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

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

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

Introduction   Frans Hals was a mildly successful seventeenth-century Dutch old master who specialised in portraits. Few of his works have persisted in popular cultural consciousness in the intervening 400 years. One exception is the Laughing Cavalier,  painted in 1624, which remains on display in the Wallace Collection in London. The Laughing Cavalier  was once described by the Harvard art historian   Seymour Slive as ‘one of the most brilliant of all Baroque portraits’.[1] But interest in Hals’ work since has been limited mostly to fine art specialists and investors.[2] This year saw the fruits of that interest in a claim against the auction house Sotheby’s. The subject matter was Hals’ Portrait of a Gentleman, half-length, wearing Black , believed to have been   painted around 1650 .  It is a rather boring work. The subject matter is a grim, wealthy Dutch aristocrat, whose only redeeming aesthetic quality seems to be the fine robe he can afford. Beyond that there is little to spark one’s interest. But luckily the artwork has generated an interesting case, engaging, in an art law context, principles of agency, partnership, witnesses of fact, and contractual construction of state of scholarship clauses. The case also provides a key moment to re-evaluate whether there are any unique or common principles which animate this area of the law. I argue that there are such principles in the final section. First, however, it is necessary to begin with the historical context of Mark Weiss  and auction house claims more broadly.   Historic auction house claims   The vast majority of claims before English courts against auction houses have taken place in the last 30 years.[3] This has corresponded with the growing commercialisation of the fine art market internationally. In the 1990s there was a movement from the culture of gentlemanly handshakes to one of increasing legal formalisation. Martin Wilson, previously Co-Head of Legal and Compliance at Christie’s, noted that in 1998 Christie’s had only three people working in its legal department. ‘By the time I left Christie’s in 2017’, he recently wrote, ‘the legal department numbered 40 employees’.[4]   Since the mid-1990s, claims against auction houses have involved mixed allegations of breach of contract and tort.[5] A useful mixed example is the 1995 case of De Balkany v Christie Manson and Woods .[6] This case was about a work by Egon Schiele, an Austrian   Expressionist protégé of Gustav Klimt, purchased in 1987 for the reserve sale price of £500,000 plus the hammer price and buyer’s premium. By 1991 the buyer believed that it was a forgery, and contacted Christie’s requesting a refund. Christie’s’ terms and conditions generally excluded liability. There was only a limited right to obtain a refund if the item was a forgery, defined with the classic term of being a piece created with an ‘intention to deceive as to authorship, origin, date, age, period, culture, or source’. But that right was further limited by the requirement that, if the sale had been in line with general scholarship at the time of sale, no refund would be possible. Christie’s argued that there had not been an intention to deceive, nor was it contrary to the state of scholarship when sold.

Introduction   This article sets out the case for taking future generations seriously through our political institutions. We make three central claims. First, future people matter, and political institutions ought to reflect this. We make this case by appealing to the importance of broad political enfranchisement, and then to the more general moral significance of future people. Second, our political institutions do not yet take the interests of future generations sufficiently seriously across a range of issues, especially relating to managing risks—and considerations from economics and psychology explain why she should expect this to be the case. Third, institutional reform toward representing future people is both promising and feasible. To this end, we describe four kinds of reform which we hope will broaden the discussion. Throughout, we draw on work by Tyler John.[1]   Future generations matter for politics   Representation matters for politics   A core part of today’s Western understanding of democracy is that governments derive their legitimacy from adequately including the people they affect in their decision-making processes.[2] The American Revolution led with the slogan ‘no taxation without representation’,[3] and the subsequent Declaration of Independence affirmed that ‘governments are instituted among men, deriving their just powers from the consent of the governed’.[4]   Yet, a government being democratic in name does not imply it represents everyone it ought to represent. Indeed, the history of Western democracy is a history of subjugated groups struggling for political enfranchisement.[5] Women were not granted the vote until well into the twentieth century; US Congress only passed the Civil Rights Act in 1967; and today fierce discussion continues on how constitutional issues like gerrymandering discriminate in practice against certain groups.[6]   We may care about representation because we value equality, diversity, or fairness, and believe broader representation is necessary for these abstract ideals. But we should also care about representation because of its practical effects—because it shapes laws and policies. When groups are underrepresented in democratic systems, politicians have weaker incentives to consider their interests in constructing policy, and are exposed to a narrower range of perspectives. When groups are not represented at all, governments do not have to internalise the externalities imposed by this policy.

