Thursday, June 21, 2018

Imminent Lawless Action: Buck-Morss v. Enwezor

This essay argues that the seemingly disparate concepts of art and law are connected by the question of dissent and its its own juridico/linguistic limitation. It is my contention that at this stage of our global order, the only space left for an artistic practice is that of questioning institutional frameworks through and against the language of law.

If in fact the United States is our current version of Empire, then it is precisely through a cultural production informed by but not limited to Western artistic notions of the avant-garde that the questioning of U.S. laws, the U.S. Constitution and their global materialization will be elucidated.

I. Introduction

A keen reader would be quick to question the privileging of art as the only viable practice from which to question and subvert institutional orders of abuse, gross authoritarianism and vulgar displays of power. My only answer to this, and perhaps my only viable answer, is that when I speak of art I speak of it in quotation marks. For it is only as “art” that one can begin to define a new space that is forward-looking and yet of course indebted to a long history of cultural practices and interventions, previously defined (and at times derided and misunderstood) by many professionals and academics as the avant-garde.

I speak of law because, again, it is my belief that only through the learning, the being intimate in, and the dismantling of this linguistic code can one have any viable options left for a liberated sense of existence. It is be learning the function and functioning of these “legal fictions”(1) that one can initiate an investigation into the grey areas well understood by a chosen few, but certainly unrecognizable by the large majority. It is through an actual testing of these grey areas, through a material practice, that the force of law and its crushing grip shows its demonic face. It is in and through this materialization and not through representation that law itself can be put on trial. Lastly, if the First Amendment scholar, Steven Shiffrin, is correct in stating that the primary role of the First Amendment is to protect dissent(2), then the First Amendment is our own worst enemy. I respectfully dissent and contend that true dissent needs no First Amendment protection.

Of course, when one speaks of law one speaks of many things, but the same happens in art and will certainly happen in globalization. But this should not stop us from attempting to surmise and delineate a fourth direction or a fifth sunset. One fears that amongst the inability to pinpoint a unified measure and definition of globalization the potential will be lost for any true understanding, leading to an irresponsible and immaterial tossing of this concept/metaphor.

II. Art v. “art”

The decline of art and its socio/political importance can certainly be seen in the advertent and conscious disavowal of its potential as a critical practice. This understanding, and perhaps the misunderstanding by many in the visual field, that critical art meant the immediate marriage and translation of much 20th Century critical theory into a visual format. In this sense, visual art since the early 1980s was perfectly aligned with the birth of the Sony Betamax, in that it did nothing more than allow a facilitation and gross misunderstanding of the role of agency in subjectivity and political manifestations. In other words this simplified understanding of the relation between art and theory was nothing more than the ability to disengage with a visual text and simply freeze frame, forward, and edit it for easy consumption and manipulability. One no longer had to engage at that particular moment and with a certain amount of urgency and immediacy. One could always wait until after dinner time!

This disavowal transformed and morphed into a waiting for someone else to freeze frame, forward, and edit. We became more enamored with preconceived ideas and images than with our own creative imagination and the visual possibilities of its discontent. Of no immediate obviousness was the stalling of critical art writing for and by artists themselves. The critical apparatus of the pen gave way to a thorough understanding of market forces and to a desire to be part of Debord’s much derided spectacle. In fact, one would have thought that so much critical theory, philosophy and identity politics would have ignited a wider and more in-depth critical understanding and verbal production by artists, but was instead formulated and packaged as semiotics within a frame, deconstruction on a canvas, and Marxism as a muse for institutional critique.

Much of the debate concerning the efficacy of resistance or transformation was due in large part to the much critiqued and destroyed inside/outside binary by neo-Nietzscheans (post-structuralists on to post-colonialists and globalization critics). The potential of art as avant-garde and of an avant-garde (military) as art was thrown out with the dirty (but bubbly) bathwater of romanticism, authenticity, and positionality (not only with the dirty (but bubbly) bathwater of romanticism, authenticity and positionality, but with the architectonics of the bathroom itself (tub, sink, tile, and plumbing)). Perfectly visualized, this destruction of the architecture was perhaps indexed by Gordon Matta-Clark as emblematic and foretelling of what was to come. Rather than view building codes and their potential transformative effects, architectural frameworks were dismantled, ridiculed(3) , and set within the parameters of gallery walls for select viewership and narrowly-tailored ownership.

It is perhaps here that I draw a distinction between art and “art.” First, I am more than happy to abdicate the former term to the existing institutions and institutionalized practitioners of said medium. In this sense, art can be said to be an appendage of the now global entertainment system, well endowed with professional degrees, the respectability and keen insight of curators, and the sharp, lucid and analytical criticism of the many contemporary art critics and few art theorists. “Art,”(4) on the other hand, is that practice which begins to feel the need to politically and directly engage with other discourses and with other spaces. It is constantly dissatisfied, and perhaps more importantly and on point, dissatisfied with itself. A similar correlation can perhaps be made to the “art” produced right after its initial reception and interpretation of early French theory: the mixture of political dissatisfaction mixed with fresh and noncomplacent ideas and energies.

