It would be pointless to list all the issues driving so much of society to take on a pessimistic view of our near future and view us as living through an age of crisis. Even if one attempts to muster the statistics to show how, despite appearances, the world is getting better overall, the very fact that everybody thinks and acts as if we are in the middle of or heading towards a catastrophe is in itself emblematic of the volatility of the current age. If the pandemic and the charged geopolitical situation triggered by Russia’s invasion of Ukraine were not enough to put to bed the idea that we were living in a utopia back in 2019, the statistics constantly cited by neoliberal optimists like Nicholas Kristof and Steven Pinker to paint the present as the pinnacle of all humanity have been thoroughly debunked as data manipulation by a host of economists and anthropologists.[1] What is less clear, however, are the reasons why we ended up in such a predicament. The centre, left, and right, while occasionally coinciding on certain particular solutions, have markedly different explanations. The left will blame either the inherent structures of an economy structured around the profit motive, American imperialism, or the neoliberal order as instituted beginning in the 70s and 80s; the right laments the breakdown of traditional social hierarchies, immigration, and the erosion of national sovereignty in favour of trans-national trade agreements and rootless global finance; and the centre chastises everyone for losing trust in the ‘rational’ technocratic structures and norms of the international world-system governing the age of American total hegemony after the collapse of the Berlin wall. Depending on whether they are more left or right-leaning, centrists will also either blame white supremacy and unrealistic demands by the ‘far left’, or the Trumpian takeover of the ‘Grand Old Party’ and the left’s excesses of political correctness and identity politics. While any one of these individual explanations indicates certain real problems that cannot be merely dismissed due to political disagreements about their causes and solutions, these explanations are not all mutually exclusive and none by themselves can fully describe our current predicament. Although, because nothing exists outside of bias or ideology, I will admit my personal sympathies to lie with the first view that our situation can be elucidated by examining the fundamentally crisis-prone nature of the capitalist mode of production, saying this by itself without context would not be productive. Capitalism as the dominant mode of production has existed for at least two centuries and a more in-depth analysis of economic and state structures would be required to show exactly why it is manifesting in the specific form of crisis we see today. Therefore, rather than examining exact policy and system-change proposals or giving a comprehensive economic analysis of why we are here today (which already produces many hot debates), this article will attempt to examine modes of thought necessary to begin thinking about what redemptive social transformation in a time of crisis would mean. For given the vast power of our technology, high levels of technical and scientific expertise, and over a century of struggles and proposals on how to move to a freer, more sustainable, and less economically precarious society, if it were merely a matter of the right technical fixes and not also of people’s consciousness, we would have already been able to construct a better world by now. The Marxist tradition has traditionally framed the relationship between the consciousness required to change the world and the concrete actions by civil society, political parties, and the state to implement these changes as the dialectic between theory and praxis. While the two are viewed as impotent when taken in isolation, Marx’s famous thesis 11 on Feuerbach, that ‘the philosophers have only interpreted the world in different ways; it is necessary to change it’, states the primacy of praxis, as theory and philosophy have no actuality outside of the way they inform action in the world.[2] When one can accurately theorise a situation with the goal of intervening in it in mind, effective strategy combined with proper subjective ‘fidelity to the Event’ (to use Alain Badiou’s terms) then brings about a new reality, meaning that we will then dispense with old ways of thought.[3] However, the ability of one’s understanding of the world to influence the course of events is dependent on the existence of a political agent or agents who contest the direction of society as a whole. If the battling of competing theories and truth-claims by different organisations and layers of society to model the world after themselves is politics, our recent history before Covid and the Russian intervention was therefore apolitical, marked by political stasis, even with dangerous figures like Trump sticking mostly to standard conservative neoliberal policies. The emergence of issues related to the global commons, such as climate change, Covid, and the war in Ukraine, have caught us completely off-guard. Despite decades of warnings from scientists about pandemics and the consistent build-up of tensions between Russia and the West since the end of the Cold War, few predicted the breakout of these two events. Some would say that this is because we live in a post-truth era, where people ignore facts when making theories about the world, thereby informing bad policy. However, we live in a post-truth era not simply because the facts promulgated by ‘experts’ are being ignored by the masses, but because no truths with the meaningful power to change and shape the world, rather than merely manage it, arise out of the facts. Following Badiou’s conception, truths are not only the correspondence of a statement to facts in the world, but primarily to the struggle of subjects to affirm them and reorganise reality around them.[4] Therefore, we live in a post-truth world not because nobody recognises facts anymore, but because there are no longer subjects and institutions to push through the repressed truths that should emerge from these facts. Likewise, as I will explore with reference to the notion of the end of history, we have been living in a post-history era not because there are no events, but because these events have not been the site for the creation of new worlds, subjects, and the implementation of repressed truths. Although it is clear that this era is coming to a close, the events that have brought about this end of the end of history (Covid, the Ukraine war, climate change, and economic instability) have merely politicised people as individuals without bringing back the classical realm of politics proper as the collective fight for the implementation of different theories of society based on differing interpretations of society. In light of us moving to a new era yet finding ourselves able to neither theorise nor act upon it, it is worth bringing up Hegel’s more pessimistic take on the relationship between theory and praxis. ‘When philosophy paints its grey in grey, a form of life has grown old, and it cannot be rejuvenated with grey and grey, but only be recognised; the owl of Minerva begins its flight only with the breaking of dusk’.[5] It has been in fashion since post-structuralist thinkers such as Gilles Deleuze to think of Hegel as a ‘totalizing’ optimist, who merely justifies the status quo by declaring it to be a fully rational system that overcomes all antagonism. However, the previous quote rather exemplifies that Hegel’s attempts to rescue and integrate the newly won idea of freedom into a philosophical system, as social conditions of the early 19th century and the rise of industrial capitalism were threatening it. Therefore, the recognition that his ability to systematise the world, ‘when philosophy paints its grey in grey’, coincides with the coming of a newly contested reality, meaning that one must therefore constantly be reconceiving the concept of freedom and the actions and institutions that implement and guarantee it. As Russia’s invasion of Ukraine (just as Covid nears the possibility of becoming endemic) definitively marks the owl of Minerva’s taking flight from the end-of-history era, this article will attempt to paint the grey and grey that defined our recent political situation and some of its effects in culture. I will rely heavily on concepts from the recently published The End of the End of History (2021),[6] as well as Anton Jäger’s notion of ‘hyper-politics’[7] to examine how we came to such a desperate position, lacking both in redemptive ideas, subjects, and organisations. Without offering a definitive solution, I will propose a concept of Messianism that can combine both the Marxian and Hegelian conceptions of the relationship between philosophy and its effects on action in the world and balances anchoring in the past and present necessity for upheaval. For Messianism is not only a desperate plea for the Other to intervene in our existence and does not merely entail waiting about idly for rescue, but is also predicated upon the active use of human intellect to theorise the positive potentials of the current age and put them into practice. Politics Ex Nihilo? To understand why everything appears to be politically contentious nowadays, yet nobody seems able to change anything and we lack competent and inspiring leaders, we should reflect on our recent history of political stasis to note the continuities and differences with the current moment. We should start with the end of the Cold War, as that marked the last period in living memory for many people where there seemed to be an apparent clash of visions for the future and ways of organising society. Francis Fukuyama proclaimed in his essay ‘The End of History?’ that the fall of the Soviet Union marked not the end of events, social conflicts, or suffering in general, but rather that there would be no more competing paradigms for world hegemony beyond minor flare-ups in areas of the global periphery.[8] The regime of politics that dominated the immediately post-Cold-War period, exemplified by Fukuyama’s triumphalist announcement of the end of real ideological struggle, is designated by Alex Hochuli, George Hoare, and Philip Cunliffe in The End of the End of History as ‘post-politics’. They define the term as ‘a form of government that tries to foreclose political contestation by emphasising consensus, “eradicating” ideology and ruling by recourse to evidence and expertise rather than interests or ideals’.[9] Despite being premised on the official coronation of liberal democracy and its associated rights and freedoms as synonymous with scientific and technocratic governance, post-politics also coincides with massive popular demobilisation, a foreclosure of the public sphere to administrators and technocrats, as well as the consignment of politics to the level of personal interest, where being interested in politics is at the same level of Marvel fandom or following football. All of this is profoundly anti-democratic, undermining the role that popular will can play in shaping collective decision making. With mass movements and struggles that put the whole of society in question consigned to the dustbin of history, post-politics emphasises the private individual as the focus of all policy making. Though stated a few years before the post-political period proper, Margaret Thatcher’s famous declaration that ‘ there is no such thing [as society]; there are individual men and women and there are families’ exemplifies the individualist maxim of this era.[10] This new post-political order was declared as being no more constructed and determined by humans than the natural world, with Tony Blair proclaiming that ‘globalisation is a force of nature’, no more debatable than the fact that ‘autumn should follow summer’.[11] With neither talk of political orders nor reference to anything but the disconnected pursuit of private interests by private persons, with no responsibilities to individuals beyond their most immediate kin, even naming the system we lived in became impossible. ‘Shorn of a systemic alternative, even the notion that we lived in a system called “capitalism” receded from view’.[12] The 90s and 00s were not completely without polarising issues: we might name rising partisanship under the Clinton presidency, the threat of global terrorism after 9/11 and the accompanying attacks on civil liberties, and the wars in the Middle East as examples. All-out rejection of society at large was, however, either completely absent, channelled into silent resignation, or expressed in subcultural scenes (e.g. grunge, rave culture, or bands like Rage against the Machine), which were always caught between the tensions of their radical image and seemingly inevitable corporate co-option. However, once the 2008 crisis showed the unsustainability of ‘debt-fuelled consumption’ to ‘[assuage] anxieties’, post-politics lead to anti-politics, where antagonism and struggle against power structures were back on the table, yet lacking any program or affirmative proposals.[13] Anti-politics can be described as the response to the collapse of post-politics after the global financial crash. The most notable political actor of this period was populism, ranging from Occupy, Syriza, and Podemos to Trump, Brexit, and a renewed Front National in France. Anti-politics, rather than aiming at new forms of politicisation around an idea of a new politics, is merely a reaction against what it perceives as the professionalised and sectioned-off world of officially sanctioned politics’ corrupted existence. Rather than creating powerful organisations to challenge big capital, the anti-political stance bemoans the mismanagement of the situation by technocratic elites, who forced politicisation upon people by severing their material conditions and introducing market disorder to the post-political space, which was billed as being free of conflict. One could take the Occupy Wall Street movement as an example of a movement, which spurned all forms of institution and organisation-building that could take on the economic regime as a whole. Instead, it blamed a particular group of specific figures (the 1%), overlooking class differences amongst the 99% themselves, and praising a version of horizontalist organising based on fetishizing immediate relations between normal people outside of the sanctioned political space of the 1% and economic institutions. The failure of Occupy to effect change epitomised the era which Mark Fisher famously called ‘capitalist realism’.[14] People are mad and disgruntled and the system has been shocked to its core, yet nothing changes and people cannot even think of actually creating a new social order, choosing instead to take a simply negative stance of consternation against the troubled reality thrown upon them as if from outside. The left in anti-politics, still reeling from the post-politics era, shirked from the task of coming to power at a national level. While internationalism and a critique of the viability of nation states as the site of liberation has been and should be a cornerstone of left-wing analysis, this failure to face up to the reality that the global order is structured on national lines is a manifestation of its internalised defeat. To avoid truly contesting national politics, the authors of The End of the End of History note that the left has both made vain attempts at trans-national politics, such as the DiEM-25 movement, and retreated to local participatory structures and support in certain urban municipalities, such as Berlin, Barcelona, or Seattle’s Capitol Hill.[15] Yet this has only served to confirm the retreat of the left from the task of societal transformation to the comfortable place of revelling in minor localised successes. Taking its incipient form in the Trump era, with an anti-political figure taking power and bringing about polarisation in all parts of lie, and coming into full bloom during our hyper-online forced confinement during Covid, post-politics has now given way to what Anton Jäger has called ‘hyper-politics’: A new form of ‘politics’ is present on the football pitch, in the most popular Netflix shows, in the ways people describe themselves on their social media pages…Yet instead of a re-emergence of the politics of the twentieth century—complete with a revival of mass parties, unions, and workplace militancy—it is almost as if a step has been skipped…Today, everything is politics. And yet, despite people being intensely politicised in all of these dimensions, very few are involved in the kind of organised conflict of interests that we might once have described as politics in the classical, twentieth-century sense.[16] Now, the various divisions of the left, right, and centre’s visions of how the world should be are becoming clearer and permeate every single fact of life. Yet, despite this, nothing seems to change, with the technocratic centre reasserting its power with Covid and the election of Joe Biden. Another hallmark of our current moment is the tendency to view all political issues through the lens of ‘culture wars’ and to make various aspects of personal morality and cultural history the site of political contestation, where we are meant to prove our own individual virtue rather than organising around shared material interests. Given the constant political scrutiny and evaluation of everything from hairstyles to cartoons and comedy shows, it seems the public sphere is everywhere. There are no real civil society organisations to back it up or mobilise people to a positive goal, with religious groups, in-person cultural scenes, and unions that are not mere state or party management of interests having failed to regain their previous levels of participation and militancy. This is made even worse by Covid and social media siloing us both literally and figuratively into our personal bubbles. As Jäger notes, even with politicisation of every facet of life, political parties have not regained their previous levels of membership, which has declined by an average of 69% for the major parties of Belgium, Germany, and the Netherlands. Despite making everything political, hyper-politics has not overcome the post-political erosion of the public sphere. It has rather promoted a public sphere whose every part is merely a reflection of private desires and conflicts. One can invoke here the classic ‘ship of Theseus’ thought experiment, where a museum ship’s parts are slowly replaced over a period of time to the point that the ship’s form stays the same, but not a single physical component of the original remains, begging the question of whether the same ship remains. We could say that, through the various political forms of the end-of-history era, what used to be the public sphere has been slowly replaced with pieces of entertainment, personal spats on social media, and culture war issues. In face of this, it is questionable whether we are still even dealing with a public sphere at all. Instead, mass expression of individual virtues is passed off as politics and interaction with the public sphere takes place only through atomised engagement with social media in the interests of personal entertainment. People form their political opinions today through scrolling past various punchy headlines as they appear in their feeds and then sharing them without reading through the articles themselves. Far from being a place of meaningful public communication by people around the world to create networks that would bring about social change, the great hope during and after the Arab Spring, the use of social media to share news and engage politically has degenerated into mere feedback loops of outrage, sneering, and mockery. These serve mainly to entertain us in a feed of content, flattening the significance of the various individual articles, posts, and discussions we come across. Covid accelerated this tendency exponentially; during periods of lockdown and semi-normality, certain people accessed the world only through social media. Phenomena such as Neuralink, Metaverse, NFT’s, or Google Glass represent attempts at totalising this type of digital engagement even more completely to all facets of waking life—a dream for those in power who want to prevent our hyper-charged reality from spilling over into real social unrest. Whether or not they are practicable, the fact that our tech oligarchs are moving in such a direction is indicative of the role current virtual online spaces play in our political sphere. Cultural Defence Mechanisms against the Return of Politics Hyper-politics shows itself to be a synthesis of the globalised political stasis of post-politics, which forecloses thought about any new society, bringing along a hyper-charged environment of extreme polarisation and pseudo-politics without concrete programmatic visions for the future. All of this, in combination with the various cultural pathologies of social media, leads to some very peculiar overlaps between the public sphere, personal entertainment, cultural mores, and political contestation. Though reverence for charisma and for the politician and business figure as a ‘personality’ has existed for a long time, the active celebrification of public figures has reached new heights. This is clearly the case for figures like Trump or Zelenskyy, who built their careers in media and whose rises can be partially attributed to personal charisma and having already been a household name for years. Elon Musk, similarly, has taken advantage of the neuroses of online popular culture to build a falsified image of his ‘genius’. However, this trend is even more notable when mainstream figures are elevated to celebrity status, such as Andrew Cuomo (a classic New York machine politician) and Anthony Fauci (a career bureaucrat) for giving the air of competence in contrast to Trump, while relying on the liberal media’s pandering to their role in the culture war to shroud their own indiscretions. Even a figure like Jeremy Corbyn was memeified, with his name chanted at football stadiums and declared as the ‘absolute boy’: this despite him being personally rather uncharismatic and unable to build a robust counter-image of himself against smears by the mainstream press beyond the insipid slogan of ‘a kinder, gentler politics’. In the broad realm of what gets called ‘identity politics’—a vague term, which nonetheless refers to a large set of generally recognised phenomena—one can see how a hyper-political landscape is used to gloss over the bread and butter issues pertinent to the mostly working class members of historically marginalised groups. A classic manifestation of this, which has reached its peak since the hyper-political MeToo movement, is the ‘girl-bossification’ of vapid, corrupt, and uninspiring political leaders and corporate executives, taking shape with Sheryl Sandberg’s ‘Lean In’ and reaching its apex with Hillary Clinton’s presidential campaign. Criticism of their records, class status, or elite-friendly policy proposals, even from a feminist standpoint, could easily reduced to mere sexism. In racial politics, a similar framing of all sociological categories through hyper-mediatised exposures of individual racism has been called ‘race reductionism’ by political scientist Adolph Reed.[17] Unlike when racial struggles were more directly connected with socialist movements, trade unions, or basic material demands and universalist messages, social justice movements increasingly focus on diversifying elite positions in business, media, and politics, closing the wealth gap (which exists primarily between the upper classes of various races) as well as attempting to restrict cultural exchange to fight ‘cultural appropriation’. This coincides with the rise of what Haitian-American writer Pascal Robert calls ‘the Black Political Class’: a minority of black people in positions of power within their own community, who proclaim their own interests, i.e. as members of the middle and upper classes, as the interests of black people at large and ‘ who work as a “race management” elite that metaphorically corrals Black electoral choices into a politically contained vessel’.[18] What Robert is identifying is a generalised phenomenon not specific only to African-Americans, whereby the struggle against various particular racial, religious, or gender-based oppressions is conceived not in universalistic terms, but rather through the concept of ‘representation’. This serves more to benefit those already in a privileged position to speak for their marginalised group than to remedy the less glamorous problems shared by poor and working class people of all identities. Furthermore, identity reductionism also serves as tool of the ruling class at large to portray anything that opposes either their self-serving cultural policies or elite technocratic rule at large as rooted in racism, sexism, or other forms of intolerance, the accusation of which can (justifiably) discredit someone’s political ideas. An example of this was the painting of the Canadian trucker protest against vaccine mandates and the biomedical security state as ‘conspiracy theorists’ and ‘white supremacists’ by the Liberal government to justify invoking war-time security measures: or the labelling of Bernie Sanders’ male supporters as ‘Bernie bros’ to falsely conflate critique of Hillary Clinton and support for social democracy as sexist. Parallel to the use of identity politics is the generalised tendency of modern hyper-politics to reduce every conflict to one between the forces of good and the forces of evil. This was present to a degree in George Bush’s famous identification of an ‘axis of evil’. A contemporary example of this is the coverage regarding Ukraine. Although Putin’s war of aggression bears as little justification as Bush’s invasion of Iraq, almost the entirety of the media has framed the conflict as one of pure innocent freedom-loving Europeans against ‘Eastern despotic hordes’, rather than a more nuanced examination of the different factions within both countries. Instead, we are throwing our own cultural quarrels onto a regional conflict and framing Ukraine, another impoverished post-Soviet oligarchy with moderately stronger liberal civil liberties than Russia, as the bastion of everything free and civilised about the West. In doing so, we end up infantilising Ukrainians and whitewashing their leaders, such as Zelenskyy himself, who, as honourable as his decision to stay in Kyiv was, is himself supported by oligarchs,[19] holds wealth in offshore accounts,[20] and recently banned all independent media and 11 political parties in order to stop ‘pro-Russian disinformation’, even though some on the list have condemned Russian aggression and are non-aligned socialist parties.[21] By praising Ukraine as the upholder of our free liberal democratic order, despite recognising for years our system’s decay to a point where freedom is becoming merely formal, we are being morally blackmailed to accept our own state of unfreedom and our societies’ giving up on their avowed liberal principles as the pinnacle of human freedom. We can thereby see a clear attempt to restore the post-history consensus in light of the shocks of both Covid and the Russian invasion of Ukraine. Pop culture and culture war metaphors of goodies and baddies were used in similar ways to justify curtailments of our freedoms and collective well-being during Covid lockdowns. As discussed, calls for censorship and ‘content moderation’ on tech platforms were justified by painting anybody who questioned the conclusions of officially sanctioned experts as right-wingers, conspiracy theorists, and racists. This was used to suppress important and potentially politically influential stories such as evidence for the lab-leak theory and the Hunter Biden emails. With the re-fetishisation of technocracy in the aftermath of the ‘populist decade’, in which experts started to appear discredited, management and technocracy have reasserted their cultural cachet while simultaneously feeling constantly like the embattled underdogs in a fight against the evil forces of ‘disinformation’ and ‘Russian meddling’. The authors of The End of the End of History call this phenomenon ‘Neoliberal Order Breakdown Syndrome’: This section of society assumes their views and predilections are common sense, while at the same time feeling constantly embattled…While “the liberal package” (combining elements such as cosmopolitanism, respect for expertise, individualism, an emphasis on personal ethics) is culturally hegemonic, liberals refuse to acknowledge their own hegemony. The liberal always has her back to the wall. While their views find home in the newspapers of record, they feel submerged under a tsunami of tabloid content. They flaunt their commitment to tolerance and diversity, but balk at the expression of non-liberal views from their fellow citizens.[22] This explains how the naturalisation of the ruling technocracy of the post-political period, with its emphasis on neutral expertise, can at the same time coincide with an emphasis on personal morality and individual common sense in the polarised world of hyper-politics. Many have attempted to explain the Left’s lack of resistance to, and even outright support of illiberal and technocratic policies on the basis of moral victimhood, by blaming its capture on the Professional Managerial Class (PMC). However, the socialist movement has always relied on being able to take certain sections of the radicalised middle and upper-middle-classes to bring their intellectual and professional skills to mass organising—from radicalised middle-class progressive liberals like (arguably) Marx himself, to high bourgeois and aristocratic figures who commit ‘class suicide’ like György Lukács. Nonetheless, the fact that this ‘professionalisation’ of the Left has taken place in the post-political era has largely foreclosed the events that would previously have pushed this social stratum towards a working-class politics. Instead, there remains a petty managerialism that serves only to counteract the unfulfilled promises of social mobility through education and credentialization. The political gap caused by the absence of a radical Left has been filled by the tech industry’s promise to release us from all previous scarcity and social hierarchy. We consigned the thought of the new to marketing wizards like Steve Jobs, to sell us on surrendering every aspect of our social sphere to algorithms. However, the novelty these produce is merely quantitative, regenerating infinite new variations upon a static underlying logic. By adjusting our human behaviour to the impersonal forces of the algorithm, we end up producing things with the sleek presentation of novelty, whilst being progressively deteriorating variations on the same underlying model. Marxist technologist Dwayne Monroe notes, for example, how the term ‘artificial intelligence’, designating mere pattern matching algorithms combined with vast storage, works to diminish the value and dignity of human labour and ingenuity.[23] In the cultural sphere, the tech-driven explosion of the hours of music available has similarly resulted in a drop in the consumption and production of new music; the 200 most popular new songs account for less than 5% of streaming.[24] We can see hyper-politics as a correlative to this hyper-charged, yet somehow indifferent domination of all our lives by technology. For, likewise, without a subject borne out by parties and institutions with the power of transforming the state, we cannot turn the quantitatively rising polarisation of every aspect of reality into qualitative political change. Quoting Jäger again: In many ways it seems that the lesson which has truly been learned from the ‘post-political’ era is that politics must be reintroduced into the public sphere. But without the re-emergence of mass organisation, this can only occur at a discursive level or within the prism of mediatic politics: every major event is scrutinised for its ideological character, this produces controversies which play out among increasingly clearly delineated camps on social media platforms, and are then rebounded through each side’s preferred media outlets. Through this process much is politicised, but little is achieved.