Postcards have long been linked to memory formation, sold primarily as ‘souvenirs’, a term itself deriving from the French verb souvenir  (to remember). The mnemonic role of postcards is particularly worth discussing with regard to the cultural output of places where memory is contested, and which have undergone and continue to undergo upheaval resulting from conflict. This is the case of parts of the Donetsk and Luhansk regions of eastern Ukraine, often referred to collectively as ‘Donbas’.[1] Although parts of these regions have been occupied by or engaged in conflict with Russia since 2014, their difficult relationship with memory and trauma long predates that.   Not long after the start of the conflict, photojournalist Anastasia Taylor-Lind came across a bundle of postcards in a post office in Sloviansk, Donbas, with the words ‘Welcome to Donetsk’ emblazoned across idyllic images of the city. Moved by the juxtaposition of the war surrounding her and the close resemblance of the photographs to her British hometown, Taylor-Lind was prompted to entirely reconsider how places at war should be depicted. Together with Donbas-born Alisa Sopova, Taylor-Lind set up a project entitled ‘Welcome to Donetsk’, in which they sent thousands of postcards from Donbas to homes around the globe. Each one bore a handwritten note stating the name of a victim of the conflict, and the circumstances of their death. Their project has led to the creation of a comprehensive list of victims from all sides of the war, with Taylor-Lind stating her intention to continue documenting these names until the end of the war.[2] Fig 1. Lilya Nimenko postcard (Anastasia Taylor-Lind). 'Welcome to Donetsk' project. Courtesy of Anastasia Taylor-Lind. . Turning to an entirely different medium, postcards also play a significant role in prompting discussions of memory in Serhiy Zhadan’s 2010 novel Voroshilovgrad,  centred on Donbas after independence. The novel’s protagonist, Herman, recalls speaking about postcards of the city of Voroshilovgrad (now Luhansk) in his German class during the Soviet era, but struggles to reconcile that memory with a present in which it seems incongruous: ‘I never went to Voroshilovgrad, either. And now there’s no such thing as Voroshilovgrad’.[3] Later in the novel, Olga, an accountant from Herman’s hometown, echoes this sentiment of detachment from one’s own past when her discovery of a collection of such postcards brings back memories of sending them to German pen pals. This prompts a reflection building on that of Herman. She voices a struggle to believe one’s own memories: ‘there’s no such city as Voroshilovgrad anymore, and the boy from Dresden doesn’t write me anymore, and it’s like none of that even happened, or it wasn’t even part of my life’.[4]   Despite the differences in genre—one draws on real-life events, and the other is fiction—the approaches of the two projects to postcards and their mnemonic value have significant parallels. It is therefore worth exploring further how the two converge in their visions of Donbas. They converge firstly regarding the interaction between postcards, naming practices, and memory formation. They also converge on the relationship of postcards to realities past and present, and the perception of postcards as places.   One factor which contributed to starting ‘Welcome to Donetsk’ was Taylor-Lind’s increasing awareness of how conventional war photography casts people living through conflict as ‘characters from a war story’[5]—victims, war dead, combatants—rather than people not so different from the viewer. ‘Welcome to Donetsk’ departs from this convention, writing out the names of those who have died, regardless of whether they were a civilian, combatant, or journalist, and regardless of nationality or political views. The process of naming creates a juxtaposition against the mass-produced postcard. The impact of which is confirmed by the emotional reaction of the postcards’ recipients, many of whom decided to commemorate the person named in their postcard, for example by holding small memorials.[6] Uniting pre-war photos of the region with the names of real people therefore challenges the ‘othering’ of places of war and their inhabitants by underscoring the deeply personal impact of war.   For Zhadan, postcards also provide an opportunity to explore the importance of naming in memory. Herman’s memory of postcards depicting the Voroshilovgrad of his adolescence appears to represent a dichotomy: ‘That city doesn’t even exist anymore. It’s called Luhansk now’.[7] This suggests that renaming a place is tantamount to replacing it, in the most literal sense of the word: re-placing . Memories are cut adrift, with no tangible referent. As   noted by Pavlo Shopin, ‘It is a signifier without a signified’.[8] Indeed, Luhansk has not had a linear history, instead experiencing multiple repetitions: the city’s name was changed no fewer than four times in the twentieth century, finally returning to ‘Luhansk’ in 1990.[9] Herman therefore conveys the sense of illegitimacy and shame accompanying memories from former regimes, a sentiment against which the author appears to push back. Zhadan’s naming the novel ‘ Voroshilovgrad ’, despite it not being set there, reflects Herman’s experience of having memories ‘of’ a place which he has never visited. Zhadan’s focus on naming thus tackles the difficult line between ‘denouncing a regime and devaluing the lives lived under it’,[10] suggesting that naming is significant not only in confirming the existence of a place, but also in legitimising the existence and memories of those who live in its vicinity.   The idea that a place ‘doesn’t exist anymore’, however, goes beyond naming. Such assertions problematise the relationship between past and present. Political changes can suddenly, prematurely transform a postcard from a contemporary vision of a place, into a piece of archive material. In ‘Welcome to Donetsk’, this clash in perceptions is epitomised by the two sides of the postcard, which represent two realities simultaneously—war and peace—but only one place. In this way, the project does not simply tell the same story twice on the two sides of the card, but instead suggests that radically different perceptions of a place must be acknowledged as parts of the same story. In Voroshilovgrad , in contrast, the postcards that Olga finds are incomplete, never having been written or sent, and therefore seemingly bear only one ‘side’ of the story. Prematurely cut off from fulfilling their purpose, these postcards share a certain parallel with the sudden renaming of the city, and with Herman’s sense of incompletion. Nevertheless, Zhadan subverts any sense of unfulfilment, as the unwritten side of the postcard demonstrates that the card is intended for its owner alone. The unwritten side can thus be interpreted as symbolising the characters’ full ownership of their memories, reaffirming the legitimacy of individual perceptions of the past, without moulding them to the expectations of anyone else.   This is to say not that either use of postcards engages explicitly with the reality of place, but quite the opposite. In Voroshilovgrad , for example, characters admit to using postcards to project a desired view of a place. Olga recalls how she would ‘pick out the ones with tons of flowers because I wanted him [a German pen pal] to think that Voroshilovgrad was a fun city’.[11] This is by no means unusual. Daniel Reynolds notes the tendency for postcards to depict ‘clichéd scenic views in garishly enhanced colours’.[12] It can therefore be suggested that postcards create a certain complicity between sender and recipient, with both being aware of their shared part-imagining of place. It can therefore be useful to consider why postcards are chosen over letters by both Taylor-Lind and Zhadan. Through the medium of postcards, the sender brings the recipient within the paradigms of a mutually imagined reality. Jacques Derrida observed that in a postcard image ‘one does not know what is in front or what is in back, here or there, near or far’,[13] and this underlines how the medium of postcards, with the intersection of decontextualised images and a written message, lends itself to an almost floating, quasi-imagining of place. Taylor-Lind’s project speaks to a blurring of boundaries between the real and imagined since, although she specifically chose postcards of pre-war Donbas, these too become subject to imagination, as the basis of those images no longer exists in the state in which it is depicted. Whereas Olga chose postcards based on their novelty, Taylor-Lind chose them based on their banality, in order to evoke greater empathy on the part of the recipient. She explained: ‘In these cards Donetsk looks like an ordinary, peaceful European city, like anyone’s hometown, like my hometown’.