national’ are used interchangeably in different countries, furthering confusion and lack of consistency. [12]   ‘Access to nationality for women and girls essential for achieving gender equality and development: UN expert’ ( OHCHR , 3 October 2023) < https://www.ohchr.org/en/press-releases/2023/10/access-nationality-women-and-girls-essential-achieving-gender-equality-and > accessed 25 May 2024; (n 10). [13]  Julia Rose Kraut , Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States   (Harvard University Press 2 023). [14]  Adam Taylor , ‘The practice of revoking citizenship was tainted. Not anymore’   Washington Post  (Washington DC, 23 Febr uary 2023)  < https://www.washingtonpost.com/world/2023/02/23/begum-uk-citizenship-nicaragua-bahrain/ > accessed 25 May 2024. [15]  ‘The passion, vision and action of Fridtjof Nansen, humanitarian extraordinaire’ ( UNHCR , 5 October 2022)  < https://www.unhcr.org/th/en/39149-the-passion-vision-and-action-of-fridtjof-nansen-humanitarian-extraordinaire.html > accessed 25 May 2024. [16] Jain (n 6). [17]  Brad Blitz and Caroline Sawyer  ( eds), Statelessness in the European Union: Displaced, Undocumented, and Unwanted  (Cambridge Univ ersity  Press 2011). [18]  Audrey Macklin , ‘A Brief History of the Brief History of Citizenship Revocation in Canada’ (2021)  44(1) Manitoba Law Journal 425-455. [19] Ayelet Shachar, ‘The Marketization of Citizenship in an Age of Restrictionism’ (2018) 32(1) Ethics and International Affairs 3-13. [20]   ibid. [21] Jagjit Signgh ,  ‘How blockchain technology revolutionizes digital ownership?’ ( Coin Telegr aph , 1 December 2023) < https://cointelegraph.com/explained/how-blockchain-technology-revolutionizes-digital-ownership > accessed 25 May 2024. [22]  Matthew Allen , ‘Swiss blockchain platform gives Rohingya identities ’  ( Swiss Info , 4 Apri l 2018)  < https://www.swissinfo.ch/eng/politics/refugee-crisis_swiss-blockchain-platform-gives-rohingya-identities/44020630 > accessed 25 May 2024. [23]  Saqib Sheikh , ‘The Invisible Man of the Visible World: How Blockchain Could Offer New Hope to Stateless Rohingya’  ( Coin Telegraph , 18 May 2020) < https://cointelegraph.com/magazine/the-invisible-man-of-the-visible-world-how-blockchain-could-offer-new-hope-to-stateless-rohingya/ > accessed 25 May 2024. [24]   ‘Save My Identity’ ( Save My Identity ) < https://savemyidentity.org/ > accessed 25 May 2024. [25]   ‘Coalition for Venezuelans’ ( Coalition for Venezuelans ) < https://www.coalicionporvenezuela.org/ > accessed 25 May 2024. [26]   ‘Apatride Network’ ( Apatride Network ) < https://apatride.eu/ > accessed 25 May 2024. [27]   ‘Blockchain for Human Rights’ ( Blockchain for Human Rights ) < https://bchain4hr.com/ > accessed 25 May 2024. [28]  Mathew Allen, ‘Charities and NGOs trial new technology to enhance performance’ ( Swiss Info, 20 February 20 18) < https://www.swissinfo.ch/eng/blockchain-for-good_charities-and-ngos-trial-new-technology-to-enhance-performance/43907904 > accessed 25 May 2024. [29]  Joel Khalili, ‘In Ukraine, Crypto Finds a Purpose’ ( Wired , 15 March 2023)  < https://www.wired.com/story/ukraine-crypto-refugee-aid/ > accessed 25 May 2024. [30]  Aleksejs Ivashuk, Kanics Jyothi, and Sofiia Kordonets, ‘The forgotten victims of war: Ukraine’s stateless’ (2023) 72   Forced Migration Review 37-40 < https://www.fmreview.org/ukraine/ivashuk-kordonets-kanics/ > accessed 25 May 2024. [31]   ‘Identification for Development Initiative’ ( World Bank ) < https://id4d.worldbank.org/about-us > accessed 25 May 2024. [32]  Alex Hern and Skot Thayer , ‘Rohingya turn to blockchain to solve identity crisis’ Guardian (London, 21 A ugust 2018) < https://www.theguardian.com/world/2018/aug/21/rohingya-turn-to-blockchain-to-solve-identity-crisis > accessed 25 May 2024. [33]   ‘Crypto custody: a private key to success’ ( PwC , 4 November 2022) < https://www.pwc.ch/en/insights/digital/crypto-custody-a-private-key-to-success.html > accessed 25 May 2024. [34]  Florence G’sell and Florian Martin-Bariteau ,  ‘The Impact of Blockchains for Human Rights, Democracy, and the Rule of Law’ ( Council of Europe , 15 November 2022) < https://www.coe.int/en/web/artificial-intelligence/-/the-impact-of-the-blockchains-for-human-rights-democracy-and-the-rule-of-law > accessed 25 May 2024. [35]  Kevin George ,  ‘The Largest Cryptocurrency Hacks So Far’ ( Investopedia, 2 Decemb er 2023) < https://www.investopedia.com/news/largest-cryptocurrency-hacks-so-far-year/ > accessed 25 May 2024. [36]  Elizabeth Renieris , ‘Why a Little-Known Blockchain-Based Identity Project in Ethiopia Should Concern Us All’  ( Centre for International Governance Innovation , 7 December 2021) < https://www.cigionline.org/articles/why-a-little-known-blockchain-based-identity-project-in-ethiopia-should-concern-us-all/ > accessed 25 May 2024. [37]   i bid . [38]   i bid . [39]  Vitalik Buterin , ‘The Meaning of Decentralization’ ( Medium , 6 February 20 17)  < https://medium.com/@VitalikButerin/the-meaning-of-decentralization-a0c92b76a274 > accessed 25 May 2024. [40]  Allen  (n 28). [41]   ‘Jewish Badge During the Nazi Era’ United States Holocaust  Memorial Museum  ( New York, 2 February 2016 ) < https://encyclopedia.ushmm.org/content/en/article/jewish-badge-during-the-nazi-era > accessed 25 May 2024.

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

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

Axel Rü̈ger is Secretary and Chief Executive of the Royal Academy of Arts. He is a former Director of the Van Gogh Museum in Amsterdam and the Mesdag Collection in The Hague. He was educated at Cambridge as well as in Germany and Canada, and has written books on Chinese and Japanese art. We live and die by our programme. If we don’t have exhibitions we may as well close. — Axel Rüger Axel Rüger, former Director of the Van Gogh Museum, joined the Royal Academy of Arts (RA) as the CEO in 2019. What should have been a celebratory period for the RA and a glorious time to be the man in charge, just after the RA’s 250th Anniversary in 2018, quickly descended into mayhem as the COVID-19 pandemic took hold early last year. For the cultural sector, the pandemic has been damning. Museums, galleries, theatres, and concert halls alike have had to adapt swiftly to spare themselves from financial collapse. The RA ‘tries to generate money normally with exhibitions that appeal to a broad public’, and yet it is an ‘eternal struggle to make money’, says Rüger. The greatest public health crisis of our lifetimes has greatly worsened matters for museums. National and international travel restrictions have severely curtailed visitor numbers and, as Rüger explains, there is ‘not an exhibition in the world that can really make money with 20 percent of its visitors’. In response, the RA has had to reduce costs of numerous kinds, and it has been forced to limit the ambition of the exhibitions and events that would draw the public back to the halls of Burlington House. Travel restrictions have also prevented some paintings from being borrowed, such as for the Francis Bacon exhibition (May 2021), which has consequently had to be scaled back. Rüger has been forced to make decisions about ‘how long it is viable’ to keep exhibitions open. ‘We are driven by the exhibitions programme’, he says, and the challenge will be to ‘retain integrity’ as the RA begins to ‘grow again’.   Fortunately, Rüger assures me that donations to the RA have not changed much during the pandemic. ‘[M]any loyal supporters have remained loyal and donated’, although some have understandably had to say, ‘not right now’. Indeed, ‘friends have been remarkably loyal’, and the RA is ‘still in a lucky position from donors’. Despite these positive lifelines, Rüger predicts, in our interview in October 2020, that the RA will lose £12 million in 2020. The RA does not have a ‘regular grant or funding agreement with the government’ but ‘has made use of the job retention scheme’. Many staff have been furloughed to cover some of the running costs of the institution while it waits for renewed revenue from exhibitions. Rüger tells me how the RA is ‘proud of its independence’ but had ‘applied to the cultural recovery fund where you could apply for up to £3 million as a one-off grant: help in the short term [to address the current] cash calamity’. The RA’s application has since been successful.   Moving to discuss the exhibitions themselves, Rüger explains that they are ‘always planned several years out’. Nonetheless, current circumstances are prolonging the wait for some exhibitions which have had to be ‘shunted along for next year and so on’, and two have been cancelled entirely. Rüger is still hoping to present seven exhibitions in the next year, ‘but none of them is really new. They have been on the cards for some time’. Regarding whether any upcoming exhibitions will be inspired by the pandemic, Rüger feels strongly that ‘it is too soon […] We need to distil what is good art from the pandemic’, he says, adding that the RA is ‘here to offer a place of aesthetic enjoyment, reflection, and solace. We are too deep into it. We will need a little bit of time and some clear water after the pandemic. What will that world look like? Some people think we need to change fundamentally’. On whether art produced from the pandemic will reflect health, death, and dying, Rüger is optimistic that it will ‘be more about how we live in our world’. ‘One of the worst things’, says Rüger, is that, during the pandemic, ‘we were banned from doing […] what we as a cultural society do best: providing a community, inspiration, and beauty’. So, he has no current plans to devise exhibitions about the pandemic. Until society has had enough time to heal, the RA will focus on its opportunity to provide a space for escapism.   The RA is, however, certainly moving with current societal waves. Rüger asserts that the RA is ‘trying to be more inclusive’ and that it ‘wants to try harder’. He adds that diversity ‘needs to be reflected by who we are’ with a ‘more diverse body of Royal Academicians and amongst our staff. We need to think and get more perspectives’. Taking place in winter for the first time, last year’s Summer Exhibition demonstrated the RA’s active efforts to be inclusive and to showcase artists from a broad range of backgrounds. Rüger highlights the rooms curated by Isaac Julien CBE of his own work. I ask Rüger what he thinks are the most effective ways in which   we can integrate the study and understanding of global art in the Western canon of the history of art. His response is thoughtfully engaged with the Decolonise Art History movement. ‘Northern Europe’, he says, ‘has a great history of museums and galleries. We in Europe and particularly Northern Europe, because of our colonial past, have a certain paternalistic attitude’. Looking forwards, Rüger is keen to increase diversity at the RA. ‘We need young art historians to go into the field who are from different backgrounds, to look at art with different perspectives. As a German, I have a different experience from my British colleagues, but as a middle-aged white man I can only be open-minded, [and] not bring those views’.   Our conversation then turns to discussion of the RA’s relationship with politics more broadly. Rüger has a clear stance on the institution’s position. He asserts that ‘the role of the Academy should be a platform for allowing debate and exchange, rather than taking a firm stance. Different opinions should be expressed through the art on the walls’. In other words, Rüger’s vision for the RA is that the art speaks for itself and encourages viewers to contemplate political ideas and debates. He tells me that it would be futile to try to impose a political stance on the institution, because ‘as a group of artists, [the Academicians] will never agree on anything at the RA. The only area where I can see the Academy taking a firmer stance is art education and art in the curriculum’. Rüger concludes, on this matter, that the role of the museum is multi-purpose, with a responsibility to provide a space where people can disconnect and enjoy the beauty of art, as well as contemplate current affairs. Rüger highlights the power of the museum, especially during the pandemic, and especially of artists, whom he praises for being able to ‘help us express emotions that we may not be able to express ourselves’.   Our interview comes to an end with Rüger revealing his vision for the RA in the coming years. I ask him if he intends to push the RA in a more modern direction, and what genres of exhibition he thinks London audiences will gravitate towards when they open again. He asserts, ‘I think the Academy should definitely be contemporary. We have living artists after all’. Acknowledging his audiences, he continues: ‘[P]eople, as they become older, tend to be more conservative. But we also have the schools’. There is evidently a fine balance to be struck between appealing to both the RA’s younger and older demographics. Rüger is sensitive to this, and he explains that the large-scale exhibitions that the RA produces do not make the institution the place for ‘super cutting-edge art making […] We have a certain status and a certain position. We might want to be a bit more experimental, but that is more for places like the Serpentine’.   During the first ten months of the pandemic, the country’s primary focus was on science, the development of vaccines, and economic survival. However, as we pass the first anniversary since the pandemic began, society is craving a return of culture and a revival of the arts. The RA reopens on 18 May 2021, with an array of exciting new exhibitions featuring David Hockney, Michael Armitage, Tracey Emin, and Edvard Munch. Louisa Stuart-Smith, the interviewer, is a third-year undergraduate in History of Art at Trinity College, Cambridge, interested in Italian medieval and early Renaissance art and architecture. In 2021 she will begin an MPhil in Italian medieval afterlife images.