[25] At the same time, as shown in Hegel’s ‘owl of Minerva’ quote, although the ability to theorise the totality of an era corresponds to its passing, it also coincides with the recognition and preservation of an original idea of freedom that has been lost and must be recovered. As much as I have criticised in this article the current state of liberal democracy, scientific management, and technology, at various points these have brought with them the promise of liberation from earlier forms of domination and rigid positions within a social caste. It is once these had wholly swept aside older forms of unfreedom that the contradiction of free labour itself showed itself in its full form and brought about the demand for it to be overcome. In order to break out of our continuing death spiral, we must relearn how to think about the unrealised potentials of the past, so as to make them actual in a radically new form. How can we think this freedom in an age of rising unfreedom? Hegel attempted to preserve the notion of liberty sparked by the French Revolution by systematising it into the Absolute in his Elements of the Philosophy of Right (1820). Theodor Adorno, in Negative Dialectics (1966), takes an inverse approach by introducing the notion of the ‘non-identity’ of any concept raised to the level of the Absolute: By immersing itself in what confronts it a priori, the concept [ Begriff ], and becoming cognisant of its immanently antinomic character, thought dwells on the idea of something beyond contradiction. The antagonism of thought to its heterogenous object is reproduced in thought itself as its own immanent contradiction. Reciprocal critique of universality and particularity, identifying acts that judge whether the concept does justice to what it is concerns itself with and whether particularity fulfils even its own concept, this is the medium of thinking the non-identity of concept and particularity.[26] Adorno is essentially arguing that the non-identity of any positive content with the material reality it engenders points to the possibility of moving beyond a certain contradiction. Thus, to recover lost ideas of freedom, we must—Adorno suggests—focus on the non-identity of the world as it is with the ideals and structuring principles it is built upon. This is the task of figuring out how to build the new out of the ideas and materials currently at hand. However, unlike Adorno, we must not stay forever at the level of critique by non-identity. To do so would bring about criticism that is either unable to change anything (it is hard to affirm a concept if we retain the compulsion to deconstruct everything), self-reproducing for the sake of mere theoretical activity, or easily co-optable by the status quo (like tendencies of so-called ‘post-modernism’). If we are to think about non-identity, we must not merely think of it in its empty critique as an abstract concept structuring all political theoretical engagement; this would be taking non-identity outside of its intensity and vivacity. Or, as Friedrich Nietzsche would say, this would be a taming of the concept’s real effectivity and vitality in the world, in favour of a purely theoretical exercise that degrades concrete experiences of this non-identity.[27] While not dispensing with the notions of totality or identity, using them rather as operators whose unreality still structures the immediacy of non-identity to reality, we must learn to consider the absolute totality of non-identity in order to tackle its vicissitudes in a historical era like ours. More simply put, we must learn to experience the discontinuity of the past and the future as colouring the tensions of the present situation. This process is immanent, but not exclusively a critique. To overcome both the pitfalls of a systemic justification of the world as it is (such as that undertaken by Right Hegelianism) and the deflationary practice of incessant critique, it strives for renewed self-conscious engagement with the Absolute, i.e. the whole of society as self-consciously shaping its future, at the hinge-points of history where we are faced with either total tragedy or coming redemption: Messianism. In the next section, I will suggest a conception of Messianic thought, based particularly on Walter Benjamin’s late works on history, to formulate a generic concept, universalizable throughout particular spiritual, political, and secular contexts, that can engender renewed engagement with the ideas of freedom and redemption of the past so as to break out of the hyper-charged yet languid space brought about by the end-of-history era. The Proposition of Messianism At first glance, the Messianic longing that there be sent a figure from beyond all conceivable present horizons of possibility seems to have nothing to do with politics. Politics is ultimately about the management and allocation of, and conflict over decision making power, distribution of resources, and mobilisation of labour. On the one hand, then, the notion of a redeeming force coming from outside of all currently imaginable horizons to save us from our own impotence seems to contradict the active engagement and concrete strategising required by politics. On the other hand, we have seen supposedly transformational political movements contenting themselves merely with the technical management of state political affairs. For there to be true politics, there is also the need for a Messianic idea of something outside of what is currently conceivable in state politics to be actively pushed through by partisan political subjects. The task of Messianism is to figure out how the current range of possibilities can be transformed into something that appears impossible in our current horizon. Rather than being apolitical, the experience of working towards a Messianic or even utopian future and seeking to transform the whole of society responds to the demands of all three of the contemporary regimes of politics discussed in this essay. Firstly, Messianism, in the post-political landscape of the end of history, seeks to bring about a culmination of all previous events as leading to a single point in the present. Rather than being the mere transition between fleeting moments, the present then becomes a monad containing all the congealed influence of the past and its respective potential futures in decisive suspension. This conception of the historical temporality of the present is intended to lead away from what Walter Benjamin calls the ‘empty homogenous time’ of liberal progressivism in his essay ‘On the Concept of History’.[28] This was seen clearly in the Third Way politicians of the nineties, who viewed any progress to come out of indifferent cycles of global markets managed by neutral technocrats in a system which seemed to stand outside of the twists and turns of history. While completing a sort of end of history, or rather ‘consummation’ ( Vollendung ) of history, Messianism differs from post-politics in that it reintroduces politics by bringing all of its conflicts to a decisive hinge point, which, by opening the opportunity for redemption at any moment, does not so much end history as rather transforming it so radically that its concept must be rethought.[29] The kingdom of God on earth brought about by the Messiah is thereby not the ultimate destination of fate, but rather marks the end of a certain period of existence, marking that ‘a form of life has grown old’ as Hegel said.[30] Secondly, political Messianism, like populist discontent, contains an antipolitical moment of rejection of the precarious conditions of the present and its institutionally sanctioned ideology. It is in this sense that Messianic thought relates to a sense of crisis and impending catastrophe, rooted in a plea to a force that can save us and let us no longer have to deal with the dreadful present. However, in rejecting the anti-political impulse to sweep away evil actors causing disorder in order to preserve a previous order, it is necessary to concretely introduce new goals and models of social organisation to avoid an impotent sense of nihilistic resentment, which can only push towards the far right. For one must always remember not to reduce political problems to being a matter of an intact social organism, ‘the people’, that is undermined by an outside group or factor of essentially different character. Rather, a Messianic view seeks out the contradictions of society in itself and considers redemption not to be the removal of a particular enemy, entity, or institution, but rather the redirection of the past that brought about the current disorder towards a new future: and hence a new past and present. Finally, the hyper-political moment we are in, with its polarisation of every aspect of politics and social life, while so far merely confused due to the inability to see positive changes, sets the preconditions for actively determining society as a whole. Whereas the incessant debates about every cultural and historical institution and the heated accusations flying on every side are tedious due to their apparent lack of resolution, this is at least an indicator that our current ways of existence socially, economically, civically, and with nature cannot continue sustainably. Hyper-politics, nonetheless, tends to amount to a frantic quibbling over the precarity of the present. It is neither an attempt to redeem the potential of the past nor yet to implement concretely different conditions for the near future. One potential positive of the tendencies for nostalgia shown by culture and art is an at least unconscious memory of the past’s lost potentials. Though nostalgia is often a conservative force when engaged in modern phantasmatic reconstructions (as it is neither possible, nor desirable, to resuscitate the past ‘as it actually was’), the focus on the absolute difference of the past to the present, as showing the possibility of social reproduction along almost unrecognisable logics, also creates the theoretical space for thought of the new and the redemption of lost futures. Messianic thought is meant to fill the conceptual gap that hyper-politics is currently stuck in, by attempting to think about the redemption of past history through the immediate possibility of a future that overcomes the extreme tension and emergency of the present point in time. This sense of ‘dialectics at a standstill’ (‘Dialektik im Stilstand’[31]) that Benjamin uses in his inversion of Marxist dialectics, which usually emphasises history’s constant movement rather than stasis, helps us to think of how the present, beyond its mere fleeting into the past, can hold all of the contradictions of the past and the potentials of the future at a point, where the subjective factor of history can play a determinate role in shaping the future. Benjamin thereby conceives the Messianic moment not as something flashing up for no reason to our help to bring about an unconditionally good world, but rather as when the whole material and causal nexus that determines our present is halted due to internal breakdown, and can be redirected towards and present the image of a new future. History deals with connections and with arbitrarily elaborated causal chains. But since history affords an idea of the fundamental citability of its object, this object must present itself, in its ultimate form, as a moment of humanity. In this moment, time must be brought to a standstill. The dialectical image is an occurrence of ball lightning that runs across the whole horizon of the past. Articulating the past historically means recognizing those elements of the past which come together in the constellation of a single moment…The dialectical image can be defined as the involuntary memory of redeemed humanity.[32] This uniquely charged moment cannot come about randomly at any time in history. Rather, it has a tragic dimension and is occasioned by desperation and potential catastrophe. The revolutions that make new forms of politics and social life do not come about as seamless transitions from one progressive age to the next in times of prosperity, but arise when the material and intellectual foundations of a state show themselves to be in crisis. To quote Benjamin: ‘Marx says that revolutions are the locomotive of world history. But perhaps it is quite otherwise. Perhaps revolutions are an attempt by the passengers on this train—namely, the human race—to activate the emergency brake’.[33] Furthermore, the scholar of Jewish mysticism Gerschom Scholem noted that every instantiation of Messianiam in the Jewish tradition entails not only a utopian dimension, but also the restoration of an ideal original condition. This restorative element likewise also contains utopian implications, because, given change in conditions, what is intended to be reinstated is actually novel and differentiates from both the present and the past. Here is Scholem, in his essay ‘Toward an Understanding of the Messianic Idea in Judaism’ (1963): The restorative forces are directed to the return and recreation of a past condition which comes to be felt as ideal. More precisely, they are directed to a condition pictured by the historical fantasy and the memory of the nation as circumstances of an ideal past. Here hope is turned backwards to the re-establishment of an original state of things and to a ‘life with the ancestors’. But there are, in addition, forces which press forward and renew; they are nourished by a vision of the future and receive utopian inspiration. They aim at a state of things which has never yet existed…the Messianic idea crystallizes only out of the two of them together.[34] What most defines the potentially tragic character of the Messianic moment is that redemption is ultimately not guaranteed. Complete destruction and death, collapse into barbarism, or even continued slow decline and increasingly whitewashed suffering, are all possible. The fact that both overcoming present despair and succumbing to it are absolutely possible is what gives Messianism a central place in intervention by people into history, because it confronts historical antagonism from a point that cannot be smoothed out and seamlessly integrated into the passage of time, shaping individuals out of this experience. It involves a use of political will which cannot be reduced through consensus or conflict mediation. The political actor who takes part in a Messianic project for the future identifies a space that is more originary than either the past individual’s material determinacy or subjective will. Theologian Franz Rosenzweig calls this the ‘metaethical’ dimension of human life,[35] along with the metaphysical and metalogical, critiquing Hegel for attempting to reconcile the individual with the social whole and history through a smoothly integrated system of contradictions.[36] The metaethical aspect of personhood rather, which both extends beyond particular contemporary norms and is always linked to a determinate place in history, comes about at moments where the political subject must act and make decisions to reorient the past and its connection to the future. In conceiving the Messianic moment as one where the incessant movement of history is taken ‘at a standstill’, one connects with the metaethical dimension of humanity, where subjects intervene to self-consciously shape the rules and structures of social life and morality. History at the moment of rupture and possible redemption or ruin therefore brings about a reflection on society’s past and current potentials as a whole, beyond the apparent chaos of the crisis-ridden situation. For Messianism entails an encounter both with the positive and progressive elements of the past, such as capitalism’s institution of free labour, liberal rights, and productive capacities, as well as the present situation of its missed potential, such as in climate change, rising inequality and poverty, and increasingly illiberal and repressive political systems. To self-consciously shape the future and implement a possible redemptive new idea of society, one therefore needs to think both the potentials of the concepts in the past and their non-identity, à la Adorno, with the present situation they have conditioned. The task is to spot the presence of the formerly redemptive ideas of the past as they appear when fleeting from the present. ‘For it is an irretrievable image of the past, which threatens to disappear with every present that does not recognise itself as meant in it’.[37] Rather than being fixated on abstract lofty ideals, the Messianic promise of freedom is likewise predicated on having an idea of unfreedom and the threat of total subjugation (by fascism, climate austerity, economic breakdown, etc.). Therefore, instead of being beholden to the hopeful promise of a better future, one must actively fight the enemies of freedom to realise a Messianic future. ‘For the Messiah does not only come as the redeemer; he comes as the conqueror of the anti-Christ’.[38] Because the idea of utopia only gains meaning when contrasted with its reflected dystopic potentials. ‘Freedom can only be grasped in determinate negation, in proportion to the concrete form of unfreedom’.[39] A Messianic political movement therefore does not conceive of utopia through ahistorical figments of reified thought, but rather as arising out of the concrete potentials of the movement of history in its present moment. The inversion of the movement of history into a politically charged Messianic moment, where both the concept of freedom and the reality of unfreedom are immanent to political action, puts our subjectivity and connection to the world, social structures, and ourselves into question at its zero-level. In opposition to pure historicism, which presents an invariant history in which human subjects are merely moving parts, the Messianic conception of material history takes this nexus of material contradictions discovered by the historian or political scientist as they matter immanently to historical subjects, who can affect society’s direction. With the confusion of events taken in their absolute singularity qua crystallisation into a single moment, one is able to ‘burst the continuum of history’.[40] This does not mean an end of history as such or the descent into pure degeneration, but rather the attempt to split the history of humanity into two parts. What Messianism introduces is a way to think about the centre between these two parts, where political agency can be expressed in the subject’s engagement. The political-messianic subject therefore comes about by crystallising both its prior historical determination and the accelerating continuum of time into the full gravity of the present moment, in order to mark an absolute break between past and future.[41] To conclude, it is worth reemphasizing the situation of political foreclosure that generates the need for its overcoming by Messianic thought and action. Recent history has shown both the flatness of the post-history era and the directionless impotence of anti-politics and hyper-politics, all premised on deemphasizing the role of collective affairs and of political order in shaping individuals’ lives and creating transformative change. Although we cannot simply choose to think ourselves out of our predicament, we must again affirm the ability of current circumstances to generate ideas of new possibilities and state that any political order, even one declared to be post-history, will inevitably generate ruptures. Where Messianism enters is in thinking about how these breaks in history occur not merely as a seamless unnoticed transitions between systems, but are based around decisive moments, which manifest concretely, beyond both immanence and transcendence, to political actors in the present. This is not simply the imposition of a ‘totalising’ political idea on top of discrete individuals. By understanding historical events as monads containing past determination, future possibility, and present subjective engagement, Messianism applies universally, allowing anyone to consider the relationship between their own actions and the external arrival of world redemption at the crossroads of history. Combining what Scholem called the ‘utopian’ with the ‘restorative’,[42] Messianism is a paradigm that allows the individual to conceive better possible futures through a double reflection on the past: both as conditioning the ways that the future must distinguish itself from the past, and recalling the lost possibilities contained in our origins. For though Messianism is ultimately future-orientated, it rests upon the necessity to think about the Origin, both to understand the causal chains determining our current predicament and conceive of absolute novelty based on our original creative essence. Rather than the unchanging continuum of the post-history era, Messianism situates the historical subject between the rooted mass of the past events and the idea of human redemption and a rupture in history. Without the notion of something external coming with to help us dig ourselves out of this tension, we are haunted by the past, rather than revering it by transforming the present. Rather than overcoming past failures by reviving their lost liberatory potentials, we pathologise them excessively in our politics. As Marx said, ‘ the tradition of all dead generations weighs like a nightmare on the brains of the living’.[43] Current hyper-politics sees past ideologies infecting us parasitically, as a neurotic defence mechanism against our own powerlessness. Without prospects for political agency, the left and right take pleasure in unseriously using political tension around every facet of life as an escape from the mundanity of every-day powerlessness. The concrete Messianic thought of redemption in the future, which remained unimaginable during the era of ‘capitalist realism’, rather views in the past ‘a secret index, through which it is pointed towards redemption’.[44] This allows the past to always point to the possibility of its future redemption, and creates links between political subjects and truths across historical epochs: the Origin that constantly is renewed, transformed, and re-individuated. Nothing about any of this is ‘deterministic’ or ‘reductionist’. Any radical change in the world being pushed through by free and imperfect human subjects can fail based on a variety of unpredictable factors. The Messianic moment is an unconditioned encounter with the possibility of reconnection with the past through a utopian future, which Badiou calls the Event, the point at which the contradictions of the world crystallise and engender a new organising principle of society. This promise of a different future engendered by the Event requires a certain subjective ‘fidelity’ and a name—the Messiah—upon which its success is not guaranteed from the outset. The Messianic moment is only confirmed in retrospect, once it has already been completed and having initiated a new mode of existence requiring different forms of thought. This is why we are always ultimately in waiting for the Messiah, for whose arrival one is always working and rethinking the past. Whenever a crisis-ridden present and the potential for tragedy brings about what Scholem calls ‘the plastic hours of history’,[45] where political subjects have the leeway to establish new orders, a ‘light messianic force’[46] persists, which bears the constant task of redeeming lost conceptions of freedom and investigating the historical structure of our desperate situation to see how it can give birth to new worlds. Max Klein Max Klein graduated with a Bachelor’s Degree in French and German from the University of Cambridge in 2022. Raised in New York City and currently based in London, his interests include Marxism, structuralism, Hegelian philosophy, Jewish thought, and political economy. Additionally, he is active as a composer and jazz pianist. [1] Cf. Jason Hickel, The Divide: A Brief Guide to Global Inequality and its Solutions (William Heinemann 2017). [2] Karl Marx, ‘Thesen über Feuerbach’ in Volker Gerhardt (ed), Eine angeschlagene These (Akademie Verlag 1996) 298. Translation the author’s. [3] Cf. Alain Badiou, L'être et l'événement (Édition du Seuil 1988). [4] Cf. Alain Badiou, The Immanence of Truths (Bloomsbury 2022). [5] Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts (first published 1820, Akademie Verlag 1981) 28. Translation the author’s. [6] Philip Cunliffe, George Hoare, and Alex Hochuli, The End of the End of History: Politics in the Twenty-First Century (Zero Books 2021). [7] Anton Jäger, ‘How the World Went from Post-Politics to Hyper-Politics’ ( Tribune , January 3 2022) < https://tribunemag.co.uk/2022/01/from-post-politics-to-hyper-politics > accessed 10 June 2022. [8] Francis Fukuyama, ‘The End of History?’ (1989) 16 The National Interest 3-18. [9] Cunliffe, Hoare, and Hochuli (n 6) 4. [10] Douglas Keay, ‘AIDS, Education, and the Year 2000: An Interview with Margaret Thatcher’ ( Woman’s Own , 31 October 1987) 8-10. [11] ‘Tony Blair's Conference Speech 2005’ The Guardian (London, 27 September 2005) < https://www.theguardian.com/uk/2005/sep/27/labourconference.speeches > accessed 10 June 2022. [12] Cunliffe, Hoare, and Hochuli (n 6) 5. [13] ibid 36. [14] Mark Fisher, Capitalist Realism: Is There No Alternative? (Zero Books 2010). [15] Cunliffe, Hoare, and Hochuli (n 6) 148-9. [16] Jäger (n 7). [17] Adolph Reed, ‘Socialism and the Argument against Race Reductionism’ (2020) 29(2) New Labor Forum 36–43. [18] Pascal Robert, ‘A Black Political Elite Serving Corporate Interests Is Misrepresenting Our Community’ ( Newsweek , 23 November 2021) < https://www.newsweek.com/black-political-elite-serving-corporate-interests-misrepresenting-our-community-opinion-1652384 > accessed 10 June 2022. [19] David Clark, ‘Will Zelenskyy Target All Ukrainian Oligarchs Equally?’ ( Atlantic Council , 10 July 2021) < https://www.atlanticcouncil.org/blogs/ukrainealert/will-zelenskyy-target-all-ukrainian-oligarchs-equally/ > accessed 10 June 2022. [20] Aubrey Belford, Luke Harding, and Elena Loginova, ‘Revealed: ‘anti-oligarch’ Ukrainian president’s offshore connections’ The Guardian (London, 3 October 2021) < https://www.theguardian.com/news/2021/oct/03/revealed-anti-oligarch-ukrainian-president-offshore-connections-volodymyr-zelenskiy > accessed 10 June 2022. [21] Grayson Quay, ‘Zelensky Nationalizes TV News and Restricts Opposition Parties’ ( The Week , 20 March 2022) < https://theweek.com/russo-ukrainian-war/1011528/zelensky-nationalizes-tv-news-and-restricts-opposition-parties > accessed 10 June 2022. [22] Cunliffe, Hoare, and Hochuli (n 6) 62. [23] Dwayne Monroe, ‘Attack Mannequins: AI as Propaganda’ ( Computational Impacts , 19 September 2021) < https://monroelab.net/attack-mannequins-ai-as-propaganda > accessed 10 June 2022. [24] Ted Gioia, ‘Is Old Music Killing New Music?’ The Atlantic (Washington DC, 23 January 2022) < https://www.theatlantic.com/ideas/archive/2022/01/old-music-killing-new-music/621339/ > accessed 10 June 2022. [25] Jäger (n 7). [26] Theodor Adorno, Negative Dialektik (first published 1966, Suhrkamp 1999) 149. Translation the author’s. [27] Cf. Friedrich Nietzsche, The Antichrist (first published 1888) in The Portable Nietzsche (Walter Kaufmann ed, Penguin Classics 2008). [28] Walter Benjamin, ‘Über den Begriff der Geschichte’ in Walter Benjamin, Gesammelte Schriften I-2 (first published 1940, Suhrkamp 1980) 704. Translation the author’s. [29] Walter Benjamin, ‘Theologisch-Politisches Fragment’ in Walter Benjamin, Illuminationen: Ausgewählte Schriften I . (first published 1921, Suhrkamp 1977) 203-4. Translation the author’s. [30] Hegel (n 5) 28. [31] Walter Benjamin, Gesammelte Schriften V (Suhrkamp 1982) 577. [32] Walter Benjamin, ‘Paralipomena to “On the Concept of History”’ in Walter Benjamin, Selected Writings Volume 4: 1938-1940 (Belknap 2006) 403. [33] ibid 402. [34] Gerschom Scholem, The Messianic Idea in Judaism and Other Essays on Jewish Spirituality (Schocken Books 1971) 3. [35] Franz Rosenzweig, Der Stern der Erlösung (first published 1921, Suhrkamp 1988) 12. [36] ibid 7-8. [37] Benjamin (n 28) 695. [38] ibid. [39] Adorno (n 26) 230. [40] Benjamin (n 28) 702. [41] ibid 702-3. [42] Scholem (n 34) 3. [43] Karl Marx, ‘Der achtzehnte Brumaire des Louis Bonaparte’ in Karl Marx / Friedrich Engels: Werke, Artikel, Entwürfe Juli 1851 bis Dezember 1852 (first published 1852, Dietz Verlag 1985) 97. Translation the author’s. [44] Benjamin (n 28) 693. [45] David Biale and Gerschom Scholem, ‘The Threat of Messianism: An Interview with Gershom Scholem’ The New York Review of Books (New York, 14 August 1980) < https://www.nybooks.com/articles/1980/08/14/the-threat-of-messianism-an-interview-with-gershom > accessed 10 June 2022. [46] Benjamin (n 28) 694.

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

