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.

Since I am now 87 years old, I have inevitably formed certain views about what I do, or try to do, both about writing in general, and more specifically about writing about the visual arts.   The first and most important of these is that the audience is king. If they don’t understand what you’re trying to say, you’ve lost the game. This applies even if they disagree with what you are trying to tell them. In art criticism, perhaps even more so than in most other forms of critical writing, there’s a constant temptation to lapse into gobbledegook. Pundits all too often try to make themselves look important, superior to the audience they are addressing, by using grandiose formulations. I try to resist this temptation.   More insidious is the related temptation, which is to treat the collective consciousness of the audience as a blank sheet, upon which the critic is entitled to scribble what they like. Nothing could be less true. Every member of the audience whom the critic addresses is an individual consciousness, different, even if only in small ways, from every other member. To a large extent, this audience may share a common culture, which leads them to react in—almost—the same way to the images and ideas that the critic presents to them. However, there is always a residue, in each of them, of purely personal experience, which affects how they will react to what is being offered. This means that successful criticism, like all successful writing, is essentially a conversation. It’s not going too far to say that you have to begin in the middle, not at what seems to you to be the beginning.   This attitude of mine is affected by the history of art commentary during my lifetime. Both the Late Modern and what we now call the Contemporary epochs have been much influenced by rival belief systems. First by Marxism then, as orthodox Marxism declined, by the rival credo of Structuralism.   A critic inspired by any faith of this kind naturally tends to put the belief system to which they adhere at the very centre of what they do. The system supplies a framework, upon which they can hang their observations about the art works and art enterprises they encounter. In addition to providing a useful framework, it also supplies a security blanket, reassuring them that what they say about the art they encounter must in essence be right. Any apparent errors or discrepancies can be refined away by further reference to the belief system they have embraced.   A further gloss upon this, where recent Western art is concerned, has been supplied by post-World War II politics. From the end of the war to the collapse of the Soviet Union at the beginning of the 1990s, there was a cultural rivalry that expressed itself through the competition between Western capitalist individualism and Eastern Bloc collectivism—art as an expression of the idealised socialist state. What this left out was the fact that the United States in particular promoted certain forms of art as a direct political response to Socialist Realism. Abstract Expressionism was a celebration of the power of the individual psyche, free to express itself without any form of governmental control. Not for nothing were some of the leading exponents of the style first-generation Americans. Abstract Expressionism, though it met with some resistance from McCarthyites in Washington, was skilfully publicised in Europe, and also here in Britain, by patrons connected to the Museum of Modern Art in New York.   Later, American art modulated itself, and Pop Art conquered most of the Western-affiliated art world, with a little help from a group of post-war British artists who had fallen in love with American popular culture, as compared to the dreariness of their own post-war circumstances. Pop was capitalist, but it was also visibly democratic.   Later still, American art began to choke on the purity of its own non-political idealism. Hence the Minimal Art (though he hated the term) of Donald Judd. It tried to remove itself entirely from the political arena. The effort did not succeed. To support art that seemed to wish to detach itself entirely from society became a political gesture in itself.   What changed the situation was the collapse of the Soviet Union. This seemed to remove the main antagonist of now triumphant capitalist art from the arena. However, what one seems to see now, nearly 30 years later, is a triumphant re-emergence of political and social art, as typified, for example, by the work of the anonymous British graffitist Banksy. This fetches huge sums when sold at auction, often for charitable causes. Or simply when detached by others from the walls where the still unknown artist has chosen to place it. At the same time there can be no doubt about its efficiency as propaganda.    Simultaneously, there was an even greater change—the contemporary art world became increasingly plural. This change had been preparing itself for a long time, but after the millennium it became fully visible. What I mean by ‘plural’ is that a number of separate art worlds emerged, quite separate from the world of Europe-plus-the-USA.   There was already a flourishing art world, with its own mechanisms, in Latin America. Now there were visibly separate art worlds in China, Russia, Japan, South Korea, India, Pakistan, Bangladesh, Iran, Turkey, the Gulf states, Australia, and New Zealand. I’ve been personally to all of these, with the exception of Pakistan and Bangladesh, often more than once. I was in Cuba in the late 1960s, in Mexico in the 1970s, and again later, and visited much of South America in the 1980s, with repeat visits to a number of countries. I’d guess that I may possibly be the most travelled British art critic. These non-European art worlds are often diversified within themselves. In Russia, it is no longer simply Moscow and St Petersburg that count, as was the case under the aegis of official communism. There are major art-producing centres in Siberia and in Kazan, to name but two. In China there is not only the Central Academy in Beijing but also the China Academy in Hongshan, plus art hubs in Shanghai and Hong Kong.   