[14] This challenges the binaries of the imagined and real, the pre-war and ‘war-torn’, emphasising that places designated as ‘warzones’ were not always so, and that those living in such places are not so different from the postcards’ recipients. Thus, although in both Taylor-Lind’s project and Zhadan’s novel, postcards are reminders of the past, the images of the past on postcards engage with the adaptation and part-imagination of reality, suggesting that this is always part of the experience of a place, and that no single perception of a place is more valid than another.   Yet postcards are not simply valued for their relation to memories of a place. They become places in their own right. In Voroshilovgrad , for instance, postcards are a mnemonic tool for recalling memories associated with a place and time, rather than for remembering the place itself. This is epitomised by Herman recollecting that he ‘never went to Voroshilovgrad’,[15] and yet that his memory of it stems from the postcards which he ‘talked about … in German for years’,[16] demonstrating that memories linked to postcards are only partially connected to place. Olga similarly declares, ‘Maybe these pictures are  my past’,[17] suggesting that postcards are valued more for the   memories they evoke and help to preserve than for the places they depict. In this way, Zhadan’s depiction of postcards resonates with Pierre Nora’s theory of ‘lieux de mémoire’ (‘sites of memory’), ‘where memory crystallizes and secretes itself’.[18] The memories contained within postcards render them places themselves—sites of memory— autonomous but not unrelated to history. This is echoed on the metanarrative level, with the reader ‘remembering’ Voroshilovgrad as a result of the book’s name despite never having been there, and despite the novel not even being set there. Not dissimilarly, Taylor-Lind’s project of remembrance ultimately promotes the production of memory for a recipient who did not experience that place or know that person. Both Zhadan and Taylor-Lind arguably encourage the creation, and not just the preservation, of what could be termed ‘vicarious memory’. Their works therefore portray postcards as an aid not only against forgetting one’s own memories, but also against forgetting the memories of others. Fig 2. Serhiy Feoktistov postcard (Anastasia Taylor-Lind). 'Welcome to Donetsk' project. Courtesy of Anastasia Taylor-Lind. . The communicative aspect of postcards differs between the two, however. In ‘Welcome to Donetsk’, the reaction of the recipients is arguably the most important element of the project, helping to provoke empathy for those in faraway conflicts. As Taylor-Lind notes, the postcards are only half of the story: ‘what they do is provide a catalyst for research, engagement, and conversation within foreign homes’.[19] Zhadan, conversely, has a greater focus on unsent postcards, illustrated when Olga notes, ‘I would just keep all the other ones … And I just found them. A whole stack of them’.[20] Kept almost like an unintentional private archive, and found many years later, they could be interpreted as being unfinished and abortive, telling a story with no satisfactory ending, echoing the characters’ feeling of sudden severance from their past at the fall of the Soviet Union. It could appear that the postcards have been robbed of their purpose. However, it soon becomes clear that, for Zhadan’s characters, not only are postcards for their recipients, but their function as ‘lieux de mémoire’ also aids their original owners. Olga’s discovery of postcards from her past exemplifies this. It prompts not only recollections, but also defiance, and determination to acknowledge memories despite the pressures of collective memory. She states that these memories are ‘Something they took away from me and forced me to forget. But I haven’t forgotten’.[21] In this way, postcards lend tangibility to memory, and the way in which they can be found after many years, as happens in Olga’s case, provides a material parallel to the process of remembering.   Taylor-Lind, on the other hand, emphasises that such ‘lieux de mémoire’ are not only for those who hold memories related to that past. The communicative aspect of postcards can transform postcards into agents of vicarious memory for those detached from, for example, Donbas. ‘Welcome to Donetsk’ therefore turns postcards into mobile ‘lieux de mémoire’, sites of remembrance which are almost tombstones for the victims of the war. Paradoxically, the mobility of postcards makes them more permanent, when there is both a physical and ontological threat to many parts of Donbas, and thus also to cemeteries and sites of remembrance. The differing uses of postcards as ‘lieux de mémoire’ between Taylor-Lind and Zhadan therefore demonstrates that they are not only for those who battle with their own memories, but also for those who wish to remember something, or rather someone, that they never met.   Literature, real-life conflict, and memory intersect in these two examples of cultural production from Donbas, to demonstrate that postcards can be not only tools in remembering, but also in remembrance, through their status as ‘lieux de mémoire’. These representations and uses of postcards hint that the relationship between postcard and place is highly complex. The ‘place’ depicted is often more a result of desired projections of imagination than of lived reality, and postcards become places of memory of their own, independent from the unfolding of history. Comparing the two projects demonstrates the value of postcards in memory, not only in the conventional communicative form, but also for the owner of the unsent postcard. Zhadan in particular suggests that detachment from places and from one’s own memories that is due to sudden historical divides does not have to result in forgetting such memories. Taylor-Lind goes beyond this, using postcards as places of remembrance , creating forms of vicarious memory for the recipients.   Donbas is no stranger to changes in identity and in the status of memories, and this is set to be the case at least for the near future. However, Zhadan and Taylor-Lind use postcards to demonstrate a defiance to the fragility of memory in the region, and to underscore that inhabitants’ memories do not have to be tainted by the actions of a regime. Therefore, although both projects problematise the interplay of memory and place when place can no longer be relied upon as a tangible mnemonic referent, they ultimately converge in their shared use of postcards to represent possibilities for accepting the past, and for empathising with the experiences of others. Alice Mee   Alice Mee is a third-year undergraduate in Modern and Medieval Languages (French, Spanish, and Ukrainian) at Queens' College, Cambridge. She has spent the first eight months of her year abroad working at the Parliament of Ukraine, where she became very interested in matters surrounding the ongoing conflict with Russia. Before returning to Cambridge for her final year, Alice is working with an NGO supporting smallholder coffee farmers in Costa Rica. [1] The name ‘Donbas’ is used here for concision, although its usage remains contested. Dmytro Krapyvenko, ‘Павло Жебрівський: «Донбас —це совковий ідеологічний топонім»’ ( Український Тиждень , 7 December 2017) < https://tyzhden.ua/Society/205344 > accessed 9 March 2021. [2] Anastasia Taylor-Lind, ‘War is personal: how social media brings home news of faraway conflicts’ (2015) 69(4) Nieman Reports 16, 23. [3] Serhiy Zhadan, Voroshilovgrad  (Isaac Stackhouse and Reilly Costigan-Humes trs, Deep Vellum Publishing 2016) 182. [4] ibid 434-5. [5] Taylor-Lind (n 2) 19. [6] ‘WelcomeToDonetsk: Photojournalist Anastasia Taylor-Lind Presents Her Work at HURI’ ( HURI , 14 April 2016) < https://huri.harvard.edu/news/welcometodonetsk-photojournalist-anastasia-taylor-lind-presents-her-work-huri > accessed 22 February 2021. [7] Zhadan (n 3) 181. [8] Pavlo Shopin, ‘Voroshylovhrad Lost: Memory and Identity in a Novel by Serhiy Zhadan’ (2013) 57(3) The Slavic and East European Journal 372, 377. [9] Tanya Zaharchenko, ‘While the Ox Is Still Alive: Memory and Emptiness in Serhiy Zhadan’s Voroshylovhrad’ (2013) 55(1-2) Canadian Slavonic Papers 45, 52. [10] ibid 66. [11] Zhadan (n 3) 434. [12] Daniel P Reynolds, Postcards from Auschwitz: Holocaust Tourism and the Meaning of Remembrance  (New York University Press 2018) 2. [13] Jacques Derrida, The Post Card: From Socrates to Freud and beyond  (Alan Bass tr, University of Chicago Press 1987) 13. [14] Taylor-Lind (n 2) 19. [15] Zhadan (n 3) 182. [16] ibid 181. [17] ibid 435. [18] Pierre Nora, ‘Between Memory and History: Les Lieux de Mémoire’ (1989) 26 Representations 7. [19] Taylor-Lind (n 2) 22. [20] Zhadan (n 3) 434. [21] ibid 435.

