Notes on Freedom

Civil liberties – history, politics, culture

The role of Islam in terrorism

After the terror attacks of the past two weeks (gays in Florida, police officers in France), the primary response has been to assert that the attacks have nothing to do with Islam.

French and American leaders studiously avoided the word ‘Islamic’ or ‘Islam’ in their condemnation of the attacks. It is strange: both attackers left theatrical dedications to the leader of Islamic State. The killer of the French police officers recorded a 12-minute discourse in which he urged the Muslim community to attack unbelievers by any means possible and to ‘make France tremble’ (Allah would inflict painful punishments upon them if they did not ‘march forth into battle’). Yet the attack cannot be called an Islamic terrorist attack, and Islamic State cannot be called Islamic State but instead must be called Daesch or ‘so-called’ Islamic State.

The attackers are described as evil, homophobic or disturbed, as if the violence is a result of mental disorder or prejudice. Some lefties see Islamic terrorism as a twisted form of protest or politics, the result of historic foreign intervention or segregation within French society (for which they apologise). While the terrorists are obsessed with drawing lines (you and us, believers and unbelievers), there is a great effort to avoid any lines whatsoever – to, as they say in France, avoid any ‘amalgame’ between terrorists and Islam.

Of course, the attacks are not the result of Islam per se; this is not the faithful rendering of the teachings of seventh-century caliphs. And yet this religion is not incidental either. Radical Islam is at present playing a particular historic role: to provide a guise for tendencies towards destruction and collapse, which in this religious form appear as something substantial and transcendent. It is thanks to the Islamic guise that commonplace nihilism appears to be on the other side of a line: to be for something else, for another people, another place.

In their actual content, the recent Islamic attacks are relatively indistinguishable from attacks such as the US school shootings. The attackers are largely frustrated no-hopers, some of whom failed in their attempts to get into the police or army. There is a rage against the world and a desire for a great explosion. ‘I’m going to make everything explode’, was the way two of the Paris attackers independently described their actions. There is a stated desire to humiliate, to make things pop or burn, to make France or Europe or America tremble.

The attacks have the vanity of the school shootings: the videos, the desire for notoriety and to show that they have done something big. The murderer of the French police officers streamed his testimony live while still in the couple’s house, while the Florida shooter phoned 911 before he had finished shooting. Militarily these are not sensible actions, but narcissism overrode practical considerations. There was a desire not just to act but to have their act recognised: to take ownership of it and say ‘look what I did’, and this was as important as any actual results. There is not a concern with killing great numbers of people, only to commit an act of destruction that you can make a speech about before you die.

There also appears to be the death wish of the school shootings – terrorists want to go out anyway so may as well take others with them, make it a party. And yet this nihilistic content appears in quite a different guise to that of the school shootings. Islamic nihilism appears in the form of a war, a battle; the attacker is a soldier. His acts are shown on videos overlaid with nasheed warrior songs and galloping horsemen. He stands on another side of the line from the people he is attacking, or the place he has grown up. He stands outside Europe and condemns it as a place of ‘nonbelievers’: the fantasy world of Islamic history has become another place to belong.

The murderer of French police officers addressed his video to his ‘dear brothers’ in the worldwide Islamic community, and gave instructions for how they can follow up his glory: he gave a list of targets, including prison officers, police, journalists, politicians, and rappers, as well as a list of particular public figures who he believed deserved to get it. His personal gripes are announced as a political programme. His death wish is also universalised and made transcendent: ‘It’s enough to throw yourself forward, to die, and you will arrive in paradise. At that moment there will be no more worries, no more tests, only an enjoyment.’

Some observers of Islamic terrorism have insisted that it is not merely nihilistic, that it also idealistic and transcendent: it aims at sacrifice for a cause, at serving something bigger than yourself. Yes, it has these two elements of destruction and transcendence, hence the insignia of Islamic State, the black flag and the finger pointed skywards. But the transcendent element is merely a delusion: it does not point towards something about to rise from the ashes, or to any mystified will or wellbeing of Muslim people.