I see NFTs as a way to innovate, empower others and push the boundaries of how artists interact with their fans. I see NFTs…as the future of the creator economy...NFTs are democratising art - Paris Hilton[1] Introduction This year marks the 25th anniversary of Jay-Z’s debut album, Reasonable Doubt .[2] The 1996 album jump started the Brooklyn-born rapper’s career from a fledgling artist to a business mogul, who became the first to be declared a hip-hop billionaire by Forbes magazine.[3] Hailed by fans as his ‘rawest and most vulnerable work’, Jay-Z’s first album recently spotlighted novel legal challenges with regard to ownership and regulation of the emerging asset class of non-fungible tokens (NFTs).[4] Since 1994, when Jay-Z was first introduced to Damon ‘Dame’ Dash, a young music executive from Harlem, the now-estranged pair went from selling CDs out of the trunk of Jay-Z’s car to co-founding Roc-A-Fella Records, Inc (‘RAF, Inc.’).[5] However, twenty-seven years after their first encounter, they now find themselves embroiled in a lawsuit centred on Dash’s alleged attempt to auction off the copyright for Reasonable Doubt as an NFT.[6] The suit is replete with implications for current and prospective NFT market participants, especially for those in the arts and entertainment industry, ranging from artists and promoters to developers. While NFTs present challenges due to the absence of guidelines, they may, with the development of certain legal and regulatory contours, herald the beginning of a new normal that would allow artists to better control and monetise their work. Against this backdrop, this article explores the principal legal issues that arise in the NFT space, specifically those related to the arts and entertainment industry. First, this article provides an overview of NFTs, including examples that illustrate how artists use them. Second, it examines the ongoing Roc-A-Fella Records, Inc. V. Dash lawsuit[7] and its practical implications. Third, this article argues that despite the associated challenges, if utilised properly NFTs may serve as a medium through which artists and public figures may relinquish control over the usage of their name, image, and likeness. A Brief Overview of NFTs A Non-fungible token (NFT) is a digital unit of value stored on a digital ledger where each unit represents a unique digital item ranging from artwork, collectibles, to even tokenised versions of real-world assets such as real estate.[8] One of the primary attributes of NFTs that distinguishes them from other cryptocurrencies like Bitcoins is their uniqueness.[9] NFTs are unique because no two NFTs are interchangeable with one another; each NFT containing unalterable, permanent metadata describing the asset that it represents while certifying its authenticity.[10] The uniqueness of NFTs may provide artists and entertainers with a vehicle to not only enhance fan interaction, but also build highly engaged communities. Indeed, minting and issuing NFTs allow artists to provide their fans with unique experiences, engaging with them in novel ways in the digital age. By reverse token, NFTs democratise public access to art and entertainment by allowing them to participate without having exclusive invite-only tickets or retaining the services of an art consultant for a hefty fee. For instance, in early 2021, Kings of Leon, the four-time Grammy winning American rock band, released their new album, When You See Yourself as NFTs, becoming the first band to release an album as an NFT.[11] Each NFT was unique in that token holders received a limited-edition ‘Golden Eye’ vinyl and exclusive artwork, along with tickets to four front-row seats to a show of each Kings of Leon tour for life.[12] Through the NFT sales, Kings of Leon reportedly raised $2 million, where over $500,000 was donated to a fund through which musicians have been supporting the industry throughout the COVID-19 pandemic.[13] NFTs are also characterised by their indivisibility, unlike other types of cryptocurrencies.[14] Under smart contracts implementing ERC-721, the current industry standard for minting NFTs, certain terms in executing functions via NFTs such as assignment of ownership and management of transferability are defined in a network, as in a regular contract.[15] An NFT holder’s rights to the work depend on the terms embedded in the NFT through the smart contract, and these terms are automatically enforced when the programmed conditions are met.[16] For instance, NFT royalties may be automatically paid out to the original creator once the coded terms of the smart contract are fulfilled upon a secondary sale transaction.[17] Accordingly, if an NFT contract is designed to trigger such an automated resale royalty payment mechanism, the artist would retain the right to future resale royalties and more control over his work. This is best illustrated through the digital artist Beeple’s sales of Everydays , a collage of images that Beeple created and shared online every day since 2007. Everydays was sold for a record-breaking price of $69.3 million at Christie’s, rendering the preeminent auction house the first amongst its counterparts to offer a purely digital work with a unique NFT.[18] Notably, the artwork is known as the most expensive NFT to date.[19] Due to an automatic 10% resale royalty executed through an NFT platform called Nifty Gateway, Beeple reportedly gained more through the resale of his artwork compared to the price he received from the original sale.[20] Hence, creators that mint NFTs may benefit from implementing a custom creator share percentage for each subsequent resale to receive royalties, so long as they ensure that their work is resold within the platform.[21] Another important attribute is its interoperability, which allows NFTs to be traded and purchased in different distributed ledger technologies with relative ease.[22] The interoperability of NFTs between different platform chains allows the original creator of the digitised item to receive a steady source of income each time the NFT is sold in the secondary market, without an agent or distributor who would charge commission fees.[23] Meanwhile, the value of NFTs corresponds to fluctuations in market supply and demand because their value lies not in the intrinsic nature of the token itself, but rather in the value assigned by those who deem it valuable.[24] Indeed, the prices of NFTs vary widely. To illustrate, CryptoPunks —the 24x24 pixel, 8-bit-style avatars—first created by software developers in 2017, were valued at a mere $1-$34 each when they were initially released.[25] However, their values have risen considerably over the years; a CryptoPunk owner is reported to have been offered $9.5 million for his CryptoPunk .[26] This reflects a positive correlation between the value of NFTs and their increased public perception and popularity.[27] Furthermore, appreciation of CryptoPunks’ value proves not only the prestigious status that accompanies the ownership of rare NFTs, but also NFTs’ potential to become lucrative investment opportunities.[28] Roc-A-Fella Records v. Dash : A Case Study of the Legal Challenges Surrounding NFTs The case study of Roc-A-Fella Records v. Dash shows that there are unresolved problems in the nascent terrain of NFTs. On June 18, 2021, RAF, Inc. filed a lawsuit against Damon Dash in the U.S. District Court of the Southern District of New York.[29] RAF, Inc. sought to enjoin the latter from selling any interest in Reasonable Doubt and requested that the court enter a judgement declaring, amongst others, that (i) RAF, Inc. owns all the rights to Reasonable Doubt , including its copyright; and that (ii) Dash must transfer to RAF, Inc., any NFT in his possession, custody, or control reflecting rights to Reasonable Doubt .[30] The complaint alleged that Dash, an owner of a 1/3 equity interest in RAF, Inc. along with Jay-Z and Kareem Burke, attempted to steal Reasonable Doubt , a company asset, mint it as an NFT, and auction his purported interest in the copyright on the album.[31] According to RAF, Inc., however, Dash as a minority shareholder of the record label did not actually hold any individual ownership interest in the album.[32] This is because the copyright, and all rights, title, and interests to and in Reasonable Doubt —including the right to sell, reproduce, distribute, advertise, and exploit the album without limitation—all belong to RAF, Inc.[33] Stated simply in the words of RAF, Inc.’s attorneys, ‘Dash can’t sell what he doesn’t own’.[34] Despite his non-existent property interest in the album, Dash is alleged to have knowingly and intentionally breached his fiduciary duty and duty of loyalty by leveraging his position as a shareholder to entice bidders and proceed with the sales of the corporation’s asset.[35] In support of its argument, RAF, Inc. quoted language from the auction announcement on an NFT platform called SuperFarm containing representations that Dash is auctioning off ‘[his] ownership of the copyright to Jay-Z’s first album Reasonable Doubt’.[36] The announcement boldly stated that ‘the newly minted NFT will prove ownership of the album’s copyright, transferring the rights to all future revenue generated by the album from Damon Dash to the auction winner’.[37] Moreover, it elaborated that ‘thanks to the magic of the…blockchain technology…[the auction] will set a precedent for how artistically created value and ownership can be proven, transferred, and monetised seamlessly through a public blockchain’.[38] According to RAF, Inc., Dash had not only stolen the copyright to Reasonable Doubt by minting it as an NFT and offering it for sale, but also refused to stop his actions despite warnings from RAF, Inc.[39] Rather, he proceeded to search for another venue to consummate the transaction after SuperFarm decided to cancel the auction upon RAF, Inc.’s request.[40] On June 21, 2021, three days after filing the complaint, RAF, Inc. argued for and obtained a temporary restraining order barring Dash from minting and issuing Reasonable Doubt as an NFT.[41] In response, Dash filed a Memorandum in Opposition of RAF, Inc.’s Order to Show Cause, in which he refuted any claims that he attempted ‘to auction off’ or ‘otherwise sell off’ the Reasonable Doubt copyright.[42] Dash contended that RAF, Inc. erroneously relied on SuperFarm’s internal memo in claiming that he represented to SuperFarm that he owned 100% of the copyright, or that he wanted to mint an NFT based on the copyright. Further, he claimed ‘nothing was ever minted!’[43] and that he was attempting to sell his 1/3 interest in RAF, Inc. as an NFT that he later planned to create, as opposed to a specific copyright interest in the album.[44] Thus, Dash claimed there was no basis for the court to grant a preliminary injunction, as he was merely exercising his right to freely transfer his lawfully owned 1/3 interest in RAF, Inc.[45] Thereafter, Dash successfully convinced RAF, Inc. and Southern District of New York Judge John Cronan to limit the preliminary injunction to the sale of Reasonable Doubt .[46] Specifically, the parties agreed to include explicit language in the court order not to prevent Dash from disposing of his 1/3 ownership interest in RAF, Inc. in any way to the extent compliant with applicable laws.[47] Meanwhile, both parties have engaged in their own NFT transactions outside of the suit. Dash began an auction for his share of RAF, Inc., with a starting bid of $10 million, in which the winner would receive a commemorative NFT representing a certificate of ownership.[48] Likewise, Jay-Z proceeded to sell his own NFT that celebrates the 25th anniversary of Reasonable Doubt through Sotheby’s for the price of $138,600.[49] Legal Implications of the Roc-A-Fella Records, Inc. v. Dash Case While the case is ongoing, the high-profile NFT case involving the industry’s moguls brings to the forefront a myriad of issues that courts have only recently begun to grapple with. First, the above case sheds light on the risks involved in minting and selling an NFT based on an underlying work over which its creator, promoter, or seller does not own the copyright. The proprietary issues presented by the process of minting NFTs is two-fold. Creators should be alerted to the fact that only the owner of the copyright (or one operating with the copyright owner’s permission to do so) in the underlying work may engage in the act of minting an NFT.[50] Otherwise, minting the NFT risks a copyright infringement, and potential, additional infringements arising from its promotion and sale.[51] Indeed, RAF, Inc. based its argument on this very issue, claiming that Dash was not entitled to mint and sell the Reasonable Doubt NFT because it was RAF, Inc., not Dash, that owned the album and its underlying proprietary rights. In fact, the Dash case is not the first precedent in this regard. In April 2021, an NFT of a Jean-Michel Basquiat drawing was withdrawn from a planned auction on the OpenSea platform after the late artist’s estate intervened, confirming that no license or rights were conveyed to the seller, and that the estate owned the copyright in the artwork.[52] Although it did not lead to litigation because the NFT was subsequently removed from sale, the Basquiat incident reiterates the need for clear guidance on proprietary rights associated with NFTs and for the implementation of best practices in this regard when NFT transactions are concerned. Likewise, purchasers should conduct reasonable due diligence before purchasing an NFT so as to preclude incurring liability and legal risks.[53] The following is a non-exhaustive list of factors that purchasers may consider prior to an NFT acquisition: whether the artist is indeed the original author of the work at issue; whether the NFT platform through which the purchase will be made, provides any IP warranties; and the scope of license for an NFT holder.[54] Another ancillary issue in relation to this is a common misconception harboured by many purchasers that they are entitled to intellectual property rights to the underlying work upon acquiring an NFT. However, this is not necessarily true because the rights governing the use and resale of an NFT that are conferred to a purchaser depends on the smart contract associated with each NFT.[55] Accordingly, purchasers should be advised to scrutinise the specific terms governing the smart contracts contained within each token to determine whether certain intellectual property rights (e.g. copyright) are transferred upon its sale.[56] Secondly, the RAF, Inc. case raises questions about the regulation of the offers and sales of NFTs under the U.S. federal securities law framework. By arguing instead that he intended to sell 1/3 of his shares of RAF, Inc. in the form of an NFT as opposed to the copyright to Reasonable Doubt , Dash risks subjecting himself to the U.S. securities laws. That is, Dash’s claim gives rise to whether an NFT would constitute an ‘investment contract’ and thus, a ‘security’ subject to regulation by the U.S. Securities and Exchange Commission (‘SEC’).[57] Whether an instrument constitutes a security is determined under the Supreme Court’s Howey test.[58] Howey involves a four-part test under which all of the following four factors must be present for an instrument to constitute a security: (1) an investment of money (2) in a common enterprise (3) with a reasonable expectation of profits (4) to be derived solely from the efforts of others.[59] Moreover, the Howey Court stated that the foregoing test embodies a flexible principle where form would be disregarded for substance while placing emphasis on economic reality.[60] In other words, it is ‘immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise’.[61] This means that depending on the facts and circumstances, any instrument may be deemed a security for purposes of the Howey test. If Dash’s sale of his equity interest as an NFT falls within the purview of the federal securities law, he would be subject to the registration requirements of the Securities Act of 1933[62] and the disclosure requirements of the Securities Exchange Act of 1934,[63]the non-compliance of which will constitute an unregistered sale of securities. There has been increasing public demand for the SEC to offer specific guidance regarding this matter. Most notably, in April 2021, a registered broker-dealer sent a petition to the SEC requesting the publication of a concept release surrounding the regulation of NFTs.[64] However, the SEC has yet to issue any guidance on NFTs. Nevertheless, creators and issuers of NFTs should be aware of the flurry of lawsuits that give rise to the question of whether such NFTs constitute a security and thus trigger the application of the SEC’s general analytical framework for the broader issue of digital assets to NFTs. In the 2019 ‘Framework for ‘Investment Contract’ Analysis of Digital Assets’ (‘Framework’) published by the SEC’s Strategic Hub for Innovation and Financial Technology, the SEC explicitly included language cautioning potential issuers: ‘If you are considering…engaging in the offer, sale, or distribution of a digital asset, you need to consider whether federal securities laws apply’.[65] The Framework echoes the language from the Supreme Court’s Howey test. It urges entities and individuals engaged in the offers and sales of digital assets to examine the relevant transactions in determining the applicability of the federal securities laws because the applicability of Howey to digital assets is a fact-specific inquiry.[66] The applicability of the Framework recently became the centre of a class action suit filed in the Supreme Court of New York (later removed to the Southern District of New York) in May, 2021.[67] There, purchasers of NFTs depicting video clips of highlights from NBA basketball games alleged that the NFTs promoted, offered, and sold by Dapper Labs, Inc., a Canada-based blockchain-focused technology company, were unregistered securities under the Framework.[68] While the suit is still pending, the case serves as a warning to industry professionals, the trajectory of which should be closely monitored. Moreover, earlier this year, SEC commissioner Heather Peirce—a pro-crypto member of the SEC also dubbed as ‘crypto mom’—specifically warned against selling fractionalised NFTs.[69] Fractionalised NFTs refer to NFTs that can be split into smaller pieces and sold to multiple purchasers for partial ownership interest, risking the likelihood of being deemed as securities.[70] Dash’s proposed offering of his equity interest in RAF, Inc. as NFTs may raise red flags with financial regulators. This is because such an offering would involve a large number of purchasers to invest sums of money to gain the NFT, with the expectation of profits from a fractional ownership of a highly valuable record company. Furthermore, depending on the promotional activities and the structure of the transaction, the purchasers’ profits may be deemed to derive from the entrepreneurial efforts of Dash or a third-party NFT platform. Thus, issuers and developers of digital assets should remain alert to future developments in this regard. That way, such issuers and developers may preclude any potential disputes and penalties resulting from their failure to exercise care in offering and selling these innovative assets, which may unintentionally be characterised as investment products. NFTs as a Potential Medium for Artists and Public Figures in Regaining Authority over their Publicity Rights Although NFTs pose certain challenges, the technology may—if properly and ethically utilised—be channelled to inspire and empower creators and entertainers. As a novel response to the long-standing problems in the digital terrain arising from the easy dissemination and exploitation of digital images by third parties without consent, public figures are now embracing NFTs as a medium of regaining authority over the usage of their name, image, and likeness. NFTs not only allow them to reclaim control over their appropriated digital identities, but also allow them to receive rightful compensation for its usage and distribution. The exploitation of name, image, and likeness and lack of control over the commercial use of identity is especially prevalent amongst celebrities, owing to the fact that celebrities voluntarily make themselves public figures.[71] There is currently a relative dearth of case law regarding the commercial exploitation of publicity rights in the US, rendering disputes surrounding publicity rights unpredictable. Moreover, there is a lack of clarity regarding the current state of law due to varied interpretations and statutes on publicity rights because there are no federal statutes recognising the right of publicity, while state laws lack uniformity as statutes differ across jurisdictions.[72] The economic and emotional ramifications arising from the unauthorised use of name, image, and likeness were recently brought to the forefront by American model and actress Emily Ratajkowski. In an effort to reclaim her image wrested from her for the profit of another, Ratajkowski recently minted an NFT named ‘Buying Myself Back: A Model for Redistribution’ that was auctioned at Christie’s for $175,000.[73] Upon discovering that a photo she had publicly posted on Instagram had been printed on a large canvas and sold as part of a collection released by artist Richard Prince, Ratajkowski decided to mint an NFT consisting of a photo of herself posing in front of Prince’s artwork.[74] In vocalising her decision to do so, she pointed out the ironical loss of commercial control over her image as a public figure: ‘as somebody who has built a career off of sharing my image, so many times—even though that’s my livelihood—it’s taken from me and then somebody else profits off of it’.[75] However, through her recent NFT sale, she not only regained partial possession of her own image, but also revealed she would receive ‘an undisclosed cut’ of the profits of each resale.[76] Commenting on the potential that NFTs carry, she expressed her hopes to set a precedent for others to ‘have ongoing authority over their image and to receive rightful compensation for its usage and distribution’.[77] Despite the benefits conferred by NFTs in repossessing digital identities in the age of social media, a fatal drawback of this budding technology is the risk of counterfeiting. If NFTs are minted with false information or the core code underlying the NFT is stolen, original creators of the NFTs may incur difficulties in tracing or exercising effective control over unauthentic or identical products.[78] Likewise, purchasers may be misled as to the authenticity or value of their tokens.[79] Indeed, a counterfeit NFT of the renowned British graffiti artist, Banksy, was recently sold for $900,000 on OpenSea (the world’s largest NFT platform), reigniting concerns over counterfeit NFTs.[80] Counterfeiting issues are exacerbated by the fact that many blockchain platforms currently allow virtually anyone to mint their own NFTs. It remains to be seen whether such platforms will impose internal control systems to mitigate such risks and whether they will be subject to external regulations with the evolving use of NFTs. Conclusion The NFT market has seen a stunning growth trajectory, surging to a record-high of $10.7 billion in sales volume in the third quarter of 2021.[81] The numbers mark an eightfold increase from $1.3 billion in the previous quarter.[82] Such an explosive growth was catalysed in part by the COVID-19 pandemic.[83] The pandemic led to shifts in business models such as remote working and digitalisation of work products, as well as an unprecedented increase in online spending as a substitute for traditional off-line consumption.[84] In line with such developments, creators and artists have also tapped into the NFT space to use the technology to their benefit. Some industry professionals and commentators have dubbed the current state as ‘a golden opportunity…for digital entertainers’.[85] Indeed, NFTs may be a boon to many creators and artists, restoring autonomy by means of exercising greater control of distribution and resale royalties, provided that the smart contracts stipulate the exact terms of resale mechanisms, and such resales are made within the same marketplace as discussed above. However, this golden age is not without its shadows. Indeed, in the words of Gary DeWaal, a former trial lawyer with the U.S. Commodity Futures Trading Commission, ‘this whole industry…suffers from a paucity of clear regulation, and as a result folks are sort of left on their own to figure it out the best they can’.[86] As such, due to an absence of clear regulatory guidance, pending cases should be closely monitored because they may serve as meaningful guideposts in providing regulatory clarity regarding NFT regulation. Meanwhile, to preclude significant adverse legal consequences and regulatory risks, market participants should conduct due diligence prior to any issuance or transaction involving an NFT. Furthermore, the rights and terms of the transaction in the underlying smart contract should be clearly drafted so acquirers of NFTs may fully avail themselves of its protections and benefits by limiting the grant of proprietary rights and stipulating terms for automated royalty payments, amongst others. Bo Hyun Kim Bo Hyun Kim is a third year student at Handong International Law School in South Korea where she is studying US and international law. She has published articles on emerging technologies and, most recently, contributed a chapter on NFTs and the Metaverse in a legal handbook on e-sports law and practice (pending publication). [1] Paris Hilton, ‘I’m Excited About NFTs—You Should Be Too’ ( Paris Hilton , 8 April 2021) < https://parishilton.com/nft/ > accessed 25 October 2021. [2] Sotheby’s, ‘Heir to the Throne: An NFT in Celebration of JAY-Z’s Reasonable Doubt 25th Anniversary by Derrick Adams’ ( Sotheby’s , 2 July 2021) < https://www.sothebys.com/en/digital-catalogues/heir-to-the-throne > accessed 25 October 2021. [3] Zack O’Malley Greenburg, ‘Artist, Icon, Billionaire: How Jay-Z Created His $1 Billion Fortune’ ( Forbes , 3 June 2010) < https://www.forbes.com/sites/zackomalleygreenburg/2019/06/03/jay-z-billionaire-worth/?sh=7bf3f7d53a5f > accessed 25 October 2021. [4] Chris Richardson, ‘Jay-Z’, 100 Entertainers Who Changed America: An Encyclopaedia of Pop Culture Luminaries (2013) 289. [5] Asondra Hunter, ‘Rockin’ On A Roc-A Fella’ ( Yahoo Music , 5 January 1999) < https://web.archive.org/web/20070609232211/http:/music.yahoo.com/read/interview/12048673 > accessed 25 October 2021. [6] A.D. Amorosi, ‘In Lawsuit Over Jay-Z NFT Auction, Damon Dash and Roc-A-Fella Dispute What’s at Stake, Beyond a ‘Reasonable Doubt’ ( Variety , 21 June 2021) < https://variety.com/2021/music/news/damon-dash-jay-z-lawsuit-rock-a-fella-records-1235001534/amp/ > accessed 25 October 2021. [7] Complaint, Roc-A-Fella Records, Inc. v. Damon Dash (Southern District of New York 2021) (No. 1:21-cv-5411) < https://fingfx.thomsonreuters.com/gfx/legaldocs/xegpbrrwwpq/IP%20JAYZ%20COPYRIGHT%20complaint.pdf >. [8] Nir Kshetri, Blockchain and Supply Chain Management (Elsevier 2021) 23. [9] Ramakrishnan Raman and Benson Edwin Raj, Enabling Blockchain Technology for Secure Networking and Communications (Adel Ben Manouer and Lamia Chaari Fourati eds, IGI Global 2021) 92. [10] ibid. [11] Samantha Hissong, ‘Kings of Leon Will Be the First Band to Release an Album as an NFT’ ( Rolling Stone , 3 March 2021) < https://www.rollingstone.com/pro/news/kings-of-leon-when-you-see-yourself-album-nft-crypto-1135192/ > accessed 28 October 2021. [12] Sam Moore, ‘Kings Of Leon have generated $2million from NFT sales of their new album’ ( NME , 12 March 2021) < https://www.nme.com/news/music/kings-of-leon-have-generated-2million-from-nft-sales-of-their-new-album-2899349 > accessed 28 October 2021. [13] ibid. [14] Kshetri (n8) 24. [15] Ethereum, ‘Non-fungible tokens (NFT)’ ( Ethereum , 6 March 2021) < https://ethereum.org/en/nft/#:~:text=NFTs%20are%20minted%20through%20smart,the%20NFT%20is%20being%20managed > accessed 29 October 2021. [16] ibid. [17] Cyberscrilla, ‘NFT Royalties: What Are They and How Do They Work?’ ( Cyberscrilla ) < https://cyberscrilla.com/nft-royalties-what-are-they-and-how-do-they-work/ > accessed 30 October 2021. [18] Christie’s, ‘ Beeple’s opus ’ (Christie’s) < https://www.christies.com/features/Monumental-collage-by-Beeple-is-first-purely-digital-artwork-NFT-to-come-to-auction-11510-7.aspx > accessed 30 October 2021. [19] Lynnae Williams, ‘The 5 Most Expensive NFTs⁠—And Why They Cost So Much’ ( MakeUseOf , 7 September 2021) < https://www.makeuseof.com/most-expensive-nfts-why-they-cost-so-much/ > accessed 30 October 2021. [20] Grace Kay and Brittany Chang, ‘A digital artist known for his satirical work is breaking sales records, making over $10 million on 2 crypto-art piece’ (Business Insider, 5 March 2021) < https://www.businessinsider.com/art-nft-beeple-blockchain-pieces-sell-for-millions-2021-3 > accessed 30 October 2021. [21] Evan Vischi, ‘The NFT resale dilemma: How can creators make sure they keep getting paid?’ ( Medium , 24 April 2021) < https://blog.tatum.io/the-nft-resale-dilemma-how-can-creators-make-sure-they-keep-getting-paid-e929c96a6599 > accessed 30 October 2021. [22] Raman and Raj (n 9) 93. [23] Cybrscrilla (n 18). [24] Maria L. Murphy, CPA, ‘NFTs come with big valuation challenges’ ( Journal of Accountancy , 16 July 2021) < https://www.journalofaccountancy.com/news/2021/jul/nft-nonfungible-token-valuation-challenges.html > accessed 30 October 21. [25] Katie Rees, ‘What Is a CryptoPunk and Why Are They Worth So Much?’ ( MakeUseOf , 26 August 2021) < https://www.makeuseof.com/what-is-a-cryptopunk-why-are-they-worth-so-much/ > accessed 30 October 2021. [26] MK Manoylov, ‘CryptoPunk owner declines a $9.5 million bid for his rare NFT’ ( The Block , 15 October 2021) < https://www.theblockcrypto.com/linked/120873/cryptopunk-owner-declines-a-9-5-million-bid-for-his-rare-nft > accessed 30 October 2021. [27] Williams (n 20). [28] ibid. [29] Dash (n 7). [30] ibid [11]. [31] ibid [B.22], [C.23]. [32] ibid. [33] ibid [B.21]. [34] ibid [6]. [35] ibid [34]-[36]. [36] ibid. [C.24]. [37] ibid. [38] ibid. [39] ibid [42]-[43]. [40] ibid [27]. [41] Blake Brittain, ‘Jay-Z label Roc-A-Fella blocks co-founder’s ‘Reasonable Doubt’ NFT auction’ ( Reuters , 23 June 2021) < https://www.reuters.com/legal/transactional/jay-z-label-roc-a-fella-blocks-co-founders-reasonable-doubt-nft-auction-2021-06-22/ > accessed 2 November 2021. [42] Memorandum of Law in Opposition of Plaintiff'sx Order to Show Cause and in Support of Defendant Damon Dash’s Motion to Disqualify Plaintiff’s Counsel, Roc-A-Fella Records, Inc., v. Damon Dash (Southern District of New York 2021) (No. 1:21-cv-5411), II.B. < https://www.thetmca.com/files/2021/07/Rockafella-v-Dash-Response.pdf >. [43] ibid [I]. [44] ibid [II.D]- [III]. [45] ibid [I-III]. [46] Stipulation and Order, Roc-A-Fella Records, Inc., v. Damon Dash (Southern District of New York 2021) (No. 1:21-cv-5411) < https://www.thetmca.com/files/2021/07/Rockafella-v-Dash-Amended-Order.pdf >. [47] ibid 1. [48] Chris Dolmetsch and Bloomberg, ‘Jay-Z’s legal dispute with Damon Dash hits the NFT space’ ( Fortune, 17 September 2021) < https://fortune.com/2021/09/16/jay-z-damon-dash-roc-a-fella-nft-lawsuit/ > accessed 5 November 2021. [49] Sotheby’s, ‘[JAY-Z]; Derrick Adams [artist]. Heir to the Throne, 2021’ ( Sotheby’s , 25 June 2021) https://www.sothebys.com/en/buy/auction/2021/jay-z-x-derrick-adams-heir-to-the-throne-an-nft/heir-to-the-throne accessed 5 November 2021. [50] Harsch Khandelwal, ‘Minting, distributing and selling NFTs must involve copyright law’ ( Coin Telegraph, 22 August 2021) < https://cointelegraph.com/news/minting-distributing-and-selling-nfts-must-involve-copyright-law > accessed 5 November 2021. [51] ibid. [52] Anny Shaw, ‘Basquiat NFT withdrawn from auction after artist’s estate intervenes’ ( The Art Newspaper , 28 April 2021) < https://www.theartnewspaper.com/2021/04/28/basquiat-nft-withdrawn-from-auction-after-artists-estate-intervenes > accessed 5 November 2021. [53] Georgina Adam, ‘But is it legal? The baffling world of NFT copyright and ownership issues’ ( The Art Newspaper , 6 April 2021) < https://www.theartnewspaper.com/2021/04/06/but-is-it-legal-the-baffling-world-of-nft-copyright-and-ownership-issues > accessed 6 November 2021. [54] ibid. [55] Margaret Taylor, ‘Digital assets: surging popularity of NFTs raises important legal questions’ ( International Bar Association , 5 August 2021) < https://www.ibanet.org/surging-popularity-of-NFTs-raises-important-legal-questions > accessed 6 November 2021. [56] ibid. [57] Securities and Exchange Commission v. W. J. Howey Co. , 328 U.S. 293 (1946). [58] ibid. [59] ibid 301. [60] ibid 299. [61] ibid. [62] 15 U.S. Code § 77a. [63] 15 U.S. Code § 78a. [64] Vicent R Molinari, Rulemaking Regarding Non-Fungible Tokens , ( Sustainable Holdings , 12 April 2021) < https://www.sec.gov/rules/petitions/2021/petn4-771.pdf > accessed 10 November 2021. [65] U.S. Securities and Exchange Commission, Framework for ‘Investment Contract’ Analysis of Digital Assets (2019) < https://www.sec.gov/corpfin/ framework-investment-contract-analysis-digital-assets#_edn1 [hereinafter, ‘the framework’ > accessed 10 November 2021. [66] Howey (n 58). [67] Complaint, Friel v. Dapper Labs, Inc., et al. , (Supreme Court of the State of New York 2021) (No. 653134/2021) < https://www.scribd.com/document/507902520/Jeeun-Friel-v-Dapper-Labs-Complaint >. [68] ibid. [69] Sophie Kiderlin, ‘The SEC’s ‘Crypto Mom’ Hester Peirce says selling fractionalized NFTs could be illegal’ ( Business Insider , 26 March 2021) < https://markets.businessinsider.com/news/currencies/sec-crypto-mom-hester-peirce-selling-nft-fragments-illegal-2021-3 > accessed 13 November 2021. [70] ibid. [71] Peter A Carfagna, Representing the Professional Athlete (3rd edn, West Academic Publishing 2018) 153. [72] ibid 156. [73] Christie’s, ‘Emily Ratajkowski (B. 1991)’ ( Christie’s , 25 April 2021) < https://www.christies.com/en/lot/lot-6317722 > accessed 15 November 2021. [74] Emily Kirkpatrick, ‘Emily Ratajkowski Is Auctioning Off an NFT Called ‘Buying Myself Back’‘ ( Vanity Fair , 23 April 2021) < https://www.vanityfair.com/style/2021/04/emily-ratajkowski-nft-buying-myself-back-richard-prince-instagram-painting-new-portraits-christies > accessed 15 November 2021. [75] ibid. [76] ibid. [77] Rachel King, ‘Emily Ratajkowski on ownership, consent, and the #FreeBritney movement’ ( Fortune , 25 June 2021) < https://fortune.com/2021/06/24/emily-ratajkowski-book-nft-social-media/ > accessed 17 November 2021. [78] Incopro, ‘Brand Protection & NFTs: Scams, Fakes & How to Mitigate Risks’ ( Incopro ) < https://www.incoproip.com/nft-fakes-scams-brand-protection/ > accessed 17 November 2021. [79] ibid. [80] Anny Shaw, ‘Banksy-Style NFTs have sold for $900,000–but are they the real deal and does it even matter?’ ( The Art Newspaper , 22 February 2021) < https://www.theartnewspaper.com/2021/02/22/banksy-style-nfts-have-sold-for-dollar900000but-are-they-the-real-deal-and-does-it-even-matter > accessed 20 November 2021. [81] Elizabeth Howcroft, ‘NFT sales surge to $10.7 bln in Q3 as crypto asset frenzy hits new highs’ ( Reuters , 5 October 2021) < https://www.reuters.com/technology/nft-sales-surge-107-bln-q3-crypto-asset-frenzy-hits-new-highs-2021-10-04/ > accessed 20 November 2021. [82] ibid. [83] Arushi Chawla, ‘NFT: Creating Buzz in Digital Ecosystem’ ( Counterpoint , 16 June 2021) < https://www.counterpointresearch.com/nft-creating-buzz-in-digital-ecosystem/ > accessed 21 November 2021. [84] ibid. [85] Jordan Lintz, ‘The Future of NFTs: Digital Entertainment At Its Finest’ ( Forbes , 19 November 2021) < https://www.forbes.com/sites/forbesbusinesscouncil/2021/11/19/the-future-of-nfts-digital-entertainment-at-its-finest/ > accessed 21 November 2021. [86] Dolmetsch and Bloomberg (n 49).