Can you draw out Leviathan with a fishhook, or press down its tongue with a cord? Can you put a rope in its nose, or pierce its jaw with a hook? Will it make many supplications to you? Will it speak soft words to you? Will it make a covenant with you to be taken as your servant forever?[1]   *   The rich symbolic inner workings of Hobbes’ Leviathan  have been much commented on in the centuries since its publication, with most attention being given to its incomparable frontispiece. But fewer interpreters (especially today) comment in detail on the reference to the Book of Job in Hobbes’ title, a reference that Hobbes mentions explicitly in the text.[2] I want to offer an interpretation of the image of Leviathan that connects it directly with some of Hobbes’ central concerns (his ideas about human nature, sovereignty, and covenant), and that helps us understand the place of symbolism, metaphor, and literature in Hobbes’ famously mechanistic politics.   A brief synopsis of the book of Job. Job, a ‘blameless and upright’ man who ‘feared God and turned away from evil’,[3] has been tested by the Lord. Everything he owned has been taken from him, his family have been killed, and his body is covered in painful sores, to the point that he curses the day of his birth: ‘Let those curse it who curse the Sea, / those who are skilled to rouse up Leviathan’.[4] The bulk of the text consists of verse dialogue between Job and three of his friends about the problem of theodicy: how can Job, a blameless man, be made to suffer by God? His friends argue that he cannot have been truly blameless, that he must have acted so as to justify his punishment. Job continues to insist on his innocence.   Hobbes’ reference is to the climax of the text, where the Lord answers Job ‘out of the whirlwind’: ‘Who is this that darkens counsel by words without knowledge?’[5] The Lord’s (somewhat ironic) response is not to prove that Job was deserving of suffering, but merely to humble  him, rhetorically—even sarcastically—asking:   Where were you when I laid the foundation of the earth? Tell me, if you have understanding. Who determined its measurements—surely you know! Or who stretched the line upon it?[6]   The Lord does not answer Job, does not give his questioning the reverence that human reason is often accorded today. He instead seeks to put him in his place, with the aim of having Job answer: ‘I have uttered what I did not understand / … therefore I despise myself, / and repent in dust and ashes’.[7] He disparages (we might want to say ‘ridicules’) Job—and thus humanity—for his ignorance of nature and of the Lord’s mighty act of creation. He also reminds Job of the Lord’s incredible power and Job’s powerlessness, especially beside the two great monsters Behemoth and Leviathan. And it is the sea monster Leviathan that receives the most detailed description, taking up the entirety of chapter 41.[8]

Between December 1949 and February 1950, three shipments, carrying a total of 3,824 crates of artefacts and artworks from the Qing imperial collection, left ports on the Chinese mainland for the island of Taiwan. Chiang Kai-shek was on the losing side of a four-year civil war against Mao Ze-dong’s communist forces, and was forced to relocate his Nationalist army to Taiwan, where he set up a government in exile. It was on the island that Chiang Kai-shek and his Nationalist Party, the Guomindang (GMD), would continue the struggle for Chinese sovereignty as the Republic of China (ROC). Back on the mainland, Mao Ze-dong consolidated political power under the Chinese Communist Party in the new People’s Republic of China (PRC). The story of the imperial collection closely intertwines with that of Taiwan’s national development, and it is through these 3,824 crates of imperial treasures, which became the core collection of the National Palace Museum, that we can trace Taiwan’s fraught navigation of political and cultural identity. Fig 1. Immortal Blossoms in an Everlasting Spring (Giuseppe Castiglione c 1723 (album leaf), ink and colours on silk, 33.3 x 27.8cm). National Palace Museum, Taipei. Wikimedia Commons. . The PRC/ROC schism of Chinese sovereignty also split the imperial collection of the Qing emperors, originally housed in the Forbidden City in Beijing. In 1925, the Forbidden City was converted into the National Palace Museum under Chiang Kai-shek’s Nationalist government. The war with Japan and the subsequent civil war saw the imperial treasures transported across the country to elude Japanese and then communist capture. In this 15-year odyssey, Nationalist forces moved the precious artefacts from Beijing to the seat of central government in Nanjing, and then to Shanghai and further inland to Chengchou, Changsha, and finally Chongqing, where the wartime government resided. By 1947, most of the treasures were back in Beijing and Nanjing, but when Mao’s People’s Liberation Army (PLA) threatened the administrative capital of Nanjing, the Executive Yuan (the executive branch of the Nationalist government) decided to urgently relocate the imperial treasures to the island of Taiwan. Curator Na Chih-liang’s meticulous records have preserved the details of the epic transfer: five shipments were planned, but only three took place, not to mention the countless artefacts that could not be packed and shipped from Beijing in time.[1] The 3,824 crates that made it to Taiwan represented only one fifth of the original cases moved south from Beijing in 1933, but these crates included many of the best works.[2] As a result, there are now two ‘Palace Museums’, the National Palace Museum in Taipei and the Palace Museum in Beijing (originally the Forbidden City), each housing a substantial portion of the most important treasures from the Qing imperial collection. The ‘One China’ of today’s politics mirrors the ‘Two Palace Museums’ in simultaneous existence.   The National Palace Museum in Taipei is most certainly equal, if not superior, to her estranged sister in Beijing, despite not being in its original home of the Forbidden City. Opening in 1965, the National Palace Museum houses some 650,000 items from across Chinese history, ranging from Neolithic jade pieces through Zhou bronze vessels to Tang (618-907) and Song (960-1279) painting and calligraphy.