The immediate relationship of the aforementioned notion of “art” to the history and practice of the avant-garde is perhaps quite obvious. However, and in light of the many differing interpretations on and definitions of the avant-garde, I will juxtapose two semi-recent but differing positions: one held by Okwui Enwezor and the other held by Susan Buck-Morss.

In his curatorial role for Documenta 11, Enwezor fixes his glance and criticism on the Western concept of the avant-garde as well as the relation between the avant-garde and formalism. His position vis-à-vis the avant-garde may be summarized as one that joins a formalist telos (tradition) with the avant-garde impetus (innovation)(5). Enwezor believes that “today’s avant-garde is so thoroughly disciplined and domesticated within the scheme of Empire that a whole different set of regulatory and resistance models has to be found to counterbalance Empire’s attempt at totalization.”(6) In essence, Enwezor is highly suspect of the viability and success of the Westernized avant-garde.

He continues:

“While strong revolutionary claims have been made for the avant-garde within Westernism, its vision of modernity remains surprisingly conservative and formal. On the other hand, the political and historical vision of the Western avant-garde has remained narrow. The propagators of the avant-garde have done little to constitute a space of self-reflexivity that can understand new relations of artistic modernity not founded on Westernism.” [Italics mine]

Buck-Morss on the other hand, does not throw away the baby with the bathwater. I quote at length here in order to do justice to her positionality:

“[C]ertain structures of social life make peace impossible: by their very nature they pit classes, or sexes, or ‘races,’ or nations against each other. It is these structures that need to be attacked, in their everyday banality—not by blowing up buildings(7) , but by blowing up the significance of our seemingly insignificant everyday practices of compliance. And it is here that the cultural avant-garde finds its military mission. If it shocks us in the midst of our mundane existence and breaks the routine of living even for a second…then it is allied with out better side, our bodily side that senses the order of things is not as it should be, or as it could be. The time of this avant-garde is not progress, but interruption—stopping time, or slowing it down, or reaching into past time, forgotten time, in order to shatter the placid surface of the present.”(8)

Additionally, there is a spatial element to Buck-Morss’s concept of the avant-garde. She continues:

“Transgressing its defining boundaries, moving into spaces where it isn’t allowed—…art’s place is displacement.” [Italics hers] Similar to Denis Hollier’s notion of “guerrilla warfare,” “[t]he political effectiveness of such actions is admittedly temporary, and always in danger of being co-opted into a system that thrives on the new, the untried, the transgressive. But we are dealing here with political effects that make no claim to permanence. They cannot be reified and secured within the artwork itself.”(9) [Italics mine]

I divorce myself from the Enwezor school and understanding of the avant-garde, and unite forces with Buck-Morss’ more immediate and certainly more productive definition of it. Enwezor’s positionality as a curator and art critic is quite obvious, and it is perhaps his inability to allow the remnants, remains, and residual effects of the temporal and provisional avant-garde effects to intervene in and occupy spaces outside of the “artwork itself” which lead to his narrowly-tailored definition and use of the avant-garde. In fact, Buck-Morss aptly sees and thus counterbalances Enwezor’s reading: “The avant-garde experience of temporal interruptions and spatial displacement is not limited to artworks. It is important to rescue the term from its monopolization by art historians and art critics.”(10) Thus, for Buck-Morss, it is precisely the interruptive and displacing effect of the avant-garde that is political art: “Imaginings that are inappropriate, that trouble the boundaries—of institutions, nations, sexes, cultures, and centrally, of art itself.”(11) [Italics mine]

I use these positions primarily because they come from two international art exhibitions that have recently, if not historically, intended to merge art and politics. Although neither commentator, Buck-Morss or Enwezor, is an artist, most certainly one is a political theorist and the other curator/critic respectively. I detail their positions so as to highlight the different approaches to the notion and viability of the avant-garde. Put simply, when one steps outside of the contextual reading and framing of “artworld”, the possibilities for the avant-garde fail to be defined solely on artistic and artistic/institutional grounds.

This is not to say that an artist holds a privileged position. In fact, what the curator of the 1999 Museum of Modern Art exhibition, Museum as Muse: Artists Reflect, contends is precise and on-point in defining today’s practicing artists:

“Although the ways in which [artists] deal with the museum in their work go far beyond any purely pragmatic consideration, their interest is, of course partly professional: their sense of what the museum means in terms of public acceptance makes many of them eager to be represented in museum collections, and worry if they are absent. Others, meanwhile question whether their work should be in a museum at all, feeling that to be included is to succumb to the establishment. In either case, artist are often, ultimately, wrestling with the issue of their dependence on the museum to endorse their place in art history. It is the civil institution of today, they feel, that will make them the cultural institutions of tomorrow.”(12)

I highlight this exhibition exactly in order to foreground how the institution of the museum was quite adept and willing to co-opt institutional critique practices, but also in showing how this strategy itself, an avant-garde one nonetheless, is one that artists are quite comfortable in practicing for the sake of institutionalization. With the exception of artists like Michael Asher(13), most others within this spectrum, and this specific exhibition, quite willingly abdicate and succumb to the desires and institutionalizing effects of the museum and international exhibition “establishment.”

What then is an artist to do in light of the “globalized” international exhibitions such as Documenta and inSITE? What is the role of the artist today? If we take Buck-Morss’s recipe for political art, in what interruptions and displacements should an artist partake? What boundaries and institutions should be blurred, troubled, and made inappropriate?