The dialogue between these various centres and what we call the West is often complex. They admire the West, but they also criticise it. One can, for example, find examples of Pop Art today in Russia, visibly influenced by what happened in America in the now long-ago 1960s. There is also art that refers to and memorialises World War II, which retains its hold on the Russian imagination far more powerfully than it does here in the West. Plus, art that romanticises the now ruined space stations, from which the Soviet Union sent cosmonauts into orbit. These are both peculiar to Russia.   In China, the two major academies, Beijing and Hongshan, dominate the art world. Ai Weiwei received almost all his early education in art in the USA, and is now again, after a fairly brief period in China during and after the Beijing Olympics in 2008, living in exile. He figures hardly at all in the ongoing history of contemporary art in China, though he is undoubtedly a major figure here in the West.   Meanwhile in the West itself there are manifestations that are changing the character of the art world. There is a great push for greater recognition of women artists, though those chosen for this are often either very senior or actually dead. There is an even stronger push for recognising artists from what are described as  ‘ethnic  minorities’—that  is,  minorities  within  society,  and therefore until very recently disadvantaged within Western cultural organisations and opportunities. To be more specific still, this tends to mean artists who are wholly or partly of African origin. The recent Black Lives Matter movement has had a powerful impact not only in the United States, where it began, but also here in Britain. The impulse to apologise for the insult of slavery has done much to re-politicise art in the countries where the Black Lives Matter movement has manifested itself.   What it has not done yet is to create much interest in the art of contemporary sub-Saharan Africa. The Dark Continent remains largely dark where contemporary art is concerned, in contrast to the other regions I have mentioned above. The one exception is perhaps South Africa. 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.

Conventional wisdom tells us that the first civilisation to be governed in a manner comparable to our own was Ancient Greece—the world’s first democracy.[1] Such discourse has contributed to popular belief that earlier civilisations, of which Egypt is probably the best-known example, might be interesting in myriad ways but surely have little to offer scholars of modern government. Egypt, according to established narrative, was an absolute monarchy, where Pharaoh did as he pleased and all else fell into place around this.[2] Yet was this really so? In this article, it will be demonstrated that the reality was not so simple, with the Ancient Egyptian framework for government and justice being based on far more than the will of one man. This argument for Ancient Egypt having what may be termed an early constitution—however embryonic it may have been—rests on four key premises: evidence for the distinction between the notion of ‘State’ and ‘Government’; the rule of law; the right of appeal; and the separation of executive and judicial power. Each of these shall now be briefly discussed in turn, with the article then concluding with a discussion of the implications of such observations for studies in constitutional history going forward.   The distinction between state (Pharaoh) and government (Vizier)   Almost everybody knows that Ancient Egypt was reigned over by Pharaohs, but to what extent was it actually governed by them? In theological terms, the monarchy was indeed absolute—Pharaoh was a living incarnation of the god of kingship, Horus, seen by his subjects as the ‘good god’ ( ntr nfr ) occupying the middle ground between this world and the next and  ex officio  serving as the high priest of every cult in the land.[3] He was the supreme guarantor of right order ( M3c.t ), tasked with defending Egypt from all enemies foreign and domestic. And yet, the practical task of overseeing the daily running of the country in fact fell to a different individual: the Vizier.[4] This high official was appointed by Pharaoh as a de facto head of government, not unlike the appointment of a Prime Minister by a modern-day head of state. According to the Installation of the Vizier , a text of the fifteenth century BCE setting out royal expectations at the time of a new vizieral appointment, a Vizier could expect to be told the following by his sovereign:   Look to the office of the Vizier, be vigilant concerning all that is done in it, for it is the mainstay of the entire land. Now as for the Vizierate, it certainly is not pleasant; indeed it is as bitter as gall. See, he is copper enclosing the gold of his master’s house.[5]   Thus, this text paints a picture where Pharaoh appreciates the unpleasantness of the job of governing the country, and offloads it onto his Vizier—the metaphorical ‘copper’ which serves to protect the ‘gold’ which is Pharaoh himself. In so doing, Pharaoh presumably freed up time which could be spent on his other prerogatives, such as foreign conquest, building work, and religious observances. However, this did not mean that the work of Pharaoh and Vizier became disjointed, with the latter being duty-bound to regularly report to the former. Clear evidence for this can be found in another text of the same period, the Duties of the Vizier , which states that a Vizier was obliged to act as follows:

Introduction   Canonical Penance in the early Church and the modern concept of prison, broadly construed, are both processes of exclusion, reform, and reintegration in response to an infraction of law. Augustine’s writings on Canonical Penance are some of the most extensive, and consider a number of themes which might be relevant to criminal justice. Specifically, I will consider: the role of humility, both on the part of the authorities and the perpetrator, and whether an appropriate response places more emphasis on the nature of the infraction of the rules or of the person committing it.   Augustine is conveniently historically situated for an effective comparison. By the time of his birth, Canonical Penance was ‘an established and easily recognisable ecclesiastical institution’.[1] This enables us to avoid the potential pitfalls that come with attempting to compare the prison system with the more informal and hard-to-pin-down earliest forms of penance. North Africa was also at the heart of many of the early controversies surrounding penance,[2] meaning both that the historical setting is well documented and that Augustine responded to a variety of pertinent debates.   In attempting to construct an Augustinian ethic, I am not asking what Augustine would have thought of modern criminal sentencing, an impossibly speculative task. Rather, I am applying some of his ethical principles—which he expounded in relation to an institution with some significant parallels—to a modern ethical question. The value of this will vary depending on one’s starting point. For those with a theological commitment to Augustine’s principles, it may help to illuminate what criminal sentencing should look like. For others concerned with the ethics of criminal sentencing, it may help to reveal the assumptions underlying our discourse, and at least one other way of approaching them. Finally, for the intellectual historian, it may reveal something of how our approach to questions of humility and justice have or have not changed.   Canonical Penance at the time of Augustine   The earliest Christian penance was baptism. When adult baptism was the norm and Christianity was still a small sect, the act of turning away from the sinful world was an enormous commitment. Penance for one’s previous life was essential for a community that defined itself in opposition to the rest of the world. This is where the communal element of penance has its origins. Forgiveness of an individual’s sins was relevant not just to that individual, but also to the Church whose holiness in the face of an unholy world depended on it. The Church was a community that had developed a way to reintegrate those who had excluded themselves through the most serious of sins, in the form of Canonical Penance. When examining this reintegration, we must be careful not to lose sight of the fact that it was at heart ‘a kind of communal examination of conscience, rather than a way to bear down on individual sinners’.[3] Sin was a harm done to and a stain on the whole community, and so penitential processes, from baptism to canonical penance, aimed to make the community whole again.[4] Collective responsibility for sins is emphasised in some of the earliest writings on Christian penance in 1 Clement 2:6: ‘You used to grieve over the unlawful acts of your neighbours and considered their shortcomings your own’.[5]   By the time of Augustine, Canonical Penance was an ‘established and easily recognized ecclesiastical institution’.[6] Entry into Canonical Penance was a serious undertaking. Many were compelled to undergo it for acts of sin, though others chose to go through it: ‘Some people have asked for a place among the penitents themselves; some have been excommunicated by me and reduced to the penitents’ place’.[7] Though one’s status as a penitent was public information, the nature of the offence could be private. This is presumably a result of the gravity of the sins involved: requiring public confession would hardly encourage potential penitents to come forward.   One of Augustine’s sermons provides us with a description of the sins that required Canonical Penance: ‘There is a serious wound involved; perhaps adultery has been committed, perhaps murder, perhaps some sacrilege, a grave matter, a grave wound, lethal, deadly’.[8] A further indication of the significance of Canonical Penance was that it could only be undergone once, for fear of lessening its gravity through repetition.[9]   Penance was characterised by exclusion from the Eucharist, the result of estrangement from God following the breaking of one’s baptismal vows through serious sin. Additional penitential processes, including fasting and almsgiving, were used to enhance the corrective effect of temporary exclusion from the Eucharist.[10] This exclusion extended to praying separately from the rest of the congregation: ‘Pray, penitents - and the penitents go out to pray’.[11]   Canonical Penance concluded with readmittance into the congregation and the Eucharist. A ritual involving imposition of hands by the bishop and public prayers signalled the end of the process.[12] Its effects did not cease there, however, since former penitents could not be clerics, as Augustine discusses in one of his letters: ‘the Church established the rule that after penance for some crime no one should enter the clerical state or return to the clerical state or remain in the clerical state’.