[3] The majority of the National Palace Museum’s collection comes from the Qing imperial collection, accumulated over the course of a thousand years by Chinese emperors and royal families across four dynasties.[4] It includes pivotal works by early painters from the Tang to the Song dynasties, such as the calligraphy of artist, scholar-official, and poet Huang Tingjian (1045-1105) and the Northern Song dynasty’s Emperor Huizong (1082-1135). The museum certainly has a claim to being one of greatest repositories of imperial Chinese art in the world, if not the greatest. Art scholars have described the collection as ‘a major artistic legacy of China’s cultural heritage’.[5]   Yet it is precisely as the keeper of ‘China’s cultural heritage’ that the National Palace Museum finds itself deeply entwined with Taiwanese political and cultural self-definition. The collection’s composition and name identify it as the inheritor of China’s ‘National’ treasures, belonging to four successive millennia of Chinese emperors. The ancient Chinese, in fact, regarded the person who possessed the imperial collection as the heaven-ordained emperor with the mandate to rule.[6] Chiang Kai-shek, appropriating the imperial collection under the National Palace Museum in 1925, and then relocating the collection to Taiwan in 1949, was therefore identifying himself and his Nationalist party, the GMD, with the mandated seat of Chinese government. It was culturally imperative to bring the imperial treasures with him from the mainland. The exiled ‘China’, on the island of Taiwan, was given legitimacy as protector, owner, and keeper of the imperial collection of the Chinese emperors. This mythos was shared by other officials in Chiang’s GMD. Na Chih-liang wrote several romanticised retellings of the collection’s odyssey in exile. He recounts how after surviving bombings, truck overturns, and even uncontrolled speeding boats, no item of the collection was damaged or lost on the perilous journey to Taiwan. His conclusion is equally epic: the imperial collection is ‘protected by heaven’ under Chiang’s GMD,[7] and the Nationalists, guarding the treasures surrounded with a ‘divine aura’, are the rightful inheritors of the Qing emperors’ mandate from heaven.[8]   Even the physical structure of the National Palace Museum reflects both evolution from and continuity with the Chinese emperors. The building’s architect, Huang Bao-yu, sought to create a psychological connection between the spatial atmosphere of the National Palace Museum and the imperial architecture of mainland China.   As the sunlight came out from the left-top of the National Palace Museum, it would cause a 45-degree angle shadow. When people stood in the shadow, they would feel like standing in front of the Meridian Gate [of the Forbidden City] in Beijing.[9]   The colour schemes of the museum actually deviate from those of the Forbidden City. Instead of the reds and yellows of imperial autocracy, the museum boasts brown walls and blue-tiled roofs evoking the nationalist republic.[10] Where form provides continuity with the imperial regime, colour evokes a transition into the republican order. This sense of historical connection was imperative for Chiang’s Nationalist government in a land of ‘exile’. Even the plan of the museum evokes traditional inheritance: the imperial treasures come to rest in a space that shares the dimensions of the grand mausoleums of Sun Yat-sen (founder of the Chinese republic in 1911) in Nanjing and the Ming emperor Hongwu (expeller of the Mongolian Yuan dynasty in 1368) in Xiaoling.   Chiang’s tenure as president of the ROC actually had more than purely symbolic parallels with the autocratic Chinese emperors. Upon landing in Taiwan, he initiated the island’s martial law period (1949-87), where political censorship, imprisonments, and executions were common. The saving grace for the National Palace Museum’s collection is, perhaps, that Taiwan escaped the Cultural Revolution (1969-79) that swept across mainland China. In Beijing alone, some 4,922 of 6,843 sites of designated ‘historical interest’ were destroyed. Luckily enough, though, the premier Zhou Enlai sealed the gates to the Forbidden City and prevented the Red Guard from ransacking the imperial collection in Beijing.[11]   Following the decline in the GMD’s political hegemony, the museum became the negotiating space for a rapidly changing Taiwanese identity. Today, Taiwan is recognisably democratic, with open elections and multiple credible political parties. In 2000, Chen Shui-bian’s Democratic Progressive Party (DPP) was elected to power. It brought an end to half a century of GMD control and offered, for the first time since 1949, a definition of Taiwanese identity that stressed independence from ‘China’. The National Palace Museum’s charter was subsequently changed in 2007 to reflect its mission to archive ‘domestic and foreign’ art, but the museum is still the locus of heated political debate in a Taiwanese landscape of changing cultural identity.[12] In February 2021, the National Palace Museum faced a naming controversy. It was reported that ‘it could be downgraded to fall under the jurisdiction of the Ministry of Culture, and that its name could be changed as part of a broader plot to ‘de-Sinicise’ it’.[13] The museum is currently under the direct jurisdiction of the Executive Yuan.[14] Should this change, the National Palace Museum, housing the Chinese imperial collection, would no longer be ‘National’, in a Taiwan that no longer explicitly considers itself ‘Chinese’.   The National Palace Museum’s collection has also been the locus for negotiating Taiwanese political and cultural identity abroad. The collection went on a landmark exhibition to the United States between 1961 and 1962. At the time, Americans saw the exhibition as ‘a reminder that the free Chinese are fighting to save their cultural heritage as much as to recover lost territories’.[15] Yet the UN expelled the ROC from its ‘China’ seat in favour of the PRC in 1971, and in 1979, as part of its diplomatic rapprochement with mainland China, the United States ceased recognising the ROC government in Taipei in favour of the PRC government in Beijing.