It is my conjecture that if political art today is defined as it has been by Buck-Morss, then its interruptions and displacements should come at the intersection of as-yet untapped discourses, institutions and spaces; at the liminal points of the real and the virtual; at the moment of immediacy, danger, and the grey zone. It is precisely where “art,” (as avant-garde as political practice) and law merge where new interruptions and displacements will be made and found. In fact, it is in dissent itself that “art” can still find a viable space of existence.

III. Law

Many a reader will ask: Of what use is law? The most direct and cynical answer would be “not much!” However, there is still room from improvement, or rather, as a commendable yet resigned young law associate from a prestigious New York City law firm once happily told me: “when given lemons, make lemonade.”

Now, this level of cynicism gets us nowhere, I am aware of this. Thus, and so as to not make light of the power of this linguistico/material apparatus, I will say this: law, as with any tool or weapon, is double-edged. I will argue that “art” and its practice can benefit, leverage itself with/against/toward, interpret and learn from law and the jurisprudential enterprise.

How exactly can “art” do this: One, “art” is pragmatically linked to law. Two, “art” can emply the grey areas and theories created by law for political reasons and gains. Third, “art” can benefit from the speculative legal questions yet unknown to an artistic practice. I separate these three areas only for the sake of logic, but understand quite well that at the end of the day their differences and differentiations will not be quite as easily delineated. I will briefly delineate the first and third, but spend considerable more time on the second factor.

Factor one: “Art” is pragmatically linked to law in well-known and pre-existing professional legal areas: contracts, copyrights, trademarks, property, internet, and first amendment (free speech). This is not the place for an extended view on this area.

Factor three: “Art” can benefit from speculative legal theories, as produced in the internet case LICRA, UEJF v. Yahoo! Inc.,(14) where the French Tribunal found Yahoo! Inc. in violation of the French penal code (which makes the exhibition or sale of Nazi paraphernalia to French citizens a crime). Here, the issue revolved around whether the French Tribunal had jurisdiction over Yahoo, and whether the question of where the actual “criminal conduct” took place could actually be ascertained. The inability of Yahoo to circumscribe cyberspace and internet usage, along with the difficulty in finding and locating the precise liable entity (sender, recipient, server, internet service provider) and the ambiguity as to jurisdiction and as to which law to apply led to stellar and groundbreaking legal analysis. The point being that when the question of “space” and “time” is no longer immediately verifiable according to preconceived notions of “real” space and time, law is suspended to the extent that an avant-garde position could potentially, and powerfully, be advanced.

Factor two: Law’s “grey areas” of jurisprudence are well suited for an “artistic” investigation that may well lead to provisional and political interruptions and displacements. Because of the nature and breadth of this legal area, I will use U.S. Constitutional law, specifically First Amendment(15) law, as a starting point, but certainly not as a marker of the pre-eminence of Empire or neo-imperialism.

Take for example the landmark Supreme Court decision concerning advocacy of illegal conduct or “subversive advocacy.”(16) In Brandenburg v. Ohio,(17) the defendant, a leader of a Ku Klux Klan group, “was convicted under [a 1919] Ohio Criminal Syndicalism statute of ‘advocat[ing] the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’” and of “’voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.’”(18)

The defendant’s acts consisted of telephoning a TV reporter of a Cincinnati television station and inviting him to a Ku Klux Klan rally, where the defendant and other individuals (some brandishing firearms) gathered around a large wooden burning cross. The defendant then communicated derogatory comments toward “negroes” and Jews to a TV reporter and cameraman filming the event.(19) Certain portions of the films were then aired on certain local and national networks. In part, the speech read as follows:

“We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengence taken…We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.”(20)

The Supreme Court struck down the Ohio statute, ruling that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”(21) [Italics mine] The Court continued: “the mere abstract teaching [of] the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action…A statute that fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.”(22) The Court was persistent in stating that the Ohio statute was overbroad because is prohibited not only the incitement of lawless action, but the advocacy of it as well.

According to First Amendment scholar Geoffrey R. Stone, this ruling by the court “permit[s] the punishment of subversive activity only if three conditions are satisfied: there must be express advocacy of law violation; the advocacy must call for immediate law violation; and the immediate law violation must be likely to occur.”(23)

As any first year law student knows quite well, this ruling leaves much room for polemical dexterity. What exactly is “advocacy”; when is it “directed”; what is “inciting; what is “producing”; what is “imminent”; what is “lawless”; and what is “action”? Similarly, how would we define “likely”? It is precisely this grey zone that allows “art” to partake in helping to expand, and potentially negatively define, these ambiguous terms. Under the standing rule, an artist could expound the need for nuclear weapons as a means to achieving racial equality, sometime in “the future,” and be completely protected under existing First Amendment law. However, if this same artist “incited” me to jaywalk “immediately” across Canal Street in New York City, as I stood on Canal and Broadway, she would be punished.

Yet as any good artist knows, the semiotics of representation and the diverse and blurred disciplines of artistic practice and culture lend themselves quite nicely to the potential arguments and manifestations that would in fact question the Brandenburg ruling.