Professor Judith Butler is a world-renowned philosopher and theorist whose writing has made them a household name. Their work has shaped and continues to shape how we conceive of gender, post-structuralism, embodiment, sexuality, and language. This interview is centred around Butler’s recent work Who’s Afraid of Gender?  (2024), which addresses the cultural and political anxieties surrounding gender and gender nonconformity. The following discussion dissects the rise of anti-gender ideology and explores the possibilities provided by psychoanalysis, feminist coalitions, the law, language, and art in counteracting this ideology in order to achieve liveability.   This interview was conducted on 15 July 2024 . The views and opinions expressed by Judith Butler in this interview are their own and do not necessarily reflect the views of the interviewer or CJLPA . The interviewer assumes no responsibility for the accuracy or completeness of the interviewee’s statements.   CJLPA : Who’s Afraid of Gender,  as the title suggests, is centred around various fears surrounding gender. The ‘anti-gender’ movement encapsulates multiple fears, whether of a destabilisation of norms, of invasion, inversion, regression, or also progression. Why is it that gender has become the site on which these fears have been projected? And what is it about gender that makes it so potent?   Judith Butler : It’s an excellent question. First, let me say that the anti-gender ideology movement does identify gender as a particularly dangerous and fearsome enemy. This anti-gender movement is largely part of broader right-wing movements, which target critical race theory, sexuality studies, ethnic studies, and migration studies as well. The teaching of race, gender, and sexuality tend also to be anti-migrant and/or subscribe to the Great Replacement theory. So, there are racial, sexual, gendered dimensions of this right-wing, psychosocial constellation, and gender can’t be easily or fully extricated from these other matters.   Secondly, I think it’s fair to say that potentially everyone is afraid of gender—that is, gender understood as gender identity or as a set of norms that convey both expectations and possible punishments. Gender and gender identity are, of course, distinct. Gender can be for some a way to establish a place in the world, who experience their body in a certain way, many of whom take gender for granted at the same time that they value its social operation. For some, gender anchors their experience and as such, when certain questions about gender get raised, they feel that anchor loosening, and fear a destabilisation or going adrift in directions that are unknown and possibly frightening.   That’s an abstract way of saying that many people don’t want to hear questions about how others can and do change their sex assignments or how the complexity of gender identity is lived. This fear also attends to the new vocabularies, including new pronouns, that have been developed to recognise that complexity of gender experience, not just among young people, but across generations, and which generally exist alongside political claims for equality and freedom, for protection against violence, and for protection against discrimination and pathologisation.   So, I ultimately think it is destabilising for those who hold the worldview, sometimes a religious view, that male and female are to be taken not only as naturally given or God given (divinely given through natural law) but also given for all time. That is, sex, or binary sex is considered to be an immutable thing we should not be debating—something that should not be subject to change or reinterpretation, something that is what it is for the time of life without alteration.   CJLPA : I wish to expand on the links you mentioned between race, gender, and sexuality a little later. However, prior to this, I wanted to focus more explicitly on some of the book’s terminology. The book ubiquitously refers to gender being construed as a ‘phantasm’ with purported destructive powers and draws on Jean Laplanche’s formulation of the ‘phantasmatic scene’. For the benefit of our readers, could you explain what it means for gender to be a ‘phantasm’ in the context of anti-gender ideology?   JB : One of the regrets I have about this book is that I didn’t spend enough time distinguishing the phantasmatic scene articulated by Laplanche from the adaptation I make of his theory for critical and political purposes—an appropriation that Laplanche himself or his followers would not have appreciated. The phantasmatic is invariably a structured scene where various elements come into a dynamic interplay. It has its own syntax governing the ways that elements can be related to one another. There are fantasies that we have that are more or less conscious. According to Susan Isaacs, ‘Phantasy’ with the ‘ph’ should designate unconscious processes. The phantasmatic is the syntactically organised scene in which phantasy plays out.   I was drawn to thinking about Laplanche’s phantasmatic scene because it gives us a way of understanding the psychosocial elements involved in what Umberto Eco identified as the ‘jumbled character of fascism’. Eco pointed out that those who are drawn to fascist movements are very often enticed by the fact that they don’t have to reconcile certain fears they’re living with. They are not governed by any standard of consistency or non-contradiction.   In other words, the enemy—in this case ‘gender ideology’—can stand for the acceleration of capitalism and hyper-individualism at the same time that it is taken to be a sign of an oncoming totalitarianism or state communism. Alternately, gender could represent the incarnation of the devil in our time, one which will destroy Biblical law and its mandates regarding men, women, and the family: its heteronormativity, heterosexuality, and the specific meanings of feminine and masculine. Is it an excess of freedom, of individualism, or is gender state control, a dogma, a campaign of indoctrination? It is said that gender is a doctrine of radical determinism. It is said that gender supports a totalitarian regime that will take people’s sex assignment away with the consequence that no one will any longer be able to be a man or woman. Supposedly, you will no longer be able to be a mother or a father as well! Gender is going to strip people of established sex identities. Those who fear the phantasm of gender can easily hold all these views at the same time, and land upon a ‘cause’ for their anxiety about what is happening to the world they once knew. And then we also have a different version of problems: gender permits for trans women to enter prisons and take over the place or invade it or do harm.   So, there are many different kinds of phantasmatic elements that are held together in one place or by one people, and that means they’re under no obligation to reconcile them. There’s no consistency mandate. There’s no coherency mandate because this ‘ideology’ collects them all and promises a relief from every point of anxiety or fear. There is something nearly religious in that promise which most fascists make. They’re going to restore order. They’re going to restore society to the way it used to be—in the case of anti-gender fascists, it is often patriarchal order or heteronormativity that needs to be restored. In this way, a promise of the restoration of order tends to also be part of the promise of fascism.   There’s one more point I would like to add. Freud’s interpretation of dreams was important to Laplanche, but also to me in thinking through the appropriation of Laplanche’s theory here. This is because in a dream sequence, as opposed to a logical one or most conscious ones that take a straightforward narrative form, there are elements that hold together different psychic issues—they could include an anxiety, a desire, or a fear. When one looks at how a dream is organised in terms of the characters, the landscape, the transitions, and the ambient feeling, it seems as if the psyche of the dreamer is, in fact, distributed in a certain way across the scene. It is, as we know, sometimes difficult to understand that the dream scene is the scene of one’s own psyche. It may well be informed by a profound residue from everyday life or infantile histories, or impressions from others. It’s never freed of the environment or social interaction—it carries those traces as well.   The phantasmatic scene is a particular way of rearranging those elements that doesn’t necessarily correspond in any mimetic way to reality; rather, it gives us a refraction of reality of a certain kind. I think that this way of thinking about phantasmatic scene helps us with Eco’s idea that here are these apparently disparate issues that are somehow brought together in a scene without having to be reconciled according to conscious, logical measures—criteria that we might usually seek to use.   CJLPA : That’s a very helpful framework. When you referenced Freud in the context of dreams, the first thing that came to me was his idea of Verschiebung  (displacement) which brings to mind how gender has been distorted in order to accommodate disparate, often conflicting, elements of anti-gender ideology.   JB : Yes, Freud’s ideas of both displacement and condensation are at play, but so too is externalisation. I continue to think that we can’t do an ideology critique of the critique of gender ‘ideology’ without Freud.   CJLPA : Building on the aforementioned fears surrounding gender, the book also identifies that one of the consequences has been a rise of trans exclusionary feminism. The politics of fear, here, is generally centred around a fear of replacement and/or of violation. How seriously should this fear be taken? Additionally, I wonder whether over-engaging with these concerns risks dominating the discourse, allowing this fear to have primacy over the right to existence for trans women?   JB : Well, first of all, the fear of violation when stated should always be taken seriously. I think we all have a fear of violation. I don’t know anyone who belongs to a vulnerable community—whether that’s gay, lesbian, bisexual people, travestis in Latin America, trans people, or Black and Brown people, especially migrants—who doesn’t fear violation. But how we define who or what is threatening to violate us is a different matter. If we decide that members of other vulnerable communities are the real threat, then we have forgotten to ask what makes any of us vulnerable. The answer to that involves knowing the broader map of power, including extractivism and exploitation, abjection and effacement.   If many of us live in fear of violation, harassment, harm, rape, and murder, then we need to think clearly about the conditions under which those fears are rightly registered, and those in which they are incited and magnified to serve a fully different political purpose. I find it especially hard these days when countries who had earlier signed the Istanbul Convention are now unsigning that convention that did seek, for instance, to protect women against marital rape and gay and lesbian people against discrimination and harm. It mandated various kinds of social policies to help people understand the harm of homophobia and misogyny, and these are mocked and distorted by the political right as totalitarian educational projects.   Indeed, we have leaders now who mock feminist aims or misuse them for their own purposes. Both Rishi Sunak and Keir Starmer, in their debate preceding the general election, debunked trans claims in ways that I found profoundly disrespectful and politically regressive. And Giorgia Meloni, who now fashions herself as a centrist despite her prior affiliations with fascism, promotes the restriction of reproductive rights, including access to reproductive technology. She also has begun the process of nullifying trans rights and challenging the legitimacy of gay and lesbian parenting rights. There are many people on the loose in positions of power who make us all feel the fear of violation, because it’s not just that we are losing legal protection, but violation is being renamed as something normal, and this discourse gives permission for a certain kind of violation.   There seems to be no recourse when the laws that are supposed to protect us actually harm us. Protection is itself a problematic notion, since it assumes a ‘protector’ who has power over us, and without whom our safety is put in question. Equally, when the laws that protect us are withdrawn or mocked or rendered inoperative, we are left even more vulnerable, having to find resources and support in extra-legal networks and communities. So, I understand the fear of violation, and I don’t blame any of the trans exclusionary women from voicing the fear of violation, but I do hold them accountable for making trans people, who suffer that same fear, into the paradigmatic abusers. This move is painful, unknowing, and unjust, amplifying prejudice rather than destroying it.   I have suggested several reasons for the fear of violation. These fears are multiplied for Black and Brown women, trans people, non-gender conforming people, and migrants. One question I have is how did it come to be that trans women, who have historically broken with certain notions of manhood to embrace an identity necessary for their lives—an identity that puts them at greater risk of discrimination, harm, and even murder—are now the targets of feminists who understand what it is to be vulnerable and courageous? Why wouldn’t we object to rape, violation, harm, and discrimination against all vulnerable communities? Identifying another vulnerable community as the true enemy, the one with all the power to hurt us, not only breaks solidarity but also misreads the map of power in our times. That is a perilous error and plays into the Right’s plan of action.   Unfortunately, many trans-exclusionary feminists use rhetoric similar to that of the new fascists and neo-authoritarians. I’m not saying they are, therefore, fascists or neo-authoritarians, but it remains remarkable how rarely they have stepped forward to distinguish their criticism of trans people from a right-wing eliminationist discourse. I wish they would, because if they don’t like being called fascists, they should show that they aren’t.   Feminists need to consider what alliances we want to be part of. In Latin American feminism, trans people are at the centre of the battle against fascism and state violence. Even the emerging left in France, although fragmented, shows how quickly people can overcome deep divisions when they see the necessity of opposing right-wing, white supremacist, misogynist, homophobic, and transphobic forces. Our alliances need to be as deep or deeper than their hatreds. We make a grave mistake when we become hyper-sectarian or separatist, identifying other vulnerable communities as the true danger to our lives.   