We are now seeing a desocialised brand of Islam, stipped of relations with Muslim communities or schools of Muslim thought. Previous forms of political Islam provided a religious guise for particular social interests and forces. Political Islam had a social content, whether that was anti-colonialism, or the mobilisation of civil society against corrupt elites. The Iranian revolution translated Marxist concepts such as civil society and party into pseudo-Islamic terminology: Islam acted as a veil for social forces, a means by which they could be articulated.

Similarly, the Islamic duty of jihad is a mystified expression of one’s duty to defend one’s community (1). Every Muslim has a holy duty to defend his community when it is being attacked; he has a provisional duty to join his community’s wars for expansion. This collective duty of self-defence would have been familiar to members of a Greek city state or indeed modern Christian nations.

Now the Islamic duty of jihad has been stripped of its collective meaning, and has become reduced to the immediate whim of each person. Anything they want to do is immediately raised into the divine obligation of ‘jihad’. Similarly, ‘ummah’ has become an abstract, fantasy construct, to be chucked around in your own self-justification. The will of Allah seems to always precisely coincide with terrorists’ own: Allah is an imaginary friend, giving his blessing and urging them on. Faisal Devji notes how Islamic concepts have lost any systematic or established content, and are ‘available only in fragments’ (2).

The ground for this desocialised Islam has been prepared by recent neofundamentalisms such as Salafism, which are set against all existent forms of Muslim communal life as well as European and Western culture. Whereas the political Islamists of the 70s were modernist and socialist, neofundamentalists seek to build an Islam from scratch: they are firmly opposed not only to Western influences, but also to local Islams and practices as well as to schools of Islamic theology or jurisprudence and existent religious authorities. Theirs is the purity of asociality, the setting of religion against culture and intellectual inheritance.

Islam in its globalised form becomes a detached‘marker’ (in the words of Olivier Roy (3)), a free floating transcendent element to be used for any purpose. The role of Islam in terrorism is not because of anything specific about Islamic history or the situation of Muslim communities in Europe (around 25% of European jihadis are converts). Instead, it is by taking an Islamic form that nihilism can be pursued as if it were a universal cause.

So the attacks are not the result of Islamic theology or doctrine, and yet Islam is playing a particular historic role at the moment, quite unlike that of any other religion or cultural principle. It is only this religion – the only rival universalistic monotheism to Christianity – which provides the means by which internal tendencies towards collapse and destruction appear as an oppositional principle and a revelation.

(1) L’Islam et La Guerre, Jean-Paul Charnay, Fayard, 1986

(2) Landscape of the Jihad, Devji, Hurst and Co, 2005

(3) Holy Ignorance, Olivier Roy, Hurst, 2010

Syria/Iraq: War without politics

The classic modern war, says Clausewitz, is ‘called forth by a political motive’ and is ‘a political act’: it is the mobilisation of a state, a people, in defence of the interests of that state (1). The form a war takes is determined by those interests, and the stronger the interests and passions the closer will the war approach the extremes of an all-out military conflict.

Now, in Syria and Iraq, we have a quite different model of war: war as the unravelling of political formations. As the war progresses, the various factions become increasingly numerous, fragmented, and estranged from any kind of popular base. There is a return to pre-modern tactics such as siege warfare and mutual avoidance, with skirmishes and deals rather than all-out battles. The cartography of a region or a city resembles a patchwork, with not one or two fronts but fronts everywhere, between or within neighbourhoods. In the city of Ramadi there are now Iraqi government and ISIS flags only yards from one another.

For Clausewitz, the essence of the war was the battle, the combat: ‘the combat is the single activity in war’. The war has the cell form of the duel: it is the ‘shock of two hostile bodies in collision’, each seeking to force the other to ‘do their will’.

Now, people are dying but often not in combat per se. Major cities have been won or lost with only a few dozen casualties. The Iraqi city of Mosul was won by ISIS in June 2014 with few casualties on either side: the Iraqi army just upped and left. Here is a city of 2.5 million people with 500 million dollars in the bank and military helicopters in the airport, and the army would not fight for it. Ramadi and Fallujah were taken by ISIS when the Iraqi army withdrew from the cities, after a dispute with local Sunni tribes: they walked into a vacuum. (The winning back of Tikrit in April 2015 by Shiite militias, led by Iranian commanders, was the exception that stands out as a more old-school battle, with significant fight and casualties on both sides).