However, the converse effect of Brandenburg leads me to believe that the First Amendment, as applied, does not afford true dissent any actual and necessary protection. If what is being protected is simply the advocacy (thought) of change through crime or force, but the force and crime themselves are not protected, then there is a very strong argument that this “advocacy” has no bite.(24) If what is needed is material action or material force, then the First Amendment lends us absolutely no help. One is reminded of Kant’s famous dicta: “Argue as much as you like and about whatever you like, but obey!”(25) By expanding the advocacy of illegal action to “force,” any potential action that is not a crime can still be defined, a posteriori, as being “criminal.”

On the other hand, assuming that a contemporary avant-garde artist (using Buck-Morss’s definition) still believes that dissent and immediate political change can still be implemented through “thought” and not action, can the representations of such thoughts and dissent be construed, again, a posteriori, as being criminal acts, and thus chill “artistic” speech?(26) Is this possible, and if so, how does it happen?

How the invisible hand that both categorizes and thus criminalizes such an act works is poignantly defined and analyzed by Giorgio Agamben in State of Exception.(27) In order for us to understand the imminent necessity of the subversive artist (avant-garde) and of her immediate and direct material acts, we need to divert our attention momentarily to Agamben’s lucid analysis of the historical trajectory and current exposition of how a State neutralizes and suspends our Constitutional order.

Unless we understand the fragility of the First Amendment, artists can neither question existing governmental institutions under the existing Brandenburg protection, nor critique the material application and rationale of Brandenburg. In fact, it is precisely this chilling effect which lends credibility to my position that true “art,” and true “dissent,” needs no First Amendment protection.

A. The State of Exception

What is a state of exception? Before we begin to answer this complicated question, a technical clarification is needed. Agamben uses state of exception to reference a “consistent set of legal phenomena”(28) that has etymological and linguistic connections to the German state of necessity, the Anglo-Saxon martial law and emergency powers, and the differing Italian and French concepts of emergency decrees and state of siege.(29) Agamben notices that these terms have no real neutral grounding, but rather that they embody a fictitious or political quality. He states:

“The state of exception is not a special kind of law (like the law of war); rather, insofar as it is a suspension of the juridical order itself, it defines law’s threshold or limit concept.”(30)

Using French doctrine dating back to 1811, Agamben further defines the state of exception as: “[T]he extension of the military authority’s wartime powers into the civil sphere, and…a suspension of the constitution (or of those constitutional norms that protect individual liberties), in time the two models end up merging into a single juridical phenomenon that we call the state of exception.”(31)

It is precisely how this state of exception gets conceptualized and implemented that intrigues Agamben. He is interested in how this “new” decree or order gathers the potentiality and force needed to succeed as a type of law. Furthermore, Agamben notices that this state of exception references a historical moment when the separation of powers was yet unknown.

Here, the next step is the transformation of this state of exception from an exception to a rule, guided significantly by an executive sovereign which simultaneously and surreptitiously turns a democratic governance into a permanent state of siege: a state of siege that is not only a form of government but of a rule of law—a rule of law perpetuated by a cloaked force of law. Through this magical overture, the extension of the executive powers into the legislative is quite clear. Citing the Swedish jurist Herbert Tingsten, Agamben states:

“[A]lthough a temporary and controlled use of full powers is theoretically compatible with democratic constitutions, ‘a systematic and regular exercise of the institution [state of exception] necessarily leads to the “liquidation” of democracy.’”(32) [Brackets mine]

For Agamben, the state of exception, a technique to be used sparingly and rarely, has become, through and in between the two world wars, the rule and the norm.(33) [Italics mine]

Citing the U.S. Constitution and it’s ambiguity as to the right to suspend habeas corpus(34) and the President’s command of the Army and Navy, Agamben locates the U.S. Civil War, and precisely Lincoln, as the first U.S. sovereign to problematized and instate the state of exception.(35)

“Because the sovereign power of the president is essentially grounded in the emergency linked to a state of war, over the course of the twentieth century the metaphor of war becomes an integral part of the presidential political vocabulary whenever decisions considered to be of vital importance are being imposed.”(36) [Italics mine]

Applying this observation to post-September 11, Agamben indexes Bush’s claim to be Commander In Chief as exemplary of an executive claim to sovereign powers in emergency situations. By this wave of the wand, “Bush is attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible.”(37)

What force gives the sovereign this seemingly grounded right? Citing a Latin expression, necessitas legem non habet (“necessity has no law”), Agamben references the legal concept of necessity in order to answer this question. He interprets this expression as meaning both “necessity does not recognize any law” and “necessity creates its own law.” By doing this, Agamben notices that the political appearance of a state of exception necessarily creates the existence of necessity, a necessity that judges and mandates according to a singular and particular case.

Interestingly, it is here that Agamben notices the correlation and connection between law and anarchy, law and revolution. Because this state of exception, this state of suspended law, comes about and exists due to a much needed necessity of a state, this self-proclaimed right to violate and to express violence necessarily creates an independent and valid moment of insurrection. It is this categorical moment, suspended from any legal or schematic dogma, which allows for the potential of a revolution. Agamben cites the European jurist, Santi Romano and Giorgio Balladore-Pallieri, in order to buttress the link between revolution, law, and the state of exception.