[13]   Humility of the offender   The notion of humility in Augustine is rooted in its ultimate manifestation, Christ humbling himself on the cross. Augustine took this to be the cure to humanity’s pride and therefore the source of humility: ‘So for the treatment of human beings God’s wisdom- in itself both doctor and medicine - offered itself in a similar way. Because human beings fell through pride it used humility in healing them … We made bad use of immortality, and so we died; Christ made good use of mortality, and so we live’.[14] The sight of God’s humiliation on the cross, when combined with God’s grace, is what Augustine claims leads to humility, shifting our perspective so that we can focus on matters of true importance. John Cavadini explains the operation of this process as ‘arresting our limited and empty vision on something real, the compassion of God, who was unashamed to put aside the power and prestige of divinity’.[15] We can see this shift of attention from the self to God in Augustine’s twenty-fifth homily on the Gospel of John, where the shift from pride to humility lies in the fact that the humble man ‘does not do his own will, but God’s’.[16]   The question for us remains how the process of Canonical Penance contributed to humility. We see in Augustine a distinct concrete aspect of, or contributing factor towards, humility—namely, being humbled. In the case of Christ, being humbled constituted becoming a man and dying on the cross. The penitent, on the other hand, is humbled by the restriction of status, both because of the lack of status associated with penitents[17] and because of concrete restrictions on their future ambitions, namely that they could not become clerics. In his letters, Augustine describes the reasoning behind this latter provision: ‘no one should be a cleric so that, without any hope of temporal dignity, the remedy of humility might be greater and more genuine’.[18] The idea here is that the stripping of status made it harder to take pride in one’s position, removing the barrier to refocusing on God, as required for humility.   The value of humility to Canonical Penance lies in its healing element. Penance and humility are both, for Augustine, processes of healing.[19] For Canonical Penance to be successful, one’s attitudes must change such that future action is directed not towards one’s own pride in status, but rather towards God. This is what Augustine’s concept of humility achieved, and why it played so central a role in his discussion of Canonical Penance.   Though humility is a central part of Augustine’s conception of Canonical Penance, he by no means considered it an inevitable consequence of the formal procedure of being humbled during Canonical Penance. Many of the instances where he emphasised the value of humility were descriptions of how it was lacking in penitents, specifically those compelled to undergo the process (as opposed to those undertaking it voluntarily): ‘those who have been excommunicated[20] by me and reduced to the penitents’ corner don’t want to rise from there, as though penitents’ corner were a really choice spot’ and, more explicitly, ‘it ought to be a place for humility, and it becomes a place for iniquity’.[21] Augustine is clear here that Canonical Penance is not just an externally administered process, such that it inevitably results in forgiveness and humility. The proper attitude on the part of the penitent is essential, however much the concrete removal of status might assist this.   We have from Augustine the idea that humility, constituting a shift away from a focus on the self, can be driven by concrete action to reform the individual, though the action can only assist and not guarantee humility. The difficulty with this notion is that, for Augustine, the goal shift was towards God, which cannot be replicated in a secular state. Equally, we can’t provide an endpoint which is an explicit alternative to God, since we would then undermine the Augustinian notion of humility and any value the insight might have. We require, then, a goal for this focus shift which has value from the vantage point of a secular state without displacing God.   We can find this goal in the good of loving others, concretely manifested in serving our community. This certainly has a scriptural foundation in John 13:34:[22] ‘I give you a new commandment, that you love one another. Just as I have loved you, you also should love one another’. In his analysis of this passage from John, Augustine links the love of others to the love of God: ‘he who loves his neighbour in a holy and spiritual way, what does he love in him except God?’[23] We can therefore make the service of others the goal of the focus shift when using humility in reform, since for Augustine it mediates love of God.[24] This also helps us relate the individual elements of reforming the criminal or sinner to the communal elements of crime or sin, since our response is directed at the community. We can therefore go some way to synthesising the interests of the individual and the community in our response to crime. In placing a value on humility, we are helping to reform the individual through shifting their focus, while also acknowledging the harm done to the community and shifting the focus of the offender to positive participation in that community.   In terms of concrete applications, such an Augustinian conception of reforming through shifting the focus of the offender towards their community might help us to construe the value of interventions like restorative justice and community service. It might also provide a reason to measure reform more broadly than through reoffending rates, since this kind of reform is directed at service of and being invested in the community, rather than just not committing further crimes.