Most notable is the woeful weakness of Iraqi state army: commanders defy orders to defend a district, soldiers take off their uniforms and go AWOL. Tribal militias will fight more than the state will fight. The Shiite militias ‘are stronger because they are ideological’, said one Iraqi, explaining why they now prop up the Iraqi army. The tribal and religious is what remains of ideology: they are the ones able to give meaning to battle and to risk their lives.

When Napoleon’s citizen armies first faced the elite, mercenary armies of Europe, the mercenaries were astounded at their numbers and their will to fight. Watching Mosul fall is like watching Napolean’s army in reverse: the state army is now the weakest thing, it is singularly lacking in ‘ideology’. The Americans did not build an Iraqi state but created a racket, a layer of people in their pay, a structure of phantom soldiers and kickbacks which crumbles at the touch.

The avoidance of battle is most glaring with the Western states of the world, who are uniquely obsessed with this patch of Syrian desert but will not put a foot in it. France pledged to ‘destroy’ ISIS but straight away ruled out any kind of ground troops. After a few weeks it admitted that it was ‘running out of targets’: ‘air strikes are of no use while there is no ground force to retake territory’.

There has been a fragmentation too of any international coalition, which were united in the first Gulf War, semi-united in the second, now split into as many parts as the Syrian opposition, often bombing sides being armed by other parties. They tell each other what they are doing only to avoid crashing into one another. Each nation has their favoured targets, which are developed in secret and change without warning – today Russia is bombing the opposition, then ISIS, then the opposition again. France admits that it is bombing Rakka because the government created the ‘narrative’ of the problem being Rakka.

International interests are primarily negative, set against a party, rather than for anybody. They were anti-Saddam, now anti-Assad, anti-ISIS, but they do not have clients or allies. They can destablise but not build; they can weaken but not take territory. It seems that the lesson of the war in Iraq was only not to try to build, not to try to occupy the country you are attacking. To attack them without trying to take them, without having a stake there, without being for anyone there. (Or not to actually know or control the people you are arming – as with US arms to Syrian opposition ending up across the border to be used by ISIS against the Iraqi army).


Battle is no longer the most meaningful thing. The drama lies in other ways of killing: suicide attacks, beheadings, air bombings. These are forms of killing which don’t involve meeting or grappling with the other party. They are not assertions of the will in a duel, but forms of demonstrating your power in a theatrical manner over a prostrate subject.

The bombing functions as a pristine display of power, as in the past two Gulf wars. The French theorist Jean Baudrillard said that the bombing of Saddam in 1991 was an ‘illusionism of force’, the Americans presenting ‘to themselves and to the entire world the spectacle of their virtual power’ (2). Now, films of Russian planes show the military hardware in all its splendour, superior and aloof; you see the bombs fall but not where they land. Or there is the asceptic footage familiar from the last Iraq war of planes fixing on their target, a green square, and then the resulting explosion. The post-Paris French airstrikes on ISIS were mocked by French jihadis, who claimed there had been no casualties and that millions of euros of high-tech explosives had been pounded into dust.

ISIS’s execution videos are dealing with the enemy at a more intimate level, but still this is not a grappling in combat but a null staging of prowess. They don’t even look at the person they are about to kill, they wave their knife at the camera and address watchers of the video or world leaders. The methods of killing are chosen largely for their performative value, the way the person will look as they die. Hence beheading: so unnecessarily difficult! When they are shot then the moment of the person buckling is shown in slow-mo and rewound; the film is all about this moment of buckling. It is a theatre of staged dominance, where the captive stands in for and is made to play the part of the Western adversary.

This theatrical parading of captives goes back to Saddam Hussein’s performance with the captured US airmen in Gulf War 1. At least they were airmen, fighters; the current captives are nobodies, anybodies, bit parts dragged in to be swaggered over and to have their veins spurt blood at the right moment. This great drama around execution is unusual. Execution is normally done surreptitiously or clinically – it lacks the drama of battle, the grappling of wills, there is no glory in it.