[16] The name of the National Palace Museum’s next US exhibition, held in 1996, could not therefore include the term ‘Republic of China’. The ROC government eventually acquiesced to ‘Splendors of Imperial China: Treasures from the National Palace Museum in Taipei’.[17]   Today, Taiwan holds official relations with only 15 nation states, and international exhibitions are often inconceivable.[18] The National Palace Museum rarely lends its collection overseas, only organising six big foreign loans since its opening in 1965. These loans are only offered to countries that have passed laws granting exhibits immunity from judicial seizures. The fear is, of course, that the PRC government in Beijing would stake a legal claim to the imperial treasures. These laws are not widespread, and even a loan to Taiwan’s only diplomatic partner in Europe, the Vatican, has not been possible because Italy does not offer artworks such immunity from seizure.[19] Mainland China has consistently and unambiguously claimed sovereignty over the island as well as the collection, and under Xi Jin-ping, PLA activity has increased in the Taiwan Straits and the South China Sea.[20] In the event of armed conflict, the National Palace Museum’s treasures would be excluded from international protection under the 1954 Hague Convention. The PRC would ensure that any dispute is a ‘domestic’ one rather than an ‘international conflict’ that falls under the remit of the treaty.[21] The international tensions arising from the paradox of ‘One China’ can be felt in the realm of art as well as anywhere. ‘China’s’ once-united imperial collection exists dually, and the irreconciliation of the two halves causes friction in the dissemination and study of traditional Chinese culture and art.   A recent exhibition, however, could suggest a way forward. In 2015, to commemorate its ninetieth anniversary, the National Palace Museum in Taipei hosted a landmark exhibition of Giuseppe Castiglione’s (1688-1766) work: ‘Portrayals from a Brush Divine: A Special Exhibition on the Tricentennial of Giuseppe Castiglione’s Arrival in China’. The dates provide a pretty alignment. 250 years before the National Palace Museum opened its doors in Taipei and brought the imperial collection to the public’s shores in Taiwan, Castiglione landed in Macau from his native Milan and brought European painting techniques to the shores of China. Castiglione, who was known by his adopted Chinese name Lang Shi-ning, came to China as a Jesuit missionary, and served in the Qing court under the Kangxi (r 1661-1723), Yongzheng (r 1723-35), and Qianlong (r 1736-95) reigns. His work, consolidated as the personal property of the Qianlong emperor, was part of the imperial collection that formed the National Palace Museum in 1925. It is now split evenly between the Palace Museum in Beijing and the National Palace Museum in Taipei. For the exhibition, though, Beijing lent its collection of Castiglione’s paintings and sketches to Taipei. In fact, since 2009, the Palace Museum in Beijing has been repeatedly willing to lend and collaborate with Taipei, although the National Palace Museum does not loan works to Beijing.[22] This spirit of collaboration has allowed a wonderfully comprehensive and popular exhibition to go ahead.   It is noteworthy that a Qing, eighteenth-century European court painter was chosen for this blockbuster exhibition commemorating the ‘National’ Palace Museum. Castiglione’s work complicates the binary distinctions of ‘Chinese’ and ‘European’ art. His is work not of adherence to a ‘national’ identity, but of Early Modern global exchange and fluidity. The painting above (fig 1) is from Castiglione’s bird-and-flower album Immortal Blossoms in an Everlasting Spring , a masterpiece of the Yongzheng reign. It shows how Castiglione harmonised Western perspective and shading techniques with the Chinese ink-and-colour-on-silk medium, achieving innovative and striking compositions. Other paintings such as the monumental Hongli Troating for Deer , which represents the Qianlong emperor   on an imperial hunt, are considered by scholars such as Yang Bo-da to be collaborative. Castiglione’s European-style portraits are set in a traditionally Han Chinese ink-scroll landscape, likely painted by Tangdai, a Manchu artist.[23] The fluid blending of two modes of representation in Castiglione’s work underlines the ethnocultural syncretism of the Qing imperial polity.[24] The Qianlong emperor’s ‘National’ collection was one of multi-ethnic diversity. His own Qing dynasty was Manchurian, there were European artists working in the Forbidden City, and court art had to synchronise with, yet innovate from, the Han imperial academic models.   It is in this spirit of a distinctly un-‘National’ imperial collection that I would like to conclude. The imperial collection, like much of Chinese identity, is split between the Palace Museum in Beijing and the National Palace Museum in Taipei. However, a complex ‘One China’ need not be so restrictive to the dissemination of Chinese culture and art in the museum space. Collaboration between Beijing and Taipei, such as that for the Castiglione exhibition in 2015, can close, however momentarily, a stifling rift in what has always been an inherently multi-‘National’ imperial collection—to the great benefit of lovers of Chinese culture and art across the world. Though the National Palace Museum is indissolubly linked to an ever-changing Taiwanese identity, perhaps that change can be oriented towards a more dispersive definition of the ‘National’—one for those looking at Taiwan from both the inside and outside, at least in the realm of art and in the spirit of wider dissemination. Jean-Michaël Maugüé   Jean-Michaël Maugü̈é is a second-year undergraduate in English at Christ’s College, Cambridge, interested in art and culture. He has worked at Christie’s and McMillan Fine Art, a commercial art gallery in London. In 2020, he co-founded Christ’s College Poetry Society and led the publication of Voices in Isolation, a poetry and art magazine by students, fellows, and alumni. He is half French and half