“Although revolution is…by definition ‘antijuridical, even when it is just,’ it can, however, appear this way only ‘with respect to the positive law of the state against which it is directed, but that does not mean that…it is not a movement ordered and regulated by its own law. [R]evolution is violence, but it is juridically organized violence.’”(38)

“[T]he recourse to necessity entails a moral or political (or in any case, extrajuridical) evaluation, by which the juridical order is judged and is held to be worthy of preservation or strengthening even at the price of its possible violation. For this reason, the principle of necessity is, in every case, always a revolutionary principle.”(39)

It is precisely this question regarding moral and political necessity that Agamben pursues: where does this “necessity” attain its grounding? On what grounds or foundations is this necessity uttered and proclaimed? This lack of grounding is easy to spot, making Agamben’s post-structural bent quite obvious here. For Agamben, this deconstruction of the state of exception leads to a “lack” which is inherent in law but not necessarily part of the juridical order. A Lacanian lapse? Perhaps. Yet Agamben is quick to note that this fictitious lacuna is to be filled by the executive powers just as the lack in law is to be filled by a judge. The ethico/political interpretive act of filling in the blank is now left to an executive sovereign, with only a mystical force of law hiding and pushing behind it.

Of course, Agamben takes note of a now famous 1989 lecture by Derrida at Cardozo School of Law entitled, Force of Law: The Mystical Foundation of Authority.(40) Agamben claims that although this lecture ruptured juridical and philosophical foundations, no one cared to deconstruct “force of law” itself. For Agamben, force of law refers not to law itself, but rather:

“to those decrees (which, as we indeed say, have the force of law) that the executive power can be authorized to issue in some situations, particularly in the state of exception…Thus, when the Roman sovereign begins to acquire the power to issue acts that tend increasingly to have the value of laws, Roman doctrine says that these acts have the ‘force of law.’”(41) [Italics mine]

Thus, for Agamben, the state of exception has the power to separate the force of law from the law.(42) In other words, the law is in place but has no force and is not applied, and on the other hand acts that do not have the value of law acquire its force. True to his philosophical training, Agamben notices the similarities between this political event and language. The transference from semiotics to semantics is noted by Agamben(43), but it is perhaps easier to note that what the “force of law” allows is equal access to it by either law or anarchy. Similarly, and following early semioticians, a word/concept has no originary or logical signified—it simply floats, shifts, and drifts. The enunciative character of a word is used to illustrate its lack of content. Thus, “force of law” is an utterance, an enunciation, a decree, a law, that has no law—formal or otherwise. It is simply created and upheld by a social construct and understanding.

IV. Dissent

“Those whom we regard as being unpleasantly—or at least, inconveniently—moralistic are forever trying to inch the pointer upward so as to expand the area of duty. If the morality of duty reaches upward beyond its proper sphere the iron hand of imposed obligation may stifle experiment, inspiration, and spontaneity.”(44)

These words, uttered by the legal scholar Lon L. Fuller, certainly do not take into account the effect of market forces on cultural or artistic production. In fact, if there is any moral duty to which artists willingly oblige, it is the duty of maintaining market expectations. It is precisely art’s lack of duty which ironically produced the type of duty referred to by Fuller. The experiment, inspiration, and spontaneity of early and mid-Twentieth Century artistic production led to a managerial and laborial duty meant to embrace and uphold a commercialized institutional establishment.

Logically following, it is time for art to free itself from the shackles of this duty and invoke its own state of exception. As described above, during a time of war, or of a fictitiously constructed state of siege, the executive administers a repressive force of law that does not allow dissent its own force of law. Yet why, if we follow Buck-Morss’s avant-garde, should today’s “art” not invoke the discourse of law which could, as seen in the quotes by Santi Romano and Balladore-Pallieri, grant itself its own necessary right to suspend itself—i.e., to invoke its own state of exception.

One possible answer may be found in today’s art, which is “popular, good, and interesting.”(45) In a sense, it is the current artistic institution’s belief in its own death. Speaking on the public’s apathy toward art, Hegel explained that when art is removed to a safe zone, it may still remain good art, and perhaps even popular art, but its effect upon our existence will vanish.(46) For Hegel, to assign the word “interesting” to an art work was for the most part derogatory; it may have some temporal aesthetic value, yet in the end it had no lasting effect.(47) “It should be clear then that by moving into the margin art does not lose its quality as art; it only loses its direct relevance to our existence: it becomes a splendid superfluity.”(48)

Thus, if anarchy and revolution are in fact synonymous with a state of exception, and if today’s “artistic” and cultural avant-garde invokes, relates to, and affects other discourses in its trajectory of temporal and provisional interruption and displacement, then today’s “art” must suspend the juridical law which constitutes its own subjectivity and making. “Art” must, out of necessity, grant itself the right to utter its own force of law, a force of law which would allow it to not only test Brandenburg, but in fact allow it to advocate and employ the use of force “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”(49)

It is only through and via imminent lawless action that an established and repressive state apparatus can be challenged, questioned, and put under scrutiny. When the executive grants itself the power and force of a spectral legal body and voice, it is in fact directing the disenfranchised populace and its oppressed constituents to a form of governance that has been consistently in place yet simultaneously dormant. If this force of law is in fact an utterance without grounding, what better way to test the validity and life of the First Amendment than through “art’s” force of law. For is not this exactly what Buck-Morss has in mind when she states that “political effects…cannot be reified and secured within the artwork itself”?(50)