Suicide bombings are like drone or air strikes in that they allow you to attack in an area where you have no stake. You can destablise an enemy without trying to take the terrain. Suicide bombings are ISIS’s most feted deaths in war; it is the suicide bombing that is seen as the ‘highlight of the battle’. There is perhaps something ignominous now about dying in battle, dying at hands of enemy, and losses are often covered up and denied. Suicide bombings alone seem to have meaning, and there are many videos of ecstatic bombers about to set out on their mission of blowing up a checkpoint or walls of an army base. Their smiling faces are superimposed over the resulting explosion to indicate their achieved spiritual state.

The suicide bombing is not a grappling with the enemy but the pure sacrificial offering, unsullied by a tussel with another party. The fact that you blow yourself up means your death in a war is can be seen as a gift for God which leaves nothing for the enemy. Suicide bombings are indicative of a battle where you are not seeking to prevail over the other party but to seek destruction per se. You die not in a failed attempt to impose your will in battle but in the great blast you yourself have made. They seem to see a transcendence in the all-encompassing explosion that dissolves its author.


It is in this condition that ISIS can dominate – a condition in which all other interests, particularly regional and international state interests, have fragmented and pull at cross purposes to one another. Many of the cities ISIS now hold were abandoned by state forces, left for the taking.

For several decades, the process of Islamicisation has paralleled the emptying out of politics. Islamicisation means a mystification of the ends of battle, the basis of a conflict, and the basis of the organisation of a society. Since the Iranian revolution and the war in Afghanistan, questions of left or right or national popularism increasingly took an Islamic guise, as cover, as the underlying political motives weakened in their proper ideological language and justification. Now the political interests at the heart of a conflict have eroded further until it is practically only the Islamic mystification which remains.

ISIS is now the sole actor in the region with a universalising claim. They are centralised, coordinated, expansive; they have a body of people who will fight and die. They represent the grand mystification of any underlying political motives to the conflict, whether that is Sunni Arab political ambitions or Syrian national-liberation hopes. Their current dominance shows the inability of political interests to be posed as such, and the lack of viability of Western models of statehood or political interest formations.


(1) Carl Von Clausewitz, On War

(2) Jean Baudrillard, The Gulf War Did Not Take Place, Power Publs, 2006

Terrorism and the crisis of Western culture

Islamic terrorism has no positive meaning or drive in itself. Instead, it is merely a negative, shadow form, an externalisation of the vacuum within Western culture and societies.

The defining feature of Western jihadis is their complete disdain for the places they are from: for their families, neighbourhood, country. They see their country as a nowhere place, somewhere they stand completely outside of and hold only in contempt. Their radicalisation is an activation of this negative orientation towards their home, a definitive cutting of ties. The attacker of the Paris Kosher supermarket branded his nine sisters ‘infidels’, and said that ‘for me, religion comes first, I don’t give a damn about family’.

This is not a religion in any classical sense of a practising community. There was a radical Islamic mosque network in the 90s, but today’s jihadis are deracinated and individualised, existing outside of community or institutional forms. As the Islam expert Giles Kepel says: ‘They situate themselves in rupture with society and shut themselves away…they fabricate their own beliefs and practices’.

This, then is the basis of the jihadist identity: not Islam as a thing in itself, but only an Islam held in a pose of hostile conflict with Western culture and society. Islamic observances are an adjunct to the attack, and not the other way around. Two of the Paris attackers only started to pray and stopped smoking dope in the weeks when they began to prepare for the attack. The cousin of the organiser of the Paris attacks was shown in a headscarf flashing V’s at the camera: the headscalf is the accompaniment to the V’s and not a sign of religious devotion.

To be in the state of jihad, of oppositional identity, becomes their new ‘place’ and their new grounding. ‘Since I began with religion that has always been in jihad and I knew that this was my place here’, said one of the other attackers.

This process is suggestive not so much of exclusion, but of the lack of a positive pole into which they might be included or excluded. The Conservative French philosopher Alain Finkielkraut said that he had been assimilated as a young Polish Jew through an education that ‘introduced me to a world older than myself’, to a philosophical and cultural tradition (1). This inheritance was not specifically French but European or civilisation-culture: you had to really know your Plato.