Taiwanese. [1] Na Chih-liang, The Past Thirty Years of National Palace Museum  (Chinese Book Series Committee 1957); Na Chih-Liang, Forty Years of National Palace Museum (The Commercial Press 1966). [2] Jeanette Shambaugh Elliot and David Shambaugh, The Odyssey of China’s Imperial Art Treasures  (University of Washington Press 2005) 96. [3] Lin Chiu-fang (ed), National Palace Museum: National Palace Museum Guidebook  (eleventh edn, 2003) 13. [4] Helen White, ‘Protecting the Past to Preserve the Future: A Case for International Protection of the National Palace Museum of Taipei, Taiwan’ (2009) 19(1) Kansas Journal of Law and Public Policy 148, 156. [5] Wen C Fong, ‘Chinese Art and Cross-Cultural Understanding’ in John P O’Neill and Emily Walters (eds), Possessing the Past: Treasures from the National Palace Museum  (Dora CY Ching tr, The Metropolitan Museum   of Art and the National Palace Museum 1996) 27. [6] White (n 4) 148. [7] Na Chih-liang, 70 Years in Guarding National Treasures of National Palace Museum  (National Palace Museum 1993) 198-203. [8] Huang Yi-chih, ‘National Glory and Traumatism: National/Cultural Identity Construction of National Palace Museum in Taiwan’ (2012) 14(3) National Identities 219. [9] Huang Baoyu, ‘The Architecture of the Chung-Shan Museum’ 1966 1(1) National Palace Museum Quarterly 69, 72. [10] Huang (n 8) 215. [11] Roderick Macfarquhar and Michael Schoenhals, Mao’s Last Revolution  (Harvard University Press 2006) 32-52. [12] Chi Wang, ‘Why Taiwan’s National Palace Museum Controversy is More than a Storm in a Teacup’ South China Morning Post  (5 Jan 2021) 1-6 < https://www.scmp.com/comment/opinion/article/3115954/why-taiwans-national-palace-museum-controversy-more-storm-teacup > accessed 10 Feb 2021. [13] ibid 4. [14] National Palace Museum, ‘About the NPM: Tradition & Continuity’ < https://www.npm.gov.tw/en/Article.aspx?sNo=03001502 > accessed 10 February 2021. [15] National Gallery of Art, ‘Introduction to Catalogue’ in National Gallery of Art, Chinese Art Treasures  (1960) 8. [16] White (n 4) 160. [17] Andrew Solomon, ‘Don’t Mess with Our Cultural Patrimony!’ New York Times Magazine  (7 April 1996) 10. [18] White (n 4) 160. [19] Treasure Island: Taiwan’s National Palace Museum’ The Economist  (16 February 2008) 386(8567) < https://www.economist.com/asia/2008/02/14/treasure-island > (accessed 10 February 2021). [20] ‘PLA Aircraft Drills Near Taiwan No Threat to U.S., Navy Says’ ( Bloomberg , 30 January 2021) < https://www.bloomberg.com/news/articles/2021-01-30/pla-aircraft-drills-near-taiwan-no-threat-to-u-s-navy-says?sref=HiTf60QO > accessed 10 February 2021. [21] White (n 4) 148. [22] Kristina Kleutghen, ‘Castiglione and China: Marking Anniversaries’ (2016) Journal18: a journal of eighteenth-century art and culture < https://www.journal18.org/nq/castiglione-and-china-marking-anniversaries-by-kristina-kleutghen/ > accessed 21 February 2021. [23] Yang Bo-da, ‘Lang Shining zai Qing neiting de chuangzuo huodong ji qi yishu chengjiu (Lang Shining’s Creative Activities at the Qing Court and his Artistic Achievement)’ in Qing dai yuanhua (Court Painting of the Qing Dynasty)  (Zijincheng chubanshe 1993) 49. [24] Dorothy Berinstein, ‘Hunts, Processions, and Telescopes: A Painting of an Imperial Hunt by Lang Shining (Giuseppe Castiglione)’ (1999) 35 RES: Anthropology and Aesthetics 170, 177.

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

Christopher A Marinello is an expert in recovering stolen, looted, and missing works of art. A lawyer for over 38 years, Marinello began his legal career as a litigator, negotiating complex title disputes between collectors, dealers, museums, and insurance companies. In 2013, he founded Art Recovery Group, a specialist practice providing due diligence, dispute resolution, and recovery services for the art market and the cultural heritage sector. Marinello has overseen the development of the ArtClaim Database, the most technologically advanced system in existence for identifying and recording issues and claims attached to works of art. Marinello has recovered over $400 million of stolen and looted artwork, and has worked on some of the most important recoveries of Nazi-looted art. CJLPA : I thought we could start with a bit about your career. How did you start off as an art lawyer? Christopher Marinello : I started off a while ago at art school, but I wasn’t particularly talented and was encouraged by others to try the law instead—with a law degree you can always go back to painting. So I went to law school and became a litigator, and worked in the courts of New York City for almost 20 years, and I developed my love for keeping my clients. I worked for artists, for galleries, collectors, museums, and whatnot. And then, in around 2013, I founded Arts Recovery International.   CJLPA : How did you come about doing that?   CM : I was working for the Art Loss Register as their General Counsel, and I started in New York and, at their request, moved to London. Then I left to start my own business. Of course, it’s very hard to tell a British businessman how to run their business when you’re an Italian American lawyer.   CJLPA : You’ve worked on the cases of some highly famous works of art. Would it be fair to say that fame and public intrigue around some of the cases you’ve worked on have been impediments to objective investigation?   CM : I don’t think so at all. In fact, some of the high-profile cases I have handled will never be disclosed publicly. The cases that we do disclose are for a reason: either because we are trying to publicly pressure a government or a certain party to resolve the matter in some fashion, or because we are trying to put pressure on the public to tell us the whereabouts of a stolen or looted painting. As lawyers, we do what our clients ask us to do. If they want the publicity we go forward. If not we remain confidential. If clients do decide to go forward publicly, it’s to apply pressure to somebody, or so the public knows that the painting is no longer subject to a title dispute, because they want to sell it or the painting has to be   sold, and they want the art market to feel comfortable that a title dispute has been resolved.