Of course, whether this is true or not remains to be seen. Geoffrey Stone optimistically believes that “[t]he [Supreme] Court has learned from its own experience that although each generation’s effort to suppress its idea of ‘dangerous’ speech seemed justified at the time, each proved with the benefit of hindsight to be an exaggerated response to a particular political or social conflict. Brandenburg has built a ‘fortress’ around core political speech. The Court has attempted to tie its own hands and to make it difficult, if not impossible, for the government to suppress seditious criticism in the next era of fear and hysteria.”(51)

Countering this positive historical interpretation, and elucidating a more precise rendition of the current political establishment, Stone quotes conservative Seventh Circuit Judge and law and economics University of Chicago Law School professor Richard Posner: “when the country feels very safe the Justices…can…plume themselves on their fearless devotion to freedom of speech [but] they are likely to change their tune when next the country feels endangered.”(52)

V. Conclusion

With Posner’s ending sentiments my initial contention is affirmed: that being that at this stage of our global order the only space left for an artistic practice is that of questioning institutional and oppressive frameworks through and against the language of law and the mechanical and material leveraging of U.S. laws.

As to the privileging of art as the only viable practice from which to question and subvert institutional orders of abuse, gross authoritarianism and vulgar displays of power, my answer is that art must shift to “art,” and thus begin to define a new space that is forward-looking and yet indebted to a long history of cultural practices and interventions, previously defined as the avant-garde, and yet not limited only to Western notions and definitions of art and cultural practices. In effect, the avant-garde now must address discourses continually shunned and erroneously dismissed by artists and art historians, and thus not see itself limited by Western historical paradigms and conventional institutional circumscriptions.

I speak of art and its relation to law because it is my belief that only through the learning, the being intimate in, and the dismantling of this ever-present and yet spectral linguistic code can one have a thorough understanding of the machinations of Empire and thus create viable and energetic options for a liberated sense of existence—an existence not limited solely an institutionalized artistic experience. It is precisely by learning the function and functioning of legal fictions that one can initiate an investigation into the grey areas well understood by a chosen few but certainly unrecognized by the large majority. It is through an actual testing of these grey areas, through a material practice, that the oppressive state of exception will be overcome by “art’s” force of law.

It is precisely by suspending its own current rule of law that “art” can suspend itself provisionally, momentarily, and at will in order to counter moments of political crisis and instability. “Art” cannot fall prey to the belief that its political manifestations and expressions (speech) will be protected and thus viable and successful under current First Amendment law. By simultaneously questioning, expanding, and scrutinizing the First Amendment, “art” can very possibly deliver the much sought avant-garde conversion.


1. “A frequent and pervasive resort to fiction marks, then, those subjects where the urge toward systematic structure is strong and insistent.” Furthermore, for Fuller, the interest in legal fictions is “rendered…more alluring by its association with one of the most solemn of human contexts, where men robed in black sit in judgment on their fellows.” He believes that when “all goes well and established legal rules encompass neatly the social life they are intended to regulate, there is little occasion for fictions. There is also little occasion for philosophizing, for the law then proceeds with a transparent simplicity suggesting no need fore reflective scrutiny. Only in illness, we are told, does the body reveal its complexity. Only when legal reasoning falters and reaches out clumsily for help do we realize what a complex undertaking law is[.] A fiction is…adopted by its author with knowledge of its falsity [, and has]…a certain utility.” Lon L. Fuller, Legal Fictions vii-xi, 7-9(Stanford University Press 1967). [Italics mine] For a further critical and devastating analysis of legal fictions, see Jeremy Bentham, Collected Works V,92 VII, 283 (Bowring 1843): “In English law, fiction is a syphilis, which runs in every vein, and carries into every part of the system the principle of rottenness”; “Fiction of use to justice? Exactly as swindling is to trade,” Jeremy Bentham, Collected Works (Bowring 1843); see also, Jeremy Bentham, Bentham’s Theory of Fictions (Kegan Paul, Trench, Trubner & Co 1932).

2 Steven Shiffrin, Dissent, Injustice, and the Meanings of America xi, 93 (Princeton University Press 1999): Shiffrin defines dissent as “speech that criticizes existing customs, habits, traditions, institutions, or authorities,” and argues that the fundamental premise of the First Amendment and free speech theory should be to protect and foster dissent because the primarily role of dissent is to combat injustice: “Dissent attacks existing customs, habits, traditions, institutions, and authorities. It spies injustice and brings it to light. This does not mean that dissent is always effective; indeed, much dissent does little to bring about effective change. Nonetheless, dissent is a part of the daily practice of power relations in the society. Without it, unjust hierarchies would surely flourish with little possibility of constructive change.”

3 I certainly do not mean to dismiss Matta-Clark or suggest that Matta-Clark was “simply” ridiculing an artistic practice. Quite the opposite: the difference being that Matta-Clark showed the potential transformative effect of dilapidation and obfuscation by transforming such structures into objects of/for critical analysis and at times actual spaces of habitation.