[25]   Humility in the authorities   Humility is not just a tool of reform for the Canonical Penitents themselves but also, according to Augustine, a necessary virtue of those who hold authority over the process, namely bishops. While his discussion of this in relation to Canonical Penance specifically is limited, he is clear that in dealing with crimes against civil or ecclesiastical law, humility is required in order to maintain the necessary attitude of mercy.   Letter 153 is a useful example of this. It helpfully relates the civil and ecclesiastical cases, as it is a response to Macedonius’ concerns over bishops’ intercessions on behalf of criminals.[26] In the process of explaining to Macedonius why it is right to intercede on behalf of the guilty, and how this does not make bishops complicit in their crimes, Augustine draws a link between our own status as sinners and our duty to be merciful towards others. Because we all require forgiveness, so we must extend it to others: ‘The judgment of God has filled them with fear so that they keep in mind that they need God’s mercy on account of their own sins and do not suppose that it counts as a failure in their office if they act mercifully in any way toward those over whom they have the legitimate power of life and death’.[27] The other side to this is that a lack of humility, that being in this case the failure to recognise our sinful nature and need for forgiveness, results in a pride and arrogance which leads to excessive severity. In discussing John 8:2-12, Augustine concludes that when Jesus points out that none of the accusers who present the adulterous woman to him to be stoned are sinless, ‘the pride of her pursuers yielded’.[28] There was pride in their judgement which, though within the law, ignored the fact that the accusers were sinners as was the accused. In forcing them into humility, Jesus forced them into mercy: ‘After he had said to those who presented the adulteress to him for punishment that the one who knew that he was without sin should be the first to throw a stone at her, their anger collapsed as their conscience trembled’.[29] Violence and severity come with arrogance, and are displaced by the mercy that comes with humility.   Robert Dodaro links this correlation between humility and mercy with Augustine’s dispute with Pelagius. Put simply, the Pelagian belief that human beings can be sinless and that the source of virtue can come from man rather than God’s grace means that they are not forced into humility by recognition of their sins.[30] This contrast with Pelagianism helps us to clarify how humility in authority is, as we previously discussed in the case of humility in penitents, a focus shift away from the self and towards God. For Augustine, humility in authority is the recognition that we attain virtue and avoid sin by the grace of God. The Pelagian arrogance is the assumption that we can be the source of our own virtue. The focus shift of humility in this case therefore lies in moving from identifying the source of our virtue in ourselves to identifying it as being external, namely in the grace of God.   We can take the following idea from Augustine’s discussion of the relationship between humility, mercy, arrogance, and severity: excessive severity can be a result of arrogance, while mercy can be the result of humility. The reason for this is that humility comes with the recognition of the role of external forces in shaping human decisions, whereas arrogance is blind to this in its attempt to claim individual credit for virtue. Severity which results from this arrogance is therefore a blind spot, a failure to acknowledge the origins of virtue and vice. We should therefore tend towards humility, which will establish a presumption of mercy. Movement away from this starting point of mercy towards severity should require careful justification, to avoid decisions based on arrogance. In discussing the applicability of these insights to the legal system, we must address an immediate disparity. Augustine grounds humility to authority in the fact that we are all sinners in need of God’s forgiveness. There is no direct parallel in the legal case. In fact, given the restrictions on who can become a judge or magistrate, none of those deciding on sentences are convicted criminals in need of the law’s forgiveness. What then, in a secular setting, need sentencers be humble about? It turns out the answer to this is not altogether different from the answer Augustine provides, namely the role of external forces in determining which side of the courtroom you find yourself on. For Augustine, virtue was to be attributed to the grace of God. In the case of the legal system, external forces, whether systematic privileges or simply luck of circumstances, play a role in whether you find yourself a judge or in need of a judge’s mercy.[31] This is not to remove personal choice from the equation. However, it would be an arrogant sentencer who failed to acknowledge that of the many factors that contribute to a crime, only some are the personal responsibility of the criminal. Moreover, not all these factors will be obvious, and therefore they may not be presented as mitigating circumstances. Humility will lead to the acknowledgement of imperfect information and the influence of external forces, and should therefore lead to an appropriate level of mercy. An Augustinian ethic of criminal sentencing would be a humble, and therefore merciful, one.   Sinner rather than sin   Reform is often portrayed, particularly in the popular press, as in the interest of the individual, while punishment of the act is in the interest of society. Therefore, in deciding how to treat an individual and whether to emphasise reform or punishment, we are effectively deciding between their interest and the interest of society.