At the heart of the metaverse stands the vision of an immersive Internet—a gigantic, unified, persistent, and shared realm.[1] To the jewellery industry, it remains to be seen as to whether this enormous virtual cyberspace is a blessing, or, in fact, as curse. Fig 1. Tiffany & Co. Iris Corsage Ornament. Wikimedia Commons: Walters Art Museum. Since the expansion of the Internet in the 1990s, the cyberspace has kept evolving. We have created various computer-based environments including social networks, video conferencing, virtual 3D worlds (VR HoloLens), augmented reality applications (Pokémon Go), and Non-Fungible Token (NFT) Games (Upland). Such virtual environments have bought us various degrees of digital transformation and the term ‘metaverse’ has been coined to further reflect the digital transformation occurring in every aspect of our physical lives. For some, there is a sense of vigilance in engaging with the metaverse and are wary of the disruption it could cause for the community.[2] In the virtual world there are many examples of altruism and Samaritanism, but these come with the constant presence of players bent on distraction, disruption (or even destruction) that the digital community has to deal with. Boellstorff describes this phenomenon as the dark side of the disinhibition that many people find in virtual worlds.[3] Another aspect in this fluid nature of going between real and a virtual life, is that some people reside in more than one virtual world, sometimes as similar personalities, sometimes different. Sometimes they give up on one world and migrate to another.[4] Developments in electronic communications are drastically changing what it means to be human, interacting with other humans, and for our idea of creation.[5] Others have considered this world to have brought unprecedented opportunities for artists to blend every facet of our physical surroundings with digital creativity.[6] The value of recent technological developments for artists is more than being able to become more efficient and more productive. It is also the ability to ‘highlight and elevate humanness in new ways through art, even by appearing to replace the real with the virtual’.[7] New tools don’t simply replace humans, they allow human creators to shift into new realms of creation: creating dynamic systems and worlds instead of static products.[8] This piece will challenge such perspectives, showing that the digital and physical can simultaneously work together to maintain creative freedom in both spheres. This article will consider three different types of interactions that emerge from these digital immersive platforms in relation to the jewellery industry and explore the remarkable types of novel creations in the expanded horizons of metaverse cyberspace. Firstly, I consider the ways we can interact and experiment within this digital world. The discussion will then turn to issues of digital privacy and safety for metaverse artists and companies, bringing to light the questions around ownership of digital artworks. Then, the piece will reflect upon the origin of the metaverse itself and the effects this has on the creative freedom of artists, drawing together the material and immaterial worlds we live in. At the outset, we consider our world to be tactile, touchable, and have a physical presence. Yet is this actually the case today, and will this be so in the near future? After all, as of January 2021, there were more than 4.5 billion active internet users worldwide, and 92.6% of them accessed this digital world via mobile devices.[9] As such, there is an ever-growing overlap between our digital and physical lives, as we can socialise, create, and entertain ourselves through virtual reality (VR), augmented reality (AR), or simply through an alternate realm on-screen. Whilst terms such as ‘internet’, ‘online’, and, perhaps, ‘virtual reality’ are widely disseminated through society, what about the word ‘metaverse’? The term has become a buzzword within the last year, and, to put it simply, it is a shared three-dimensional state in virtual reality where people can interact. To enter this digital world, you have to put on a pair of augmented or virtual reality headsets, enabling you to interact and hang out with each other via avatars, just as you would in the real world.[10] What is so innovative in this computer-generated world, is that we are able to express and re-create ourselves with unparalleled creative freedom, not governed by the rules of reality. This is especially revolutionary in the jewellery space, which has already begun to intersect the physical world’s real-time, spatially oriented content with this emerging and immersive digital environment. In this context, let us first consider the ways artists can interact in this digital world. The metaverse offers the opportunity for the creation and virtual styling of digital jewellery across a variety of devices and platforms. This could be in gaming, for example, when the heritage Japanese pearl jeweller, Tasaki, collaborated with Animal Crossing to produce a collection for game avatars; to e-commerce, like Dress X’s digital accessories designed by the 3D designer Alejandro Delgado. Indeed, the metaverse has become a new space for design, as creators, artists, and consumers are able to exchange and make use of different models and creations, without any restrictions, across platforms. In this immersive world, it seems that 2021 was the year for the breakthrough of non-fungible tokens (NFTs).[11] This NFT market has surged exponentially, as a new study by NonFungible and L’Atelier BNP Paribas recorded sales reaching $17.7 billion in 2021, up from $82.5 million in 2020—a jump of more than 200 times.[12] Being able to sell NFTs within the metaverse acts as a massive incentive for digital jewellery to be produced. Some of the biggest releases of NFTs have stemmed from digital jewellery collaborations between celebrities, including Lil Pump’s ‘Esskeetit Diamond VVS’ collection. Available to purchase through the platform ‘Sweet’ in March 2021, Pump minted a total of five NFTs, each retailed for $10,000, possible to buy securely on a first-come-first-served basis.[13] The jewellery-themed sale, also, featured more affordable NFT cards at $10 each. The digital drop intended to emulate the American rapper’s physical jewellery, allowing fans and collectors to own a piece of his personal, multi-million-dollar jewellery collection in the digital world. According to Tom Mizzone, the CEO of NFT trading platform ‘Sweet’, ‘the future of rare, collectible merchandise is in the digital arena’, as evidenced by the growing interest in NFTs.[14] Some experts even consider NFTs could become the jeweller’s best friend in the near future, as it allows them to earn money via selling NFTs for digital jewellery. Asprey’s executive chairman, John Rigas, believes NFTs and jewellery are, ‘a perfect match’ as they ‘capture everything about the product, forever, when the information is part of the blockchain’, in turn bolstering the authenticity of these luxury goods.[15] As such, there are increasing deliberations across the sector regarding the technological benefits of the metaverse as designers can create captivating pieces of jewellery that draw inspiration from both the physical and digital realm. Thus, the digital world has opened the door to new types of interactions and considerations of what jewellery can be. Market experimentation within the metaverse offers solutions to some of the biggest spectres haunting the world of jewellery. The digital space offers jewellery companies a solution to two issues: the safety of transactions and devaluation of real jewellery. The security of the digital transaction in the current financial market is enabled by blockchain technology that backs digital assets, in turn, providing a tamper-proof, digital ledger of all the information on any product. This is becoming an appealing method for securing transactions as we live in an age where hacking, spyware, and digital fraud are an ever-present threat. The second aspect that metaverse assists with is devaluation of jewellery and diamonds occurring due to fluctuation on the market. Shockingly, as soon as they leave the jeweller’s shop, diamonds tend to lose value, depreciating by as much as 30-35% if they are re-sold.[16] The blockchain-based diamond marketplace, Icecap, offers a solution to this issue, developing a new way of online trading as it allows the trading of NFT tokens ‘without friction’ while the diamonds are vaulted and insured.[17] According to Icecap’s CEO, Jacques Voorhees, unlike liquid assets of gold and silver, purchasing diamonds through the online platform protects these valuable assets from the long-term problem of devaluation faced in the diamond industry.[18] Astonishingly, trading diamonds virtually, through platforms such as Icecap, allows their value to be retained, with investments retaining much more value. Prices of rare pieces, also, are more likely to preserve their investment price, such as the one-hundred-carat diamond necklace ‘Desert Wind’ which featured as part of Icecap’s inaugural line of collector-quality gems in the world’s first NFT diamond and jewellery collection, in May 2021.[19] Even Christie’s, the noted auction house, is paying close attention to the capabilities of digital assets in the metaverse. Their resident specialist Noah Davis has said, ‘blockchain is on the cusp of being integrated into every single creative industry’, alluding to the strong commercial interest attached to the evolving sphere of digital jewellery.[20] It must be recognised, however, that there are currently no laws that govern existing trademark registrations of physical goods in the metaverse. What does this all mean for traditional Intellectual Property (IP), such as trademarks and copyrights? There are some new instances, including the lawsuit that Hermès filed against the digital artist Mason Rothschild for creating, selling, and using ‘MetaBirkin’ in January 2022. The ‘MetaBirkin’ NFTs featured the Hermès Birkin handbag design, which was allegedly used without permission and in violation of its trademark rights. The luxury fashion retailer described Rothschild as ‘a digital spectator who is seeking to get rich quick’ by appropriating the brand ‘MetaBirkins’ for the exchange of digital assets NFTs.[21] Having said this, such cases have not yet been heard by courts. It may be that the disputed NFTs experience drastic fluctuations in value due to negative publicity and uncertainty over the courts’ decisions, but it is highly improbable for these cases to trigger a collapse of the general NFT market.[22] A simple reason for this is that more big-name brands are taking their first steps into the digital realm, and for these companies, the risk of their NFTs becoming the subjects of legal actions is extremely low as they own all the IP rights related to the underlying works. No doubt, IP practitioners, legal analysts and NFT traders alike will be avidly anticipating the decisions from the U.S. courts as these judgments will help determine how these online creations will interact with long-standing intellectual property rights, such as copyrights and trademarks. Thus, if a company is thinking of expanding into the metaverse, it would be worth their while to consider filing for relevant trademarks in order to have legal protection.[23] Still, there are great possibilities for the creative industries in the metaverse. Rather than a space for division, the metaverse will make jewellery appreciation and creation more accessible. Craftsmen, designers, and clients will be able to interact in a globally immersive world without the need to journey from gemmological mines, to workshops, and commercial stores. The metaverse will, also, make for better opportunities for self-expression: we will be able to communicate our individuality by designing and later re-designing jewellery to suit our current interests, interweaving inspiration from literature, art, and even our political beliefs. Indeed, for a considerable number of artists, the metaverse creates unending possibilities in the evolution of art and design. That said, preserving this digital blossoming of creativity is not always as straightforward as it first seems, as it has also become a stage for the expansion of corporate domination. One such artist providing insight and campaigning for the protection of public ownership in the digital sphere is Sebastian ErraZuriz. Blurring the boundaries between contemporary culture, art and technology , ErraZuriz has previously reworked Jeff Koons’ augmented reality (AR) sculpture in a political stance against the ‘ i mminent augmented reality (AR) corporate invasion’, which could ultimately fuel a version of the metaverse that is limited by corporate powers of intervention and business models. This piece was titled ‘Vandalized Balloon Dog’, intending to act as a direct criticism of Koons Partnership w ith Snapchat ‘which saw digital 3D versions of the artist's best-known sculptures appear in international tourists hot-spots via augmented reality’.[24] His latest project, an NFT start-up, Digital Diamonds Co., similarly intends to foster open innovation, focusing on promoting a new kind of diamond company. Each Digital Diamond is valued at the price of a real diamond using the Ethereum currency and has accommodated for changing pricing for bidding purposes. What is most interesting about Digital Diamonds Co. is the parallel drawn between real diamonds and the NFT creation. After all, diamonds are neither scarce, nor intrinsically precious, with their value a product of societal perception. In foresight, should artificial, lab-grown diamonds be considered to be of greater or equal significance and originality, in comparison to digital, artistic creations online? The nature of the metaverse also means that digital jewellery can sidestep issues of gemmological sourcing and occurrences of blood diamond mining; a desirable feature as consumers’ interest in ethically sourced diamonds is growing. In light of this, the evolving digital space offers a new-found freedom to artists from the complex gem authentication systems and control of the jewellery industry. The adoption of these immersive technologies can offer great creative freedom, without the limitations which govern our physical reality. Designers can use an unlimited array of gemstones, no longer be confined to small scale production, and can challenge the concepts of jewellery itself. Some of the largest fashion brands have begun to define their own label within this kaleidoscopic metaverse, as they, too, seek to explore it. Even the fashion house Gucci has recognised the value of the metaverse, presenting a digital display of their haute jewellery collection, ‘Hortus Deliciarum’, in 2021. The 130-piece collection is divided into four chapters, taking inspiration from the hues of an ever-changing, natural sky. Waterfalls, shooting stars, and celestial phenomena launched the first chapter’s designs, while the second section took inspiration from rose gardens. The colours of the sunset informed part three, with precious gemstones, such as opal, topaz, and garnets translating the rich twilight hues of the sky to one of nightfall. These pieces have a discordant symmetry as the jewels were placed mismatched to encapsulate the ephemerality of the sky as it passes from day to night. The fourth incorporated prides of lions, roaring their way around necklaces and earrings encrusted with gemstones. I believe that launching the jewellery collection in this way would simply not have been possible if it were in physical form: it feels as though Gucci chose to present the collection through a digital platform by also believing in the aptness of the metaverse. In a conventional display, the collection would not have had the same ambiance of enchantment, which captivated me and countless others.[25] And now, when the fine jewellery is worn for special events and red carpets, we can be reminded of its release in a digital format. As such, even the biggest names in commercial luxury are embracing the universe of possibilities that virtual jewellery creates. Keeping this in mind, the large-scale fashion brands designing luxury jewellery have not been the only ones to benefit from our ever-increasing connection with the metaverse. Independent artists are also able to blossom and collaborate with the creative aficionados driving the campaigns of high fashion. This is facilitated by the deregulated finance ecosystem (DeFi), which allows digital creators to sell and authenticate their NFTs without a field of experts deciding what is valuable, precious, or appealing. This helps designers, such as the New York based artist, Carol Civre, as DeFi applications give users more control over their money through personal wallets and trading services that cater to individuals. Civre’s digital creations can maintain space within the world of the big fashion brands, bridging the worlds of fashion, 3D art, and CGI to create an idealised ‘exaggeration of reality’.[26] The artist aims to transform, elevate, and explore the possibilities of the human body that may not be possible to explore in our physical lives.[27] Carol’s innovative ways of developing digital art were key to her success and have appealed to an extensive selection of brands, with her clientele including Chanel, Prada, and Vivienne Westwood. Her work has even been described as promoting an ‘E-Renaissance’ in Vogue Italia .[28] This digital space has facilitated collaborations between individual and large-scale enterprises to create new forms of jewellery that transgress the digital and physical world to form a united multi-experience for the consumer. Experiences can thus start in the physical world, but then extend into an infinite realm of the digital metaverse. It is surreal to think that we are already able to create and innovate in such an unhindered manner and in an alternative reality. It triggers a flurry of questions about what comes next in digital design. In the fashion industry, will there be a large-scale transformation with the new growth of opportunity for digital agencies, stylists, or collections, operating through the metaverse? While some companies will likely continue to operate only in the physical world, others that wish to can continue to exercise their duty in the creation of the new through digital design. With NFTs, blockchain gems, and the metaverse–jewellery is evolving beyond the physical bounds of reality, transitioning into a realm of pixels and colour. For these reasons, despite the continued process of jewellery designs serving both functions of being appreciated for its artistic qualities, as well as being an indicator of wealth, the industry is turning to digitisation to suit the future market and creative design. This is what sets the metaverse apart– the promise of infinite, artistic outcomes–and, in turn, the chance to transform the concept of jewellery in itself. On this premise, the fundamental concept of the metaverse is not to act as a way to supersede and out-do contemporary painterly, sculptural, or architectural practices so fundamental to our contemporary artistic practices today. Rather, it seeks to enable the blossoming of creative practices through a digital platform, in turn, preserving and connecting these two inspirational worlds. A thought to end this essay: this creative unity could, in fact, activate a radical shift as to how we can evaluate the notion of artistic freedom. Indeed, the interactions of the physical and digital world, in the jewellery, fashion, and broader cultural sphere could result in the transformative visualisations of our world around us. Danielle Jump Danielle Jump is an undergraduate student of History of Art at the University of Cambridge. She is interested in the decorative arts, jewellery, and the ways in which these art forms are reflective of contemporary culture. She hopes to pursue a career within the art industry, specialising in contemporary jewellery. [1] Lik-Hang Lee et al, 'All One Needs to Know about Metaverse: A Complete Survey on Technological Singularity, Virtual Ecosystem, and Research Agenda' (2021) 14(8) Journal of Latex Class Files < https://arxiv.org/pdf/2110.05352 > accessed 6 May 2022. [2] Daniel Schackman, ‘Review Article: Exploring the new frontiers of collaborative community’ (2009) 11(5) New Media & Society. [3] ibid. [4] ibid. [5] Gianluca Mura (ed), Metaplasticity in Virtual Worlds: Aesthetics and Semantic Concepts (IGI Global 2011). [6] Jeffrey M. Morris, ‘Humanness Elevated Through its Disappearance’ in Mura (n 5) 102. [7] ibid. [8] Microsoft Mesh (Preview) Overview’ (Docs.microsoft.com, 2022) < https://docs.microsoft.com/en-us/mesh/overview > accessed 6 May 2022. [9] Joseph Johnson, ‘Global Digital Population 2019’ (Statista, 2021) < https://www.statista.com/statistics/617136/digital-population-worldwide/ > accessed 4 May 2022. [10] John Herrman and Kellan Browning, ‘Are We In A Metaverse Yet?’ The New York Times (New York, 10 July 2021) < https://www.nytimes.com/2021/07/10/style/metaverse-virtual-worlds.html > accessed 4 May 2022. [11] A term still unfamiliar to many, the NFT is an interchangeable unit of data stored on a blockchain, a form of a digital database, that can be sold and traded. Types of NFT data units may be associated with digital files, including photos, videos, and audio. Each token is uniquely identifiable, which differs from other blockchain currencies, such as Bitcoin. These NFTs can then be ‘minted’, referring to the process of turning a digital file into a digital asset on the Ethereum cryptocurrency blockchain, and it is impossible to edit, modify, or delete it. It is similar to the way metal coins are minted and put into circulation, non-fungible tokens are also ‘minted’ after they are created to retain their value on the digital marketplace. [12] NonFungible, ‘Yearly NFT Market Report 2021’ (NonFungible, 2022) < https://nonfungible.com/reports/2021/en/yearly-nft-market-report-free > accessed 4 May 2022. [13] Minting is the process of turning a digital file into a crypto collectible or digital asset on the Ethereum Blockchain. [14] Sweet, ‘Sweet Launches Broad-Scale NFT Solution For Leading Entertainment And Consumer Brands In Partnership With Bitcoin.Com’ (2021) < https://markets.businessinsider.com/news/stocks/sweet-launches-broad-scale-nft-solution-for-leading-entertainment-and-consumer-brands-in-partnership-with-bitcoin-com-1030044246 > accessed 4 May 2022. [15] Anna Tong, ‘Can NFTs Work For Luxury Jewellery?’ Vogue Business (21 June 2021) < https://www.voguebusiness.com/technology/can-nfts-work-for-luxury-jewellery-asprey-cartier > accessed 4 May 2022. [16] Preeti Kulkarni, ‘What You Should Keep in Mind When Investing in Diamonds’ The Economic Times (Mumbai, 12 October 2015) < https://economictimes.indiatimes.com/markets/commodities/what-you-should-keep-in-mind-when-investing-in-diamonds/articleshow/49297685.cms > accessed 8 May 2022. [17] ‘Non-Fungible Token Hard Asset Diamond Investment | NFT Marketplace | Icecap’ (Icecap, 2022) < https://icecap.diamonds/ > accessed 6 May 2022. [18] ibid. [19] Jacques Voorhees, ‘The World’s First NFT Diamond & Jewellery Collection’ (Icecap, 2021) < https://storage.googleapis.com/icecap/CollectibleCerts/GD%20Icecap%20Catalogue%20April%202021.pdf > accessed 4 May 2022. [20] Tong (n 15). [21] Victor Danciu, ‘Not For Trademarks? The Truth About NFTs And IP’ (Dennemeyer, 2022) < https://www.dennemeyer.com/ip-blog/news/not-for-trademarks-the-truth-about-nfts-and-ip/ > accessed 4 May 2022. [22] ibid. [23] Philip Nulud, ‘Protecting Your Intellectual Property In The Metaverse And On NFTs’ (Lexology, 2022) < https://www.lexology.com/library/detail.aspx?g=3458d650-8351-421f-a0ee-f1d5fbcb6094 > accessed 4 May 2022. [24] Anna Codrea-Rado, ‘Virtual Vandalism: Jeff Koons’s ‘Balloon Dog’ Is Graffiti-Bombed’ The New York Times (New York, 10 October 2017) < https://www.nytimes.com/2017/10/10/arts/design/augmented-reality-jeff-koons.html > accessed 4 May 2022. [25] Sarah Royce-Greensill, ‘Gucci’s New High Jewellery Collection Is Worthy Of A Fantastical Fairy Princess - Or Prince’ The Telegraph (London, 21 June 2021) < https://www.telegraph.co.uk/luxury/jewellery/guccis-new-high-jewellery-collection-worthy-fantastical-fairy/ > accessed 4 May 2022. [26] Claudia Luque, ‘Review Of Carol Civre: An Extension Of Reality’ Metal Magazine (2020) < https://metalmagazine.eu/en/post/interview/carol-civre > accessed 4 May 2022. [27] ibid. [28] Rujana Cantoni, ‘RENAISSANC-E’ Vogue Italia (Milian, 17 July 2021) < https://www.vogue.it/fotografia/article/renaissanc-e-by-rujana-cantoni-7-3d-artists > accessed 4 May 2022.

Mariya Ionova wears many hats. She is a Member of the Parliament of Ukraine, holds a bachelor’s degree in Finance and Credit and a master’s in Global Business and International Economy, is a wife and mother of two children – and above all, is a fierce Ukrainian patriot. Over her eight-year tenure in Parliament, she has collaborated with others in government to secure Ukraine’s integration with Europe and to assist Ukrainians impacted by the ongoing Russian war. Since 2014, when Russia annexed the Crimean Peninsula and launched a hybrid campaign in the Donetsk and Luhansk regions of Eastern Ukraine, she has regularly visited the contact line to deliver aid and support to internally displaced Ukrainians. In addition, she is advancing legislation to promote women’s rights, to prevent and combat domestic violence and the protection of children. On 15 April 2022—52 days after Russia’s invasion of Ukraine on 24 February 2022—we spoke to Ionova about her priorities as an elected official in wartime, her view of the West’s response to Russia’s war on Ukraine, and her predictions for how the war will end. This interview was lightly edited for length and clarity. Fig 1. Mariya Ionova 2022 © Mariya Ionova. CJLPA : When you were elected to be a member of Ukraine’s Parliament, the Verkhovna Rada, did you ever imagine you would be serving your country during a time of war? Mariya Ionova : Yes and no. I was first elected in 2012, and I was very active in questions of European integration during the Revolution of Dignity and Euromaidan].[1] The war for us started in March 2014 when Russia annexed Crimea and occupied Luhansk and Donetsk. The West did not want to escalate the war by putting boots on the ground. We had been fighting for six months and we were asking for sanctions. Russians were killing our people; I remember when President Petro Poroshenko [elected after Viktor Yanukovych’s removal] was working 24/7 on creating an international coalition and asked for a UN peacekeeping mission. He also worked on strengthening our Armed Forces together with our partners, and signed association agreements: legislative agreements to put the European Union and NATO integration into our constitution. This was a strategic course in his presidency. Because of this, when Russia invaded Ukraine again on 24 February of this year, we did not falter. Our armed forces, Ukrainian people, government, and Parliament work in solidarity, and we are brave. After that, we visited the front lines in Eastern Ukraine and meet regularly with IDPs [internally displaced persons] to provide humanitarian assistance. On 24 February, we were expecting war. But we did not expect such horror, such inhumanity, such cruelty, that there would be such crimes against women and children, girls and boys. Pure brutality. You can’t find the words when you see a seven-year-old boy watching his mother get raped and dying. Today, my colleagues and I are not only Members of Parliament, but we’re also volunteers in our communities. We are people who love our nation, our country, we love our people. And we are full of rage at the same time. We will not be OK until this settles in the courts. We need justice. We are working on the diplomatic front, on humanitarian aid and securing weapons for our military. Fig 2. In the town of Avdiivka, (left to right) Iryna Geraschenko (MP), Rebecca Harms (MEP) and Mariya Ionova (MP) 2022 © Mariya Ionova. CJLPA : Without sharing any details that might put you or your loved ones at risk, what steps have you taken to protect your safety and the safety of your family? MI : On 23 February I was in Parliament, and I felt it was wrong that my family was at home in Kyiv. I really couldn’t function at work from worry. So, in the evening, I called Myron [husband Myron Wasylyk, a Ukrainian-American advisor to the CEO of Naftogaz of Ukraine] and said ‘please be ready in one hour, we’re leaving for Western Ukraine’. When we arrived at five in the morning in Lviv the day after, the bombing started in Kyiv. My mom and aunt also arrived two days later, and then I went back to Kyiv while my family stayed in Lviv, and then to the Ukrainian/Hungarian border. I am worried about my mother; she has cancer and now must look after my children while my husband and I fight for Ukraine. Since then, I’ve been travelling to Zaporizhzhia, Dnipro, Ivano-Frankivsk. We are donating humanitarian aid from the USA and Canada. In our party [European Solidarity], we have a network of women that I work with closely: Jana Zinkevych, Sophia Fedyna, Nina Yuzhanina, Tac, Viktoriya Sumar, Iryna Gerashchenko, Ivanna Klympush-Tsintsadze, and Iryna Friz . They are all strong, intelligent, and brave women. I’m so proud of these women, but it’s also heart-breaking what they’re doing. Iryna Friz, the first Minister of Veterans in Ukraine, in the past 53 days of the war, has sourced 328+ tonnes of humanitarian aid for Ukraine, including bulletproof vests. I don’t think about my security. I have my responsibilities and I must do them. There is no safe place in Ukraine. Today in Lviv, seven people including a small child were already killed and 15 badly wounded. My father and my brothers are in Kyiv, they are volunteers in different places. The men are trying to do what they can. CJLPA : As a Parliamentarian, in a time of war, with the country under martial law, what are the most important actions the Parliament is and should be taking right now? MI : Now our priorities are hostages and civilian hostages. There are more than 1,000 civilian hostages, and 500 of those are women, including local representatives, journalists, and civil activists. The conditions for them are not, shall we say, according to the Geneva Convention. They need medical attention. On this list of hostages is paramedic Yulia “Tayra” Payevska—her daughter Anna-Sofia Puzanova won a bronze medal at the Invictus Games. Yulia was working as a paramedic in Mariupol from the first days, and the Russians kidnapped her. We must highlight her name. They’ve made up stories about her. It’s just terrible. We also have a list of 40 children who were kidnapped and taken to Russia, most of them from Mariupol. We know the exact address of where they are in Russia. But these children have relatives in Ukraine. One boy, Ilya, his mother was killed in Mariupol, but his grandmother is in Uzhhorod. Another boy, Maksym, 15, is an orphan who was studying in college in Mariupol and was wounded. He also has relatives in Ukraine. Another girl, 12-year-old Kira Obedinksy, her father Yevhen Obedinksy was the former captain of the Ukrainian men’s water polo team, and he was killed in Mariupol. She’s been taken to Donetsk, and they want to give her to a Russian family, but Kira has a grandfather in Ukraine. Each has a personal story. As mothers we all can imagine our own children in these stories. This problem has to be named: Russia is a country that is kidnapping children. Fig 3. Near Mariupol in Shirokino, 809 metres from an enemy fire point. Members of Ukrainian Parliament (left to right) Ivanna Klympush-Tsintsadze, Iryna Geraschenko, Mariya Ionova, with Ukrainian soldiers 2022 © Mariya Ionova. CJLPA : We have heard reports from Ukraine’s government and the media about atrocities being committed against Ukraine’s people—executions, rape, abductions. What can you tell us about the situation on the ground that Ukraine’s allies may not be aware of? MI : The list of 40 children represents those where we have the exact address where they are being held, where we have a complete history and detailed information. But there are many, many more cases where we don’t yet have all the details. Especially in occupied territories, to which of course we don’t have access. All we have on those cases is information that the Ministry of Defence is collecting, and that which the Ombudswoman on Human Rights gets on their phone hotline [about missing or kidnapped individuals]. There are over 4,000 criminal cases that are open but, unfortunately, we don’t have the volume of legal professionals to prosecute them all. There are still bodies that have still not been identified after 50 days of war. Where there is rape of women and children, 99 percent of these victims are not ready to speak to law enforcement institutions, they are afraid to speak now. And that’s also a problem. But we are asking our international partners for assistance. There has also been evidence that people are dying of starvation and dehydration. In Mariupol, in Bucha, there are elderly people who have been blocked in their houses for weeks. In Bucha, they were finding that [Russian troops] killed families, five bodies in a yard. In all, thousands killed. We have to get all this documented and get this to the International Court, and it has to be punished. That’s why we are calling this a genocide. Fig 4. Members of Ukrainian Parliament Mariya Ionova and Iryna Geraschenko in front of a bombed building 2022 © Mariya Ionova. CJLPA : How would you rate the response from the international community so far to these atrocities? MI : All the European countries and America were teaching us about democratic values [before Russia’s latest invasion]. Now it’s their turn to show us how they defend those values. It is the responsibility of the free world. If they will not help us, he [Putin] will not stop. He has 150 million people. He doesn’t care how many Russian people will be killed. And he will go further. There are no red lines for him. The free world was not ready to defend their values. They didn’t have a strategy. Our strategy is that Russia must be defeated, Putin must be punished. He is a war criminal. The Western community is not ready for this. For us, there is no grey, only black and white. We are paying with our lives. That is why we are demanding weapons to defend ourselves. So, we say, ok, if you won’t give us a no-fly zone, at least give us military equipment. The problem is all these countries waited to give us assistance. They were sure we would fail. That is why they didn’t have a strategy of support for us. When we showed the whole world that we fight, when we showed our resistance, we understood that they don’t have a strategy on Russia. They would like to trade with Russia as business as usual. And we also heard realpolitik. Now realpolitik is the whole world watching online how we have been raped and tortured and killed. CJLPA : How should the world be supporting Ukraine? MI : Our humanitarian request is weapons. We don’t need masks, soap, food when we are under shelling, under bombardment. We need weapons. And sanctions. There are 330 Russian banks. Do you know how many were turned off from SWIFT? Six. Now after Bucha they increased, but not 330. They find loopholes. Why didn’t they sanction sooner? What about Russian information sources? Why are we not expelling Russian diplomats? At least half of them? And we still have discussions in the United Nations, to be or not to be. He [Putin] uses this weakness. He’s inspired by this weakness. I understand democratic procedures, but he is going crazy. He’s killing and attacking every day. Where is international order? Where are international rules? Why are we five steps behind? Why is he making the rules, setting the agenda? Why not strong democratic countries? What are you waiting for? CJLPA : Do you believe Ukraine will win this war against Russia? MI : We have already won. By spirit, by unity in our country. By being a brave nation. We will not fail. The alternative is we will be killed. We will not give up. This is why we’ve already won. We hear [Russia’s] is the second biggest army in the world, and our army has shown that when you have spirit and love and value freedom, you will fight. It’s a historical chance for all the world. We have repeated this historical circle for centuries. We need to get other nations to help prevent this and this criminal Putin, and that’s why we’re asking other countries that he needs to be completely isolated from the free world. And if the free world wants to do this, it’s their choice. But we will not give up. There is no alternative for us. What he’s doing to Mariupol, he will do with the whole of Ukraine. He wants to erase us from the whole world—our genes, our language, our land, our history. World—are you ready to respond? Fig 5. In Verkhovna Rada (Ukraine’s Parliament) Members of Ukrainian Parliament Mariya Ionova, Iryna Friz, Iryna Geraschenko, and Ivanna Klympush-Tsintsadze 2021 © Mariya Ionova. CJLPA : What else do you think Western audiences need to know about Ukraine? MI : The whole set of war crimes that are being committed in Ukraine now. We are not blaming the world. We are not making accusations. Everyone makes their choice. But if we all together share the same values and principles, then all together we need not only words, but also actions. We must be united and fight. We are committed to this fight because we don’t see another way. To be under the Russian Federation? No way! In Donetsk and Luhansk, Putin thought those were his people, but people were saying, no, we want to be here in Ukraine. You see, in Kherson, Putin failed. Ukraine is in favour of being our own country. We are a European, Atlantic country, in the European family. But if European countries share such values, they need to step up. We will do it ourselves if we need to, but the casualties will be huge. It’s a question of security for the whole world. We are protecting the European Eastern border with our lives. We appreciate that all the world is standing with Ukrainians. But words are not enough. We appreciate words, but we need action. We are fighting for the world. Russia’s war is against NATO also, it is against democracy. The best security guarantee is NATO membership. In this regard, I would like to take this opportunity and wholeheartedly thank the British people and the British government for their clear position on supporting Ukraine…and this position is becoming strong and stronger. Together we will prevail and of course Ukraine will win! This interview was conducted by Yevdokia Sokil and Constance Uzwyshyn. Constance 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. [1] Protests over then-President Volodymyr Yanukovich’s decision not to proceed with European Union integration in favour of closer ties with Russia, that resulted in his removal in 2014.