Now, says Finkielkraut, there is a turn against ‘old school’ culture, the self-dismantling of a cultural inheritance. The teaching of French language and literature is reduced in favour of ‘preachy eco-citizen and practical interdisciplinary assignments’. The position of the teacher is ‘de-intellectualised’ and seen as a facilitator rather than a transmitter of knowledge. To assimilate is to maintain the connection with a cultural tradition, says Finkielkraut: ‘today we break it, and the same dissaggregation strikes native French as new arrivals’.

The self-negation of Western culture is not a genuine New School. The left-wing philosopher Alain Badiou laments the equal loss of the ‘revolutionary tradition’ in France, which was first republican, then socialist, anarcho-socialist, communist and leftist. The new order is not radical or libertarian, instead it has a nothing quality, illiberal but devoid of values or content. It amounts to a cultivated non-attachment to values and a particular self-distancing from the works and history of Western civilisation.

It is only in relation to the non-place of Western culture that the jihad is something and attains the status of an obligation. One jihadi’s phone had an image of the Eiffel tower up in smoke, and the message: ‘Oh France! We are coming, prepare yourself for bombs and assassinations on your territories’. It is now ‘we’ against ‘you’ and ‘your country’. They plant their feet in a war-torn desert and point to say they will kill kuffirs ‘over there’. The owners of a Brussels bar return to Europe to shoot at people sitting in bars.

The form taken by Islamic terrorism has become increasingly arbitrary and fragmented over time. The attacks of 9/11 were the structured negation of the West, an attack on the military, political and economic centres of American power. The attackers were highly trained and disciplined, part of a hierachical organisation and following orders. It was the organisation that sent their plane tickets and paid for their flight training.

By contrast, as Giles Kepel observes, the attackers on the Jewish supermarket and the Bataclan behaved like ‘wicked adolescents’ playing video games (2). They have the moeurs of criminals or hoodlums, without ‘ideology or grand doctrine’. The terrorist act has become arbitrary, DIY: any act of violence or destruction can be pinned with the flag of jihad. They source and pay for their own weapons and plan their own attacks, often badly.

Much had been made of the ‘professionalism’ of the Paris attackers, but this should not be overstated. They apparently under-specced their suicide belts such that they failed to kill anyone in blowing themselves up: the ‘attacks’ at the Stade de France basically amounted to a series of Islamic extremist suicides. One would-be bomber bauked and abandoned his suicide vest in a Paris suburb, while the ‘mastermind’ allowed himself to be found by police at the same flat the team had used to hide out.

If 9/11 was the structured negation of Western culture, contemporary terrorism is the immediate negation, the arbitrary and nihilistic turn against Western culture and society. It is less and less distinguishable from plain gangsterism or events such as the American school shootings. One European Isis fighter announced that European Muslims should ‘kill anyone’ they can get their hands on back at home. Two of the Paris attackers independently used the same phrase to describe their actions – to ‘make everything explode’ – suggesting the undirected nihilistic impulse.

The black flag is used to give a universal and historic guise to lone operators acting on impulse against the things they do not like (such as Jews), or acting out petty resentments, such as the US Christmas dinner shootings or the Muslim employee who decapitated his boss. Workplace disputes are transmuted into the terms of some grand religious clash, whereas they in fact remain in all their banality as a workplace dispute. The abstraction of an ‘IS attack’ is stuck like an afterthought on violence of the basest particularity.

In this context, there is an equal inutility to repressive and appeasing measures targeting Muslim communities. The French government is currently preoccupied with an effort to strip French nationality from dual-nationals convicted of terrorist offences. Do they really think that terrorists care about their carte d’identité? He who wants the Eiffel tower up in smoke would gladly add his ID card to the bonfire, and indeed this is perhaps what the bonfire is about.

Meanwhile, the appeasing measures are even worse. There is a pedagogical discussion about ‘having the conversation’ with Muslim students after terrorist attacks – i.e., how to tell them that the attacks were wrong. If you cannot tell them that then you cannot tell them very much. Education experts are developing methods of ‘engaging’ Muslim students, for example teaching them to critique the conspiracy theories that are common in their ranks. One exercise involved setting the students a conspiracy theory assignment, designing a world-wide plot linking their French teachers and the CIA. This ‘engagement’ is only an encouragement down their disintegrative lines of thought. What is actually required with Muslim students is to have something to bear before them, something bigger than themselves.