CJLPA : This brings up several important points. You pointed out that many people understandably fear violence, and you also mentioned the lack of recourse when protective laws are rescinded. Additionally, you touched on how shifting political landscapes influence this situation. Given this context, how do you view the law’s potential: is it still effective, or is it too closely tied to shifting politics, making its protections inherently unstable and prone to change?   JB : I think the law is really important. I appreciate left legal scholars and organisations—especially those who take on lost cases to make a point. I don’t share the deep suspicion of the law that some people on the left have. However, I believe it would be terrible if legal frameworks became the ultimate political frameworks. We need a larger framework for politics that includes the law and allows it to serve broader political and social aims. The law cannot effectively support goals like freedom, equality, or justice without a political movement and a firmly built vision of politics that provides the aspirations, ideals, and principles guiding our legal activism.   CJLPA : Practically speaking, how can we leverage the law to achieve these desired changes?   JB : Some years ago, I was on the board of the Center for Constitutional Rights in New York, and now I am excited to see how they use legal strategies to advance progressive politics. They have an extraordinary way of thinking about the law. There’s also the National Lawyers Guild in the US, and I’m sure there are UK equivalents that I’m not familiar with, which are committed to political aims that drive their decisions about cases to take, how to argue them, and which precedents to establish in order to support our political struggles. This dynamic is happening, and as academics we might need to engage more deeply with these legal organisations to understand how they work and perceive the relationship between law and politics, allowing that to inform our own efforts to distinguish and ally the two.   CJLPA : I now want to turn to the audience of the book. In the work, you describe experiences encountering individuals who are unwilling to engage in debate, some of whom even view your work and ideology as demonic. Moving beyond this group of people, I wonder how you navigate discussing the issues raised in this work with those who are willing to engage but who are outside of academic contexts? I noticed that this book, unlike your previous works, was published by a non-academic publishing house. Is there a deliberate shift in the audience you aim to reach with this book?   JB : There is often a difference between the audience you wish to reach and the one you actually reach. According to Amazon, my work reaches people in gay and lesbian studies, women’s studies, and those interested in the critique of fascism, which isn’t surprising. There has been some mainstream crossover, which I’m glad about. Even though I conceived this book as a non-academic one and deliberately published it with trade presses, it may still be a bit dense and lengthy for a broader public. Non-academics can get certain things from it, based on my conversations with many readers.   I wasn’t trying to defend my former positions in this book; I didn’t revisit my previous works like Gender Trouble  or Bodies That Matter  to clarify or defend past ideas. It wasn’t an academic self-defence or clarification. The concept of performativity is mentioned only a few times and in passing, which was deliberate because the book is not about me or my work.   Additionally, I dispute the idea that I have an ideology or that gender is an ideology. For me, self-criticism is important as I embark upon a new project. Often in my scholarship, I end up questioning presumptions from my earlier work. I appreciate the living character of theoretical work, where you can write a book with full conviction and then revise it based on people’s responses that you found persuasive. Academic humility is important. We shouldn’t hold positions over time and defend them against all opposition. Instead, we should listen to those who have good criticisms, or feel excluded or misunderstood by our positions, and be willing to change if we want to be responsive and overcome our own blind spots and unwitting prejudices.   Regarding the performativity of gender, I’m no longer sure how I feel about it. Other issues seem more important to me now. I became interested in talking to people who are unsure about what’s going on with the contemporary discourse on gender. For example, are women in prisons truly threatened by trans women? Or is the real threat from guards, or the prison system itself? The same people who threaten women in prisons often threaten trans people as well. What do we make of that? The violence of the prison system should be a focus, not just individual violent acts, but the harm inflicted by largely unsupervised guards, psychiatric personnel, and sentencing protocols.   Similarly, are women (AFAB) truly threatened by trans women using the same bathroom? Understanding the challenges trans people face when deciding which bathroom to use is crucial. Trans women and trans men face significant vulnerabilities and violence in these situations. For example, I have a friend, a trans man, who was thrown against a wall by police for choosing to use the women’s bathroom because he didn’t feel comfortable or safe in the men’s room. He was trying to avoid a potential scene of harassment by using the women’s bathroom. He figured he could be taken to be a very masculine lesbian butch. Why should such a person be in an imperilled situation no matter which bathroom they used? We should be identifying these vulnerabilities and sharing strategies and forms of resistance in a collective fashion rather than viewing each other as primary enemies, and letting the larger structures of oppressive power fade from view. This also applies to trans people who see feminism as their enemy. What a terrible and unnecessary division! The issue isn’t feminism as a whole but the broader transphobic world, with some feminists engaging in transphobia in horrific ways. Let us keep those larger structures in mind. We are more easily gathered together as a right-wing phantasm than by ourselves, in the interests of solidarity.   CJLPA : I would like to hone in on the importance of listening to those who feel excluded and allowing our own perspectives to be shaped by the lived experiences of others. I also appreciate you sharing your friend’s experience. With this in mind, I’m wondering whether you see a clear distinction between scholarship and activism, and if so, how would you define that distinction?   JB : I think there is a distinction. I think this book tries to show a not fully scholarly audience what scholarship actually does—that the false things that are said about gender can be defeated or debunked in a patient and informed way. For instance, I discuss biology at some length because people often wrongly say that gender denies the materiality of the body. That’s simply not the case. Look at the incredible work in feminist biology and feminist science studies—it is an extraordinarily rich field.   There are different ways to debunk or to oppose the false things that are said about gender. That’s important to do, but I’m also trying to deflate the fears that have become prevalent in the public discourse. People believe that their traditional households will be disrupted or destroyed by some gender ideology that’s let loose into the world. That’s not the case. A trans or queer couple living next to you won’t disrupt your traditional heteronormative marriage with your children and a dog. They won’t come rushing into your home to take your sexed identity away.   Many feel that their sense of being natural, necessary, and universal is profoundly challenged by the existence of queer kinship and trans folks trying to find reproductive technology that works for them. They feel deeply threatened. But are they truly threatened? What is it they’re actually at risk of losing? The only thing a traditionalist who’s afraid of gender ideology is losing is the sense of being superior, exclusive, and universal. My advice to them is to mourn that loss. You still get to have your life. It’s the same thing you’d say to a white supremacist: yes, you’re losing that sense of supremacy. That’s good. You’re going to live in a better world governed by equality, and that loss is necessary to live in that better world.   I don’t expect the most avid proponents of anti-gender ideology to be convinced by me. I suppose I am trying to talk to people who are confused in the political centre or who don’t know how to adjudicate some of the claims that are circulated without support on social media and news outlets. I looked at the Sex Matters internet site, for instance. They take established scientific journals and reject their claims without offering evidence to the contrary. This is bad scholarship and bad journalism. We need to listen carefully and distinguish between informed and ill-informed views.   I had someone come to a talk in San Francisco recently; she was a member of a trans-exclusionary feminist group. She and her cohorts leafleted the event in advance, and some of them came inside and then lined up to speak after the presentation concluded. One of them asked a question, and I thought that was good opportunity to see whether dialogue is possible. That person spoke about her fear of violation, identifying trans women as the threat to her personal safety. My approach was to have provisional empathy with that fear and then to open it up, and to ask if what you say you’re fearing is indeed the source, the reason for your fear. Are there other sources of this feeling that many of us share that something is, in fact, threatening our lives? I said, ‘like you, I fear violation. But unlike you, I understand its sources and instruments differently’. If we had been able to pursue a conversation, that would have been a starting point. It’s important to understand the kind of fear trans exclusionary feminists feel, and to offer them another way of understanding how widely shared that fear is, what might be accounting for it, and to let them know that trans and queer people share that fear. That can lead to a potential solidarity. Maybe we could overcome what I take to be a lamentable division among some feminists—a very minority view within feminists—that is trans exclusionary, creating a division between them and trans and queer allies.   CJLPA : In the book, you propose a form of coalition wherein all those targeted unite effectively, despite their differing viewpoints, leveraging their power in numbers. You note that a coalition, at its best, is not comfortable. However, beyond discomfort what do you think are the primary obstacles standing in the way of achieving this coalition? And how do we go about minimising these?   JB : I think it’s perfectly possible to ally without overcoming obstacles. To accept that there are, at least for now, irresolvable differences, and at the same time, to realise that an alliance is necessary in order to fight off a form of power—whether it’s fascist, neo-fascist, or authoritarian—that is going to strip people of their rights.   Here I am talking about women of all kinds, trans people, gay and lesbian people, queer people, migrants, vulnerable people, especially Black and Brown people, and indigenous people. We really identify and document who is involved in the attacks on such people and what powers are undermining the economic futures of those who are most precarious, including workers whose unions have been weakened or disbanded. We would be very foolish not to see the larger picture.   People ask me, ‘How would we get along? There’s so much vitriolic antagonism. How could we ever make an alliance?’ Ultimately, there are times when that vitriol and antagonism are not resolved but are understood to be secondary when threats are more appropriately identified as coming from fascist or right-wing sources of profit and power, both state and non-state powers. Ecologically speaking, we don’t have time for these internecine conflicts or, if they are necessary, we can accept the unresolved character of those conflicts as we join in the fight against fascism. When the question becomes, ‘How are trans and feminist people going to get along?’, we need to ask: What is the framework in which you’re asking that question? It’s very small and has narrowed into this little fight. What’s the background for that fight? What happens if we open up the frame to understand the background of that fight?   To what extent are we having that fight in order not to see ecological catastrophe, the true damage of hyper-capitalism, whose trace is in fascist discourse, or the true damage of amplified state power, whose trace is also in fascist discourse? What would a left, feminist, queer, trans, and anti-racist alliance look like that could identify these issues given all the resources we have from socialist history and theory and from ecological criticism? What could we do if we understood those internal differences as persistent but secondary?   CJLPA : Looking at the bigger picture is clearly essential in the context of this coalition. However, some might be concerned that within a diverse and pluralistic feminist coalition, marginalised voices could risk being overshadowed by more dominant perspectives. What is your view on this potential issue?   JB : The form of coalition that I advance is one that Black feminists have articulated. I think that Black feminism is the future of feminism, and that it should indeed lead the way. Feminism from the Global South that has been building coalitions knows how to do it. These are the most important points of reference for thinking about coalition. It’s from that hard-won understanding that the rest of us need to learn. In that sense, those who emerge fighting from a history of subordination are leading the way.   CJLPA : I fully agree that intersectional feminism is the way forward. This also ties in with a discussion of language, as the book mentions how Eurocentric fictions have organised language into fixed and normative binaries. Therefore, while there is power in putting oneself into discourse (through the use of pronouns, for example), not everyone is given this power. What, then, does a decolonial approach to understanding gender look like, and how do we go about widening the ambits of discourse?   