There exists a fine line that sociologists—and all social scientists—must tread as they try to knit together empirical, objective[1] evidence and participants’ subjective realities. It is not an either/or situation. It is not a very easy path to walk down. But it must be done—not only by sociologists, but by all of us. I argue that working out how to value both objective and subjective realities is a central step we must take if we are to move towards a more compassionate society. And a step that we must not leave to junior researchers or postgraduate students to take, but which must be emphasised to undergraduates as they begin their research. To illustrate how I came to this understanding, I think it is instructive to consider one of my own research experiences. When interviewing a research participant on Zoom a few weeks ago, I found myself particularly struck by something this participant said. Whilst I cannot say exactly what this comment was (the research project is ongoing), I was bewildered at the way a young woman, whose candour and generosity I admired and appreciated, seemed to be denying an aspect of the inequalities prevalent in university life. She denied something I believed I knew to be true. I found myself thinking ‘but that’s a myth’ so ‘you’re wrong’, ‘you’ve been duped’, ‘you’re misinformed’. I even fleetingly considered that my interviewee was under a form of ‘false consciousness’, the sociological equivalent to ‘you’re wrong and I’m right—but you can’t see it’. It is in order to avoid instances like this in the future, instances where the power dynamics between interviewee and interviewer are at risk of sullying the integrity of the research, that I propose a route towards a more compassionate sociology, one that remains both critical and empowering. Fortunately, however, I recalled that the growing refrain within the discipline of sociology is ‘reflexivity, reflexivity, reflexivity’. Reflexivity means being alert to and examining your own assumptions, views, and social location within structures and relations of power; it is central to good sociological research. This incident raised the question of how I should represent this participant’s views in my work. I considered the option of turning to the corpus of sociological work demonstrating why she is wrong and, in the process, take away her autonomy and devalue her views. Or, I could take her own perspective at face value, ignoring the empirical evidence to the contrary. The truth is that neither option is adequate. Instead, we must all seek to value objective and subjective realities simultaneously . Only then can we completely fulfil the requirement to be reflexive and, in turn, become more compassionate sociologists and, beyond that, citizens. Unable to detail this specific incident, I want to illustrate what I mean by applying this idea—of valuing both the objective and subjective simultaneously —to the mythological status of meritocracy. Meritocracy refers to the idea that intelligence and effort, rather than ascriptive traits, determine individuals’ social position and trajectory. I had previously believed meritocracy to be a ‘myth’ in the UK. Drawing on David Bidney’s definition of myth,[2] when referring to meritocracy as a myth, I mean that meritocracy is an idea or concept that is frequently discussed and often believed but, in reality, it is false because it has been shown to be incompatible with scientific and empirical evidence. Thinking about whether meritocracy is a myth is particularly pertinent in the context of COVID-19. With murmurs of ‘life after COVID-19’ and ‘a return to normal’, forms of government relief like eviction moratoriums and furlough schemes have been wound down or withdrawn completely. As these expanded safety nets are dismantled, it is likely that we will return to a government discourse of ‘meritocracy’ that positions the privileged as deserving of their dominance and wealth on the basis of ‘merit’, whilst the dominated and marginalised are rendered responsible for their own hardship because they are neither sufficiently talented nor conscientious. However, given that the fatal impacts of COVID-19 have exposed the persisting fault lines of structural inequality, with mounting death tolls, lockdown restrictions, and concomitant economic shocks disproportionately affecting the marginalised and dominated in society, particularly the working class and people of colour (many of whom are working-class), it raises the question of whether meritocracy was and is a myth. The meritocratic discourse: level playing fields and worthy winners Meritocracy, as popularised by Michael Young in 1958,[3] refers to the idea that ‘IQ+effort’, rather than ascriptive traits (such as class, race, gender, sexuality, or nationality), determine individuals’ social position and trajectory. The term has transformed from being a negative slur, as argued by Michael Young and Alan Fox, to a positive axiom of modern life.[4] Jo Littler argues this positive evaluation characterises contemporary neoliberal inflections of meritocracy that justify inequalities (conferring meritocratic legitimation) and which are underpinned by individualism and the linear, hierarchical ‘ladder of opportunity’.[5] The current prime minister’s narrative of ‘Levelling Up’ shows meritocratic discourse in action. It is largely a continuation of the rhetoric Boris Johnson deployed as Mayor of London, when he famously ‘hailed the Olympics for embodying the “Conservative lesson of life” that hard work leads to reward’—the effort part of the ‘IQ+effort’ meritocratic formula.[6] Perhaps most revealing of this meritocratic discourse is Johnson’s effusive article titled: ‘We should be humbly thanking the super-rich, not bashing them’.[7] In this article, he argued the super-rich deserve their wealth (meritocratic legitimation) on the basis of their ‘merit’, that is, their exceptional levels of intelligence, talent, and effort. Thus, he adopts a trope of meritocratic legitimation to justify the gross inequalities between the super-rich and the poor. The implication is that those at the bottom of the social ladder are to blame for their own position. Fellow Etonian, David Cameron, matches Johnson’s meritocratic rhetoric. Cameron’s ‘Aspiration Nation’ discourse similarly assumes all progressive movement must happen upwards, thereby positioning working-class culture as ‘abject zones and lives to flee from’.[8] This is epitomised by Cameron’s moralised binary opposition of ‘skiver’/ ‘striver’. The rhetorical construction of these social types denies structural (dis)advantage by ‘responsibilising’ solutions to inequality as an individual’s ‘ moral meritocratic task’.[9] Thus, meritocracy assumes a ‘level playing-field’ or ‘equality of opportunity’, whilst presenting a moralising discourse that blames or applauds individuals for their social position and erases the persistence of structural inequality. Meritocracy as myth: the following wind of privilege makes for an uneven playing field If meritocracy was regularly being touted by politicians, why, then, did I consider it to be a myth? To answer this question, we must consider how past and recent scholarship places meritocracy firmly in the realm of myth by showing it to be incompatible with scientific and empirical evidence. I limit my analysis here to class, despite literature on intersectionality showing that class does not exist apart from other axes of oppression. This focus reflects the long-standing British political obsession with class mobility and that literature on meritocracy has traditionally centred on class inequalities, whereby meritocracy is framed as achievement irrespective of material circumstances, for which class is perhaps the most pertinent lens. My sociological training at undergraduate level has instilled in me that meritocracy as an operational social system—where ‘IQ+effort’ is the basis of reward and resource allocation in society—is a myth. In traditional class analyses, such as that by Richard Breen and John Goldthorpe,[10] meritocracy is operationalised in terms of employment relations, analysing the relationship between class origins and destinations—coded by occupation—as illustrative of social mobility. Breen and Goldthorpe found that, in Britain, ‘merit’—measured as ability, effort, and/or educational attainment—does little to mediate the association between class origin and destination.[11] In other words, in order to enter similarly desirable class positions, children of less-advantaged origins need to show substantially more ‘merit’ than their privileged-origin counterparts. Meanwhile, the culturalist approach to class analysis, which emerged in direct response to the deficiencies of traditional class analysis, tells a similar story. A new generation of class theorists, notably Mike Savage and colleagues[12] alongside Sam Friedman and Daniel Laurison,[13] criticised traditional class analysis’ narrow focus on occupational divisions in class reproduction to the exclusion of cultural processes and markers of inequality. The culturalist approach operationalises a Bourdieusian framework for understanding inequalities. As economic capital was seen as just one aspect of class reproduction, focus shifted to social capital and, especially, cultural capital which exists in three forms: objectified (cultural products, such as book or works of art); institutionalised (educational credentials), and embodied (enduring dispositions of mind and body, such as mannerisms, preferences, language). In particular, embodied cultural capital can illuminate how often ‘IQ+effort’ is not recognised as ‘merit’. Rather, ‘merit’ is read off the body through the ways individuals ‘ perform merit’: for instance, in mannerisms, language, accent, dress, and tastes. Possession of embodied cultural capital is structured by what Bourdieu refers to as the ‘habitus’: the set of pre-reflexive, pre-discursive dispositions an individual embodies, conditioned by their social position or ‘conditions of existence’ (proximity to material necessity). In this way, one’s habitus is classed. The ‘structure’ of the habitus generates ‘structuring’ dispositions, relating to a particular mode of perceiving, inhabiting, and knowing the social world, rooted ‘in’ the body, including posture, gesture, and taste – embodied cultural capital.[14] Sam Friedman and Daniel Laurison, following this culturalist approach, move beyond the traditional class analysis assumption that mobility finishes at the point of occupational entry. Instead, they view equitable access to the highest echelons of elite professions (such as law, medicine, engineering, journalism, and TV-broadcasting) as crucial to the actualisation of meritocracy: it is not just about who gets in, but who gets to the top. They interrogate inequalities in elite professions, finding that the probability of someone from upper-middle-class origins landing an elite job to be 6.5 times that of their counterpart from working-class origins.[15]They argue that differences in educational credentials cannot fully explain the stubborn links between class origins and destinations. Whilst there are class disparities in levels of education, the percentage of people with a degree or higher obtaining ‘top’ jobs is 27% for people of working-class origin and 39% for people of privileged origin.[16] These disparities reveal that even if people from working-class origins possess the credentials meritocratic discourse presents as necessary (‘IQ+effort’), class hierarchy within elite professions persists. Friedman and Laurison contend that cultural processes are the cause of these inequalities, thereby exposing the limits of Goldthorpe’s more economics-based approach. They argue that what is routinely categorised and recognised as ‘merit’ in elite occupations is ‘actually impossible to separate from the “following wind of privilege.”’[17] Rather than ensuring a level playing field, the assessment of ‘merit’ is based on arbitrary, classed criteria. For example, recognition of ‘merit’ depends on ‘polish’ in accountancy and ‘studied informality’ in television, both of which ‘pivot on a package of expectations—relating to dress, accent, taste, language and etiquette—that are strongly associated with or cultivated via a privileged upbringing’.[18] That is to say, in Bourdieu’s terms, performance of ‘merit’ requires a certain privileged habitus. This enables the already privileged to ‘cash in’ their ‘merit’ in a way that is unavailable to the working-class who, due to their class origins, do not possess the requisite cultural repertoire – embodied cultural capital, possession of which is structured by the habitus. The existence and differentiation of an inflexible and durable habitus thus means any universal, objective set of criteria that constitutes ‘merit’ is an impossibility as is the notion that anyone can possess this ‘merit’. Moreover, a privileged habitus is favoured through a process of ‘cultural-matching’ whereby a ‘fit’ between employer and employee is sought.[19] ‘Fit’ is based on relationships forged on cultural affinity which, due to the habitus, usually map onto shared class origins. Since those in senior positions are overwhelmingly from privileged backgrounds, cultural-matching enables the upper-middle classes to advance at the expense of the working-class. The process of cultural-matching becomes self-perpetuating. Yet, as it is couched in veiled meritocratic management jargon, such as ‘talent-mapping’, cultural-matching operates under the radar.[20] These homophilic bonds enable the privileged to ‘cash in’ their ‘merit’ in a way that is unavailable to the working-class who possess a habitus inscribed by proximity to necessity and thus lacking the required embodied cultural capital, producing experiences of ‘lack of fit’.[21] Whilst Friedman and Laurison do not explicitly make this connection, I follow Vandebroeck in seeing this ‘lack of fit’ as the corollary of how every habitus ‘seeks to create the conditions of its fulfilment’, meaning ‘that every habitus will seek to avoid those conditions in which it systematically finds itself questioned, problematised, stigmatised and devalued’.[22] For those of working-class origin, the resultant poor ‘fit’ leads to an ostensibly elective ‘self-elimination’ from elite occupations.[23] This ensures limited mobility between origins and destinations and suggests that something other than the meritocratic formula ‘IQ+effort’ is operating as the selection mechanism in elite professions . In other words, there is no point talking about a level playing-field when the wind is blowing so strongly in one direction. Meritocracy thus appears as a myth on the level of empirical, structural reality. Whilst academic research thus evidences the mythical status of meritocracy as an empirical reality, the state of affairs in politics and the media also encourage similar conclusions. Whilst only 6.5% of the general population attends fee-paying schools, 54% of Johnson’s cabinet were privately educated (as of July 2019). The equivalent number for May’s 2016 cabinet was 30%; Cameron’s 2015 cabinet was 50%; the coalition 2010 cabinet was 62%. Even in Labour cabinets the privately educated were overrepresented: 32% in both Brown’s 2007 and Blair’s 1997 cabinet.[24] Similarly, a 2019 Ofcom report found that television workers were twice as likely than the average Briton to have attended private schools.[25] The Panic! 2015 survey also found that, of those in film, television, and radio, only 12.4% have working-class origins, compared to 38% of the general population.[26] All of this evidence seems to point to an undeniable status of meritocracy as myth. A belief in a myth?: ‘the playing-field looks fine to me’ These academic findings and research statistics, published in peer-reviewed journals and fact-checked news outlets, are considered reliable, valid, and largely unambiguous. Yet significant swathes of the population continue to believe in meritocracy. Only 14% of respondents to the 2009 British Social Attitudes survey regarded family wealth as important to getting ahead and only 8% saw ethnicity as a decisive factor—a fall from 21% and 16% in 1987. Meanwhile, 84% and 71% believed ‘hard work’ and ‘ambition’ were important to getting ahead. This high level of belief in meritocracy may have even increased in recent years. In 2018, Jonathan Mijs found that the recent rise of income inequality has been accompanied by an increase in popular belief in meritocracy internationally.[27] If meritocracy is believed on a significant scale, how can such beliefs be sustained despite contradictory evidence? It is especially important to ask the question of why those who appear to lose out, precisely because meritocracy is nothing more than a guise for persisting class prejudices, are persuaded by the idea that meritocracy is a true functioning system of reward and resource allocation in our society. Elites have obvious stakes in believing and perpetuating belief in meritocracy if it works to justify their power as deserved and legitimate on the basis of intelligence, talent, and effort. Therefore, I will focus on the so-called losers of meritocracy, or ‘skivers’ in Cameron’s classist parlance. In order to move towards a more compassionate sociology, it is insufficient simply to look at whether or not meritocracy exists, or how far ingrained prejudices prevent it from being realised. Rather, we also need to take into account the subjective responses to meritocracy of those we study. Failing to consider simultaneously the objective and subjective realities of meritocracy means we risk seeing those who believe in it as cultural dupes in a state of ignorance and delusion. Whilst this kind of disempowering analysis can be seen in some sociological writings,[28] there is nevertheless a body of scholars whose work actively seeks to contest and move beyond this. The work of Wendy Bottero on social inequalities and of Lauren Berlant on her concepts of ‘cruel optimism’ has shaped my thinking on this and both are discussed briefly below.[29] Robbie Duschinsky and colleagues also provide a way through these thorny issues when discussing the psychiatric concept of ‘flat affect’. They argue against the totalising resistance/compliance binary in the social sciences and humanities that is ‘too quick to divide actions into compliance with or resistance to power’.[30] They contend that this binary obscures the many strategies individuals engage in to negotiate ‘compromised, valuable freedom’ in conditions not of their own choosing. Whilst this scholarship is crucial, students—particularly undergraduates—have to seek out this work as it is not part of most compulsory syllabi. Even in optional modules and papers, it is often only touched on briefly and indirectly in discussions of researcher reflexivity. Meanwhile, the objective and ‘scientific’ nature of social sciences seem to be a crucial lynchpin around which all undergraduate learning turns. Alternatively, the student has to be lucky enough to have a supervisor that will guide them in this direction. I believe research would become not only more nuanced, but more compassionate, if scholarship like that of Bottero, Berlant, and Duschinsky, and the notion of valuing objective and subjective realities simultaneously, became a staple of undergraduate sociology courses. More than this, it would help us become more compassionate people outside of the classroom and lecture hall too. Favouring objective, empirical evidence, which points to the nonexistence of meritocracy, over subjective feeling and meaning-making means failing to consider the seduction and benefit of meritocratic belief in providing meaning and order to one’s life. Christopher Paul overcomes this problem, recognising that meritocratic belief is ‘understood as a great liberator, freeing citizens from an aristocratic past based on inheritance and lineage’.[31] Given this historical reference point, meritocracy is consented to as it seems ‘fair’ and ‘just’. However, because meritocracy structurally disadvantages the dominated (working-classes), such belief can be characterised as a ‘cruel optimism’. Lauren Berlant conceptualises ‘cruel optimism’ as the affective state produced under neoliberalism which encourages optimistic attachments to a brighter, better future, whilst these same attachments and beliefs are simultaneously ‘an obstacle to our flourishing’.[32] In other words, meritocratic belief can provide a sense of hope which is difficult to argue with.[33] Berlant recognises this process of meaning-making through belief, arguing that hope can bind together a chaotic neoliberal world ‘into a space made liveable…even if that hope never materialises’,[34] just as hope for meritocracy as a structural reality may never materialise. A myth as fact? On the one hand, we have seen that empirical evidence suggests that the recognition and categorisation of ‘merit’ is based more on possession of classed embodied cultural capital than on ‘IQ+effort’; meritocracy as an objective social system is a myth. On the other hand, belief in the meritocratic formula at a subjective level is clearly not mythical, but a strong ideological force in British society. The existence of belief in the meritocratic formula at a subjective level means we cannot label meritocracy ‘just a myth’ and proceed with our analysis heedlessly. As David Bidney recognised as early as 1950, ‘the very fact of belief implies that subjectively, that is, for the believer, the object of belief is not mythological’, but ‘an effective element of culture’.[35] Ultimately, if people find meaning and sense in a meritocratic idiom, acting on the basis of meritocratic belief, sociologists must be cautious in imposing alternative categorisations and identifications in the teeth of lay peoples’ denials. This is exactly what almost occurred when I was interviewing a research participant a few weeks ago. Thus, meritocracy is a myth at an objective level, but also exists as ideology, meaning subjective belief in this ideology is far from a myth in British society. Because believed true, meritocracy is not a myth to those who believe it, but a myth only to those who know and believe it to be false. This brings us to the problem of why, so long as some people believe in meritocracy, it is impossible to unproblematically label it as a myth despite research suggesting meritocracy has no empirical reality. I draw here on conceptualisations of ideology. Since meritocracy comprises a system of beliefs constituting a general worldview that works to uphold particular power dynamics between the dominant (presented as the deserving ‘winners’ of meritocracy) and the dominated (presented as unmeritocratic and undeserving), it operates as an ideology.[36] Michael Freeden extends this view, defining ideology as ‘particular patterned clusters and configurations’ of decontested ‘political concepts’ not external to but existing within the world.[37] This is helpful for two reasons. Firstly, the notion that ideology exists within the world highlights how ideologies have material effects: if believed, they influence how we act and behave, as seen in processes of ‘self-elimination’ (whereby individuals from marginalised or dominated backgrounds do not enter elite jobs, not because they lack ambition or aspiration, but as a reaction to or an anticipation of the kinds of barriers they will face there).[38] Moreover, belief in meritocracy—that we had lost our meritocratic way and needed to recapture it—is, David Goodhart argues, at the heart of the contemporary anti-elitist, populist challenge.[39] This belief in meritocracy was an underlying part of both Trump’s and Brexit’s appeal, political changes that re-organised and shaped the world in which all must participate. Therefore, even if meritocracy is a structural mirage, belief in it as ideology still has material, real-world effects. Sociologists, then, seem to have an additional task. It can no longer suffice to evidence the absence of meritocracy as a functioning social system in society. That is to dismiss it as a myth and to overlook these real-world effects. Instead, sociologists need to grapple with the more complex and less neatly categorised implications of the persistent belief in meritocracy, even by those it disadvantages. I agree with Stuart Hall, one of the founding figures of British Cultural Studies, that ideology ‘concerns the ways in which ideas of different kinds grip the minds of the masses and thereby become “a material force”’[40] and I suggest that scholars who dismiss meritocracy as myth fall prey to the mistaken traditional philosophical distinction between thought and action, isolating them in separate, impermeable spheres with potentially deleterious consequences. Secondly, in Freeden’s theory of ideology, we are presented with the notion that there is no ‘absolute truth’ since all concepts are ‘essentially contestable’, with as many potential meanings of concepts and ideas as there are human minds.[41] Whilst this is a rather extreme and destabilising stance, it highlights how belief is subjective, contextualised, and personalised, meaning meritocracy cannot be completely and unequivocally tarred with the brush of mythology. These two points—that meritocratic belief has real-world effects and meritocratic belief as subjective reality—highlight why, so long as some people believe in it, meritocracy cannot merely be a myth . Bottero argues that ‘the asymmetrical distribution of resources tends to worry sociologists more than it worries lay actors’, suggesting that ‘discussion of such issues must draw on the language of perceived injustice and conflict which emerges from people themselves’.[42] However, the language of injustice and conflict does not always and for everyone refer to meritocracy. Rather, meritocracy is instead often spoken of in terms of legitimate inequality. Towards a more compassionate sociology – and beyond? We cannot deny that sociology (and social sciences more broadly) is and should remain an empirical discipline, but nor can we deny that an approach which puts greater emphasis on lay actors’ own beliefs and consequent action is also within sociology’s remit. Indeed, an important tenet of sociological training is the ‘Thomas Theorem’ : ‘If [people] define their situations as real, they are real in their consequences’.[43] This is a tenet that seems to be offered to students and young researchers only after their undergraduate studies, and even then it is not always followed. Instead, this tenet should become crucial to any undergraduate sociological training. Sociologists and other social scientists must continue to analyse and expose how power is operating and so cannot take people’s own perspectives at face value since they may potentially ‘misrecognise’ the power inequalities experienced. Yet social scientists must also avoid, as Berlant puts it, ‘shit[ting] on people who hold to a dream’.[44] What I have been arguing for here is a sociology that avoids this by making the distinction between the objective, empirical myth of meritocracy as a social structural system (based on the ‘IQ+effort’ formula), and belief in meritocracy as a subjective reality which is not a myth because it has real-world effects on and meanings for people’s lives. Consequently, meritocratic belief becomes a material force that can only be confined to the mythological sphere at the price of a limited understanding of the real-world effects it has . That is, meritocracy may be a myth to some, including many sociologists, but it is an integral cultural element for many. This two-pronged argument that calls for encompassing objective and subjective realities simultaneously extends beyond the issue of meritocracy. For example, it can help us understand why women—not just men—believe that gender equality has been achieved. It can help us understand why people hold onto conspiracy theories. It can help us understand why people in urban, developed cities practice witchcraft or spend hours logging sightings of UFOs, to name just a few. Reflecting on this conclusion is crucial given social sciences’ (like sociology, law, and politics) tendency to focus on empirical reality, rather than subjective belief. Without the latter, simple conclusions that meritocracy is merely a myth or that my research participant was merely suffering from ‘false consciousness’ risk alienating and dismissing the existence of many whose lives take meaning and action from such beliefs. What this essay ultimately aims to do, therefore, is to caution social scientists, particularly undergraduate students, in their analysis and exposure of objective reality, to not dismiss point-blank individuals’ subjective reality. Whilst researchers must always be awake to power dynamics that may go unnoticed by the individuals they study, this essay suggests sociology (and other social sciences) perhaps needs to be more reflexive, aware that its claims to inclusivity and criticalness may be undermined as its empirically focussed, objectivity-driven approach risks ostracising the very people who, in its aim to bring inequalities to the forefront, it intends to empower. This idea, that we must avoid shitting on those who believe in a dream, despite empirical evidence of its nonexistence, should not just be taken up by sociologists, but by all of us. As this essay has outlined, it can help us—academics and students in elite institutions especially—understand why people voted for Trump or Brexit, for instance. It will stop us from dismissing and even dehumanising others point-blank and instead open up channels of empathy, compassion, and communication, something which I hope will be present in all my future research interviews and which I fear was not present in the interview that sparked this essay. Niamh Hodges Niamh Hodges graduated from Sidney Sussex College, Cambridge, in summer 2022, where she received a first class degree in Human, Social and Political Sciences (HSPS). Interested in the convergence between sociology, politics and law, she intends to pursue a Masters and career in social work. [1] It is implicit throughout this essay that completely ‘objective’ evidence is impossible to achieve given the influence of the researcher on research outcomes, but the term is used here as objective knowledge remains the ideal across large swathes of the social science community. [2] David Bidney, ‘The Concept of Myth and the Problem of Psychocultural Evolution’ (1950) 52(1) American Anthropologist 16. [3] Michael Young, The Rise of the Meritocracy 1870-2033: An essay on education and society (Thames and Hudson 1958). [4] ibid; Alan Fox, ‘Class and Equality’ (May 1956) Socialist Commentary 11; Richard Herrnstein, IQ in the Meritocracy (Little, Brown 1971) and Daniel Bell, The Coming of Post-Industrial Society: A Venture in Social Forecasting (Basic Books 1973). Also see Jo Littler, Against Meritocracy: culture, power and myths of mobility (Routledge 2018). [5] Littler (n 4) 8. [6] Geri Peev, ‘Games Embody the Tory Ethic of Hard Work that Leads to Reward, Says Boris’, Daily Mail (London, 6 August 2012) < www.dailymail.co.uk/news/ article-2184687/Boris-Johnson-London-2012-Olympics-embody-Tory-ethic-hardwork-leads-reward.html#ixzz2QG4E5oVC >. [7] Boris Johnson, ‘We should be humbly thanking the super-rich, not bashing them’, The Telegraph (London, 17 November 2013) < https://www.telegraph.co.uk/politics/0/should-humbly-thanking-super-rich-not-bashing/ >. [8] Littler (n 4) 7. [9] ibid 89–90. [10] Richard Breen and John Goldthorpe, ‘Class Inequality and Meritocracy: A Critique of Saunders and an Alternative Analysis’ (1999) 50(1) British Journal of Sociology 1; Richard Breen and John Goldthorpe, ‘Class, Mobility and Merit: The Experience of Two British Birth Cohorts’ (2001) 17(2) European Sociological Review 81; Erzsébet Bukodi, John Goldthorpe, Lorraine Waller, and Jouni Kuha, ‘The mobility problem in Britain: New findings from the analysis of birth cohort data’ (2015) 66(1) British Journal of Sociology 93. [11] Breen and Goldthorpe, ‘Class, Mobility and Merit’ (n 10). [12] Mike Savage, Niall Cunningham, Fiona Devine, Sam Friedman, Daniel Laurison, Lisa McKenzie, Andrew Miles, Helene Snee, and Paul Wakeling, Social Class in the 21st Century (Pelican Books 2015). [13] Sam Friedman and Daniel Laurison, The Class Ceiling: Why It Pays To Be Privileged (Bristol University Press 2019). [14] Dieter Vandebroeck, Distinctions in the Flesh (Routledge 2017). [15] Friedman and Laurison (n 13) 13. [16] ibid. [17] ibid 27. [18] ibid 213. [19] ibid. [20] Friedman and Laurison (n 13) 211. [21] ibid 218. [22] Vandebroeck (n 14) 220. [23] Friedman and Laurison (n 13). [24] BBC News, ‘Prime Minister Boris Johnson: Does his cabinet reflect “modern Britain”?’ (25 July 2019) < https://www.bbc.co.uk/news/uk-politics-49034735 >. [25] Ofcom (2019) Breaking the class ceiling—social make-up of the TV industry revealed . [26] Dave O’Brien, Orian Brook, and Mark Taylor, ‘Panic! Social class, Taste and Inequalities in the Creative Industries’ (2018) < https://www.research.ed.ac.uk/portal/en/publications/panic-social-class-taste-and-inequalities-in-the-creative-industries(0994f056-af25-4615-b97c-d8adc190d5b4).html >; Ofcom (n 26). [27] Jonathan Mijs, ‘Visualising Belief in Meritocracy, 1930–2010’ (2018) 4 Socius 1. [28] I contend that such analysis is seen in Littler (n 4) and that many Bourdieusian analyses edge very close to falling into this trap as well, such as Friedman and Laurison (n 13). [29] Wendy Bottero, ‘Class Identities and the Identity of Class’ (2004) 38(5) Sociology 985, and A Sense of Inequality (Rowman and Littlefield International 2018); Lauren Berlant, Cruel Optimism (Duke University Press 2011). [30] Robbie Duschinsky, Daniel Reisel, and Morten Nissen, ‘Compromised, Valuable Freedom: Flat Affect and Reserve as Psychosocial Strategies’ (2018) 11(1) Journal of Psychosocial Studies 68. [31] Christopher Paul, The Toxic Meritocracy of Video Games: Why Gaming Culture is the Worst. (University of Minnesota Press 2018) 44–45. [32] Berlant (n 29) 1. [33] Naa Oyo A Kwate and Ilhan H Meyer, ‘The Myth of Meritocracy and African American Health’ (2010) 100(10) American Journal of Public Health 1831. [34] Chase Dimock, ‘‘Cruel Optimism’ by Lauren Berlant’ Lambda Literary (30 July 2012) < https://www.lambdaliterary.org/2012/07/cruel-optimism-by-lauren-berlant/ >. [35] Bidney (n 2) 22. [36] Jo Littler, ‘Ideology’ in Jonathan Gray and Laurie Oullette (eds), Keywords for Media Studies (New York University Press 2017) 98. [37] Michael Freeden, Ideologies and Political Theory: A Conceptual Approach (Oxford University Press 1996). [38] Friedman and Laurison (n 13). [39] David Goodhart (2017) cited in David Civil and Joseph J Himsworth, ‘Introduction: Meritocracy in Perspective. The Rise of the Meritocracy 60 Years On’ (2020) 91(2) The Political Quarterly 373, 376. [40] Stuart Hall, ‘The Problem of Ideology: Marxism without Guarantees’ in David Morley and Kuan-Hsing Chen (eds), Stuart Hall: Critical Dialogues in Cultural Studies (Routledge 1996) 26. [41] Freeden (n 37) 53. [42] Bottero, ‘Class Identities’ (n 29) 995. [43] WI Thomas and DS Thomas, The Child in America: Behaviour Problems and Programs (Knopf 1928) 572. [44] Berlant (n 29) 123.