Introduction   Artificial intelligence (AI)-enabled prediction algorithms create multiple challenges to existing ideas about human agency and how the results of this agency may be governed. Weak or absent transparency in the operation of computational systems is changing the meaning of individual autonomy as AI enables vast numbers of new capabilities previously designed and implemented by humans.[1] The prevailing wisdom is that AI innovation is best driven by commercial market incentives. Investment in refining AI-inspired commercial strategies and techniques that are less and less susceptible to external (and even internal) control or oversight is central to futuristic visions of data-enabled societies. Among the many sectors entangled with AI innovation is the art world.   Hodge SCJ defines AIs as ‘computer systems able to perform tasks which traditionally have required human intelligence or tasks whose completion is beyond human intelligence’.[2] Computational technologies having this ability include machine learning, neural networks and predictive algorithms. When employed to create artefacts perceived as art, the resulting AI-assisted and AI-generated artworks are viewed either as a destabilising threat to the traditional art world or as an opening up of opportunities for new forms of expression. At present, AI art is principally the domain of computer science expertise and its AI component is mainly being driven by incentives in the commercial marketplace.   The agency to produce AI art has been harnessed to a commercial yoke. Is this an inevitable or desirable state of affairs? This paper examines the scope for ensuring that the expansion of AI in the art world does not lead to the enclosure of all these new forms of artworks in the commercial realm. It explores whether and how digitisation and computational advance can help to democratise art, opening rather than enclosing the artistic commons.[3]   The (short) commercial history of AI art   Google used its DeepDream neural network to classify artworks in 2015 and observed the potential for this AI system to be used to remix visual images. When the system was shared feely with artists, experimentation began. This led to a gallery showing of DeepDream-inspired artworks in 2016 at Gray Area, a San Francisco gallery and arts foundation. Artbreeder followed soon after as an open collaborative platform, with users making some 127 million AI-generated works at this writing.

One of the problems of having lived a long life is that it brings home to one the many different identities one has occupied in the course of it.   My own case, I think (but this may be vanity), is particularly complex. For example, genetic analysis tells me I am only marginally white European Caucasian. The rest is 18 percent Jewish—a Jewish grandmother—and just over 30 percent Finnish or Estonian. That is to say, I am a descendant of the Central European tribes who settled on the shores of the Baltic before the Slavs got there. The ‘Lucie’ part of my surname is recorded as being London Dutch, but Dutch friends tell me that it cannot possibly be native to the Netherlands. It most likely comes from Huguenots, exiled from France by the Edict of Nantes, who transited from the Low Countries to London, and thence to the West Indies. My father’s family are recorded in Barbados, as plantation owners, from around 1630. My double-surname seems to have come into use in the mid-eighteenth century.   The family did not remain in Barbados. Having lost money, they translated in the early nineteenth century to Demerara, now Guyana, where they became lawyers. In this period an ancestor on my paternal grandmother’s side is recorded as having been a Jewish sea-captain from a Jewish family based in Curaçao, who had migrated there from Venezuela, after an episode of anti-Semitic persecution.   My great-grandfather arrived in Jamaica from Guyana in the early 1860s, having been appointed Lord Chief Justice. He brought with him his already adult son, my grandfather, who joined the Jamaican colonial civil service, a profession into which he was followed by my father. My father was the first member of my family to be born there.   I was not, however, the second. My father had a younger brother, a member of the Jamaica Militia, who went to Flanders to fight in the First World War. Soon he was ‘missing, presumed killed’. My father took leave from his civil service job to join the British army in Europe as a volunteer. He became a junior officer and arrived at the front in time to be gassed in the final, desperate German assault in the spring of 1918. Considered unfit for further service at the front, he was sent across the Channel to be the aide-de-camp of an elderly home-front general, a post for which his civil service training would come in useful. That was how he met my mother, an orphan who was the general’s niece.   This was not quite the end of the story. My father was not back in Jamaica until September 1919, a year after the war ended. He returned to resume his civil service job and was only then demobilised. Very soon afterwards he formed a relationship with a woman of colour, with whom he had a son, born in 1920. This son, my elder half-brother, not only used our unusual surname, but also was given my father’s almost equally unusual Christian name, which was Dudley. He is now dead—I never met him, and did not even know of his existence until quite recently—but his descendants believe that their parents were legitimately married. The barrier to this, however, is that, in the colonial Jamaica of that time, it would have been impossible for a member of the civil service administration to have a wife of African origin. If a marriage took place, it was a clandestine one. I believe, however, that my father went right on seeing his alternative family, long after he got married to my mother.   In the summer of 1922, he returned to the UK, on leave from his civil service job, linked up with my mother again, and proposed to her. She came out to Jamaica and married him in the spring of 1923. I did not appear until ten years later.   Both of them got something. My mother came from quite a distinguished family. Her great-grandfather had been prominent in the British East India Company, at a time when the Company, not the British government, ruled India. He was rewarded with a baronetcy. His younger son, my great-grandfather, was a Member of Parliament and a close ally of Wilberforce in opposition to the slave trade. My great-grandfather’s children were closely linked to the Pre-Raphaelites. One of them was responsible for introducing Edward Burne-Jones, not yet an artist, to Dante Gabriel Rossetti, thus setting in motion the second phase of Pre-Raphaelitism. Curiously enough, the Lushingtons (that was their surname) were also Logical Positivists—that is to say, Victorian atheists.   My mother was a neglected orphan, brought up by governesses in various seaside resorts, and lamed by polio when in her teens. In the years immediately following the First World War, when so many of the young men of her class and generation had been killed, her marriage prospects were not good. Both parties needed something. They had a deal. I am the product of that deal. Edward Lucie-Smith   Edward Lucie-Smith has been called ‘the world’s most legendary and prolific art critic’. He has published over 100 books, many of which form the basis of university art history programmes around the world.   CJLPA  invited him to boil down his knowledge and experience to a concise set of propositions.