JB : This is one of those moments that Naomi Klein refers to as a ‘doppelgänger issue’. The Vatican claims that gender is an ideology seeking to colonise  the Global South, asserting that gender is another imperialist export and will undermine local cultures, especially the culture of the poor. Of course, if you’re on the left, you recognise the left version of this argument: ‘Oh no, we don’t want a feminism that’s imperialistic. We want an anti-colonial feminism. We want a decolonial feminism. We want a feminism that thinks seriously about white supremacy and colonial power and how feminism has been deployed to support those forms of objectionable power’. Of course, we want to deploy feminism against those colonial powers. There’s just no question about that. So, we could be taken aback or even taken in by the Vatican’s claim. But here is where we need to make a distinction.   What the Vatican would like to impose on the Global South is a Christian missionary view of the natural family: white, heteronormative, and anti-feminist. This view re-subjugates women and challenges the notion of gay and lesbian marriage or gay and lesbian forms of intimate association or kinship that are not necessarily marital or conjugal. So, we see a different kind of colonial imposition, the one that the Church has always been imposing, acting as if it is the protection against colonial domination. Now that needs to be exposed and analysed in detail. It’s not easy because we do know that there are colonial forms of feminism, and that feminism has been deployed in a pernicious and horrible way to wage wars against Muslim and Arab peoples, for instance. Such ‘feminist’ war tactics fail to recognise both Muslim feminist networks and anti-colonial feminist movements. The US has used feminism to advance war and colonial occupation, as we see in the mainstream coverage of the war against Palestine. But Palestinian women and children have been the ones to suffer most in that war.   So, we do need very strong criticisms of colonial feminism, but we also need to understand how versions of colonialism can be furthered by the right-wing appropriation of left arguments and the creation of a kind of confusion among people who cannot see the difference. It cannot be the case that we conclude, ‘Oh, the anti-colonial thing to do is to accept the Church’s teachings!’ No, that’s to accept a different version of colonialism, or sometimes the same version that the Church says is imposed by the Global North as they themselves impose it (from the Vatican, part of the Global North). I do think the Global North imposes ideas of gay rights, lesbian rights, and feminism that are very often smug, arrogant, and destructive, assuming what forms resistance and liberation should take for all people, imposing local norms as if they are, or should be, universal. That is actually a critique I have made alongside many others, and I continue to make it. Unfortunately, it rhymes with the Vatican view. Here again drawing distinctions is crucial, marking off the critique of colonial feminism and the one that’s being advanced by the Church as a subterfuge for the amplification of its own colonial power. I do try to address that a bit in the book. It’s not a large section, but I point to the scholarship that is doing that and should surely be read.   CJLPA : Who’s Afraid of Gender?  also explores ‘monolingual obstinacy’ and the productive potential of translation. Could you explain these concepts briefly, so that those readers who may not have read the book yet have a sense of how this ties in with our discussion.   JB : Well, one way of entering that question is autobiographical. I wrote Gender Trouble  in 1987 and 1988. It came out in late 1989. Suddenly that book took off in the US and the UK, Australia as well, and was translated into twenty-something languages in the following years. I was invited to various places, met those translators who were working with my language in Latin America but also in Eastern Europe. Those translators were also scholars. They were, and remain, scholars of the topic and they knew things about gender, sexuality, law, social theory, philosophy, and psychoanalysis that I didn’t know. I ended up learning from them not only about theory and the problem of translation, but the asymmetry of translation, how English floods non-English markets, how scholarship from an array of languages rarely finds its way into English unless the scholars master academic English. I also had to confront the limits of English, the arrogance of anglophone theory, and the importance of attending to the non-translatable.   Indeed, exposed to other languages through the translations of Gender Trouble  actually allowed me to learn different ways in which gender—as a term, a concept—is and is not translatable. Gender produced a disturbance in the so-called ‘target language’—I hate that military word, but that’s how translation theory works. I learned all kinds of things about why it doesn’t work. For instance, many people in South Africa explained to me why the term gender doesn’t work because there are all sorts of local ways in different African languages for designating what we call gender positions in kinship and community. Many people in East Asia explained why it was so hard to translate and the various political debates about translation. Even in Germany, where it seemed like ‘Geschlecht’ was the only thing you could use, it was too biological, related more to ‘species’ than to difference or identity. Maybe we should just say ‘gender’, or in French, could you really say ‘genre’ given the literary traditions that distinguish among them with such enthusiasm? So, I learned a huge amount as a consequence of being translated and actually came to be able to read in Spanish, which I never could do before, even though I live in California—and should have, much earlier. My own first-worldism was appropriately challenged, if not shattered. I became very interested in all the examples of why gender does not work. And I made friends with my translators, many of whom are among my most important interlocutors. My views on the importance of multilingualism to any theory of gender were established only after being translated.   Perhaps one insight I have now is the result of translation: gender sometimes works in ways we don’t anticipate and is sometimes feared in ways that are completely different from what it means in the scholarship or even in law and social policy. But sometimes it doesn’t work. Sometimes it’s not the term; sometimes it needs to be forfeited for another vocabulary altogether. Those of us who’ve been working in that framework of gender, or gender studies, need to listen and learn and revise what we think according to what folks who are grappling with the issue of translation tell us.   Even though I haven’t been strictly monolingual as an adult, I still think every English language speaker and writer has to deconstruct their monolingual obstinacy, take apart the assumption that English is the language in which theory takes place or English is the language in which things become most clear. It’s not the case. Theory is not produced in the Global North, or in English, and then applied to the South. For those who work with that unexamined assumption, they operate with an arrogance that has to be undone. Embracing the practice of translation is a knowledge-seeking activity. It is, in fact, one of the main ways to learn about the world, that is, how the world is organised differently. It is also one of the main ways to learn how to speak across languages with greater care and openness, letting another language enter and transform one’s thought. I am a strong supporter of a transnational and multilingual forms of coalition. Those are both enormously important for any global movement that addresses the conditions of destruction, exploitation, extractivism, and domination.   CJLPA : It is crucial to go beyond one’s own perspective, rooted in one’s language, to understand how gender is currently understood by others and how it possibly could be understood looking forward. With this in mind, it is interesting that some feminists or gender theorists advocate for a post-gender world. Yet, your approach emphasises making diverse social embodiments more liveable.   Within the transgender community you acknowledge that while the binary framework works for some to articulate their gender identity, it is unworkable for others. Specifically, for those for whom the binary is unworkable, there is a form of hermeneutical injustice when it comes to the intelligibility of non-normative expressions of gender identity. There seems to be a tension between the flexibility to self-describe and this social intelligibility—I wonder what you make of this tension.   JB : Well, look, there are those who say to me, don’t we want to simply abolish the gender system? And I generally respond, from what position would we, or could we, do that? I accept that we’re historically formed and that we act from a distinct situation. I would not say that we are historically determined in a deterministic sense by all kinds of norms. We can, and do, break with them. But the conditions of that break? How do we understand that historically, as evidence of the open-ended and nondetermined character of history and historical formation? I don’t think we can leap out of history or our own historical formations to simply get rid of gender. We can do that in a play or a film, or maybe a dream, and dreams are important for politics, to be sure. But what precisely is the practice of abolishing gender?   We could start by saying, ‘Okay, hospitals shouldn’t assign sex’—which is a very interesting idea, one that Monique Wittig proposed, and I liked it when I first heard it, but I took it as a thought experiment. If we seized power in hospitals and banned sex assignment, then we would be accused of being those totalitarians who are going to strip people of their sexed identities. Is that what we want? Or are we on the side of freedom, wanting to expand the domain of gender freedom? Of course, that threatens the Right from another side, but so be it. If we want to abolish gender through law, then through what state power would we act? And would we then be aligned with the State, or would we be State powers? Is that what we want?   I think of sex assignment as iterable, meaning it happens not just once, but throughout life. It happens again and again. I suggest that that’s true for people who stay with their original sex assignments, who effectively say ‘I was assigned female. I like being female. Female is great. I’m assigning myself female all the time. I am in my life living out that assignment and repeating it and reproducing it’. No one simply has a sex assignment. It is being renewed all the time, or broken with, recommenced with another category. So we might say there’s an iterable or performative dimension to sex assignment (which does not mean it is fake or an artifice). No, it’s part of the temporality of a life. Sex assignment happens when we rely on observations about what sex someone is. There are chains of such acts, and those chains can be broken by those who actually need to break the chain to live, and to start another sequence as a way of living, if not flourishing.   I think that takes us away from the idea of a punctual and definitive sex assignment, which I don’t think does justice to the way that assignment works in a lifetime over the course of a life—and how it can change.   CJLPA : I find this approach highly compelling. I am also curious to hear what role you think art—especially visual art which transcends language—has in this venture of ‘curating’ one’s self-expression and broadening the remits of how gender is perceived.   JB : I think art is crucial. I think we need a new imaginary or, rather, counter-imaginary. The right wing is filling the world with these phantasms. They appeal to passions like fear and anxiety, longing for a different world, mainly an ideal of a former way of life. And what do we on the Left offer? What passions are ours? And how do we appeal to them imagining a future in a different way—not the imagined future in which patriarchy and racism is restored, but an imagined picture of greater liveability, equality, justice, and freedom?   I do think that liveability has to be included as a goal. It sounds like a very modest goal, but it’s not. It actually includes survival and flourishing. And it assumes equality and universality, since I cannot achieve a liveable life if the conditions for that life are not accessible to everyone else. At the same time, it is not easy to stipulate for everyone what constitutes the ‘liveable’. I published a short book with Frédéric Worms on this.[1] For instance, I’m not going to say from the outset that anybody who stays in the binary gender system is not living a liveable life—who would I be to say that? That’s just wrong. However, if they live in that binary system and say that no one can live outside of it, then I’m going to oppose them. So, I think we need to accept from the outset that people find liveable very different ways of naming and practicing embodiment. Affirming that complexity is important with the caveat that certain ways of practicing sexuality can be coercive and violent and must be categorically opposed.   I understand that Gender Trouble  was taken by some readers to license self-expression as a value. Although that is certainly important, I’m less interested in self-expression than in establishing modes of liveability that includes the affirmation of complexity. Once we go back to self-expression as the core of our aesthetic practice—focusing on issues such as self-crafting, we’re also implicitly or explicitly subscribing to individualism. And then we’re forgetting that what we need to do is fight for a world in which liveability is achieved by affirming complexity and difference. So, I want a common, if not collective, vision, and not simply an individualistic one.   CJLPA : Finally, I’m aware that you have put off writing a book on Kafka to write Who’s Afraid of Gender?  I’m curious about whether you believe Kafka’s writings offer any insights into countering anti-gender ideology.   JB : I always have—there might even be a brief reference to Kafka in Gender Trouble . I had read Derrida, I’d seen Derrida give a talk on Kafka’s ‘Before the Law’   as I was writing Gender Trouble , and I’ve been teaching Kafka for many years. I love his humour, and I appreciate his ways of seeking to flee a world that is fundamentally unliveable. There are fundamental questions in Kafka about the ways that legal life confounds human existence, extending key legal concepts like judgment and prison to everyday life. He lets us to see that the promises of law to deliver justice, for instance, are very often broken, or that some legal systems built on property relations and racism, break their promise of justice at the moment of making it. As a result, we have to reconceive our way of understanding law as bound up with that broken promise and the way that promise works in our lives, inspiring the very hope that it tends to destroy.   