Introduction In Zoe Leonard’s photograph of Fae Richards and June Walker, two women wrap their arms around each other and gaze lovingly into the other’s eyes. The caption dates the photograph to 1955, Richards’s forty-seventh birthday at their shared home. It reads, ‘Fae and June met while Fae was singing at the Standard. June sat at a stageside table every night for months, always with a white rose for Fae. By 1947, they were living together, and they lived together until Fae’s death’.[1] The photograph itself evinces its age through its weathered appearance: the bottom right-hand corner is ripped and the surface is lined with scratches. The scene is mundane, yet two Black lesbians living and loving happily together in the 1950s is extraordinary. Fae Richards and June Walker never existed. They were fabricated by Cheryl Dunye to account for a history written out of the archives. If 2SLGBTQ+ people do appear in the dominant archive, it is only through a heteronormative gaze that either condemns or erases them. The absent archive has always posed epistemological and political challenges. Marginalised communities—those that have been strategically erased from the dominant archive—are left with little history to draw on in the struggle of resistance. The archive, as both a theoretical and material locus of power, is troublesome for marginalised groups that are alienated from vectors of power. Saidiya Hartman’s seminal essay, ‘Venus in Two Acts’, deals with these issues in relation to archives of slavery. Hartman illustrates how histories of erasure necessitate different archival methods. In the essay, Hartman introduces the notion of ‘critical fabulation:’ using archival research alongside fictional narratives to rewrite and give new life to voices that are absent from the dominant archive. Critical fabulation is the process of working with and against the archive in order to transgress and extend its borders, thereby de-stabilizing the imbued authority of the archive. More specifically, critical fabulation elucidates what, by virtue of the archive, has failed to survive. In this essay, I will extend critical fabulation to the realm of contemporary art in order to conceive of 2SLGBTQ+ contemporary artists as archivists of the queer community.[2] I will interrogate the role of critical fabulation in creating what I will call a ‘counter-archive’, an archive that subverts authority and practices of power. I will question how practices of remembrance differ for a marginalised group from the practices of the traditional institutional archive. That is, as accounts of resistance, what modes of representation are taken up by queer counter archives? I will reveal how histories of erasure necessitate creative and imaginative archival methods, exhibiting how contemporary queer artists mine the archive in order to disrupt the authority granted to it as a speaker for History. I will situate my analysis in relation to the works of Zoe Leonard and Cheryl Dunye, Wu Tsang, and fierce pussy[3]; all of whom produce a counter-archive in their work through their use of experimental archival methods and critical fabulation. In 1996, Zoe Leonard and Cheryl Dunye published The Fae Richards Photo Archive alongside Dunye’s film, Watermelon Woman . Dunye’s ‘documentary’ outlines her search into the history of an African American lesbian actress, Fae Richards; or, as she was billed in movies, the ‘Watermelon Woman’. Richards, however, was entirely fabricated by Dunye in order to supplant a lost history. Leonard shot photographs in which Dunye’s friends pose as Richards, as well as her friends, lovers, and family. In doing so, Leonard blurs the line between Dunye’s personal archive and that of Richards. Leonard and Dunye, thus, use critical fabulation to give voice to erased and forgotten Black lesbians. In doing so, they reveal the extent to which fiction is a necessary tool when archiving queer culture, and propose a new understanding of truth, memory, and the purpose of the archive. Tsang, as a transgender woman, similarly interrogates which histories are carried forward, and by whom. In this paper, I will focus on her work for the 2012 Whitney Biennial: an installation entitled Green Room . Green Room functioned as a dressing room for Biennial participants and was also opened to museum visitors when not in use. Inside, Tsang had constructed a two-channel video environment, with the two screens placed on perpendicular walls. She screened her documentary Que Paso Con Los Martes? , which recounts the story of a transgender woman who immigrated from Honduras to Los Angeles and found community in a local Latino gay bar, the Silver Platter. Tsang’s installation takes inspiration from the Silver Platter in its decor to invite viewer participation in the three-dimensional environment. Tsang, then, explores ways of recording queer history through a documentary-like style while, equally, implicating her audience through the fabricated setting. She draws attention to the distinctions between private and public space, as well as the infiltration of queer safe spaces. I will argue that Tsang’s dissolving and blurring of boundaries—the public and private; the fabricated and the real; two-dimensional and three-dimensional—is necessary to the production of a queer counter-archive. The final group of artists I will be grounding my analysis in is fierce pussy: an artist collective formed by queer women in 1991. Their emergence in the midst of the AIDS crisis informs their project to advocate for 2SLGBTQ+ rights and visibility through their work. Their installations were often public and site-specific, using unconventional materials such as billboards, street signs, and toilet paper in order to integrate their message into various facets of everyday life. I am interested in how their work is suffused with activism, mourning, and memorialization. I will centre two of their projects: For the Record and gutter . Both engage in critical fabulation by different means: For the Record imagines a future for those who died from AIDS; gutter edits and rewrites lesbian pulp fiction novels from the 1940s to the 1970s. fierce pussy, therefore, throws into question the heteronormative lens through which the archive has been constructed. To begin, it is necessary to outline what is at stake in this project. Archives are vital for ongoing queer survival and to our lives in the present.[4] A queer counter-archive provides the grounds for imagining queer futures and helps to situate queer identity—both past and present. Nayland Blake’s article, ‘Curating in a Different Light’, reveals how queer people do not have access to a private history, and hence require a public one. Blake writes, ‘Queer people are the only minority whose culture is not transmitted within the family’.[5] In that vein, the 2SLGBTQ+ community has needed to find new strategies to uncover and transmit our histories. Historical erasure and ongoing systemic oppression drastically impacts the ability for 2SLGBTQ+ people to accept and live our queer identities. The past has a continuous hold on, and shapes, our present. To live in the reverberations of this violence, as queer bodies, means to feel those effects and affects acutely. An artistic revisioning of histories of erasure, then, fosters precedence for the ongoing struggle to live one’s queer identity. Thus, a counter-archival project reimagines the past in order to create a livable present, and is integral to both individual and collective processes of healing. Memory, Mourning, and Marginalisation The archive is the ground upon which knowledge is formed and hierarchized; it reveals choices of inclusion and exclusion that are linked to access to power. I will ground my definition of the archive, and its relationship to power, in Jacques Derrida and Michel Foucault’s respective analyses. Derrida and Eric Prenowitz, in the seminal text, ‘Archive Fever: A Freudian Impression’, trace the Western archive back to Ancient Greece and the rule of law. The term archive derives from the Greek arkheion , about which Derrida writes, ‘initially a house, a domicile, an address, the residence of the superior magistrates, the archons, those who commanded’.[6] The etymological root of the archive, then, has two meanings: first, as a structure that houses objects and documents, and second, as the residence of those who command and speak on behalf of the law. The law is the place where people are recognized as agents or not and where personhood is made legible. Therefore, the archive is the house of power and holds authority over memorial processes. Foucault, in a similar way, locates power in the archive in his essay, ‘The Historical a priori and the Archive’. Likewise, Foucault describes the archive as the constraints imposed on what is sayable, or as he calls it, ‘enunciable’. That is, the archive governs the conditions of power that we inherit. The archive promises agency, and yet, at every turn, denies it. It suggests control over the ordering processes, but only so long as they adhere to historically contingent, pre-existing rules. Foucault states the following: ‘The archive is first the law of what can be said, the system that governs the appearances of statements as unique events’.[7] Hence, the archive reveals the conditions of power in which we find ourselves. It is a site in which we can pose questions about how we inherit and perpetuate power. Moreover, the archive is both the system that exercises control over what can be said, as well as the processes surrounding how things are understood. The archive, therefore, is not merely an institution or a site, but rather it is the practice of power. Accordingly, when I refer to a counter-archive, I mean processes that subvert the authority and the ordering processes of the traditional archive. It is necessary to leave this definition vague if we are to resist replicating the methods of the traditional archive. As elucidated by Foucault, the archive imposes a set of conditions upon the sayable in order to preserve discourse that aligns with dominant power structures, casting aside challenges to those structures. In this case, brevity and linearity factor into the reproduction of power because they help create a self-contained narrative and serve to separate the past from the present. Rather than utilising the archive’s documentation processes—that inevitably efface certain histories—artists engage in creative projects that reconstitute our understanding of the archive. James E Young’s essay, ‘The Counter-Monument: Memory against Itself in Germany Today’, is useful for understanding what I mean when I say ‘counter-archive’. Young explores the role of counter-monuments in memorializing the Holocaust and the emergence of the memorial aesthetic in post-war Germany. Traditional monuments tend to memorialize victory, which brings Young to question the way in which Germany has memorialized state-enacted atrocities and mass murder. The traditional monument evades memory through its clear symbolism and lack of ambiguity, thereby doing the memory work for the viewer. The monument, then, becomes a figment of the past and immediately falls outside of our frame of perception. The counter-monument, on the other hand, is concerned with the ongoing hold the past has on shaping our present. In relation to the long ‘Sisyphean’ debates about how best to commemorate loss of millions of Jewish lives during the Shoah, Young writes, ‘[T]he surest engagement with memory lies in its perpetual irresolution’.[8] That is, resistance to a fixed notion of memory creates new spaces of memorialization. The counter-archivist, then, is highly conscious of the challenges they are posing to our ways of knowing and of enshrining certain histories. Departing from the traditional archive’s false claims to objectivity (that conceal its own self-interests in narratives of power), the counter-archive is self-aware of its inability to objectively capture said events. Consequently, the counter-archive engages the viewer by fostering dialogue. In a similar fashion to Young’s counter-monument, the counter-archive implores the viewer to engage in memory work through investment in its own ambiguity and rejection of totalizing narratives. It denies simple resolutions and plain conclusions. Its aim is not to provide answers, but rather to raise questions about how archives have been wielded as tools of selective remembrance and violent oppression. Writing about the counter-monument of the Harburg Monument against Fascism —which invites the public to violate the monument by writing on it their own names and committing to stand against fascism—Young elucidates: [I]ts aim is not to console but to provoke; not to remain fixed but to change; not to be everlasting but to disappear; not to be ignored by its passerby but to demand interaction; not to remain pristine but to invite its own violation and desecration; not to accept graciously the burden of memory but to throw it back at the town’s feet.[9] Counter-archives question the validity of the traditional archive and its omniscient power. They propose that it is not just what we remember that is significant, but equally how we go about remembering. Young argues that the traditional monument impedes memory precisely because the clarity and authority of the memorial does the work for the viewer, thereby absolving the public of their own responsibility to remember. They foster a view of history that is unambiguous and therefore not a site for negotiation or contestation. The traditional memorial, much like the traditional archive, promotes engagement within a rigid, normative structure. It rejects ambiguity, precisely because nuance inhibits its own project. Thus, the archive constructs narratives that adhere to and are vested in narratives of power. Seeing that the counter-archive is concerned not solely with memory, but also with the act of remembering, questions of form are inseparable from the project of remembrance. Indeed, art facilitates questions about the relation between aesthetics and ethics. I will address, in this case, how the language of history and the language of art interact. The task of many contemporary artists is to challenge rather than to affirm cultural rules. Zoe Leonard, Cheryl Dunye, Wu Tsang, and fierce pussy, then, all produce counter-archives by throwing into stark relief the forms and practices of the archive. These artists open up new possibilities for thinking through our queer past, present, and future through their artwork. When art functions as an archival object, moreover, it suggests that artifacts collected and preserved in archives are not innocent but are, rather, charged objects. These artists all blur the boundaries between the artistic and the archival, history and imagination, and fabrication and fact. Although critical fabulation necessitates invention within a narrative, we must be wary of covering up and erasing loss. When playing with the tools of the archive, one must be acutely aware of the risk of replicating its structures of power. The paradox of critical fabulation, then, is that of writing a narrative, while simultaneously indicating loss and silence. Hartman writes, ‘Narrative restraint, the refusal to fill gaps and provide closure, is a requirement of this method’.[10] In this case, leaving space for loss reminds the viewer that critical fabulation cannot offer closure to the dead and to those who suffered in the past. A refusal to romanticise a violent history of oppression is also imperative. Although the project of critical fabulation is based on individual and community healing—‘Loss gives rise to longing, and in these circumstances, it would not be far-fetched to consider stories as a form of compensation or even as reparations, perhaps the only kind we will ever receive’— absence is a reminder that this project cannot fundamentally undo an extensive history of violence and oppression.[11] Hartman’s refusal to expound how to give voice to a profound silence suggests that there is no singular, or prescriptive way, to treat such contradictions. Indeed, the authority on how to write history and loss is central to the archive’s own consolidation of power. Consequently, critical fabulation requires the nuance and ambiguity that the traditional archive refutes in its claim to objectivity. The necessity of maintaining loss as loss, nonetheless, does not undo the reparative nature of this project. The paradox of reflecting a marginalised community back to itself, whilst presenting an abyss, fosters a complex and interesting interaction between the viewer and the artwork. Counter-archives, thus, resist being relegated to the past because they actively engage with and challenge our present. Contemporary artists who create a counter-archive disrupt our conventional relationship to the archive because they force critical engagement, and radically oppose passive acceptance. In promoting a non-linear view of history, counter-archives mimic the traumatic structure that resists a progressive and linear process of healing. Art in the public sphere encourages a stumbling upon it that simulates the experience of flashbacks and of shock that resists stability of meaning. Hence, counter-archives assert the ceaseless irresolution of our own engagement with memory. In doing so, they reckon with the ongoing hold that the archive has on our lived present. Ann Cvetkovich’s text, An Archive of Feelings: Trauma, Sexuality, and Lesbian Public Cultures , explores the way that archives of trauma often resemble 2SLGBTQ+ archives. Both archives similarly rely on ephemerality and memory, which in their very transience and unreliability, challenge the concept of the archive: Trauma challenges common understandings of what constitutes an archive. Because trauma can be unspeakable and unrepresentable and because it is marked by forgetting and dissociation, it often leaves behind no records at all. Trauma puts pressure on conventional forms of documentation, representation, and commemoration, giving rise to new genres of expression, such as testimony, and new forms of monuments, rituals, and performances that can call into being collective witnesses and publics. It thus demands an unusual archive, whose materials, in pointing to trauma’s ephemerality, are themselves frequently ephemeral.[12] Cvetkovich notes that sites of grief and trauma are radical spaces, and she questions how we might begin to inhabit these spaces and reclaim agency through them. She begins by arguing for a wider view of trauma, one that moves beyond the extreme and those who experience trauma directly, and towards trauma’s seemingly mundane reverberations and those on the border of trauma. fierce pussy—as lesbians on the edge of the AIDS crisis—encapsulate the experience of trauma through their positioning as both insiders and outsiders. Consequently, I will question how creative responses to trauma help us to grapple with immense pain. To reiterate, Cvetkovich points to the affective power of a 2SLGBTQ+ archive. She illustrates how queer archives position themselves in opposition to the traditional archive because they do not solely document and yield knowledge but, equally and as importantly, feeling. Cvetkovich writes, ‘Gay and lesbian archives address the traumatic loss of history that has accompanied sexual life and the formation of sexual publics, and they assert the role of memory and affect in compensating for institutional neglect’.[13] In this case, personal testimony is vital to the production of a queer counter-archive, precisely because it recentres feelings of love and loss that are integral to the queer experience. Thus, an emphasis on feelings and affects provides the grounds for fostering a queer public memory. The Feigned Archive: Zoe Leonard and Cheryl Dunye’s The Fae Richards Photo Archive Leonard and Dunye’s The Fae Richards Photo Archive is a record of Black lesbian absence from the archive. Dunye felt disillusioned with the missing presence of Black lesbians in the archive and Watermelon Woman chronicles her search for evidence of Fae Richards: the fictional persona that she created to fill this lack. Leonard staged archival material to create evidence of Richards’s life for Dunye’s film, thereby blurring the distinction between fact and fiction (a dichotomy that the dominant archive is heavily invested in). In the film, Dunye searches for evidence of Richards in the Centre for Lesbian Information and Technology (CLIT), a fictive archive based upon the Lesbian Herstory Archives in New York. The ordering processes of the archive, then, construct narratives and shape the way we make knowledge claims. In opposition to the dominant archive, however, a queer counter archive insists on different ordering processes. In dialogue with Julia Bryan-Wilson, ‘Imaginary Archives: A Dialogue’, Dunye discusses The Fae Richards Photo Archive and Watermelon Woman . She states, ‘the queerest things about archives are their silences—their telling blanks and perversely wilful holes’.[14] These ‘holes’, gaps, and silences that Dunye articulates resonate with Hartman. Hartman, in this case, questions how we can bring these impossible stories to the surface. Impossible in the sense that, as much as we might long for such histories, we can never know them. Giovanna Zapperi’s essay, ‘woman’s reappearance: rethinking the archive in contemporary art—feminist perspectives’, explores feminist reworkings of the past through contemporary art. Zapperi expresses the impossibility of Fae Richards: ‘Fae Richards can only exist thanks to a present-lesbian gaze that is looking at her through the lenses of the liberation movements’.[15] That is, Richards—as a figure documented in the archive—can only exist because activism and political change allowed Dunye, as a lesbian and as an African-American, to be in a position where she could articulate a life for Richards. Hence, the film creates a Black lesbian counter-archive in two ways: in its documentation of Richards, and in its reputation as the first feature film to be directed by a Black lesbian. The importance of bringing Richards to life, however, cannot be understated. Richards acts as a stand-in for Black lesbians whose stories we can never know. The overlapping of Richards’s and Dunye’s archive, likewise, is acted out in the photographs themselves. As Dunye’s own friends, lovers, and community pose in the photographs, they seem to occupy an atemporal zone. Bryan-Wilson states, ‘The fictional patina they had in relation to the film has been overlaid with a different, lived history—[Dunye’s]’.[16] The past and present blend, thwarting the dominant archive’s claims to linearity. The counter-archive’s interactions with memory, history, and the archive, then, resist the distinct dichotomization of history from the present. Similarly, it blurs the line between fact and fiction. Despite the fact that the community depicted in the photographs might not necessarily have existed at that precise date, it nevertheless existed as a vibrant queer community. In several of Leonard’s photos, we see depictions of the importance of queer community—alluding to the role the counter-archive’s play in constructing queer public culture. In one, a group of five women sit around a table, drinking alcohol, and smiling at the camera. Fae sits on the left-hand side, perched on the lap of her lover and director, Martha Page. She leans in, smiling as her right hand rests on the side of the table, holding a cigarette. The three women to the right of Martha are unidentified, but a scribble in blue ink along the bottom of the image reads, ‘Me and the girls at the ‘Hotspot’. The women in the photo are unabashedly identified as queer women based on coded signifiers that are recognizable to other queer women: men’s clothing, short haircuts, and the way they occupy space in a forward and comfortable way that counteracts the male gaze. Furthermore, Leonard’s use of photography as a medium allows her to critically fabulate the past. Zapperi writes, ‘Leonard has been interested in the photographic image’s implication in the production of sexual difference, as well as in the way in which photography is concerned with the passing of time’.[17] Photography is entangled with history and imprecise memory. Like the archive, photography often lays false claims to objectivity and seeks to distance the photographer from their subject. Nevertheless, what is made visible—through the lens—and how we interpret images reflect systems of knowledge and power. Acts of seeing are products of tensions between external images and internal thought processes. How we see, then, is socially constructed. Leonard, thus, exposes the medium of photography as something that can be tacitly manipulated in order to convey particular narratives. She simulates a variety of photographic genres (photo booth, family snapshot, film still, press photograph, portrait) in order to appropriate and subvert the methods of the traditional archive and draw attention to its own methods of deceit. Photographs, by virtue of their nature, signify that their subject is important, and Leonard, in this case, asserts the importance of lesbian lives and intimate queer feelings. They also ‘conjure up vulnerability, disappearance, and melancholia. The images are often damaged, cut or stained, reinforcing their meaning as witnesses of past events’.[18] The wear and tear on the surface of the photographs is perhaps one of their most deceptive elements—their feigned age evokes a nostalgic and affective response from the viewer who is convinced that Fae Richards in fact lived. Nevertheless, The Fae Richards Photo Archive nods to its own artifice. Although Leonard and Dunye play with the viewer’s conceptions of fact and fiction by drawing us into the fictionality of Fae Richards as if it might be real, they often subtly gesture to their work as being fabricated. Constructing Richards as an actress allows Leonard to play around with photos of sets and cameras, alluding to processes that she is similarly engaging in and drawing attention to her own situatedness as a photographer. In one photograph, Martha stands with her hands on her hips before a camera. The caption reads, ‘Martha Page at Newark Studios. Photographed for the story ‘The Girl Director of ‘Jersey Girl’’ in The Philadelphia Inquirer. October, 1931’.[19] The studio light on the right hand side of the photograph illuminates the image on a diagonal axis. Martha’s face and upper torso are clearly visible, while the lower half of the photo slips into obscurity. In the darkness, we can make out the silhouette of a seated figure behind Martha. Their face appears to be covered by a dark piece of fabric, alluding, perhaps, to the individuals whose presences are purposefully obfuscated from the archive. The explicit presence of harsh studio lighting in the photograph, then, draws the viewer’s attention to the way that technology is manipulated to control how and what we see. Moreover, the lighting works to cast shadows, creating a doubling of figures and objects in the scene: Martha’s shadow and that of the camera are cast onto the brick wall. Indeed, this doubling produces a metapicture.[20] Leonard creates a picture within a picture by drawing our attention to the fallibility of photography. She hints to the photographic process to make the viewer acutely aware of their own participation in the image through the act of seeing. As viewers, we are positioned behind the apparatus, which externalises the artistic standpoint. Put in the place of the photographer, the viewer is forced to consider the decisions that went into producing this image. The meta picture is self-referential: thinking about its own status as a picture, calling attention to its status as ‘art’, and referring to its own artifice. Leonard is thinking about the tradition of photography—particularly in its intimate relation with the archive—and her own relation to it. Her consciousness of the medium, therefore, necessarily subverts claims to objectivity. The book itself is constructed in the modus operandi of the archive. Dunye and Leonard draw us into the artifice, only to let up their simulation at the end of the book to subvert the fallibility of the dominant archive. The end of the book includes a list of cast and crew, drawing attention to the project’s deception. It is also in this list that we learn that Dunye herself appears in an image as ‘Black Dyke on Roof #2’. The use of derogatory language in the cast list alerts us to the tendency of the dominant archive to weaponize such terms against queer people. Leonard and Dunye, then, reclaim this language in the same way that they reclaim the archive: drawing parallels between the way derogatory language and the archive are similarly wielded as tools of violence and oppression. Moreover, Dunye’s presence creates a slippage between past and present that leads the viewer to question the readiness with which they often accept the claims of the dominant archive. Speaking to Bryan-Wilson, Dunye tells us that the feigned archive is ‘a mixture of the truth and fictions in [her] life and how they coexist’.[21] The Fae Richards Photo Archive , thus, challenges our received ideas about temporality, truth, memory, and the purpose of the archive. This project is facilitated by desire and Zapperi writes, ‘Desire here is what mediates the relationship between past, present, and future, positioning the artist’s subjective voice in the process of constructing alternative forms of knowledge’.[22] Thus, layers of queer desire overlap in the relationships portrayed in the photographs themselves, and in the ever-present queer desire to unearth a lost history. ‘[T]he site of this performance…is not necessarily a safe space for all the communities referenced in this work’: Queer Memory and the Museum Space in Wu Tsang’s Green Room Tsang’s 2012 installation, Green Room , creates a queer counter-archive by using critical fabulation to reproduce queer safe spaces within the museum—a historically unsafe space for the 2SLGBTQ+ community, because of its erasure and misrepresentation of queer identities. Unlike Leonard and Dunye, who produce a counter-archive of desire and intimacy, Tsang is interested in queer public culture. Her work plays with the binary of public and private spheres in order to call attention to how gender and sexuality operate within this dichotomy. At the 2012 Whitney Biennial, Tsang exhibited two pieces: Green Room , and a feature-length film, Wildness , that both centre around the gay bar Silver Platter. Tsang, therefore, archives queer community building practices. She problematizes the paradox of the public/private binary by revealing how queer safe spaces often straddle and deconstruct this binary. Felix Gonzalez-Torres’s essay, ‘Public and Private: Spheres of Influence’, questions how the binary of public and private is used to preserve heteronormativity and suppress queer identity. He argues that the interests of the public sphere are defended through the regulation of the private: ‘[T]he bed is a site where we are not only born, where we die, where we make love, but it is also a place where the state has a pressing interest, a public interest’.[23] The separation of private and public life is therefore a delusion as it applies to marginalised communities. Gonzalez-Torres uses statistical evidence to support his argument that certain private spaces are more public than others—that is, more subject to state control. He writes, ‘There is no private sphere in the modern state. We can only speak about private property. There is no private space, no private entity. At least not for certain groups when it is still legal and endorsed by the state to oppress and discriminate because of who we love in private and, yes, outdoors too’.[24] That is, both the public and private spheres have always been contentious for the 2SLGBTQ+ community. Queer private spaces are often highly regulated by state control, while the public sphere has always posed threats of both violence and erasure to queer people. Tsang’s Green Room , to reiterate, operates as both a dressing room for Biennial performers and as an art piece, open to museum visitors when not in use as a dressing room. Tsang, then, creates an installation that places itself, simultaneously, within both the public and private sphere, thereby collapsing distinctions between the two. Tsang subverts the assumption that art is inherently decorative by building a space that is both artwork, and functional (ie intended to support art). The space held custom designed furniture, mirrors, and carpet, inspired by the Silver Platter, but equally had to be designed to meet the architectural needs of the dressing room space: such as mirrors with vanity lighting, desks, chairs, and clothing racks. As Green Room demands, and indeed was built for interaction, it gradually accumulates the battering of use and unsettles conceptions of art as being untouchable. Installations often disrupt the traditional museum-going experience by being both experiential and, frequently, ephemeral. Ephemerality—as it has been previously discussed in relation to Cvetkovich’s theoretical work—is an oddity in the archive. If the archive relies on permanence, the volatility of ephemera throws archival practices into disarray. As Cvetkovich writes, ‘The stock-in-trade of the gay and lesbian archive is ephemera’, because they produce ‘the unusual emotional archive necessary to record the often traumatic history of gay and lesbian culture’.[25] Tsang’s work, as an installation, is temporary, which throws into question its capacity to act as an archive. Nevertheless, she plays with these ideas of impermanence and wear in Green Room in order to reference the mutability of queer culture. The wear and tear of the space itself creates a physical archive of utility. As Green Room fluctuates between a functional lounge area and an art installation—which equally, and in their own right, demand engagement and use—it forces the viewer to be conscious of the way in which they occupy the space. Like Young’s counter-monument, Tsang’s counter-archive demands viewer participation. Memory work, that is, demands active engagement and labour on the part of the viewer, which is why I call it memory work . Tsang deconstructs the practices of the archive by allowing, and encouraging, the violation of her installation. Wear and tear make known the history of the space, thereby drawing attention to the history of the museum space as a whole, and its record of violence, erasure, and oppression—a history that parallels, and often intersects with, that of the archive. Moreover, Tsang’s nod to gay bars, and spaces of camaraderie (the green room) in her work highlights queer safe spaces that are, and have been historically, vital to the 2SLGBTQ+ community. These spaces provide the ground on which community can be built—returning to Blake’s point that queer people do not have access to this in the home/private sphere—by providing a space where those who are forced to hide their identity (often, for their own safety) are able to comfortably inhabit their queerness. By inviting the public into a semi-closed space, Tsang highlights the potential danger posed by the infiltration of cisgendered heterosexual people into queer spaces.[26] Tsang questions the ingrained comfort that cis-het people often exhibit in 2SLGBTQ+ spaces without realizing that their presence is often threatening to the community whom that space was built for. Tsang therefore insists on centring queer voices. In Green Room , Tsang screens Que Paso Con Los Martes? This two-channel video focuses on the Los Angeles queer community and is specifically centred on the experience of a trans woman who fled persecution in Honduras, finding a vibrant queer community at the Silver Platter. Tsang prioritizes her voice in the space and insists that gay bars provide a haven for queer people from the persecution they face in the external world. Her voice echoes through the room; viewer participation, in this case, hinges on the act of listening to and learning from queer testimony. Tsang thereby questions what voices get to be heard, both in terms of how the archive actively erases and neglects queer voices, as well as in relation to the voice as being culturally and politically constituted.[27] Rita Gonzalez’s essay, ‘Speech Acts’ explores how Tsang uses voice in her work in order to disrupt normative notions of gender and sexuality. Tsang is interested in the voice as a culturally and politically conditioned entity. She describes her own artistic practice as invested in exploring the voice as a tool for subverting cisnormativity and rebuking ‘normative readings of a feminine or masculine voice, with consideration to the sensitivity around voice and ‘passing’ in trans communities. Voice can seem to exceed the body, and modes of recording and playback in music and filmic sound can be used to break down normative readings of gender and sexuality’.[28] That is, Tsang’s use of testimony (and therefore voice) in her work necessarily questions notions of authenticity and the ways in which gender presentation and embodiment are highly regulated into pre-existing cis-normative and binary structures. Gonzalez writes, ‘the voice can be used to disturb and contest, but also serves to conform and restrict identity’.[29] Accordingly, in Green Room , Tsang is not only thinking about the voice as isolated, but rather as highly culturally and environmentally situated. Crafting a three-dimensional environment, while simultaneously screening a two-channel documentary film, allows Tsang to create a fully immersive experience. She states: ‘My language is not about designing words or even visual symbols for people to interpret. It is about being in constant conversation with every aspect of my environment, reacting physically to all parts of my surroundings’.