Islamic terrorism is the self-negation of Western culture appearing in an external form: as a hostile, foreign force existing in a state of war against it. Their strength, their belief, is only the inverse of our lack of belief.

This situation makes clear the sacrifice that has been made: when a civilisation gives up on its values there are consequences. It doesn’t seem that serious, day to day, when the curriculum is being dismantled or cultural non-attachment is being cultivated. Discussions occur in smart conference halls with coffee breaks. It doesn’t seem that serious when museum officials judge that dusty old objects are ‘irrelevant’. But now we can see what it means: it means Palmyra in ruins, machine guns in concert halls.

Who dies now defending civilisation? The archaeologist who died defending Palmyra, perhaps he is the only one. The different aspects of civilised life should be pursued again with the status of an obligation. We should replace the self-negation of Western culture with its self-affirmation – not as an anti-terrorist strategy but because this is what is of value and true.

(1) Le Un, No 88, 6 January

(2) Le Un, No 84, 25 November

French ‘state of emergency’: the irrationalities of arbitrary power

The thing that separates a gendarme with a tricolour on his shoulder from a militia member with a gun, is that the gendarme is supposed to represent the law.

The thing that separates a modern state like France from pre-modern or retrograde political authorities is that the French state is supposed to embody rational principles: it acts where necessary to preserve the state of liberty.

Now the French state is responding to a terrorist attack – the embodiement of irrational force – by extending the arbitrary powers of state authorities. As with America and Britain before it, the ‘security’ agenda in response to terrorism amounts to the extension of arbitrary powers as an end in itself.

There appears to be a notion that the more latitude given to police authorities – the more latitude to enact surveillance, to put electronic tags on people, to confine them to residences, to ban events – the safer everyone will be.

President Hollande’s declaration of a ‘state of emergency’ was a performance in reassurance, the gesture of asserting state authority. By extending powers he says: I am in charge, things are under control.

Yet all that has actually happened is that the administrative parts of the state have been unleashed to use their force as they please. For the next three months suspects can be confined to their homes by an administrative order, searches and raids can be carried out without legal authorisation, and local prefects have summary powers to restrict the movement of groups or particular individuals, banning local events or declaring curfews.

‘In another context, I would be the first to condemn such a proceedure’, said the socialist president of parliament’s legal commission. There were some murmurs of dissent but a general view that this was not the time for questioning or for argument. The vote on the enactment of the state of emergency was 551 votes for, 6 against, and one abstention. Such majorities achieved without debate indicate the rubber stamping of administrative edicts not the enacting of laws.

An article on the leftist magazine Rue.89 argued that this amounts to ‘legalisation of arbitrariness’, and noted that ‘state of emergency’ powers were used in the Algerian war to arrest thousands of supporters of Algerian independence and inter them in camps.

The Rue.89 article points out that Hollande’s law allows someone to be confined to their home on the basis of ‘serious reasons to think that their conduct constitutes a threat to security and public order’, a condition which is ‘much vaguer’ that the Algerian war version which targeted ‘activities’ rather than conduct. Which radical political protesters could not be targeted under these powers?

Indeed, a Le Monde investigation of some of the 118 people confined to their homes finds that one man’s fault lay mainly in the fact that he had twice driven a radical Islamic preacher to the airport. The man describes how 12 police officers arrived at his house and said: ‘We have something for you to sign.’ The documents seen by Le Monde included a mix of correct and incorrect facts about the person’s ‘connections’, but were mainly based on the simple assertion that the person represents a risk to national security and is intent on joining jihadist forces in Syria.

‘They are taking people randomly to make examples of them’, said one confined man. Another said ‘They didn’t have anything to write, they charged me for the sake of charging me, to be able to tell people, “look, we’re doing something”.’ The lawyers who accepted these unfavourable cases said that the reasons for confining people to residence were ‘often obscure, or indeed unfounded’, and that the ‘rush to punishment plunges us increasingly in a zone of non-droit where we risk conducting ourselves like our aggressors’.