It is easier to think about the false promises of authoritarian and fascist leaders than the ones we live within democracies governed by the rule of law. Of course, there are false promises that are made by fascist leaders right now, but we would be wrong to think that the fascism at issue is not produced in the midst of democracies that are supposed to be their opposite. The false promise is exciting and blinding, and some people would rather have the promise, regardless of its falsity, than not have it at all. Very often in these cases, the promises of a restoration to a former time are fuelled by a restoration fantasy.   Kafka exposes how that works. In his short fiction, mainly parables, but also the novels, the narrative expectation is established that law will deliver justice, that liberation is at hand, that a way out can be found. And then, in The Trial  for instance, it turns out that sentencing and punishment precede the trial that never arrives. This destruction of a narrative expectation relates, for instance, to the work of Ruth First’s 117 Days . That work speaks, of course, to questions of indefinite detention under South African Apartheid, but it also speaks to the scrambled sequences that now govern our lives. So, I would argue that there are temporal and fictive dimensions to fascist passion and fascist promise that would benefit from a reading of Kafka.   CJLPA : What strikes me most about Kafka’s writing is the quintessential narrative manipulation of time and space. To me, it seems that this disfiguration and disorientation from conventional coordinates also prompts readers to reimagine the status quo and to consider different realities which easily extends to gender.   JB : For sure, if you think about developmental narratives—‘oh, you’re born a girl, you’re supposed to become a woman’, many ways of blocking freedom and complexity are taking place. The detour, the error, the ‘failure’ are all constitutive of the scene of gender, as are new beginnings and persistent modes of ambivalence. This temporal elaboration within which we seem to live, almost unconsciously, is generally accompanied by great disturbance, and that is significant. This doesn’t mean I don’t believe in forward motion of any kind; I am in favour of forms of hope that can be shared and grounded in workable solidarities. Kafka disturbs the temporal developments that are often assumed or expected in literature, law, and life, so one question is how such expectations inform promises of a political or legal kind, or even religious expectations of fulfilment. That disturbance does open up a different kind of imaginary, one perhaps that we don’t know how to expect, but which will change the course of our political expectations of justice. Or so I hope—see, I do hope. This interview was conducted by Helena de Guise. Helena graduated from Trinity College, Cambridge in 2022. She remains academically interested and personally engaged in feminism, law, German literature, and postcolonial theory. [1] Judith Butler and Frédéric Worms, The Liveable and the Unliveable  (Fordham University Press 2023).

Professor Jan-Werner Müller is the Roger Williams Straus Professor of Social Sciences and Professor of Politics at Princeton University. He has published many books—including  Contesting Democracy  (Yale University Press 2011), What is Populism?  (University of Pennsylvania Press 2016), and Democracy Rules  (Penguin 2021)—and voluminously in academic journals and public fora including the Guardian , The New York Times , and Project Syndicate .   This interview was conducted on 3 January 2024—before the re-election of Donald Trump—and has been edited for length and clarity.   CJLPA : Good afternoon, Professor Müller. The Cambridge Journal of Law, Politics, and Art  is singularly lucky to have you here with us today. To begin, can you tell us a little bit about your personal and intellectual biography and in particular what draws your theoretical focus to democracy?   Jan-Werner Müller : I’m glad we have about five hours so that I can pontificate at length about my autobiography! Many academics are rightly reluctant to go down a very autobiographical path because there’s the danger of seeming very narcissistic. But maybe less obviously, there is also the danger of appearing reductionist about one’s own interests, of simply reducing intellectual commitments to completely contingent contexts. So, with these caveats, I’ll be relatively brief: contrary to what is often said today, which is that the 1990s were an age of liberal triumphalism, complacency, supposedly ‘The End of History’, nobody quite believed that (and nor had everybody truly understood what Frank Fukuyama was really trying to say).   Contrary to that cliché, it’s important to point out that, at least in certain respects, the 90s were a moment of insecurity, of uncertainty, of liberals feeling that they may have lost their bearings. This is partly because the great struggle with communism, for shorthand, seemed to be conclusively over. And at the same time, issues were appearing that liberals felt they didn’t have much of an answer to. One of them was nationalism (which is not to say that nationalism had not been politically important during the Cold War).   For many years, if you lived in Europe, you were bound to be preoccupied with what was happening in the former Yugoslavia. Many of us became disturbed by questions about liberal democracies’ ability to respond to questions about belonging, where to draw borders, and what really holds people together in a democratic polity. As a result, there was much handwringing and agonizing by liberals at the time. Of course, I’m not saying that we had the answers soon after. I’m also not saying the story about complacency is completely wrong. But in certain ways, it was a very unsettling time. In the country that I originally come from, Germany, there were also questions about belonging, given that for many decades we had laws on the books that basically said you had to be ethnically German to be a citizen. Questions of belonging in a democracy, questions of social cohesion, questions of citizenship were very much alive in those years.   It was also in the 90s that a curious revival of the thought of the German political and legal thinker Carl Schmitt started. This was puzzling for many people at the time because, up until that point, there had been a general view that Schmitt’s reputation was simply too tainted by his involvement with National Socialism, and by plenty of evidence that even after the war he had no real regrets, and that he remained an anti-Semite. The assumption was that his theories could not come back into general circulation. But again, some of us who perhaps didn’t feel all that complacent at that time got the idea that Schmitt, whatever else one thinks about him, is a formidable critic of liberalism, and of democracy in certain regards. It’s important to take his critique seriously and to work out arguments that might respond to the kinds of anti-liberal and anti-democratic attacks that he had been advancing.   CJLPA :   One of the things that personally stuck with me when I first read Alexis de Tocqueville was a somewhat piercing comment he made about the future of democracy. He suggested that there was a wonderful chain that aristocracy had provided for the West, and what democracy did was break the chain. ‘Each man would be thrown upon himself alone…there is a danger that he may be shut up in the solitude of his own heart’—a very foreboding comment about the future of communities and belonging in general.   JWM :   It’s interesting you bring this up. Let me react with two observations. Of course, the 90s were also a heyday of the so-called liberalism and communitarianism debate, and there was plenty of pressure on self-declared liberals to prove that somehow liberalism was able to generate resources for community building. Some of them reacted, rightly I think, by saying that the idea of community being held up by some communitarians was either undesirable or profoundly unrealistic. Plenty of people pointed this out, also among those who might not really see themselves as liberals at all—think of Iris Marion Young, for instance. Communitarian and liberal nationalist claims were also a reason for me to think about the concept of constitutional patriotism, often criticized as being, to invoke the particularly inappropriate metaphor that often comes up in this context, ‘bloodless’. A concept that supposedly only exists on paper, or supposedly a concept that only works for particular countries. For better or for worse, I tried to vindicate this idea and defend it against what I see as often very clichéd and superficial critiques.   The other thing I would say is that of course Tocqueville’s observation about what he would have called individualisme —a really bad thing for him, meaning atomization and isolation, not autonomy—has experienced a revival in our era. It very often serves as shorthand for a quasi-sociological explanation of why we may have seen the rise of right-wing populism, or, some would say, outright authoritarianism or even fascism. Of course, there are many important thinkers one can invoke in this context, not just Tocqueville. Hannah Arendt famously wrote about the emergence of mass society and atomization. All I would want to say in this context is that while certainly it is a diagnosis worth taking seriously, I worry that sometime these claims are made a bit too quickly, and that they, first of all, add up to a certain kind of psychologizing. Secondly, they sometimes underestimate that people who are tempted by right-wing populism, authoritarianism, fascism—whatever you want to call it in the context of our conversation here—are not always particularly isolated. In fact, sometimes they are extremely well organized.   Again, it’s worth remembering that, already in the 90s, our colleague Sheri Berman wrote an important article about civil society in the Weimar Republic, because civil society was a 90s buzzword. Many immediately framed civil society as normatively desirable and essential for democracy and so on. I don’t want to dismiss these arguments, they are important of course. But the thought didn’t occur to too many people that in the Weimar Republic you had an absolutely flourishing scene of associations and clubs—a wonderful, if you like, Tocquevillian civil society life—except that it was full of people who hated democracy, who were all-out racists, and who quite often celebrated violence for its own sake. So, all I’m saying is that we should be very careful with casual Tocquevillian readings.   CJLPA : You talk in Democracy Rules  about three bedrock principles of democracy :  equality, freedom, and uncertainty. I spent some time last year reading Montesquieu, who contends that for a republic to successfully operate there needs to be the passion of love or reverence, either for the principles undergirding the republic or for the particular republic itself, in order for it to be maintained. What role do history, culture, and indeed patriotism play in the strength or atrophy of a democratic state today?   JWM :   Like Hannah Arendt (again!), and many others, I would shy away from the language of love. I don’t think love has a place in the public realm. Again, the thought can too easily lead to a certain type of kitschy communitarianism; after all, we live in—here I am invoking Iris Marion Young once more—a polity of strangers. In certain respects, that’s a good thing. It’s also a good thing that we are not constantly pressured to make confessions, reveal emotions, or relate to people beyond what of course cultural pessimists would see as a certain kind of superficiality. The flipside of being strangers is that, especially in the anonymity of the modern metropolis—I am simply repeating what we have known at least since Georg Simmel’s writings—we can engage in forms of self-invention, of liberation, trying out different lifestyles, finding out who we really want to be. Of course, that’s never a totally isolated process, but I think that if in doubt we should go easy on the on the kitschy emotion talk.   On a more theoretical level, you might say, those who want us to have more emotions in politics often have a very hard time explaining how much exactly is needed, where exactly you find that magic balance of reason and emotion. I would hope that in this regard we’ve also moved beyond the 90s with its very stark oppositions of reason and emotion (or all-out universalism versus particularity all the way down). For one thing, emotions are based on what Jon Elster calls cognitive antecedents—anger, for instance, is not some incomprehensible, irrational outburst, but based on a sense of unfairness, for instance (that sense may or may not be justified).   CJLPA :   Fantastic. I asked this question in part because we’ve seen in America a recent revival in certain, you might say, right-wing domains of this idea of a sort of civic religion. That might be in the legal academy, through what is sometimes called Common Good Constitutionalism, or from political theorists themselves who look at America’s founding and they consider it as a sort of a step in the greater path that ended with some form of certainty in the realm of community. It’s an incredibly parochial view of history, but one that’s unsettling, at least in my eyes.   On the point of pluralism: we have in the modern day shifted towards a language of significant absolutism about certain what you might even call very necessary courses of political action. What would you say to someone who would deny the standing of a political adversary that resists or questions, for example, climate change or climate change related policies?   JWM :   If I may, can I follow up just very briefly on what you said earlier about civic religion? It’s important to bear in mind—work by colleagues like Philip Gorski at Yale is very helpful in this regard—that what is today sometimes propounded by way of Common Good Constitutionalism, or also Integralism, or for that matter Christian nationalism (very important phenomenon), that this is really categorically different from what people were talking about in the 20th century as American civil religion.   