[30] The installation creates a conversation through its various aspects and shifting purposes. The video reflects back on itself through the dressing room mirror, creating the unsettling effect of doubling that which is already doubled through the presence of multiple display devices. Moreover, the film itself shifts between interviews and atmospheric shots of the Silver Platter. Tsang foregrounds the relationship between voice and environment, suggesting that certain environments are more conducive to certain voices being heard. While the dominant archive silences queer voices, Tsang suggests that queer bars might produce their own counter-archive of queer experience. Furthermore, being brought into the installation implicates the viewer. Tsang’s reconstructed physical space of the Silver Platter evokes the highly political history of gay bars. Gay bars have always had strong ties to political activism and in 1969, the gay liberation movement began in retaliation against the police raids of Stonewall Inn in New York City. The viewer necessarily becomes enmeshed in this history upon entering Green Room . In 2011, Tsang made a blog post in advance of her performance of full body quotation at a New Museum Fundraiser. She reflects on the history of queer voices in the museum space; ideas that she continues to develop through her work in Green Room . I would like to end this section with Tsang’s statement, because it contextualises acts of seeing in Green Room . Tsang forces the viewer to reflect on the social, political, and cultural situatedness of their own gaze and how it affects their engagement with the piece. Tsang considers the place of queer performers in the museum environment, particularly at exclusive events: ‘the role that performance artists often play in [museum fundraisers], as being complicit ‘entertainment’ jesters for elite patronage of museums’.[31] She considers how best to engage with such a complex issue: not performing, and risking further distancing queer people from museum spaces, or, perform and exposing herself and her larger community to further harm. Tsang, thus, drafts a statement to contextualise her work and force her audience to think critically about the way that they, and museum spaces as a whole, continue to perpetuate violence against the 2SLGBTQ+ community: Tonight’s performance features all misappropriated material. We are channelling voices of people involved in the making of the film Paris is Burning twenty years ago. Originally I wanted to keep this source secret because I didn’t want you to take these voices for granted as being ‘authentic’. But the site of this performance (i.e. a party at the New Museum, Performa, downtown Manhattan, etc.) is not necessarily a safe space for all the communities referenced in this work. If you wanna witness this; please first recognize that we exist. In order to fall apart as complex beings, we need first to be able to live.[32] Tsang prompts viewers to consider the way in which they carry forward such a violent history. She relies on behavioural conventions and norms that are at play in the museum space: that people be respectful of and quietly attentive to the art, for example. These conventions have historically made museums more accessible to certain groups of people: white, upper-class, and well educated. Tsang subverts these same norms by using them to encourage people to hear and listen to queer testimony, thereby building a queer counter-archive . Rage as Grief in the Work of fierce pussy fierce pussy formed at the crux of the AIDS crisis in 1991, and as such, their work is highly political and deeply concerned with the advocation of queer rights and visibility. Their work has often intersected with the archive, and they have worked in the past with the Lesbian Herstory Archives in New York City. In this section, I will be focusing on two of their projects: gutter (2009) and For the Record (2013), because these works best encapsulate the creation of a counter-archive through critical fabulation. fierce pussy’s site-specific work, like Tsang, is deeply informed by the public/private binary. They use public space as a tool for their own activism. Although all the artists I have discussed respectively use their art to advocate for 2SLGBTQ+ rights and visibility, fierce pussy’s message is more explicitly directed towards the cis-het outsider in response to the AIDS crisis. Cvetkovich writes, ‘The AIDS crisis offered clear evidence that some deaths were more important than others and that homophobia and, significantly, racism could affect how trauma was publicly recognized’.[33] Their work, then, is informed by this period of national trauma and mourning for the 2SLGBTQ+ community. Additionally, Cvetkovich’s work on trauma takes interest in those living in proximity to trauma, including lesbians on the edge of the AIDS crisis. She is interested in the roles lesbians played ‘as caretakers and activists’ and how this legacy is pervaded by ‘the privilege of moving on because they have remained alive’.[34] fierce pussy’s own work, in this case, must be analysed through the spectre of death from which they arose. Cvetkovich traces the queer archival impulse to the reckoning with death and mortality in the wake of the AIDS crisis: ‘This encounter [with mortality] produces the archival impulse, the desire to collect objects not just to protect against death but in order to create practices of mourning’.[35] Death thus provides the impetus for recording one’s history. In the reverberations of loss, the desire to record a social and cultural history strengthens. All the artists I have discussed, in this sense, are grappling with profound loss; be it death or archival absence, they similarly signify the pressing need to create a queer counter-archive. Nevertheless, the AIDS crisis made apparent that this project is not solely concerned with documentation, but rather, and perhaps more pressingly, activism. Queer artists create a counter-archive precisely because the dominant archive lacks the means to capture the grief, trauma, and oppression that it inflicts: ‘We knew deep down that we had to create our own rites and rituals if we were to truly honour and acknowledge our grief’.[36] This search for new modes of mourning is consistent with a counter-archival project, which seeks to create news processes of remembering that arise out of an effaced history. Although fierce pussy’s work is permeated by feelings and affects generated by the AIDS crisis, For the Record explicitly confronts the profound loss caused by the epidemic (and the government’s failure to adequately respond). Produced in 2013, it is the more recent of the two projects that I will be touching on, but I want to begin here because of its direct link to the AIDS crisis. The project was centred around an exhibition at Printed Matter, but also featured a series of posters, stickers, postcards, and downloadable broadsides.[37] fierce pussy’s work relies on text, often using succinct, clear, and resonating language to convey their message. These tactics resemble practices traditionally associated with advertising, which is also consistent with their use of spaces designated for advertising (e.g. windows, alleys, and billboards, etc.). In For the Record , they repeat the tagline: ‘if [he/she/they] were alive today’. fierce pussy’s use of language, therefore, creates a counter-archive of loss, even as they refuse to name victims. While the refusal to name might first appear as a depersonalization of the trauma, I argue that it accentuates the widespread nature of the crisis. The loss of lives, then, is equally the loss of records, names, and a culture. The generalising language, moreover, is undercut by the following statements; often intimate, they implicate the viewer. Phrases such as: ‘you’d be texting her right now’, ‘you’d be so her type’, ‘he would have you on your knees’, ‘you’d still be arguing about that’, and ‘he’d have his arm around you’ suggest familiar, unremarkable actions (texting, dating, sex, fights, touch). Nevertheless, along with the repetition of ‘you’, the statements suggest attachment. The viewer, then, feels the loss as if it was their own loved one and is forced to reckon with their own relation to the crisis. To return to Hartman, although the act of critical fabulation cannot possibly liberate the dead, its resonances are felt in the living that are finally given the opportunity to heal. For the Record mourns friends, families, lovers, artists, and activists through the language of lives cut short. The declarations imagine a possible present that the ‘if’ reminds us is impossible. The font is printed in a black, sans-serif typeface, apart from the word ‘AIDS’, which is printed in red. The posters state, ‘if he were alive today he’d still be living with AIDS’. The emphasised ‘AIDS’ suggests the incoherency of living with a disease, so long considered a death sentence. Moreover, it serves to make AIDS, which is often invisible, visible. The lack of punctuation, moreover, implies a kind of urgency—that of a crisis improperly handled by the state, because of whose lives were being lost. fierce pussy, thus, draws attention not only to the act of dying of AIDS, but also to the ongoing struggle for those living with the disease in the present. fierce pussy’s work is suffused with rage and militancy as a response to trauma and frustration. Cvetkovich draws on Douglas Crimp, finding that trauma often elicits ‘militancy as an emotional response and a possible mode of containment of irremediable psychic distress’.[38] Anger, in this case, saturates queer mourning rites in response to the AIDS crisis. The state’s response to the AIDS crisis was informed by homophobia and racism; because marginalised communities were disproportionately affected by AIDS, the state felt no urgency to respond. The discourse surrounding the crisis, then, centred around bigotry. fierce pussy’s public advocacy for queer rights asserts that visibility and perception matter. In an interview, they iterate their interest in public space, stating, ‘We don’t see public space as neutral or abstract’.[39] Similar to Gonzalez-Torres, fierce pussy is thinking about public space as paradoxical for the 2SLGBTQ+ community: ‘Historically, public space has held a contradiction for queer people; on the one hand we have been invisible and on the other hand we are frequently the target of violence in public’.[40] They respond to this contradiction through their art, that inserts queer narratives into the public sphere. Gutter , like For the Record , relies on language and storytelling. By rewriting and editing lesbian pulp fiction novels from the 1940s through 70s, fierce pussy gives lesbians a chance at a happy ending. Gutter arose out of fierce pussy’s residency at the Lesbian Herstory Archives and was originally shown in 2009, at the exhibition ‘Tainted Love’ at La Mama Galleria. In the adjoining alleyway, Extra Place, they hung their posters along the brick wall to create a public mural. The novels, not necessarily written by lesbians, are consistent with mainstream media’s tendency to ‘leave lesbians sad, lonely, or dead’.[41] Cvetkovich argues that these representations have ‘become part of the archive of lesbian culture’.[42] The literary trope, ‘Bury your Gays’ (also called ‘Dead Lesbian Syndrome’), emerged as a way to write 2SLGBTQ+ characters, without breaking decency laws that forbade the promotion of ‘perverse acts’.[43] ‘Bury your Gays’ alludes to the tendency to kill off queer characters as punishment for their homosexuality and/or gender deviance, presenting such traits as inherently immoral and undesirable.[44] fierce pussy mines the archive of lesbian pulp novels, tainted with moral deprivation, condemnation, and misery. They redact and edit texts to reveal a counter-archive of language, one where lesbians are allowed to experience pleasure. fierce pussy states, ‘From the position of the reader we become the writer; by crossing-out and underlining we re-edit these stories to more accurately reflect our experience and desire. In our version, women can have hot sex and ‘happy endings’—in both senses of the word’.[45] I want to pause my analysis of gutter to problematize ‘happiness’ and ‘happy endings’. To embark on an analysis of queer happiness, we must explore what the term implies outside of a heteronormative structure. Sarah Ahmed’s ‘Killing Joy: Feminism and the History of Happiness’, problematizes who is allowed to be happy. Ahmed uses the example of one’s wedding day, often described in advance as the ‘happiest day of your life’. That is, happiness promises itself as a reward for following a set path, one that is inherently cisgendered and heterosexual. Ahmed writes, ‘Affect aliens, those of us who are alienated by happiness, are creative: not only do we want the wrong things, not only do we embrace possibilities that we are asked to give up, but we can create lifeworlds around these wants’.[46] fierce pussy, then, subverts the expectations tied to happiness that often deny it to queer people. They suggest that happiness, like the language that they manipulate, is malleable and holds a multiplicity of meanings. In writing out negative emotions, they do not negate or dispel negative affects, but rather present lesbians with the possibility of happiness in a way that deviates from heteronormative standards. In opposition to the happy endings it presents, gutter is saturated with rage. The blacked-out text implies frustration and anger. fierce pussy states, ‘The way history is written often denies our existence. We go back into these texts to reinsert the lesbian experience: our anger , our desire, our impact, our lives’.[47] Hence, they disrupt the erasure of queer voices in the archive through their own erasure of text. Like Tsang, fierce pussy is concerned with whose voices get to be heard. They question notions of authorship by upturning the process of reading into one of writing. Reading, then, rather than being prescriptive, becomes innovative. In gutter , texts that have historically worked to suppress queer identity, become liberatory as they open up spaces of exploring queer desire. Furthermore, the act of opening up new spaces is mirrored through fierce pussy’s use of the public sphere. They locate queer sex acts—’Drop your skirt. Now step out of it’—in the public sphere, thereby questioning the erasure of queer identity from public space. 2SLGBTQ+ people are often either required to suppress their own queerness in public settings, or on the other hand, it is actively erased through normative presumptions of sexuality. fierce pussy takes private acts and transforms them into a public, shared experience. About their own work, they write, ‘It is often through the act of reading that young people first find possible reflections of their identity. From the first time one looks up the word ‘lesbian’ in the dictionary, the pages of books provide a safe and secret space to explore one’s fantasies, desire and identity’.[48] In gutter , they move this hidden act into view by building a queer counter-archive for future generations of lesbians, who will hopefully not have to live in such a hetero-saturated world. fierce pussy makes space for queer visibility, which they define in opposition to gay visibility: ‘Today, ‘gay visibility’, which is more about assimilation and gay marriage, has replaced queer visibility and a vision of radical social change’.[49] This vision that fierce pussy articulates in their work is akin to the counter-archival project that denounces normative archival practices in order to make new spaces for queer identity. Fostering a queer public memory is more important than being palatable to the dominant culture. Conclusion The artists discussed in this essay delineate a counter-archive through their use of critical fabulation to ‘recover’ an unrecoverable past. They question the imbued authority of the archive to give voice to certain histories, and inevitably, to silence others: ‘The archive is, in this case, a death sentence, a tomb’.[50] The archive, therefore, is problematic for 2SLGBTQ+ people who find ourselves actively erased and persecuted in dominant discourse. Leonard, Dunye, Tsang, and fierce pussy create new narratives of queer memory through contemporary art. In doing so, they fabricate an atemporal zone in which queer voices can be heard. Their art is situated outside and between the past, present, and future of queer identities. From a space of trauma, they use their art to reclaim agency and unveil power relations in the archive. Leonard and Dunye’s The Fae Richards Photo Archive fabricates the archive of Fae Richards to produce unstable images that are as much tied up with our present as they are with the past. By bringing to bear the methods of the archive, they expose its very precarity and artifice. They give life to Fae Richards in the present—as a stand-in for the many Black lesbians that have been denied a presence in the archive—and yet disclose her fictionality to indicate loss and reveal the impossibility of redeeming the lives of the dead. In Tsang’s Green Room , she creates a fabricated setting rather than a fabricated persona. Tsang displaces the politics of the gay bar into the museum space, in order to reveal the intimate ties between 2SLGBTQ+ oppression and artistic representation. She centres queer testimony in order to question associations between voice and authenticity. Displacement, then, also exposes certain environments as houses of power, namely the museum and the archive. Tsang’s interest in the public/private binary and how it has been historically contentious for queer people is also a factor in fierce pussy’s work. They exhibit site-specific work to implicate cis-het outsiders in queer trauma. By moving private queer experiences into the public sphere, fierce pussy creates new spaces for queer visibility. Like Tsang, they problematize the paradox between safe and unsafe spaces. Safe spaces, that is, are always under attack and risk infiltration and gentrification if they belong to a marginalised group. In this case, there is no way to guarantee safety without radical social change. These artists play with memory in order to create stories that trouble received ideas of truth and objectivity that are rooted in the archive. Artistic practices allow the past to be written anew by virtue of the conditions in which we now find ourselves, in the wake of the queer liberation movements of the late twentieth-century. Creativity and imagination are thus necessary in the production of a counter-archive. Leonard, Dunye, Tsang, and fierce pussy respectively produce counter-archives of queer genealogy. Critical fabulation is a restorative practice for the living, providing the means for individual and collective healing. Through the act of fabricating new narratives, we are able to facilitate new ways of mourning lost memories. Sophia Dime Sophia Dime (they/them/she/her) holds an Honours BA in Contemporary Studies and English with a certificate in Art History from the University of King’s College in Halifax. Sophia has held positions at Esther Schipper Gallery in Berlin, Eyelevel Artist Run Centre in Halifax, and the Magenta Foundation in Toronto. This upcoming fall, they will begin their MA in Art History at Columbia University in New York. [1] Cheryl Dunye and Zoe Leonard, The Fae Richards Photo Archive (Artspace Books 1996). [2] Throughout this paper, I will use queer and 2SLGBTQ+ interchangeably. Although ‘queer’ is quite widely accepted as an umbrella term for the community (because it encompasses both gender and sexuality, as well as a deviation from heteronormative structure), it is important that we recognize the historical and ongoing harm that the term continues to cause. Many members of the 2SLGBTQ+ community are uncomfortable with the term because it has been historically weaponized against 2SLGBTQ+ people. It is important to be aware of how the reclamation of language is often highly contested and continues to be harmful. [3] Zoe Leonard is also a founding core member of fierce pussy. [4] To situate my own perspective, I want to call attention to my identity as a white, Jewish, non-binary lesbian. Throughout this paper, I will refer to the 2SLGBTQ+ community in relational language. [5] Nayland Blake, ‘Curating in a Different Light’ in David J Getsy (ed), Queer: Documents of Contemporary Art (MIT Press 2016) 120. [6] Jacques Derrida and Eric Prenowitz, ‘Archive Fever: A Freudian Impression’ (1995) 25(2) Diacritics 9. [7] Michel Foucault, The Archaeology of Knowledge and the Discourse of Language (Pantheon Books 1972) 129. [8] James E Young, ‘The Counter-Monument: Memory against Itself in Germany Today’ (1992) 18(2) Critical Inquiry 270. [9] ibid 277. [10] Saidiya Hartman, ‘Venus in Two Acts’ (2008) 12(2) Small Axe 12. [11] ibid 4. [12] Ann Cvetkovich, An Archive of Feelings: Trauma, Sexuality, and Lesbian Public Culture (Duke University Press 2003) 7. [13] ibid 241. [14] Julia Bryan-Wilson and Cheryl Dunye, ‘Imaginary Archives: A Dialogue’ (2013) 72(2) Art Journal 83. [15] Giovanna Zapperi, ‘woman’s reappearance: rethinking the archive in contemporary art—feminist perspectives’ (2013) 105 Feminist Review 33. [16] Bryan-Wilson and Dunye (n 14) 83. [17] Zapperi (n 15) 28-9. [18] ibid 33. [19] Dunye and Leonard (n 1). [20] For more on the meta picture and the way in which art theorises about itself, see William John Thomas Mitchell, ‘Metapictures’ in Picture Theory: Essays on Verbal and Visual Representation (University of Chicago Press 1994). [21] Bryan-Wilson and Dunye (n 14) 84. [22] Zapperi (n 15) 27. [23] Felix Gonzalez-Torres, ‘Public and Private: Spheres of Influence’ in Getsy (n 5) 90. [24] ibid. [25] Cvetkovich (n 12) 243-4. [26] I will henceforth be referring to ‘cisgendered heterosexual’ as ‘cis-het’. [27] Rita Gonzalez, ‘Speech Acts’ in Elodie Evers et al, Wu Tsang: Not In My Language (Walther König 2015) 23. [28] ibid 26. [29] ibid 23. [30] ibid 25. [31] Wu Tsang, ‘in order to fall apart as human beings, we need first to be able to live’ in Getsy (n 5) 211. [32] ibid 212. [33] Cvetkovich (n 12) 6. [34] ibid 160. [35] ibid 269. [36] ibid 266. [37] fierce pussy, ‘projects’ < https://fiercepussy.org/projects > accessed 10 March 2022. [38] Cvetkovich (n 12) 162-3. [39] fierce pussy, ‘Interview’ in Getsy (n 5) 223. [40] ibid 223. [41] Cvetkovich (n 12) 253. [42] ibid 253. [43] Hailey Hulan, ‘Bury Your Gays: History, Usage, Context’ (2017) 21(1) McNair Scholars Journal 18. [44] In contemporary media, queer characters are still killed off at inordinate rates. Cf. ibid. [45] fierce pussy (n 39) 223. [46] Sara Ahmed, ‘Killing Joy: Feminism and the History of Happiness’ (2010) 35(3) Signs 593. [47] fierce pussy (n 39) 224. Emphasis added. [48] ibid 223. [49] ibid 224. [50] Hartman (n 10) 2.

Lesia's poem No Place Like Home explores the shared human longing for a home, not only as a search for a refuge or place to settle, or a return to where one is from, but also as a feeling of belonging and rootedness. Lesia Daria Lesia Daria is a writer, journalist, campaigner, and volunteer. She is a communications adviser at the Ukrainian Institute London, and in Surrey where she is active in her local community, she is helping Ukrainian refugees to settle into life in the UK. Previously Lesia worked as a journalist in Washington DC, Kyiv, London, and New York, and lived in Paris, Minsk, and Istanbul. She holds a BA from the University of Virginia and an MSc from the London School of Economics and Political Science.

In Lesia’s three-in-one poem A Fictional War , two voices speak in separated monologues but are also integrated and juxtaposed. The poem confronts the battle of narratives (lived, reported experience versus Russian lies) that rage alongside and form a critical part of the war and brutal violence in Ukraine. Lesia Daria Lesia Daria is a writer, journalist, campaigner, and volunteer. She is a communications adviser at the Ukrainian Institute London, and in Surrey where she is active in her local community, she is helping Ukrainian refugees to settle into life in the UK. Previously Lesia worked as a journalist in Washington DC, Kyiv, London, and New York, and lived in Paris, Minsk, and Istanbul. She holds a BA from the University of Virginia and an MSc from the London School of Economics and Political Science.

As of this writing, an Alabama law that would have made it a felony in the state to provide a teenager with gender-affirming healthcare, punishable by up to ten years in prison, is held up in the courts.[1] If it were allowed to go into effect, it would mean that even in consultation with medical professionals, operating on globally-accepted standards of care for transgender youth, a 17-year-old transgender girl cannot get access to puberty blockers or hormonal replacement therapy. Missouri lawmakers intend to extend this ban even to adults , banning care up until the age of 25. Meanwhile, Florida’s Department of Health has issued non-binding guidance that would prohibit even ‘social transition’ for youths (i.e., a child referring to themselves by new pronouns, wearing clothes associated with a different gender, but with no medical interventions) which, if it were ever enforced, would amount to the state policing children’s gender expression at an astonishing degree of invasiveness and detail.[2] But even non-binding guidance can grant authority and permission for laypeople to execute private acts of bigotry. These are merely the marquee episodes of a nationwide assault on transgender children in the US; it is a striking culmination of years of building moral panic on both sides of the Atlantic that has finally burst into full-blown authoritarianism, entirely of a piece with the renewed assault against abortion rights and other reproductive freedoms from a far-right determined to exert ever tighter control over the bodily autonomy of the many, many groups it despises.[3] The trans rights debate has become the thin end of a wedge being used by social conservatives to reverse decades of progress on a whole range of issues—from abortion, to contraception, to sexual liberation more broadly, to the rights of queer couples and families to marry, adopt, or even exist in public. At the heart of these issues are questions of bodily autonomy, gender politics, and civil liberties. They are also a front in the ongoing attack against democracy that has gripped many countries over the last two decades, from India to Turkey to Hungary to the United States. ‘Democratic backsliding’ often buries trans and gender-variant people first; the gender anxiety at the heart of fascism brings no tolerance for difference.[4] Especially anything that might hint that the sex castes of male and female—with the patriarchal hierarchy between them taken for granted—are not, in fact, immutable. That fact alone explains the otherwise strange alliance between the far-right, religious social conservatives, and trans-exclusionary radical feminists, united in fear of what trans people represent to them. To them, we seem a hydra of threats: an affront to nature, to God, to the social order, a threat to women and girls. We are all things to all people except ourselves. Thus, I shall strive to be myself in these pages: a feminist scholar, first and foremost. It is worth taking a broad survey of what this assault on our human dignity has wrought, where it came from, and what the role of a renewed trans politics might be in the face of ongoing attacks against democracy itself. Along the way, I’ll even answer the most popular question of the silly season: ‘What is a woman?’. *** What had been, for years, a toy thought-experiment for many commentators in the British and American media—treating transgender people or ‘gender ideology’ as some kind of threat in an unending cavalcade of editorials, features, and online discourse—has now become a political programme.[5] Some centrist commentators who indulged in building this moral panic now appear surprised at how it has come to fruition, but it was always going to be impossible for discourse about the supposed ‘threat’ to children from the ‘transgender lobby’ to not, at some point, manifest as policy in a political climate so thoroughly despoiled by the so-called culture wars.[6] Florida’s ‘Don’t Say Gay’ bill, which bans primary school teachers from mentioning LGBT people in any positive context, has already led to the firing of queer teachers and started a nationwide slander campaign that casts all transgender people as ‘groomers’ of young children.[7] Indeed, the very act of suggesting it’s okay to be trans is now being cast as ‘grooming’ by conservatives, an incredibly incendiary allegation that is bound to lead to violence and has already led to abuse in the streets—the harassment of Saoirse Gowan, a transgender woman living in Washington D.C., on the city’s metro by a man filming her and calling her a groomer and paedophile is but one such incident.[8] Transgender people were bound to become the next distracting target in an age of overlapping crises that demand concerted action. Instead of blocking climate change, they would come for puberty blockers; instead of building resilience against the next pandemic, they seek to create an epidemic of terror among trans children; instead of addressing ever-widening inequality and poverty, they seek to create conditions that make the trans minority’s immiseration that much likelier. We make an appealing target because pointless cultural debates are able to flood the media with unresolvable controversies that make for barbed, duelling editorials, stinging vox pops, and a blizzard of screaming social media posts that drown out other, less welcome discourse. Particularly for conservative politicians, we provide a welcome distraction from any serious questions about material issues. It is very much worth noting that in a week where UK Prime Minister Boris Johnson struggled to respond to a journalist’s question about a pensioner whose skyrocketing energy bills meant she had to cut back on food and ride a public bus all day to save on her heating bill,[9] we had been treated to Johnson’s Health Secretary Sajid Javid promising to put trans women in government healthcare wards with men. While one woman literally starved herself to make ends meet, we were told imposing needless suffering on critically ill trans women was a great boon for feminism. In the UK, it has been depressing to watch newspapers put anti-trans attacks on their front pages on days with other, considerably more pressing major news stories, whether in Ukraine, about climate change, or even local elections.[10] It crowds out both the reality of trans existence and the many other urgent issues of our time in a way that, even leaving aside its animating prejudice, verges on journalistic malpractice. As a simple heuristic, one can assume any attack on trans people from a member of the political class is an attempt to avoid spending time on an issue of material substance. But we are not simply an abstract culture; we, too, are real people harmed by the climate that is being created by unending headlines questioning our very right to exist in public space. When it comes to the new laws in the US, the risk to some of our most vulnerable is immense. Families are considering whether and how to leave states where they’d built their lives, to flee somewhere their children are not literally being criminalised. Youth suicides are at risk of rising again, as they did when the state of Arkansas mooted a similar bill in 2019 that was later blocked by a federal court.[11] The litigation is ongoing.[12] Meanwhile, an already dangerous climate for trans sex workers threatens to become deadlier still. The harms of such legislation in the US are myriad and material. Texas’ own bills literally make it a crime to raise a trans child, seeking to investigate parents of trans children as ‘abusers’. Such realities make the anti-trans screeds of the British press—replete with silly tirades masquerading as thought exercises, like Rod Liddle’s infamous Times column where he announced he was ‘identifying as a young, black, trans chihuahua, and the truth can go whistle’—seem even crueller than they already are, kicking a much-maligned group while they’re down.[13] As Jules Gill-Peterson put it in her recent essay about the legislative assault on trans people in the US, these are not simply cute word games to be played by the privileged: ‘Collectively, these bills are not just attacks on what you can or can’t "say" in school. They are an existential threat to your life’.[14] Gill-Peterson’s perspective is useful to us for another reason, however. Throughout this essay I’ve listed a litany of recent attacks, recent harms, and implicitly engaged in a plea to recognise our humanity. Gill-Peterson demands we go further than simple moral appeals, however, as she draws on a tradition of trans activism dating back to the women of colour-led movements of the late 60s and early 70s: Allyship doesn’t rely on evaluating trans people as morally deserving, but rather on recognizing everyone’s right to the resources and public goods that raise our quality of life. Being an ally is about the common struggle for better living conditions. The trans politics of Black and brown women have been about mutual aid and abolition since the 1970s for a reason. They have proven to be the only people unafraid to consistently care for and love trans kids without using them as moral props. This is the foundation of an intersectional perspective that understands ‘trans issues’ as intimately connected to a broader politics of equality and justice, from equal access to public education, to the availability and affordability of healthcare, to the reproductive rights required to have and raise your own children, access to social welfare and services, to equal access to public accommodations and public space. These issues implicate all of our democratic rights, resting as they do on our shared vulnerability to their erosion. What starts with trans people will not end there. To better understand why, we need to turn to the concern-trolling question that has come to dominate recent debates about trans people’s right to exist: ‘What is a woman?’ *** From the recent nomination hearings of Justice Ketanji Brown Jackson in America to an Australian leaders’ debate amid the country’s general election, the seemingly simple question of ‘what is a woman?’ has been used in bad faith to antagonise or belittle trans rights, or to cast any ally of trans people as delusional. Jackson’s response was certainly effective: ‘I know I am one’, while the Australian Labor Party’s leader Anthony Albanese simply said ‘an adult female’, a bland dictionary definition that was meant to avoid the trap set by the debate moderator’s question. The question should be treated with scepticism, if not outright contempt, because it is almost always asked in bad faith and never arises except in discussions about trans people’s rights. This is partly because the category is coherent only through classic Wittgensteinian ‘family resemblances’, where no particular definition can meaningfully exhaust the concept—try to define a ‘game’, for instance. No single feature is common or essential to the whole. Republican politicians, when reporters turned the question around on them, stumbled; Senator Josh Hawley said he ‘didn’t know’ if a woman who’d had a hysterectomy was still a woman, for instance[15]—an answer that is either silly or chilling depending on his intent. But there is a way of answering the question honestly and accurately that also reminds us of the vast political and philosophical space offered by both the linguistic idea of family resemblances and the legal-political concept of intersectionality. Historian Susan Stryker, in an explanation of the relationship of performativity to gender, offered this summation: ‘A woman, performatively speaking, is one who says she is—and who then does what woman means’.[16] Some will find this answer circular. ‘Woman means what woman means’, is what she’s seemingly saying. But this is necessary in order for the definition to be both accurate and brief: it is meant to cover a wide range of possible gender expressions in every culture and subculture where ‘woman’ is a meaningful concept. Gender is ‘an attempt to communicate…and is accomplished by ‘doing’ something rather than ‘being’ something’.[17] In other words, gender is the sum of one’s actions, an achievement—it contains both the assertion of the identity and the enactment of a socially legible instance of that identity. When you bear in mind that there are lots of ways to be a woman, or a man, or any other gender, across numerous cultures and communities, it encompasses a wide range of possibilities—rather than the stifling stereotypes that ‘gender critical’ activists accuse transgender people of perpetuating. But that issue of ‘social legibility’ is the key here. It’s part of what makes declarations of ‘I identify as an attack helicopter’—one of approximately three jokes known to transphobes—so tedious and ridiculous. There is no collectively acknowledged and constructed social role or identity of ‘attack helicopter’, nor any meaningful attempt by the speaker to enact it. It’s little more than an empty attempt at satire. Still, it’s not simply a matter of what clothes one wears, say. It’s how you’re treated by others as well. For all the cruel debates about whether or not I should be allowed to exist, or whether my existence is some kind of parodic affrontery to all other women, patriarchy has made very few mistakes about me—from street harassment to online harassment, my experiences have much more in common with my cisgender woman friends than with my male friends. It is that shared social location, and a shared experience of abuse and oppression, that creates a site for political action; a standard around which to rally. Women are divided by many vastly different experiences, shaped by geography, social class, race, religion, culture, and more; but we can come together on some shared terrain—the familial resemblance of our common gender—to address discrimination, inequality, and oppression. Understanding womanhood with an expansive, contingent definition affords us liberatory possibilities. It’s worth remembering that in all the recent debates about whether trans people should be able to use the bathrooms of their choice, many of these arguments are recycled versions of those that justified racially segregated bathrooms in the American South, where the options were ‘Men’, ‘Women’, and ‘Colored’. Black women and other women of colour were excluded from the category of ‘woman’ when it suited the imperatives of the state. An inclusive definition of any gender category would refuse these imperial edicts, dissolving the use of such categories as weapons with which to oppress particular groups of people. An inclusive definition recognises that attacks on any minority’s right to claim membership in a gender, therefore, has stark implications for other rights as well: rights to public accommodation, to public space, to public education, to voting (particularly if voter ID laws are implemented), to be gainfully employed. Fixation on trans people’s genders makes such public participation difficult if not impossible for them. When one sees the reactionary consequences of transphobia and how it connects to other forms of oppression—the similarity to the logics of racial segregation, for instance—it becomes clearer why this position is feminist in name only. This is why the ‘gender critical’ position makes so little sense: its adherents claim to seek gender’s abolition on the grounds that it is a harmful idea, but they depend on gender for the very existence and intelligibility of their philosophy. Its arbitrary lines of identity make no sense without the thing they claim to be abolishing. Their certainty about who is and isn’t ‘really’ a man or a woman depends on the very patriarchal norms and gender stereotypes they claim to oppose. In particular, they take for granted the idea that sex is an unchanging caste that you may never leave, an idea that is profoundly patriarchal as it undergirds the stability of men as a privileged class with a birthright to that very privilege. ‘Gender critical’ means little beyond trans gender critical. Equally, ‘sex-based rights’ are meaningless as a concept except as a way of drawing segregationist lines around trans people’s access to public space. Gender equity, as it has been advanced by legislation[18], and interpreted by courts in the US,[19] actually depends on a broad understanding of gender, rather than a narrow parcelling out of rights on that basis. Indeed, the term ‘sex-based’ was historically used to classify discriminatory practises, a nod to the obvious reality that prejudice is the thing ‘based’ on one’s sex (or perceived sex) and our rights are meant to secure freedom from such discrimination.