[32] One potential resolution of the tension between these apparent competing interests is to insist that reform is in both the individual’s and society’s interests because it prevents reoffending and therefore further societal damage.[33] This construes the value of reform, at least as far as society’s interests are concerned, as instrumental: reform is beneficial to society because it prevents harm to society. Augustine, however, places a non-instrumental value on reform.   Augustine makes clear that he desires reform of the individual rather than punishment of the act. The end at which the instrument of being humbled is aimed is to be discussed not in terms of what the act committed demands in a natural justice sense, but rather in terms of what most effectively reforms the agent. Being humbled is therefore an instrument of agent-reform rather than act-punishment. In other words, the emphasis is on the sinner rather than the sin. Being humbled is necessary for Canonical Penance, but not sufficient to bring about the humility required: ‘What’s the use of your humbling yourselves, if you don’t change your behaviour?’[34] This quotation from Sermon 392 makes it clear that for Augustine change of behaviour is a part of the aim of the process itself. Being humbled serves the aim of changing one’s behaviour, refocusing attention from the self to God, and in the process reorienting one’s actions from being directed towards the self, to being directed towards God.   Augustine’s most illuminating discussion of the emphasis on reform over punishment concerns the distinction between public and private reproving, found in Sermon 82. He argues for rebuking privately in the case of private sins and publicly in the case of public sins. Augustine is unambiguous in his reasoning behind this: ‘what I want to do is cure, not accuse’.[35]   Augustine is prepared, for the sake of private rebuke of private sins, to avoid civil involvement:   A bishop, for example, knows someone or other is a murderer, and nobody else knows he is. I want to rebuke him publicly, while you are looking for a chance to bring an indictment. Well of course, I will neither give him away, nor ignore his sin. I will rebuke him privately, set God’s judgement before his eyes, terrify his bloodstained conscience, try to persuade him to repent.[36]   Augustine’s attitude creates a primacy of ecclesiastical authority over civil equivalents. A bishop is to act not to facilitate an indictment—as one might think a citizen convinced of guilt is required to—but rather to maximise the curing effect, which Augustine argues is achieved through private rebuke. It might seem that we could account for Augustine not informing civil authorities as a simple application of the seal of confession, but in the next paragraph Augustine applies this principle to a case where the wife of an adulterer has come forward with her husband’s sin. She is not confessing a sin, so Augustine’s knowledge of the husband’s infidelity is not under the seal of confession. Yet he chooses to keep this sin private. This tells us that keeping sins private in the cases of the murderer and the adulterer is motivated by more than simple respect for the seal of confession. These cases show us that the emphasis is on the agent, not the act and the natural justice of publicly holding the perpetrator responsible, to the extent of keeping offences which are punishable by civil courts private when this best serves reform.   One fairly natural reading of this would be that Augustine has prioritised the individual sinner’s interest over that of the community. This may be an appropriate response for one charged with the pastoral care of that individual, but hardly seems applicable in the case of a criminal justice system with obligations towards the victims of crime and the public at large. However, to read Augustine like this is to ignore the communal context of the penance he is discussing. We have seen that in all forms of penance in the early Church, the response to sin was deemed necessary not simply for the sake of the individual sinner, but to make whole again the unity of the Church.[37]   For Augustine, the Pauline command in Galatians 6:2 to ‘Bear one another’s burdens and in this way you will fulfil the law of Christ’ includes the burden of committing sin. Since we bear the burden of each other’s sins, in placing the emphasis on sinner rather than sin by focussing on agent-reform over act-punishment, we are lifting a burden off both the individual and the community. Augustine here makes implicit use of the usus-fruitio  distinction in arguing that if we neglect our responsibility to those who sin, then we fail to love God fully:   Thus if we love a weak person less because of the vice that made him weak, we should consider him in light of the one who died on his behalf. Not to love Christ, however, is not weakness but death. Hence we should be very careful and implore God’s mercy lest we neglect Christ because of a weak person, when we should love the weak person because of Christ.[38]   Augustine links this bearing of burdens at an individual level to the unity of the Church as a whole. In responding to the Donatists, who emphasised the purity of the Church over its unity,[39] Augustine argued that sinners were the responsibility of the Church, and that bearing their burdens was an essential part of maintaining its unity: ‘All of these catholic unity embraces in her motherly breast, bearing each other’s burdens by turns, and endeavouring to keep the unity of the Spirit in the bond of peace, till God should reveal to one or other of them any error in their views’.[40] In emphasising the reform of the sinner rather than punishment of the sin, Augustine was therefore not prioritising the individual over the group, but rather grounding the reform of the individual through Canonical Penance in the unity of the whole.   