It doesn’t mean you have to like that old version of American civil religion—there are plenty of things one can find very problematic about it. Plenty of people would say, ‘let’s get religion out of political discourse altogether’. But it’s worth recalling that theorists who perhaps aren’t read that widely any more—like Robert Bellah, who initially came up with a whole theory of American civil religion—thought of these issues very differently than some of our contemporaries who really mean ‘religion’ when they say ‘religion’. The latter really mean that a good regime would basically use public coercive power to impose certain understandings of religion, certain forms of morality. This is a phenomenon that didn’t quite exist as recently as ten years ago. Now it’s possible to be quite open with the idea that certain aspects of what some of us understand to be crucial to democracy as such—including uncertainty of outcomes; repeat play in the democratic game; accepting that you lost an election even if you think that your moral conceptions are the correct ones or that you somehow possess the truth—might be of secondary importance or dispensable entirely. One more gesture to Hannah Arendt: let’s not forget that political judgment is about the ability to draw distinctions. And what is sometimes now sold as a new version of the old civil religion might really be quite different. Especially, of course, Christian nationalism, as it has become much more prominent in recent years.   Anyway, forgive the interludes and digressions. To your question and point about pluralism: what matters is that democracy, as plenty of other theorists have said, is not ultimately about necessarily finding consensus. It’s not about maximizing cohesion under all circumstances. Again, that’s the kind of communitarian kitsch which we hear far too often, where people say, ‘oh, we’re so divided, that’s so horrible, why can’t we all come together?’. But conflict is normal and legitimate in a democracy; the real question is: which ways of conducting conflict become dangerous for democracy? So, one has to think about what the boundaries of conflict are, such that conflict remains containable or ideally becomes productive for a democracy.   One of the boundaries, I would say, is that you do not delegitimate your political adversaries. You don’t treat them like enemies, you don’t deny their standing. This is what in my view, right-wing populists always do when they essentially say that the others don’t really belong to the polity to begin with. ‘She should be disposed of in Anatolia’. That’s more or less a paraphrase of what a leader of the German far right not too long ago said about a German politician whose family just happens to have Turkish origins. Or when, in the US it was said that certain politicians should go back to, forgive the word, their ‘shithole countries’. That makes it impossible to conduct a conflict because you’re communicating to people that the other person shouldn’t really be in the conflict to begin with, that they have no standing, that they don’t belong here, that they are not even a legitimate person to engage with.   The other boundary has something to do with facts. Of course, the line between facts and opinions is not always exactly clear, to put it mildly. And yet, drawing one more time on Hannah Arendt, if I may: it remains important in our conceptions of democracy to hold on to some kind of distinction between facts and opinion; to say that, of course, people can have their own opinions, but that opinions have to be constrained by something that is recognizable as fact. And ‘the truth’ we should probably leave out of democratic politics altogether. Because we do not say to losers in elections that somehow it was shown that they failed to grasp the truth. No, all that was shown was that maybe their opinions, their judgements, their programs and promises weren’t as popular, weren’t as attractive as those of the other side.   Now, there can be plenty of opinions about climate, but it’s hard to see how conflict with someone who claims that global heating is an invention of the Chinese government to destroy our manufacturing industry could turn out to be productive. Of course, some people would say that such views should somehow be sanctioned or should even become subject to what in some countries is known as militant democracy—the idea that you should restrict people’s basic political rights because of the dangers they pose to democracy. I don’t think that in this case that is remotely appropriate. What you have to do is, first of all, argue on the substance as best as you can. But then also occasionally bear in mind that democratic conflicts have audiences; it’s not just about you and your adversary. You also have to bear in mind what effects there might be on the audience. Occasionally, at least, it’s also important (even though it can sound very academic) to go somewhat meta and say, ‘look, we might have all kinds of disagreements, and I’m not going to vilify my adversary. I’m also not going to say that they’re stupid or anything. But here’s the evidence. And let me also explain beyond pointing to the evidence how this kind of stance just makes it extremely difficult to have a productive conflict in a democracy’. Because even if my adversary in this case were to accept some of the facts, that doesn’t commit them to particular view about what we should do. There’s plenty of room left for saying ‘Oh, we shouldn’t do anything. Let’s just all enjoy ourselves now’, or ‘I trust that in five years, some fantastic technological innovation is going to come along that will help us to deal with all these climate-related challenges successfully’.   As always, the facts are not going to somehow determine their political choices. Choices will always be informed by value commitments, by what Rawls famously called the burdens of judgment. So, you might be very risk taking; I might be very risk-adverse. Or you and I read history and the lessons it might offer very differently. There might be many other factors that come into the picture such that one could not simply say ‘being risk averse is illegitimate; hence you have no space in this conflict, et cetera’. Facts do not eliminate profound disagreements.   Long story short: it’s important not to fall into the trap that, alas, sometimes liberals have fallen into (especially since 2016) where they’ve very complacently settled on the view that whoever disagrees with an ‘us’ that is somehow taken for granted hasn’t understood the truth or necessarily is dealing in falsehoods, and we can simply dismiss what they say. To be sure, populists do lie. To be sure, they often propound conspiracy theories. But you can’t always know that in advance. And sometimes it’s important to say ‘let’s actually deal with the harder questions about differences in values, differences maybe in how we read history, etc’—as opposed to adopting a de facto technocratic stance which assumes that anyone who disagrees must be irrational.   CJLPA :   You recently wrote an op ed for the Guardian about Section Three of the Fourteenth Amendment, which is getting a lot of attention these days, and the potential disqualification of Donald Trump from the presidential ballot. This, one might say, is an example of militant democracy, effectively removing someone from a political process. In the piece, you take issue with commentators who argue that he should be properly defeated at the polls. Could you speak to your thought process in observing this legal dynamic play out and the political ramifications in light of what we just spoke about?   JWM :   That’s a very good but very difficult question, one with many layers. We could have a longer discussion about constitutional interpretation, but regarding the specific militant democracy angle that you also alluded to, I would say that removing somebody from the political process is of course an extremely serious, fraught decision that should never be taken lightly. It is not something that democracies should get into the habit of doing. There are countries like Turkey, for instance, which have a long record of constantly banning parties, and that’s one reason—never mind what has happened under Erdoğan more recently—to say that this was always a very flawed democracy at best because political associations were far too casually taken out of the process, of course in many cases because they were advocating for Kurdish citizens.   One has to take seriously the worry that has always shadowed militant democracy, which is that, as you are busy trying to save democracy, it’s actually you who is destroying it by restricting people’s basic rights, outlawing parties, substituting the Judiciary for part of the political process, and so on. One should never imagine that militant democracy is some quasi-technocratic fix, where you remove one or two bad actors and everything will be well.   Having said that, it also matters that militancy is usually something that plays out over time. Well-meaning actors, people who are aware of the dangers of militant democracy, would say, ‘yes, we should never be too quick in these judgments. We should leave some room for things to sort themselves out politically, ideally, before judges get involved’. That’s always much, much better than to imagine that, in quasi-technocratic fashion, somebody could rush in and somehow ‘fix it’. The flip side of that emphasis is that if, over time, you see certain patterns of behaviour and you don’t see any process of self-correction, perhaps you see even processes of radicalization, that also matters. So, with all due respect to some of my very learned and esteemed colleagues who say the political process should take care of all of this, they somehow seem to assume that the political process itself will not be endangered, will be clean somehow. And then, they assume, once Trump is defeated at the polls he will concede, and his followers will politely accept what happened. Then it’s over, finita la commedia . But we already know that this is very unlikely because we’ve already seen how this has played out once. We’ve already seen how in the campaign Trump is not signalling that he understood that inciting people to violence or denying the standing of adversaries is wrong. He’s not saying this time, ‘I’m going to win in a clean way that is in line with our basic liberal democratic commitments in the United States’.   One last thought, to signal that I’m not some gung-ho crusader for militant democracy. One of the most serious points that we can make about this whole approach is that there is a fundamental paradox about its application. When you can apply militant democracy, and when you can apply it in such a way that the outcome is accepted, you probably didn’t need it in the first place. A classic example would be West Germany in the 1950s. We can debate whether it was right or wrong to ban when the Communist Party at that point. Nonetheless, the Communist Party was banned and so was a de facto neo-Nazi Party, and that was accepted as an outcome. People did not say this did lasting damage to the political culture, but in retrospect, they also said, ‘look, probably West German democracy would have been fine, even without these bans’. Conversely, in countries where, broadly speaking, anti-democratic actors do enjoy large amounts of public support, and where maybe the public support is even increasing, or let’s say in a two-party system where one party seems to have turned away from democracy, it’s very unlikely that a ban would simply be accepted. But it’s in those situations precisely where it would be more urgent to actually have militant democracy because the threat is much more real than, say, some still relatively marginal neo-Nazi party. I don’t want to minimize the dangers; even small parties can terrorize people. It’s not like there’s no danger. But in terms of them getting hold of the national levers of power? No, very unlikely.   In other situations, anti-democratic actors might actually succeed. But precisely because it could happen, that also means that the outcomes of militant measures are probably not going to be accepted. So, the paradox is: when you can have militant democracy in a constitutional system, you probably don’t need it, and when you would really need it, you might not be able to have it, given the empirical circumstances. Some of our colleagues in the US today seem to suggest that the circumstances are such that militancy is too dangerous—which is another way of saying: we are being blackmailed by the MAGA movement. The threat is, ‘if you ban our candidate, we’re going to be on the streets and going to be violent’.   CJLPA :   What, perhaps besides what we’ve already talked about, do you identify as being some of the most immediate crises or problems with modern democracy right now?   JWM :   Again, let me say two things, preceded by a rather pedantic observation. We should take on board the lesson that recently was put forward by our esteemed colleague Adam Przeworski in his book about crises of democracy. There, he at least initially says, ‘look, folks tone it down a bit’. Not every policy challenge, even a very serious one, is quite the same as a crisis of democracy. In line with his in certain ways very minimalist understanding of democracy, he then argues that you really have a crisis if something like a peaceful transfer of power is no longer accepted; if people do not understand that, in a very specific sense, democracy is about uncertainty—which is to say we can never be certain about the outcomes, we can only be certain about the process. In autocracies, it’s the other way around. We all know who’s going to win in Russia this year, but the process could change all the time, up to the last minute, as it did last time, because the powerful are fiddling with various regulations up until the last minute to make sure that the one and only right person wins.   Under such circumstances it is justified to speak about a crisis of democracy, or also the possible end of democracy. This is also helpful in terms of assessing the real meaning of January 6th. One can debate how likely it was that the peaceful transfer of power was ultimately going to be impeded, but there was an attempt, and an attempt that, as we now know, was maybe more systematic than we had understood immediately at the beginning of 2021. In that sense, yes, that is a crisis. It’s also a crisis if—again, I refer to the idea of right-wing populism—you have actors who basically say only one outcome is legitimate because there is only one representative of what right-wing populists often call ‘the real people’ (such that actually not all citizens are the people). Only those who fit that understanding of the supposedly ‘real people’ are the people. That poses a permanent danger. It doesn’t mean that every single election outcome will be met with violence, but probably every single election outcome where a populist loses is going to be declared somehow illegitimate, problematic, not quite right, that there must have been a conspiracy, probably by liberal elites behind the scenes, such that the real people or—another famous or infamous expression— ‘the silent majority’ couldn’t really express itself. Even in situations where losing right-wing populists do not mobilize people to impede the peaceful transfer of power, very often they insinuate to their supporters that the outcome is illegitimate and must have been brought about by nefarious actors behind the scenes manipulating the system. In that sense they always cast doubt on the system and erode trust.   