4 For a lucid and short description of how the “center/inside” is itself essentially produced of the outside, see Slavoj Zizek, Welcome to the Desert of the Real, ( ) accessed May 17, 2005, “Whenever we encounter such a purely evil Outside, we should gather the courage to endorse the Hegelian lesson: in this pure Outside, we should recognize the distilled version of our own essence.”

5 Okwui Enwezor, The Black Box, Documenta 11, Platform 5: Exhibition Kassel, Germany, Catalogue 43, (2002).

6 Id. at 45.

7 Note that this essay was published in 1997.

8 Susan Buck-Morss, What is Political Art?, SanDiego/Tijuana, inSITE Catalogue 22 (1997).

9 Id.

10 Id.

11 Id. at 22-23.

12 Kynaston McShine, The Museum as Muse: Artists Reflect Catalogue, The Museum of Modern Art, New York 11 (1999).

13 For a clear example of an Asher project resisting institutional co-option, see The Museum as Muse: Artists Reflect, Museum of Modern Art, New York (1999), available at For a review of this exhibition, see Thomas Crow, The Museum as Muse: Artists Reflect, Artforum (1999), available at

14 In a suit brought by inter alia [among others] the Ligue Contre le Racisme et l’Antisemitisme (i.e. League Against Racism and Antisemitism), the Tribunal de Grande Instance de Paris (“Tribunal”) on May 22, 2000 ordered Yahoo! Inc. to take measures to inter alia render impossible on access to any Nazi item auction, or to any site or service either defending Naziism or disputing Nazi crimes. The Tribunal also ordered Yahoo!’s French subsidiary Yahoo! France to provide each user, prior to use of a link permitting research, with a message concerning the risks taken in visiting such sites. The parties thereafter presented conclusions concerning the orders, including inter alia technical issues involved in suppression. In its November 20, 2000 ruling the Tribunal noted that mere showing of Nazi items constituted a violation of Article R.645-1 of the French penal code. The Tribunal rejected Yahoo! Inc.’s reiterated claim of the Tribunal’s incompetence, on the ground that Yahoo!’s link with France had been sufficiently established. The Tribunal ordered Yahoo! Inc. to fulfill the May 22, 2000 order within three months or face a FF 100,000/day penalty. The Tribunal also ordered Yahoo! Inc. to pay each of the plaintiffs FF 10,000. The Tribunal found that it was possible to determine users’ physical locations, and moreover that Yahoo! could identify French users, given Yahoo!’s use of French-language banner ads. The Tribunal also determined that up to 90% filtering could be achieved. The Tribunal concluded that “with a little goodwill” Yahoo! Inc. could convince itself of the utility of suppressing photographs and descriptions of Nazi symbolic objects, as Yahoo! Inc. had done with the French-language version of the antisemitic Protocol of the Wise Men of Zion. The Tribunal pointed out that Yahoo! refused auctions of inter alia human organs and cigarettes, in spite of the U.S. Constitution’s First Amendment guaranteeing liberty of opinion and expression. The Tribunal noted that Yahoo! France had added a warning to its conditions of use message, and confirmed that Yahoo! France’s efforts at providing warnings had satisfied in large part the letter and spirit of the May 22, 2000 decision. The Tribunal nevertheless ordered Yahoo! France to provide users within two months with warnings at each link made to The Tribunal inter alia refused to prescribe further measures against Yahoo! France. The Tribunal reserved the penalty’s eventual liquidation. The Tribunal, however, awarded costs against Yahoo! Inc., except for those arising from the plaintiffs’ claim against Yahoo! France, which were to be provisorily borne by the parties. Tribunal de Grande Instance de Paris: LICRA v. Yahoo! Inc., No. RG 00/05308 (November 20, 2000), citing The American Society of International Law, at (accessed May 23, 2005). On November 7, 2001, a federal district court for the northern district of California ruled in favor of Yahoo’s motion to dismiss the French court’s ruling, holding that (1) ISP’s claims presented an “actual controversy”; (2) French order presented a real and immediate threat to ISP’s First Amendment rights; (3) Court would not abstain from deciding declaratory judgment action; (4) French order would not be recognized; and (5) French parties were not entitled to a continuance for further discovery. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F.Supp.2d 1181, N.D.Cal.,2001. However, on August 23, 2004, the Ninth Circuit Court of Appeals ruled that the California District Court had no personal jurisdiction over the French associations, holding: “French associations that had obtained order from French court, requiring California Internet service provider (ISP) to block French citizens’ access to Nazi material displayed or offered for sale on ISP’s U.S. site, were not subject, under the specific jurisdiction doctrine, to personal jurisdiction in ISP’s action seeking a declaration that the French court’s order violated ISP’s First Amendment rights; associations did not expressly aim at California inasmuch as they did not engage in any wrongful conduct by taking action to enforce their legal rights under French law.” Yahoo, Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 379 F.3d 1120, C.A.9 (Cal.),2004. As of February 10, 2005, the same Appellate Court ruled that “[u]pon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court [motion where litigants are free to suggest that a particular case is appropriate for consideration by all the judges of a court of appeals] pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.” YahooA Inc. v. LA Ligue Contre Le Racisme Et L’Antisemitisme, 399 F.3d 1010, C.A.9,2005.