Now there are parts of France where people live under curfew, or where demonstrations are banned (though some are going ahead in spite of the prohibition). Events that have been cancelled on mayoral order include Lyon’s Festival of Light and Nancy’s festivities of Saint Nicholas.

Yet the French state’s inability to prevent the Paris attacks appears to lie in the failed use of existing powers, rather than for want of new ones. Several newspapers have criticised intelligence agencies’ failure to pick up on movements of the key suspects – many of whom were known Islamic extremists, and not because they once drove an iman to the airport – and indeed authorities were tipped off by an Islamist in August that Abaaoud (the Paris ringleader) had asked him to ‘attack a concert hall’.

The pressures of today are not, in fact, those of the time of the Algerian war. There is no civil war or threat of a coup, and the powers of state are not threatened. Dealing with terrorist action falls within the normal domain of police function. Perhaps the police need different skills, or more resources, but their task remains one of normal police function and not dealing with a crisis of state. Therefore they can perform this task with the normal judicial equipment.

The French Declaration of the Rights of Man and of Citizens provides a ringing statement of the proper function of modern criminal law:

‘The law ought to prohibit only actions hurtful to society. What is not prohibited by the law, should not be hindered…No man should be accused, arrested, or held in confinement, except in cases determined by law… All who promote, solicit…or cause to be executed arbitrary orders, ought to be punished’.

Bien dit!

It is worth remembering that these controls upon state power do not only protect public liberty, but also guide state action towards effective ends. That is, legal protections exist not only to protect the public from arbitrary sanctions, but also to guide law enforcement down rational and effective lines. This applies for the pursuit of terrorists as much as for other areas of public service.

When 12 police officers are employed to deliver unsubstantiated accusations to an innocent person – who then has to report to the police station four times a day, taking their own and officers’ time – this represents the use of state force for a gesture, for the sake of it, which in fact distracts from the apprehension of terrorists or the routing of future attacks.

After Paris: the ultimate value of the free life

There is a single response to the Paris attacks which alone is positive and worthy of defence: the affirmation of the value of the free life.

The day after the attacks, people instinctively started to gather in Paris and in towns and cities across France. When asked why, they said ‘to do something, to be with other people’ but most of all, ‘to show them that we’re not afraid’. These demonstrations formed in spite of the prohibition on demonstrations: police asked people to disperse but many refused to go. In Toulouse, thousands of people gathered in the main square in open violation of this order.

People responded to the attack on a city crowd by forming as a city crowd. They responded to the terrorists’ attack on the ‘abominations and perversions’ of modern life, on music, drinking and football, by affirming and seeking out these pursuits.

These ordinary aspects of the free modern life took on a kind of glow and heroism. Parisians posted pictures of themselves drinking outside in cafes and bars under the hashtag ‘JeSuisEnTerrasse’. They sought out the bars of attacked areas as a matter of principle, ignoring the government’s request to only go out ‘if absolutely necessary’. People posted their memories of the Bataclan (MonPlusBeauSouvenirDuBataclan), affirming the glory of music and lights and crowds, while a Charlie Hebdo cartoonist did a series celebrating the Paris of ‘music! kisses! life! champagne and joy!.

Before the England-France football match, the French manager said that after the attacks it might seem that football is an inconsequential thing, unimportant, but that actually it has become vital. The Radio France commentator said that football is the pursuit of a passion, the development of a skill, and the public enjoyment of this: ‘We will continue to go out – to live – to play football’.

This assertion of the value of these things in defiance of the terrorists was also a rediscovering of their value, in a culture that is so often cynical about ‘freedom, modernity, etcetera’. Forms of free culture and association are so often seen as shallow, consumerist, anti-social, polluting: every well-formed political ideology of our age appears to be set against those people drinking in bars or dancing to music. The extreme attacks of the terrorists, their absolute distain, develops out of a thread of culture within the West itself.

The public response shows that the elements of a free life have a universal value which people are willing to fight for. They will go out to bars, concerts and football matches, even if this means to put themselves at risk. They state the value of these things and defend them. Charlie Hebdo will continue to critique and satirise, mocking Islamic extremists (‘fuck them, we have champagne’) along with everyone else, though they are under daily threat.