Now, allow me to add—because I’m not saying that we should all just simply trust the system—that there’s absolutely nothing wrong with criticizing, let’s say, the American election system. In fact, there’s plenty to criticize and to criticize in other countries as well, especially the extraordinary role of money which is one of the most structural problems for democracy today. But there’s a fundamental difference between a loser who says, ‘well, our system is rotten, because I didn’t win’ and somebody else who says, ‘well, I would like to point out that the power of the wealthy is far too large’. Or who says: ‘We have sections of the population who have basically quit the political process altogether, who simply don’t vote any more at all because they think there’s nothing in it for them’. I mean, these are very serious structural challenges, which one should talk about, but one doesn’t have to talk about them in the vein of right-wing populism.   CJLPA :   You wrote recently about how there is a popularly perceived decline happening in democracy in general, amongst the public. I wonder to what extent the perceived decline of democracy is a corollary of another popularly perceived decline, namely universities—whether indicated by rows over public school curricula in the US, or by commentary now surrounding the resignations of prominent Ivy League leaders.   JWM :   By now you know I’m going to say that I’ll say two things. The first takes issue with the more general diagnosis and the second is more specifically about higher education. Firstly, I think we should be very cautious with colleagues and pundits who tell us that the people themselves are sort of disenchanted with democracy. I don’t see a lot of evidence for that. Most people want to hold on to democratic ideals. And even in countries where things are not going well for democracy, such as India, it remains supremely important for Prime Minister Modi always to point out that ‘we’re the world’s largest democracy. We have a very important tradition of having democracy and diversity at the same time’, and so on. You may recall that when Biden had his first democracy summit in 2021, even Beijing came out with an official paper saying, ‘actually what we’re doing is democracy, it is much better than the chaotic, messy US where nothing is working any more’. That’s one indication that people still want to claim the D word. And they wouldn’t do that if they didn’t feel that the people themselves actually like democracy.   If I may add one other thought to that: it’s very clear by now that in many countries where democracy is in danger or has already been replaced by more-or-less soft versions of autocracy, it is usually not the people who collectively endorsed that shift. It was usually a set of elites who said, ‘actually, we can do without democracy’, or ‘we get certain benefits from a different system’. As always, one should be very careful with the sort of macro comparisons with previous eras, but it’s not totally unjustified to say that, at least in some instances, we already saw this pattern in the twentieth century. So, in 2022, we commemorated 100 years of the March on Rome. And there was, of course, a March on Rome. But we sometimes forget that Mussolini arrived very comfortably by sleeper car from Milan because what in those days actually would have been known as liberal elites basically invited him in to take over the government. That was not a singular, isolated incident. That’s something that marks a certain pattern. I dare say we are sometimes seeing the same pattern today.   To your question about universities: here it’s very important to keep two things apart. We can have a very serious, learned, important discussion about academic freedom, which is not the same as free speech, even though the two are very often conflated. We can have a discussion about student clubs and what kind of speakers they invite and how under those circumstances which are not primarily, sometimes not at all, about academic freedom, you might or might not have certain limits on speech. All these are important discussions. But this is only one aspect. The other aspect is that a huge right-wing culture war machine is now engaged in systematic attacks on higher education. And we’ve seen this in countries that have already left the fold of democracies. You may recall that it was pretty important for Viktor Orbán to get Central European University out of the country. We’ve seen in the US what has been happening in Florida. On the one hand, the strategy contains glorifications of free speech, on the other it involves restrictions on what teachers can actually do, what professors may say—in many cases completely clear violations of academic freedom.   Why is this happening? Well, two hypotheses. For one, it’s always an easy way to prove you’re ‘populist’ by attacking universities. To be sure, this is not my understanding of the term ‘populism’. But one can see why there is an incentive for what in effect are elite actors to say: ‘we are going after the elites, we are with the common people against experts, against snooty professors, who tell us what’s what and tell us how to live’, and so on. It is basically a cost-free way of sending signals like this. Secondly, it’s about undermining centres of authority. I mean, most of us in universities don’t feel that we have all that much authority. But in some circumstances, it does matter that somebody can contradict a government official or tell a foreign journalist who’s just come to the country, ‘look, actually, we study this stuff, and we think this is a bit different than what the power-holders are telling you at the moment’. For some actors, it’s extremely important to remove these centres of rival authority.   Even if they don’t succeed—this is the third sort of quasi-hypothesis—it’s enough to cause confusion and obfuscation. This is the maybe less obvious point about what has been happening in the US more recently. As right-wing culture warriors themselves explain, their thing doesn’t work if they do not reach people beyond the already converted. Members of the MAGA movement know already that liberal professors are evil; the point, then, is to capture a wider audience, and to persuade people who do not think of themselves as remotely MAGA. This is the fateful pattern among many actors—sometimes politicians, sometimes pundits, sometimes academics—who see themselves as the reasonable centre. They’re basically saying, ‘oh, I prove to myself that I am the reasonable centre by being very carefully balanced and by being very moderate in my judgments’. Since you mentioned both Tocqueville and Montesquieu, of course this is something where one can very easily find very important backup in terms of saying, ‘it is a liberal virtue to look for a certain juste milieu ’. I’m not saying that this is necessarily always nefarious But, to use a word that has played a huge role in debates here more recently, context  does matter. And sometimes very self-conscious moderation and centrism become a colossal failure of political judgment.   I worry about the self-declared liberal who basically says, ‘yes, I’m really worried about Trump coming back, but I’m also extremely worried about’—and I think if you use this word in a pejorative sense you’ve already given away the game of where you really stand—‘I’m also really worried about the woke on campus’. You end up with a false equivalence. But if you present it this way, it’s very convenient. It’s very easy to say, ‘look, I’m the reasonable person who sees all the problems on all sides’. It’s actually a failure of political judgment. Those strategists in the right-wing cultural war industry, they’ve understood something that actually is not new. Steve Bannon already explained that it didn’t matter if you had Breitbart say that Hillary Clinton was corrupt; what you had to do was to get the New York Times  to run an article about a story of possible corruption.   Now, this does not mean, I hasten to add, that there are taboo subjects or, God forbid, that serious investigative journalists should hold off on stories that might hurt liberals politically. Of course not. But a lot of the stuff of what is sometimes now rightly called ‘reactionary centrism’ is mere opinion. Nobody went anywhere to investigate something. It’s usually somebody who banged out the op-ed piece in half an hour by recycling the same ten anecdotes about some crazy stuff that happened on some campus, supposedly, plus a quote from someone in some university who says, ‘I don’t feel like I can still say what I want to say’. And bang, there is your op-ed piece that sounds so reasonable and well informed. Zero reportorial labour has gone into this. Very often, with all due respect, zero intellectual labour gone has gone into this. But—to repeat—I’m not denying that we should be having a more serious discussions about the normative basis of academic freedom. We should think more systematically about how academic freedom and democracy hang together, for instance. It’s not like we have all the answers ready.   CJLPA :   My last question, since our hour is about up, concerns your current projects. We understand that you’re working on a new book?   JWM :   Yes, I’m trying to finish a volume on architecture and democracy. Among other things, I’m asking the question: what kinds of spaces might either represent democracy or sometimes concretely facilitate democratic conduct? This is something that I’m of course not the first to think about. We talked earlier about Rousseau. Think about his arguments against the theatre: why did he think that theatre was giving us passive citizens, why should we have festivals instead, where everybody can see everybody else and be affirmed in their belief that we’re all committed to a shared political project together? Quite a few political figures, eminent ones, have given thought to this, but there aren’t very many systematic accounts of the issues at stake.   A further point I would make in this context is that it is also important to rethink some of the basic, if you like, communicative democratic rights which are essential for the working of democracy; some of them require physical space. I’m thinking in particular about freedom of assembly. Of course in the US context it goes very, very far back. In other countries it’s much more recent as a codified right. It’s generally not a very robust right. If you think about what’s been happening in the UK, in terms of new legislation to supposedly prevent public disorder, some of that is very draconian. Even where demonstrations are allowed, they’re often unreasonably constrained. Often, people can’t demonstrate where they want to demonstrate. They might be shunted aside, they’re told to go to places which symbolically aren’t important or where they’re very unlikely to be in the face of other people.   If you make a criterion for permits that ‘assemblies must never disturb anybody’, then you’ve taken away the edge of freedom of assembly, of demonstrations, because that’s one moment where—going back to our earlier discussion about community in big cities—people want to be in each other’s face in a certain way, where they want to bother each other, where they want to start conflicts—and sometimes that can be unpleasant. It would obviously be a mistake to think that only nice progressive people do demonstrations. But that’s something that, as long as it remains peaceful, we have to put up with and should try to engage with. We should even, I think, be more tolerant of civil disobedience than has been the case—even if it can be annoying and causing all kinds of inconveniences. It’s part of the cost of democracy, so to speak. Even if now you don’t see any big reason to demonstrate out there, if we move to a system where it’s much more about technocratically managing dissent—as opposed to having somewhat more unpredictable, dare I say uncertain, forms of protest—you might regret that shift; you might want to be able to protest in a noisier and more disturbing way one day.   CJLPA :   The concept of a debate chamber being the absolute heart of a democratic republic is something which both Joseph Schumpeter and Carl Schmitt have spoken about. For them, these are not genuine debate chambers any more, but simply shells. They reflect a normative bedrock that no longer exists, which is the commitment to a particular discursive legislative process.   JWM :   Then again, Schmitt was making a bad faith argument in this context. He was arguing that in the nineteenth century, supposedly, parliaments were real sites of deliberative democracy, if you like. But then it became very easy to say, ‘let’s hold up this ideal, which proves that in the twentieth century and beyond—in an age of mass democracy, mass parties, and committee meetings where things are actually decided—this is no longer the case’. You can have a much more realistic view of parliaments; it’s not really the case that somebody makes an argument and then somebody across the aisle says ‘yeah, now that I think about it, that’s a really good point’. That is pretty rare, in fact. In many countries, things only really come to the debate chamber when they’ve already been decided. But even the speeches are important, as they dramatize conflict; it is a way to tell citizens what the different sides are thinking—all this goes back to the point that there is nothing wrong with conflict, even if conflict doesn’t result in consensus agreement or anything. As you’re hinting, that’s being endangered if now our representatives are mainly there to produce short social media clips and then, as Ted Cruz famously did, immediately check themselves on Twitter to see ‘is it playing well? Is it working?’ and so on. That’s not very helpful in terms of citizens getting a wider view of what’s actually at stake in a certain conflict, what are the different contending positions, and so on. I don’t have any sort of obvious solution to this, but at least realizing it’s a problem, even if you don’t have a terribly idealistic view of parliamentarism to begin with, might be helpful in terms of finding our bearings and putting our present situation into a bit more of a historical perspective.   CJLPA :   Professor, it has been an absolute pleasure speaking with you today. On behalf of The Cambridge Journal of Law, Politics, and Art , thank you.   JWM :   Well, thank you for having me. Thank you also for the thoughtful questions—and I don’t always say that! Benjamin Keener, the interviewer, is a law student at the University of Pennsylvania Carey Law School, where he is an articles editor for the Journal of Constitutional Law . Ben received his MPhil in Political Thought and Intellectual History from the University of Cambridge and writes and publishes on topics of legal history and theory.