15The First Amendment reads: “Congress shall make now law respecting the establishment of religion, or the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” As to why the First Amendment applies to a state actor but not private individuals, see Stone, infra note 20, at 6. “Through a complex process of constitutional amendment and judicial interpretation, the Constitution has come to mean that ‘Government shall make no law abridging the freedom of speech, or of the press’—that is, the First Amendment constrains not only Congress but also the president, the state of Montana, the city of Pittsburgh, the University of Nebraska, and police officers of Phoenix, Arizona. On the other hand, like other provisions of the Constitution, the First Amendment restricts only government. It does not restrict private individuals or institutions.”

16 Stone, infra note 22, at 522.

17395 U.S. 444 (1969).

18 Id. at 444-445.

19 Id. at 445.

20 Id. at 446.

21 Id. at 447.

22 Id. at 448.

23 Geoffrey R. Stone, Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism 523 (W.W. Norton & Co. 2005).

24 For a recent and probing argument for the need of outlaws in questioning property law and law in general, see Eduardo Peñalver and Sonia Katyal, Property Outlaws, available at (accessed September 10, 2006).

25 Immanuel Kant, What is Enlightenment?, (Konigsberg 1784).

26 On the effects of chilled speech, see Stone, supra note 20, at 11: “Thus, without robust protection for free speech, we may wind up with an impoverished public debate. Unless individuals are secure in their knowledge that they will not be punished for their dissent, even though others might act unlawfully, they may forgo their rights, to the detriment of democracy.”

27 Giorgio Agamben, State of Exception, Kevin Attel, trans., (University of Chicago Press 2005).

28Id. at 4.

29 Id.

30 Id. at 4.

31 Id. at 5.

32 Id. at 7

33 Compare Stone, supra note 22, at 554-555; “Although the claim of perpetual war may appear to be a compelling reason to steel the nation to the long task ahead by stripping away all ‘unnecessary’ civil liberties, the opposite is true. As we have seen, a saving ‘grace’ of America’s past excesses is that they were of ‘short’ duration and that, once the crisis passed, the nation returned to equilibrium. A war of indefinite duration, however, compounds the dangers both by extending the period during which civil liberties are ‘suspended’ and by increasing the risk that ‘emergency’ restrictions will become a permanent fixture of American life.”

34 Latin for “you have the body.” A writ of habeas corpus is used to bring a prisoner before the court to determine if the person’s detention is lawful. It can also be used to examine any extradition processes used, amount of bail, and the jurisdiction of the court. see, e.g. Felker v. Turpin, Warden 518 US 1051 (1996) and McCleskey v. Zant 499 US 467 (1991). Legal Information Institute, Lexicon, Cornell Law School, at (accessed May 23, 2005); see also, ‘lectric Law Library, at (accessed May 23, 2005): “Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.” In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has “recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.’ Harris v. Nelson, 394 U.S. 286, 290-91 (1969).

35 Agamben, supra note 25 at 20.

36Id. at 21

37 Id. at 22.

38 Id. at 29

39 Id. at 30, citing Giorgio Balladore-Pallieri, Diritto Costituzionale (Milan: Giuffre 1970).

40 For an in depth critique of law and its relations and application of force, see Jacques Derrida, Force of Law: The Mystical Foundation of Authority, In Deconstruction and the Possibility of Justice, Drucilla Cornell, Michel Rosenfeld, David Gray Carlson, eds. (Routledge Press 1992).

41 Agamben, supra note 25, 38.

42 Id.

43 Id. at 39.

44 Lon L. Fuller, The Morality of Law 9, 27-28 (Yale University Press 1969).

45Edgar Wind, Art and Anarchy, 3rd ed., 9-10 (Northwestern University Press 1985).

46 Id. at 9-10.

47 Id. at 9.

48 Id. at 10.

49 Brandenburg v. Ohio, supra note 16, at 447.

50 Buck-Morss, supra note 8, at 22.

51 Stone, supra note 22, at 524.

52 Id at 46. For a listing of some of the Bush administration’s restrictions on civil liberties, see Stone, supra note 20, at 552: “[Q]uestionable restrictions included indefinite detention, with no access to judicial review, of more than a thousand noncitizens who were lawfully in the United States and had not been charged with any crime; blanket secrecy concerning the identity of these detainees; refusal to permit many of these detainees to communicate with an attorney; an unprecedented assertion of authority to eavesdrop on constitutionally protected attorney-client communications; secret deportation proceedings; the incarceration for more than two years of an American citizen, arrested on American soil, incommunicado, with no access to a lawyer, solely on the basis of an executive determination that he was an ‘enemy combatant’; significant new limitations on the scope of the Freedom of Information Act; expanded authority to conduct undercover infiltration and surveillance of political and religious groups; increased power to wiretap, engage in electronic eavesdropping, and covertly review Internet and e-mail communications; new power secretly to review banking, brokerage, and other financial records; and expanded authority to conduct clandestine physical searches.”

Copyright 2005 Sergio Munoz-Sarmiento. All Rights Reserved. If you’d like to cite, link, copy or quote any part or all of this essay, email Sergio Munoz-Sarmiento at:



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