[20] Liberty from rape or sexual harassment is not a ‘sex-based right’, but something people of all genders would share in, just as the right to vote is not ‘sex based’, but a shared human right to which women were denied access. It is profoundly reactionary to think of equity legislation as granting ‘race-based rights’, say, or ‘sexuality-based rights’. Indeed, such wilful misunderstanding is at the heart of the common conservative charge that minorities seek ‘special rights’—a deliberately inflammatory allegation—when in truth they seek access to the same liberty enjoyed by all their neighbours. So too is it the case with transgender people. The entire concept of a ‘sex-based right’ only emerged in opposition to trans people’s claims to human rights, and represents an attempt at drawing a narrow and limiting definition of womanhood that has much more in common with regimes of the pre-democratic past.[21] It demands we imagine the continued existence of a women’s restroom as the limited horizon of feminist politics, an ideological surrender to the myriad horrors that confront the democratic world. To acknowledge that womanhood ‘means’ something broader, in the sense of Stryker’s definition, is to acknowledge greater political possibility that can rejoin feminist politics to the material politics of equity in all areas. As a rallying standard, it can provide a united front on issues like reproductive justice, healthcare access, and the meeting of basic needs: food, shelter, and the dignity of work, combined with ample leisure in which to enjoy its fruits. *** As the United States confronts a gathering storm on reproductive healthcare, it is very much worth concluding by drawing what should be the obvious connection between abortion rights and everything discussed hitherto: bodily autonomy. What many generations of feminists have fought for is control over our own bodies, liberty from the dictates of powerful men about what our bodies are for, or what they mean. It’s a cruel irony that a minority of people now calling themselves ‘feminists’ are insisting that the only way to define ‘woman’ is as a reproductive instrument—a perspective that is a neat fit with the far-right pro-lifers now on the march in America. Those same reactionaries also seek to erase transgender people from public life. The reasons are the same: emancipated women, cis and trans, as well as the mere existence of trans and nonbinary people, are an affront to their deeply conservative ideology of gender. We prove that alternatives to their sex castes are possible. To ban abortion and to ban contraception—as some Republican politicians are continuing to do—is to seek to control women, to chain us to biology; similar goals are at work in their anti-trans crusade, to exile queer and trans people from public life and positions of public trust, to break up our families, and criminalise us. Beyond providing reproductive care, it’s not a coincidence that many Planned Parenthood clinics are also places where trans people receive gender-affirming care, and where trans men and nonbinary people can go for sensitive treatment of their own pregnancies or uterine health. It is precisely that dignity and equality that is the target of so many right-wing extremists at this delicate moment in time. Bodily autonomy is a core capability that is at the foundation of so many other rights, all of which are under threat. These shared threats are fertile ground on which to build movements, and expand on existing ones. If hope lies anywhere, it is there, in the blessedly vast country of the meaning of ‘woman’. Katherine Cross Katherine Cross is a PhD candidate in information science at the University of Washington School of Information. She has extensively studied online harassment, social media culture, content moderation, and the ethics of big data. She is also a sought-after commentator on these issues, as well as on video gaming, virtual reality, transgender politics, and media criticism. [1] The Associated Press, ‘A judge blocks part of an Alabama law that criminalizes gender-affirming medication’ ( NPR , Montgomery USA, 14 May 2022) < https://www.npr.org/2022/05/14/1098947193/a-judge-blocks-part-of-an-alabama-law-that-criminalizes-gender-affirming-medicat > accessed 19 May 2022; Zoe Richards, ‘Justice Department challenges Alabama law criminalizing transgender health care for minors’ ( NBC News , 30 April 2022) < https://www.npr.org/2022/05/14/1098947193/a-judge-blocks-part-of-an-alabama-law-that-criminalizes-gender-affirming-medicat > accessed 19 May 2022. [2] Romy Ellenbogen and Christopher O’Donnell, ‘Florida advises no social, hormonal treatment of transgender children’ Tampa Bay Times (St. Petersburg, Florida, 20 April 2022) < https://www.tampabay.com/news/florida-politics/2022/04/20/florida-advises-no-social-hormone-treatment-of-transgender-children-in-new-guidance/ > accessed 19 May 2022. [3] Schuyler Mitchell, ‘The Right’s Creeping Pro-Natalist Rhetoric on Abortion and Trans Health Care’ ( The Intercept , 17 May 2022) < https://theintercept.com/2022/05/17/abortion-trans-health-care-pro-natalism-authoritarianism/ > accessed 19 May 2022; Josh Gerstein and Alexander Ward, ‘Supreme Court has voted to overturn abortion rights, draft opinion shows’ ( Politico , 5 February 2022) < https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 > accessed 19 May 2022. [4] Sarah Repucci and Amy Slipowitz, ‘The Global Expansion of Authoritarian Rule’ ( Freedom House , February 2022) < https://freedomhouse.org/report/freedom-world/2022/global-expansion-authoritarian-rule > accessed 19 May 2022. Of note is the United States, which has slipped in Freedom House’s Democracy Index from a score of 89 in 2017 to a score of 83 in 2022. [5] The UK’s Telegraph has a particular obsession with the spectre of ‘gender ideology’. Cf. amongst many others Camilla Tominey, ‘‘Niche’ transgender ideology ‘corrosive’ to society, says report’ The Telegraph (London, 30 June 2020) < https://www.telegraph.co.uk/news/2020/06/30/niche-transgender-ideology-corrosive-society-says-report/ > accessed 24 June 2022; Debbie Hayton, ‘Why the Government must exempt gender-critical views from hate crime laws’ The Telegraph (London, 7 December 2021) < https://www.telegraph.co.uk/news/2021/12/07/government-must-now-exempt-gender-critical-views-hate-crime/ > accessed 24 June 2022; Telegraph View, ‘Reason should guide the gender identity debate’ The Telegraph (London, 2 April 2022) < https://www.telegraph.co.uk/opinion/2022/04/02/reason-should-guide-gender-identity-debate/ > accessed 24 June 2022. [6] See, for example, Anglo-American writer Andrew Sullivan, who expressed dismay that the moral panic he had helped to foment was spilling over to antagonise cisgender gay people like himself. Cf. Andrew Sullivan, ‘This is a perfectly sane teacher responding to kids’ questions. It seems increasingly clear that this campaign is now driven by vicious homophobia. Moderates take note’, ( Twitter , 4 April 2022) < https://twitter.com/sullydish/status/1511008960446410754 > accessed 19 May 2022. [7] Ian Millhiser, ‘The constitutional problem with Florida’s ‘Don’t Say Gay’ bill’ ( Vox , 15 March 2022) < https://www.vox.com/2022/3/15/22976868/dont-say-gay-florida-unconstitutional-ron-desantis-supreme-court-first-amendment-schools-parents > accessed 19 May 2022. [8] Amanda Michelle Gomez, ‘Trans Woman’s Harassment on Metro Is Latest in Growing Number of Incidents Targeting LGBTQ+ People’ ( DCist , 14 April 2022) < https://dcist.com/story/22/04/14/trans-womans-harassment-on-dc-metro-reflects-growing-number-of-incidents/ > accessed 19 May 2022. [9] Jon Stone, ‘Boris Johnson takes credit for free bus pass after being told cash-strapped pensioners make trips to keep warm’ The Independent (3 May 2022) < https://www.independent.co.uk/news/uk/politics/boris-johnson-bus-pass-pensioners-warm-b2070395.html > accessed 19 May 2022. [10] Ella Braidwood, ‘Daily Telegraph criticised for anti-trans NHS women’s wards article’ ( Pink News , 11 January 2019) < https://www.pinknews.co.uk/2019/01/11/daily-telegraph-transphobic-headline/ > accessed 19 May 2022; Emily Craig, ‘NHS accused of prioritising trans people for breast surgery over women with medical needs’ Daily Mail (London, 2 May 2022) < https://www.dailymail.co.uk/news/article-10774277/NHS-accused-prioritising-male-female-trans-people-breast-surgery-women.html > accessed 19 May 2022; Katie Feehan, ‘NHS equality chiefs mutiny AGAINST ‘transphobic’ watchdog ruling that allows trans patients to be barred from single-sex wards if there is a legitimate reason’ Daily Mail (London, 6 April 2022) < https://www.dailymail.co.uk/news/article-10690199/NHS-mutiny-AGAINST-watchdog-ruling-allows-trans-patients-barred-single-sex-wards.html > accessed 19 May 2022. Indeed, the Daily Mail has an entire subsection devoted to coverage of trans people, nearly all of it negative and sensationalist (see < https://www.dailymail.co.uk/news/transgender-issues/index.html >). Other newspapers in the UK are not far behind. [11] Trudy Ring , ‘Rash of Teen Suicide Attempts After Arkansas Adopts Trans Care Ban’ ( The Advocate , 19 April 2021) < https://www.advocate.com/transgender/2021/4/19/rash-teen-suicide-attempts-after-arkansas-adopts-trans-care-ban > accessed 19 May 2022. [12] Sabrina Imbler , ‘In Arkansas, Trans Teens Await an Uncertain Future’ The New York Times (New York, 18 January 2022) < https://www.nytimes.com/2022/01/18/health/transgender-adolescents-arkansas.html > accessed 19 May 2022. [13] Rod Liddle , ‘I’m identifying as a young, black, trans chihuahua, and the truth can go whistle’ The Times (London, 11 November 2018) < https://www.thetimes.co.uk/article/i-m-identifying-as-a-young-black-trans-chihuahua-and-the-truth-can-go-whistle-tq550nx5f > accessed 19 May 2022. [14] Jules Gill-Peterson, ‘Anti-Trans Laws Aren’t Symbolic. They Seek to Erase Us from Public Life’ ( Them , 18 April 2022) < https://www.them.us/story/anti-trans-laws-public-erasure-dont-say-gay > accessed 19 May 2022. [15] Monica Hesse, ‘Republicans thought defining a ‘woman’ is easy. Then they tried’ The Washington Post (6 April 2022) < https://www.washingtonpost.com/lifestyle/2022/04/06/republican-woman-definitions/ > accessed 19 May 2022 [16] Susan Stryker, ‘( De)Subjugated knowledges: An introduction to transgender studies ’ in Susan Stryker and Stephen Whittle (eds) The Transgender Studies Reader (Routledge 2013) 10. [17] ibid. [18] Title VII of the Civil Rights Act of 1964 (USA). Note that the legislation does not attempt to define sex, only to include pregnancy and pregnancy-related discrimination (and, notably, to exclude most protection for abortion). [19] Price Waterhouse v. Hopkins (1989) 490 U.S. 228, US Supreme Court. Among other things, this landmark U.S. Supreme Court case held that discrimination on the basis of gender presentation (i.e., a woman wearing masculine clothing and refusing to wear makeup) was indistinguishable from discrimination on the basis of sex because it required the discriminating party to make judgments based on their perception of the target’s sex. You cannot antagonise a trans woman for wearing high heels, say, without taking into account your belief that she is ‘really’ a man. The reality of this belief is irrelevant to the motivation for discrimination, and the Hopkins case has, therefore, been essential in providing a legal basis for transgender rights in the U.S. [20] U.S. Equal Employment Opportunities Commission, ‘Sex-Based Discrimination’ < https://www.eeoc.gov/sex-based-discrimination > accessed 19 May 2022. [21] Kath Murray, Lucy Hunter Blackburn, and Lisa Mackenzie, ‘Reform ‘under the radar’? Lessons for Scotland from the Development of Gender Self-Declaration Laws in Europe’ (2020) 24(2) The Edinburgh Law Review 281–289; Callie H. Burt , ‘ Scrutinizing the U.S. Equality Act 2019: A Feminist Examination of Definitional Changes and Sociolegal Ramifications ’ (2020) 15(4) Feminist Criminology 363–409 . These papers are among the first to turn up in academic database searches for ‘sex-based rights’. Each of them offers an intervention against laws that would specifically protect trans people. Both pit the idea of ‘sex-based rights’ against transgender rights and represent novel constructions of women’s rights that would have been unthinkable a generation ago. As I note in the main body of this essay, the awkwardness and counterproductive nature of ‘sex-based rights’ as a phrase is easy to see when one attempts to use a similar phrase about race or any other protected category.

Russia’s assault on Ukraine continues to intensify as bombs increasingly hit city centres, destroying apartment buildings, theatres, and hospitals and killing civilians while the world watches. The brutal actions of the Russian army may seem inconceivable in the context of international norms but are not unimaginable for those who have actually been listening to Russian President Vladimir Putin. Fig 1. Several victims of starvation lay dead or dying on a busy sidewalk in residential Kharkiv. Photo from the collection of Samara Pearce, great granddaughter of the photographer Alexander Wienerberger. . President Putin has long made his convictions regarding Ukraine known, but few took him at his word. Driven by nostalgia for the Russian Empire as well as the USSR, Putin has made it clear that he seeks to destroy Ukraine as an independent state. Putin was more or less satisfied when the Kremlin-controllable common criminal Victor Yanukovych was Ukraine’s president. He never forgave Ukrainians for driving Yanukovych from office during their Maidan revolution eight years ago, and retaliated by annexing Crimea and beginning Russia’s war in Ukraine’s Donbas region. Since that time, Russian TV has kept up a drumbeat of hate and fear, dehumanizing Ukrainians and demonizing them as fascists and neo-Nazis. It has been Russian state policy to spread misinformation, priming the Russian public to root for, or at least accept, genocidal acts against the citizens of a peaceful, neighbouring state. The Russian media has for eight years told the Russian public that Ukrainians—particularly those who assert Ukraine’s right to independence—are evil and the enemy. The Russian soldiers who are firing missiles at Ukrainian cities today are part of that audience, which has been fed a steady diet of hate. Addressing the Russian people, President Putin continues to tell his citizens that Ukraine is led by drug-addled Nazis—a particularly ugly, cynical lie given that the Ukraine’s democratically elected President Zelenskyy is Jewish and lost relatives in the Holocaust. To his list of dangers that Ukrainians pose he has added the threat of a nuclear Ukraine, even though Ukraine gave up its nuclear weapons when it became independent in exchange for what have turned out to be meaningless security guarantees, including from Russia. Western pundits have wasted too many words discussing whether Ukraine's aspiration to belong to NATO triggered the Russian president. The possibility of NATO membership was not on the table when Putin invaded Ukraine eight years ago. The demonization of Ukrainians as a prelude to genocide has a precedent. Under the tsars, Ukrainian efforts for freedom were suppressed, including bans on the use of the Ukrainian language. In the lead up to the Holodomor, the Soviet famine of 1932-33 in which millions of Ukrainians were starved to death, Soviet propaganda paved the way, casting the Ukrainian peasant farmers as kulaks, describing them as parasites and vermin and as a class that deserved and needed to be exterminated. Worth noting is that Rafael Lemkin, the lawyer who developed the concept of genocide as well as the term, considered the Holodomor part of a greater genocidal attack on Ukraine and Ukrainians. Fig 2. A farm woman, victim of starvation, lies behind a cart near a marketplace in Kharkiv. Photo from the collection of Samara Pearce, great granddaughter of the photographer Alexander Wienerberger. . The Holodomor also provides a precedent for the Kremlin lies and disinformation of the past weeks. Over the past weeks, Russian TV has insisted that Russian troops are fighting only in Donbas. There is no mention that Russia is bombing Kyiv, Kharkiv, and other Ukrainian cities, or of civilian deaths; Russian media also claims that the Russian army is fighting irregular formations of nationalists and not the Ukrainian army. These lies intend to hide the truth of the Kremlin’s actions, just as Soviet authorities in 1932-33 refused international offers of food aid, claiming that people were not starving. They continued to deny the Holodomor for more than 50 years. It took the fall of the USSR, when researchers finally gained access to archives, to prove what eyewitnesses and survivors had insisted upon—that the Kremlin had engaged in the intentional starvation of the Ukrainian countryside. The intelligence sources that correctly predicted today’s onslaught also warned that the Kremlin has already prepared arrest and kill lists of the Ukrainians most likely to lead resistance to the imposition of Kremlin rule. A number of mayors, journalists, and activists in Ukraine have already been kidnapped. In the 1990s, I lived in Ukraine and worked with civic organisations, and I fear now for the people I know who have devoted their lives to building civil society in their country. They are likely to be targeted for their commitment to the development of a democratic Ukraine. Today, as Executive Director of the Holodomor Research and Education Consortium (a project of the Canadian Institute of Ukrainian Studies at the University of Alberta, which researches and educates about the genocidal famine in 1932-33), I fear for the Ukrainian academics I know. In Ukraine, historians are free to carry out their research. In Russia, historians who disagree with the Kremlin face persecution and imprisonment. Scholars engaged in the study of Ukrainian history and culture, as distinct from Russian, will certainly be targeted. Putin has made his intentions in Ukraine known—he is bent on destroying Ukrainians who assert their distinctiveness and who are willing to fight to preserve Ukraine as a sovereign state. Unlike during the Holodomor, when journalists were prevented from travelling to Ukraine to report on the suffering, today we are witnessing events in Ukraine in real time. We have no excuse. We know. The question is whether the world is willing to do what it takes to stop the Russian President who has already started down the path of genocide. Marta Baziuk Marta Baziuk is Executive Director of the Holodomor Research and Education Consortium (Canadian Institute of Ukrainian Studies, University of Alberta). She has more than 25 years’ experience in the not-for-profit sector, in Ukraine and North America.

The physical battlefield of the ongoing war between Ukraine and Russia is being closely scrutinised by the global community: each day, media platforms present their audience with maps, specked with shading and arrows, depicting the land lost or gained and troop movements of recent days. Behind the scenes, however, a shadowy battlefield of disinformation and political warfare rages just as strongly. The history of disinformation and political warfare Russia and the West are no strangers to information warfare and its potential to shift the balance of power in a conflict, turn the tide of an election, or destabilise a political regime. The most obvious recent example of this was Russian interference in the US Presidential Elections in 2016. Less well documented are the multitude of cyber-attacks perpetrated against Ukraine during the course of the past eight years. In 2014, Ukraine fell victim to Russian interference in its election as the Russian army simultaneously invaded and annexed Crimea. In 2015, suspected Russian cyber-operatives caused blackouts across the country. In 2017, a swathe of Ukrainian businesses and public services fell victim to Russian ransomware attacks, with hackers sharing the chilling message ‘We Do Not Forgive. We Do Not Forget. Expect Us’. Colonel Rolf Wagenbreth, head of the East German Secret Police Active Measures Department X, described the significance of disinformation in warfare. He explained that ‘a powerful adversary can only be defeated through…a sophisticated, methodical, careful and shrewd effort to exploit even the smallest “cracks” between our enemies…and within their elites’. This is precisely what we saw in the rhetoric adopted by Russia in the run up to its annexation of Crimea and more recently in its justification for the invasion into Ukraine. The more polarised a country is, the more vulnerable it is to attack. Today, Russia seeks to pit Ukrainian against Ukrainian by defining the current war as a ‘special military operation’ to ‘protect people who…have been facing humiliation and genocide perpetrated by the Kiev regime’. By characterising the current Ukrainian leadership as ‘far right nationalists and neo-Nazis’ perpetrating crimes against humanity on their own people, President Putin plays on existing national division. Ukraine is waging its own form of information warfare. It is of note that media coverage, particularly in Western outlets, has picked up Ukraine's messaging and sought to amplify the success of Ukraine's military forces whilst depicting the Russians as ill-prepared and Russian soldiers as disenchanted, reluctant to turn on Ukrainians whom they regard as their brothers. A significant challenge arises, however, sorting facts from the propaganda of either side. Whilst the Kremlin has been widely criticised for blocking access to pro-West media in Russia—thereby allegedly restricting the flow of accurate reporting of the war to the Russian population—it is equally clear that Western media sources are not impartial. Indeed, Western officials have conceded that ‘while they cannot independently verify information that Kyiv puts out about the evolving battlefield situation, including casualty figures for both sides, it nonetheless represents highly effective stratcom’.[1] According to Sean McFate, a senior fellow at the Atlantic Council, the Ukrainian communication strategy highlights ‘a shift taking place in modern conflicts, from a focus on munitions dropped to one centred in large part on messaging, media and persuasion’.[2] There are regular reports from both sides of the conflict of disinformation, including allegedly falsified records or accounts of incidents. An early example of this was reports of the attack on Snake Island.[3] More recently, a falsified BBC news report published by Russian News outlets asserted that the deadly attack on the train station in Kramatorsk was, in fact, perpetrated by the Ukrainian military.[4] In circumstances where nuggets of truth are disguised by layers of disinformation, the challenge of identifying and proving facts is clearly exacerbated. Establishing the facts is essential if we are to effectively hold perpetrators of war crimes to account. The International Criminal Court (the ‘ICC’)—prosecuting war crimes The ICC has a long—and somewhat chequered—history of prosecuting war crimes. Founded in 2002, it is governed by the Rome Statute and boasts 123 member states. Whilst its objectives are laudable, its practical success at holding perpetrators of war crimes to account is underwhelming. A key reason cited for this is limitations experienced by the court's investigators when it comes to evidence gathering, often rendering it impossible to secure convictions. The ICC's Prosecutor, Karim AA Khan QC, acknowledged this issue in his first speech to the Court when he took office in June 2021. He noted that ‘We cannot invest so much, we cannot raise expectations so high and achieve so little, so often in the courtroom. As an office, we need a greater realisation of what is required by the burden of proof and the obligation to prove the case beyond reasonable doubt’.[5] Historically, the ICC's investigators have faced difficulties arising out of the Court's relatively low funding for investigations, the unreliability of witness evidence, and the inaccessibility of areas in which the alleged crimes took place.[6] Article 61 of the Rome Statute requires that ‘the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence…’.[7] It is here that the ICC has historically fallen short. Indeed, on a number of occasions, the Prosecutor has failed to clear the evidentiary threshold set out above that there is ‘substantial grounds to believe’ that the individual is responsible for the crimes for which they are charged.[8] It has been widely acknowledged by the ICC's Pre-Trial Chamber that the evidentiary burden of ‘substantial grounds to believe’ requires the Prosecutor to ‘offer concrete and tangible proof demonstrating a clear line of reasoning underpinning [the] specific allegations’.[9] Further, in cases that have proceeded beyond the decision to charge an individual, judges have on several occasions dropped—or the Prosecutor has withdrawn—charges due to insufficient evidence.[10] The recent case against Laurent Gbagbo and Charles Blé Goudé On 31 March 2021, the Appeals Chamber of the ICC upheld the acquittal of the former Ivorian President Laurent Gbagbo (who held office from 2000 until his arrest in April 2011) and a former student union leader and minister of youth in Gbagbo's government, Charles Blé Goudé.[11] It is of note that the Pre-Trial Chamber originally adjourned the case in 2013 so as to give the Prosecutor more time to gather evidence. In its decision to adjourn, the Pre-Trial Chamber provided a helpful explanation of its role: it is the Chamber's duty to evaluate whether there is sufficient evidence for each of the ‘facts and circumstances’ advanced by the Prosecutor in order to satisfy all of the legal elements of the crime(s) and mode(s) of liability charged. The standard by which the Chamber scrutinizes the evidence is the same for all factual allegations, whether they pertain to the individual crimes charged, contextual elements of the crimes or the criminal responsibility of the suspect.[12] The Chamber explained that, at each stage of proceedings, there is higher evidentiary threshold that needs to be met. The Pre-Trial Chamber went on to clarify the ICC's expectations when it comes to the quality of evidence gathered: the Chamber considers that it would be unhelpful to formulate rigid formal rules, as each exhibit and every witness is unique and must be evaluated on its own merits. Nevertheless, the Chamber does consider it useful to express its general disposition towards certain types of evidence. As a general matter, it is preferable for the Chamber to have as much forensic and other material evidence as possible. Such evidence should be duly authenticated and have clear and unbroken chains of custody. Whenever testimonial evidence is offered, it should, to the extent possible, be based on the first-hand and personal observations of the witnesses.[13] The Prosecutor in this case was criticised by the Chamber for their heavy reliance on NGO reports and press articles when seeking to establish key elements of the case. The Court was clear that whilst reports and articles can provide valuable historical context, they are not a valid substitute for the type of evidence required to meet the evidentiary threshold for the confirmation of charges.[14] What does this mean for the current conflict? On 2 March 2022, Mr Khan QC announced that he was opening an investigation into the situation in Ukraine. Under Article 53 of the Rome Statute, prior to opening an investigation, a Prosecutor must consider whether the information available provides reasonable grounds to believe a crime is being, or has been, perpetrated within the jurisdiction and whether an investigation would serve the interest of the victims.[15] Mr Khan QC confirmed that the court had received referrals from 39 ICC member states and that the investigation would encompass events from 21 November 2013 onwards, including allegations of war crimes, crimes against humanity, and genocide committed on any part of the territory of Ukraine by any person. It is of note that the scope of the investigation is sufficiently broad to cover aggression perpetrated by the Ukrainian military or Ukrainian civilians as well as Russian forces.[16] Mr Khan QC is evidently aware of the ICC's reputation and appears determined to ensure that the failings of previous prosecutions do not apply to the current conflict. Whilst visiting Bucha, Ukraine on 13 April 2022, Mr Khan noted that ‘Truth is very often the first casualty of war’. With this in mind, the ICC has already installed an investigation team on the ground in Ukraine, including forensic scientists, forensic anthropologists, analysts, investigators, and lawyers, ‘so that [the ICC] can really make sure that we separate truth from fiction and go forward to insist on the rights of every individual, every child, every woman and every man to have their lives protected and not wantonly targeted’. Mr Khan QC has promised that ‘a truth [will emerge] in the end…in the courtroom, there is no place to hide and the truth ultimately emerges, whatever the tactics that may be employed or whatever the difficulties and hurdles that exist’.[17] Documenting War Crimes The international community, cognisant of the historic failures of the ICC to secure convictions as a result of insufficiently robust evidence, has established various services to assist with the collection and storage of evidence. By way of example, the Ukrainian Office of the Prosecutor General has created a site facilitating the proper documentation of war crimes and crimes against humanity perpetrated by the Russian army in Ukraine. Evidence uploaded to the site ‘will be used to prosecute those involved in crimes in accordance with Ukrainian law, as well as in the International Criminal Court in the Hague and in a special tribunal after its creation’.[18] In addition, tech giants such as Google have created apps, such as the eyeWitness to Atrocities App, aimed at humanitarian organisations, investigators, and journalists documenting atrocities in conflict zones or other troubled regions around the world. The app's software enables users to encrypt and anonymously report incidents. Under the ICC's Rules of Procedure and Evidence it is within the Chamber's discretion to ‘assess freely all evidence in order to determine its relevance or admissibility’; further, either party can make an application to challenge the admissibility of evidence submitted by the other side. The Chamber has broad powers in determining whether evidence meets the standards required to be admissible in Court. That said, it is not permitted to ‘impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court’.[19] The impact of disinformation on prosecution The ultimate impact of disinformation warfare on the prosecution of war criminals—or indeed, the outcome of the current war in Ukraine—will remain unknown for the foreseeable future. That said, it is of serious concern that the expansion of disinformation warfare (and technical prowess with which it is perpetrated) creates real difficulties for reaching safe prosecutions. Mr Khan QC has noted that ‘We have to pierce the fog of war to get to the truth’, however, with increasingly sophisticated modes of deception this challenge should not be overlooked.[20] Recent reports from the Russian Ministry of Finance indicate that Russia has tripled its ‘mass media’ budget over the past year. Between January and March this year, the Russian government spent 17.4 billion roubles on ‘mass media’ in comparison with only 5.4 billion roubles during the same period last year, with reports suggesting this has been directed towards propaganda efforts.[21] Research indicates that repeated exposure to online falsehoods, even if those falsehoods have low levels of credibility, increases perceptions of veracity over time.[22] A concerning example of this is that a survey in the US revealed that almost one in five Americans believe in QAnon conspiracy theories, including that ‘the government, media and financial words in the US are controlled by a group of Satan-worshipping paedophiles who run a global child sex-trafficking operation’.[23] Disinformation warfare is inconspicuous but insidious. It is clear, however, that the international community must recognise that a parallel war is underway and that it must arm itself to guard against disinformation in order to ensure proper and fair administration of justice in the years to come. Alexandra Agnew, Mishcon de Reya Alexandra Agnew is an Associate in the Politics & Law Team at Mishcon de Reya. Alexandra regularly advises clients in relation to government and political disputes. She was part of the team working on Gina Miller’s successful 2019 judicial review case into the legality of the Prime Minister’s prorogation of Parliament and advised whistleblowers in relation to their disclosures to the Equality and Human Rights Commission regarding widespread antisemitism in the Labour Party. Alexandra is also a member of Mishcon’s Purpose-litigation team which uses strategic litigation to drive constructive societal change in three key areas: Human Rights and Governance, the Environment, and Data Rights and Online Accountability. Mishcon de Reya is an independent law firm, which now employs more than 1200 people with over 600 lawyers offering a wide range of legal services to companies and individuals. With presence in London, Singapore and Hong Kong (through its association with Karas LLP), the firm services an international community of clients and provides advice in situations where the constraints of geography often do not apply. This article was written in May 2022. [1] Missy Ryan, Ellen Nakashima, Michael Birnbaum, and David L Stern, ‘Outmatched in military might, Ukraine has excelled in the information war’ The Washington Post (Washington, 16 March 2022). [2] ibid. [3] Zoya Sheftalovich, ‘“Go fuck yourself”, Ukrainian soldiers on Snake Island tell Russian ship before being killed’ Politico (25 February 2022). [4] Pip Cook, ‘Putin hijacks BBC: Russia spreads terrifying video blaming Ukraine for missile attack’ Daily Express (London, 13 April 2022). [5] Susan Kendi, ‘Karim Khan’s first speech as ICC Prosecutor’ ( Journalists for Justice, 16 June 2021) < jfjustice.net/karim-khans-first-speech-as-icc-prosecutor/ >. [6] Christian M De Vos, ‘Investigating from Afar: The ICC's Evidence Problem’ (2013) 26 Leiden Journal of International Law 1009. [7] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2022) 2187 UNTS 38544 (Rome Statute) art 51. [8] Patryk Labuda, ‘The ICC’s “evidence problem”: The future of international criminal investigations after the Gbagbo acquittal’ ( Völkerrechtsblog , 18 January 2019) < voelkerrechtsblog.org/the-iccs-evidence-problem/ >. [9] Prosecutor v Laurent Gbagbo (Pre-Trial Chamber, Decision adjourning the hearing on confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute) ICC-02/11-01/11 (3 June 2013). [10] International Criminal Court, Cases < https://www.icc-cpi.int/cases?f%5B0%5D=accused_states_cases%3A356 >. [11] ‘ICC Appeals Chamber confirms Trial Chamber I’s decision acquitting Laurent Gbagbo and Charles Blé Goudé of all charges of crime against humanity’ (International Criminal Court, 31 March 2021) < https://www.icc-cpi.int/news/icc-appeals-chamber-confirms-trial-chamber-decision-acquitting-laurent-gbagbo-and-charles-ble >. [12] Prosecutor v Laurent Gbagbo (n 9) [19]. [13] ibid [26-27]. [14] ibid [35]. [15] Rome Statue (n 7) art 53. [16] ‘Statement of ICC Prosecutor, Karim AA Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation’ (International Criminal Court, 2 March 2022) < https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states >. [17] Catherine Philp, ‘Truth will out about Russian war crimes in Ukraine, says British prosecutor’ The Times (London, 13 April 2022). [18] ‘Criminal liability for # RussianWarCrimes!’ < https://warcrimes.gov.ua/ >. [19] ‘Rules of Procedure and Evidence’, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002 (ICC-ASP/1/3 and Corr.1), part II.A (Rules 63-64). [20] Philp (n 17). [21] Tom Ball, ‘Russians create fake BBC news video to blame Ukraine for bombing’ The Times (London, 13 April 2022). [22] Gordon Pennycook, Tyrone D Cannon, and David G Rand, ‘Prior exposure increases perceived accuracy of fake news’ (2018) 147 Journal of Experimental Psychology 1865. [23] ‘The Persistence of QAnon in the Post-Trump Era: An Analysis of Who Believes the Conspiracies’ (PRRI, 24 February 2022) < www.prri.org/research/the-persistence-of-qanon-in-the-post-trump-era-an-analysis-of-who-believes-the-conspiracies/ >.