One of Adolf Hitler’s favourite musicians was Richard Wagner. His thunderous compositions were meant to instil a violent pride within the listener, with pieces like the ‘Ride of the Valkyries’ roaring into one’s ears with bombastic brass and screeching violins. It is fitting, then, that an anti-war film like Francis Ford Coppola’s Apocalypse Now  (1979) chose it to accompany a horrific act of violence, in a scene that involves US military helicopters launching rockets and firing machine guns at a Vietnamese settlement. The scene is emblematic of much of the New Hollywood movement of the 1970s. It is bleak, uncompromising, and deeply cynical, but also indulgent and excessive, revelling in its own glorification of stomach-churning violence.   In Jarhead , his memoir, former US marine Anthony Swofford describes his experience watching the movie during the Gulf War. His platoon would ‘concentrate on the Vietnam films because it’s the most recent war, and the successes and failures of that war helped write our training manuals’.[1] In Sam Mendes’ 2005 film adaptation of the book, Swofford and his platoon are depicted singing along to the fascist anthem, cheering as Robert Duvall shoots down Vietnamese people. It is important to note that, within Jarhead , the Apocalypse Now clip is played out of context, separated from the preceding or following scenes. It is through this lack of context that the military can turn an ostensibly anti-war scene into a pro-war experience. ‘Come get some, marines!’, the announcer says after the clip finishes playing. Just like Coppola’s characters, Swofford and his platoon cannot wait to smell napalm in the morning.   ‘There’s no such thing as an anti-war film’, French director François Truffaut once said.[2] According to the New Wave pioneer, the camera turns the world into a spectacle, the horrible into the voyeuristic, reality into construction. It is, in fact, why he refused to adapt 81.490 , a book comprising Alexandre Chambon’s recollections of a   concentration camp. ‘I couldn’t resolve to have characters weighing 30 kilos played by 60[-]kilo extras, for here, the physical, visual and bodily reality [was] too important to be sacrificed’.[3] Truffaut explains the sacrificial aspect of narrative cinema, where one is forced to create a representation of the ‘real’, sacrificing the actual ‘real’ in the process. The concept of construction (or reconstruction) was very much at the core French New Wave’s ethos. A movement focussed on the noticeable arrangement of shots and edits, and spearheaded by Truffaut himself, the French New Wave drew attention to cinema’s artifice with the intention of revealing its hidden truth. When Truffaut saw a film, he saw a beauty in its fakery, a reality within its unreality. Though no match for personal experience, film represented history and life in a manner that stood apart from other art forms.   This aspect of cinema collides with a tragedy as cosmic as war. How does one reconstruct what it feels like to partake in legalised mass murder when armed with nothing but a camera? The anti-war film is nothing new. An early example is Westfront 1918  (1930), GW Pabst’s study of PTSD. War, in its glory and horror, has long been a bedfellow of the cinematic form. Edmund Burke suggested in A Philosophical Enquiry into the Origin of our Ideas of the Sublime and Beautiful  that there   was a perverse thrill in extricating beauty from violence. Misery is more palatable when viewed through a well-composed camera lens and perfectly positioned lighting. To say that cinema can’t have a destructive aspect does a disservice to the medium. DW Griffith’s The Birth of a Nation  (1915) was more than just a movie. It was a javelin   aimed at the heart of Black America and must be remembered and condemned as such. But this hate crime on celluloid had its intended effect. What happens when the opposite is true? How can a director contend with the possibility of their message being received not indifferently, but with a rapturous wrongness?   Anthony Swofford contends with this inner turmoil with his journalistic integrity. Sam Mendes does so with his reflexive visual grammar. The opening of Jarhead , often accused of plagiarism, is an intentional copy of Stanley Kubrick’s Full Metal Jacket  (1987). Swofford himself noted that the monstrous drill sergeant (R Lee Ermey) inspired many real-life drill sergeants. This is another example of the dangers of reappropriating art. Devoid of context, an anti-war statement on dehumanisation and abuse produces a manner to aspire to, complete with gendered and racialised jokes. However, there is a contrast between Kubrick’s and Mendes’ shooting styles. Kubrick emphasises the homogeneity of the military boot camp with stable, static, centred framing. Mendes uses an unsteady handheld camera. His intention differs greatly from Kubrick’s. Instead of a portrait of a genericised collective, he makes a statement on the unsteadiness of the drill sergeant in Jarhead . By literally destabilising the camera, Mendes destabilises our perception of both the soldiers and the instructor. He thus calls attention to both the artifice of his visual grammar and the artifice of the sergeant.   We use stories to make sense of our world.[4] Therefore, the lack of narratives around Swofford’s Gulf War turns his and his fellow soldiers’ lives into nonsense. It denies the catharsis that comes with making sense out of something as abstractly horrifying as war. The Gulf War was not given the same preferential treatment by cinema as the Vietnam War. This fact is referenced in Jarhead  when a helicopter passes overhead playing ‘Break On Through (To the Other Side)’ (1962) by The Doors. ‘That’s Vietnam music. Can’t we get our own music?’, moans Swofford in the film. Music is prevalent not just in the Mendes film, but in the history of war itself. Take, for instance, ‘Rock the Casbah’ (1982) by The Clash. The song was written by Joe Strummer with an anti-war intention. However, ‘one thing the pacifist anarchist Joe Strummer certainly never intended was for “Rock the Casbah” to become the anthem of the Gulf War soldiers during Operation “Desert Storm”’.[5] This was a particularly horrifying act of artistic reappropriation. It was more than just an act of disrespect by American ‘imperialists’. It was a desperate attempt to narrativise the unnarratable, using the sentiment of anti-war music to create the opportunity for the dramatic that Vietnam presented. When the war ends and the soldiers celebrate, they dance to ‘Fight the Power’ (1989) by the leftist hip-hop group Public Enemy, oblivious to the irony that they represent that same power.   Art presents a catharsis by narrativising the absurdity of life. Is it possible, then, to create ‘uncathartic’ art? It seems that this is Mendes’s intention with Jarhead , a war film that presents very little warfare, if any. Swofford, and by extension the audience, feels ‘blue-balled’ by the Gulf War—promised adrenaline-fuelled action but presented with monotony. The frustration and lack of release are literalised in Swofford’s inability to masturbate to a picture of his girlfriend. By relating the catharsis of violence to the orgasm (or lack thereof), Mendes links death to pleasure. Boot camp trained Swofford to treat the taking of life as a pleasurable act, but his incomplete masturbation represents a refusal of pleasure. It is a moment in which Mendes shows his intention to create an ‘uncathartic’ war film. Perhaps this is how Jarhead avoids Truffaut’s trap. Can the war film avoid glamorisation by simply refusing to show warfare? Perhaps the considerable loss Jarhead  made at the box office, despite its action-packed trailer, provides an answer. Perhaps audiences were hit with the same frustrations Swofford and his platoon felt. Tricked into expecting the indulgences of cinematic violence, they were instead left with a version of Waiting for Godot  set in the blistering desert. It is through this very lack of release, this intentional frustration, that audiences were taught to reject cinematic depictions of violence. Nobody gets to take their shot. Keshav Srinivasan   Keshav Srinivasan is an MPhil student in Film and Screen Studies at Wolfson College, Cambridge. In the past, he has worked as a filmmaker and writer, writing and directing several short films. After his degree, he plans on returning to America to pursue a career in filmmaking. [1] Anthony Swofford, Jarhead: A Marine’s Chronicle of the Gulf War and Other Battles  (Scribner 2005) 6. [2] Tom Brook, ‘Is there any such thing as an “anti-war film”?’ ( BBC , 10 July 2014) < https://www.bbc.com/culture/article/20140710-can-a-film-be-truly-anti-war > accessed 19 February 2021. [3] Antoine De Baecque and Serge Toubiana, Truffaut: A Biography  (University of California Press 2000) 162. [4] Frank Rose, ‘The Art of Immersion: Why Do We Tell Stories?’ ( WIRED , 3 August 2011) < http://www.wired.com/2011/03/why-do-we-tell-stories/ > accessed 19 February 2021. [5] Amin Farzanefar, ’25 Years of “Rock the Casbah”: Anthem of US Marines’, ( Qantara.de , 2007) < https://en.qantara.de/content/25-years-of-rock-the-casbah-anthem-of-us-marines > accessed 19 February 2021.