Put simply, when a member of the Church sins, the damage done is twofold. Firstly, the damage caused by the specific sin itself (for example a murder causes someone to die), and secondly, the burden of committing a sin. These are both burdens which, according to Augustine, we all bear. In emphasising the sinner over the sin, Augustine is allowing for proper reform. This is an attempt to lift the latter burden, in the process healing both the individual and the community that bear it.   The question remains: how do we apply this Augustinian insight to a criminal justice setting? In the case of Canonical Penance, the failure to reform the flawed individual was a failure to bear the burdens of others which, in the corpus permixtum , we all bear at some point. More broadly, in seeking the unity and success of a group (in Augustine’s case, the Church, in the modern case, wider society), we must be prepared to bear the burdens of those who break (canon or civil) law. Government documents of recent years[41] tend to conceive rehabilitation of prisoners as being valuable to society because it prevents reoffending and therefore further damage to the community. This treats prisoners as instruments of harm or benefit to the rest of society, and not as a 92,500 strong part of it. Augustine’s emphasis on reform of the individual recognises that those subject to criminal justice proceedings are a part of society and so society’s interests are intrinsically linked to theirs. If we are to bear the burdens of those affected by crime because they are a part of a society to which we have certain obligations, then we must bear the burdens of those who, as a part of the same society, commit crimes. Sentences that do not attempt reform (for example, whole-life imprisonment on ground of public protection) must not be regarded simply as ways to prioritise the interest of wider society over that of the criminal. It is not within the scope of this article to comment on whether they are ever necessary,[42] but it must be acknowledged that in Augustinian terms, in failing to bear the burden of the individual, they fail the society of which the individual is a member. Augustine’s insight here is essentially to add a dimension of value to rehabilitation. In creating policy and handing down sentences, we must recognise that proper rehabilitation is intrinsically (and not just instrumentally) in the interest of society.   Conclusion   From Augustine we have drawn three central principles for criminal justice based on his approach to Canonical Penance. Firstly, rehabilitation should aim at the creation of humility, constituting a goal shift towards service of the community. This is not only a standard against which to hold efforts at reform, it also helps synthesise the interests of the individual and the community. Secondly, severity can result from arrogance, and mercy from humility. Since arrogance is a blind spot, namely the failure to acknowledge the role of external factors in driving crime, which humility corrects, we should strive for a presumption of mercy, and for humility in sentencing. Finally, effective rehabilitation is intrinsically in society’s interests, independent of its instrumental value in preventing reoffending, since those who commit crime are members of society and the burden of a failure to rehabilitate is therefore borne by society as a whole.   The above provides principles against which an Augustinian ethic of criminal justice might be measured. A range of positions on criminal justice reform, ranging from small changes to sentencing processes right the way through to a complete overhaul of the justice system, are consistent with these principles as stated. Which changes one makes depends on both the empirical data on which strategies best achieve compliance with these principles, and other moral principles one holds which are relevant to the justice system. Augustine’s writings alone, though extensive, cannot provide these. However, we have found clear guidance in an Augustinian ethic: reform is the starting point, and aims to create humility at all levels. Alexander Levy   Alexander Levy is on a one-year master’s programme in Christian Ethics at Regent’s Park College, Oxford. His master’s research has examined the value of Christian thought for public policy, focussing on healthcare and the criminal justice system. [1] James Dallen, The Reconciling Community: The Rite of Penance  (Liturgical Press 1992) 57. [2] ibid 70. [3] Allan D Fitzgerald, ‘Penance’ in Susan Ashbrook Harvey and David G Hunter (eds), The Oxford Handbook of Early Christian Studies  (Oxford University Press 2008) 787. [4] From the fourth and fifth centuries, the lived experience of penance started to move away from its communal origins somewhat. See Fitzgerald (n 3) 801. However, since we are examining the thought of Augustine, who was writing before this process was complete and whose ecclesiology emphasised a mixed community of saints and sinners who bore one another’s burdens, it is nonetheless important to consider the act of penance, in its restoration of sinners to a Church so defined, as communal in nature. [5] In Bart D Ehrman (ed and tr), The Apostolic Fathers  (Harvard University Press 2014). [6] Dallen (n 1) 57. [7] Augustine, Sermons (230-272B) on the Liturgical Seasons  (Edmund Hill tr, John E Rotelle ed, New City Press 1993) Sermon 232 para 8. [8] Augustine, Sermons (341-400) on Various Subjects (Edmund Hill tr, John E Rotelle ed, New City Press 1995) Sermon 352 para 8. [9] ‘And yet it was a cautious and salutary provision that a place for that most humble penance be granted only once in the Church for fear that cheap medicine might become less beneficial for the sick’. Augustine, Letter 153 para 7 (Roland J Teske tr). [10] Claudia Rapp, ‘Spiritual Guarantors at Penance, Baptism and Ordination in the Late Antique East’ in Abigail Firey (ed), A New History of Penance  (Brill 2008) 123. [11] Augustine, Sermon 232 para 8 (Edmund Hill tr). [12] Rapp (n 10) 123. [13] Augustine, Letters 156-210  (Roland J Teske tr, Boniface Ramsey ed, New City Press 2004) Letter 185 para 45. [14] Augustine, On Christian Teaching (Roger Green tr, Oxford University Press 2008) Book 1 paras 28-29. [15] John Cavadini, ‘Pride’ in Augustine through the ages: an encyclopedia  (Allan Fitzgerald ed, Eerdmans 1999) 682. [16] Augustine, Homilies on the Gospel of John 1-40 (Edmund Hill tr, Alan Fitzgerald ed, New City Press 2009) Homily 23 para 16. [17] ‘It [the penitent’s corner] ought to be a place for humility’ Augustine Sermon 232 para 8 (Edmund Hill tr). [18] Augustine, Letter 185 para 45 (Roland J Teske tr). [19] For an extensive comparison of the operation of humility with that of medicine, see Augustine, Homily 23 on the Gospel of John para 16 (Edmund Hill tr). [20] ‘Excommunication’ here refers to temporary exclusion from the Eucharist as part of penance rather than permanent exclusion from the congregation. [21] Augustine, Sermon 232 para 8 (Edmund Hill tr). [22] New Revised Standard Version used henceforth. [23] Augustine, Tractate 65 on the Gospel of John , para 2 in The Fathers of the Church: St Augustine Tractates on the Gospel of John , 55-111 (John W Rettig   tr, Catholic University of America Press 1994) 52. [24] This is a simple instance of the uti-frui distinction. For Augustine’s explanation, see Book 1 of On Christian Teaching . [25] For example, see Christopher Stacey’s summary of the issues surrounding poverty in those who have a criminal record but have resisted reoffending: Christopher Stacey, ‘Looking beyond reoffending: criminal records and poverty’ (2015) 99 Criminal Justice Matters 4-5. [26] For a discussion of humility as a civic virtue in contrast to the Roman ideals, see Robert Dodaro, Christ and the Just Society in the Thought of Augustine  (Cambridge University Press 2004) ch 6. [27] Augustine, Letters 100-155  (Roland J Teske tr, Boniface Ramsey ed, New City Press 2003) Letter 153 para 8. [28] Augustine, Letter 153 para 11 (Roland J Teske tr). [29] ibid. [30] Dodaro (n 26) 186-87. The chapter as a whole also provides an excellent elucidation of how Augustine places a penitential emphasis on leadership. [31] For one example of disproportionality in outcomes based on factors outside the individual’s control, see the Lammy Review, which examines the treatment of and outcomes for BAME individuals in the criminal justice system. Government of the United Kingdom, The Lammy Review (2017). [32] See, for example, the contrast Melanie Philips draws between the welfare of the criminal and that of society: ‘the Council’s concern is directed wholly at the welfare of the criminal rather than the welfare of society’. Melanie Philips, ‘Why we must take the public’s lead… and jail ALL drug dealers’ Daily Mail  (6 April 2011). < https://www.dailymail.co.uk/debate/article-1373071/Why-publics-lead--jail-ALL-drug-dealers.html > accessed 26 September 2020. This was in response to a Sentencing Council consultation paper which recommended avoiding custodial sentences for more minor drug dealing offences in certain circumstances in order to avoid overly punishing those exploited by higher-level dealers. [33] See n 41 below for how recent government documents tend to construe rehabilitation’s value in terms of the prevention of reoffending. [34] Augustine, Sermon 392 para 6 (Edmund Hill tr). [35] Augustine, Sermons (51-94) on the Old Testament (Edmund Hill tr, John E Rotelle ed, New City Press 1991) Sermon 82 para 11. [36] Augustine, Sermon 82 para 11 (Edmund Hill tr). [37] See the section ‘Canonical Penance at the Time of Augustine’ above. [38] Augustine, Responses to Miscellaneous Questions: Miscellany of Eighty-Three Questions  (Boniface Ramsey tr, New City Press 2008) Question 71 para 7. [39] During the persecution of Diocletian’s reign, many bishops had lapsed before, at the end of the persecution, repenting. Donatists argued that repentance was not sufficient and that, having committed apostasy, they could longer be considered to be legitimately administering the sacraments. The resulting breakaway was the Donatist Schism. Augustine took the position that schism was a serious sin which violated the unity of the Church for the sake of unattainable purity. In doing so he elaborated his idea that the Church on earth was a corpus Pprmixtum  rather than a society free from sin. [40] Augustine, On Baptism, Against the Donatists  (JR King tr) in Marcus Dods (ed), The Works of Aurelius Augustine , vol 3 (T & T Clark 1872) Book 2 para 8. [41] See, for example, the Coalition Government’s 2013 document, Transforming Rehabilitation : ‘Whilst we continue to tolerate so many   offenders passing through the justice system and going on to commit more crimes, we are in fact tolerating more victims, greater cost to the taxpayer and further damage to communities’. Ministry of Justice, Transforming Rehabilitation: A Strategy for Reform  (Cm 8619, 2013) 9 < https://consult.justice.gov.uk/digital-communications/transforming-rehabilitation/results/transforming-rehabilitation-response.pdf > accessed 30 July 2020. Notable for its absence is the effect on the prisoners themselves. See also Robert Blakey, Rehabilitation in Prisons (House of Lords Library Briefing 2017) < https://researchbriefings.parliament.uk/ResearchBriefing/Summary/LLN-2017-0102#fullreport > accessed 30 July 2020. [42] For example, it seems plausible that there is a situation in which they do the least damage to society, if not none, of the options available.