Most incredibly, such affirmation was found even among some of those directly affected by the attacks, as with the Radio France journalist whose wife was killed in the Bataclan. He wrote a much-shared Facebook post addressed to the terrorists: ‘You would like me to be scared, for me to look at my fellow citizens with a suspicious eye, for me to sacrifice my liberty for my security. Perdu’, he wrote, saying of his 17-month old son ‘all his life this little boy will – in affront to you – be happy and free’. He told Radio France that his wife had had ‘enormous eyes’ and their son was born ‘with both eyes wide open’: the value was in pursuing ‘the difficult path of reflection, of reason’, of living with one’s eyes open, choosing and thinking for oneself.

There is a scene in The Narrow Road to the Deep North where an Australian camp prisoner faces up to ‘the grim strength, the righteous obedience to codes of honour that showed no doubt’ of the camp guard, and ‘could find in himself no equivalent life force that might challenge it’.

People are finding an equivalent life force in free life. However, this public response was notably different in tenor to that of the French government. The French state – as well as being preoccupied with those highly necessary tasks of investigating the attacks, pursuing fugitives, arresting suspects – has also struck another line: the assertion of executive power almost as a point of principle. The immediate response to events was a series of restrictions, which included not only bans on demonstrations, orders to not go out, but also declaring a state of emergency which gives prefects (local representatives of the executive) powers to declare curfews and to ban any event. All school trips have been cancelled as an order of the ministry of education.

At a local level, mayors and prefectures have been imposing restrictions upon daily life. At my son’s school in South-West France there is now a large orange sign on the door, announcing that parents are no longer allowed to enter the school and children must be deposited at the external door. Many of these assertions of executive authority appear pointless, a gesture: a terrorist could push his way past the middle-aged classroom assistant, or indeed merely attack the class of 3-year olds lined up by the external door because their parents have not been allowed to take them to their classroom. In practice, the restrictions imposed ‘against the terrorists’ are being imposed against people trying to gather in the streets or parents trying to enter a school. They are blocking everyday associations and free ways of relating to one another.

Therefore, after Paris we should be for freedom and for the free life – staked against the terrorists, the anti-modern cynics, and pointless assertions of executive power.

The ‘trigger warning’ school of literary criticism

Why are ‘trigger warnings’ now stamped on everything from the Great Gatsby to Ovid?

The notion of being ‘triggered’ by a book or film is an extension of ideas of ‘offence’ or feeling ‘uncomfortable’. In all these cases, the individual’s encounter with a cultural product is experienced as somehow harming or impinging upon that person. The work or idea is experienced as hostile, corrosive of the self and their identity.

These new terms replace the idea of disagreement or critique, which formed the basis of people’s relationship to books or works of art in the classical public sphere. Each work was held at arm’s length, scrutinised and weighed, probed in all its elements. A disagreement was stated precisely: this work is incorrect or flawed for x or y reasons.

Now, a person’s disagreement with an argument or a book is experienced as an unravelling of the viewer. The dissonance between individual and work is experienced as an affliction: rather than probe the work, the individual is undone by it.

Over time, the nature of the harm supposedly inflicted by an artwork has become increasingly subjective, wordless, and automatic.

The idea of ‘offence’ came first. Offence still contains something of the idea of disagreement – the notion that a person’s specific opinion or belief has been contradicted – even if only in an emotive form. Then came ‘uncomfortable’, with students saying that a particular book or particular ideas made them feel uncomfortable. Uncomfortable is a more degraded form than offence, because it is inexpressive and purely subjective. When people say they feel uncomfortable they are expressing only the subjective feeling of being infringed or unsettled.

‘Triggering’ is the end point of this process. Here, the unravelling of the individual in an encounter is much more extreme. Being triggered is a form of total breakdown, like a panic attack or another point when the self is entirely undone. The ‘trigger’ is like a sudden attack, and the breakdown of the self is instant and automatic, like the firing of a gun or flicking a switch. ‘I suddenly and quite dramatically feel all-encompassing panic spread through my entire body’, said one woman, describing her experience of ‘being triggered’ (the passive verb form indicates the passive role that the individual is playing in relation to the object).

Trigger warnings began in relation to sexual assault victims on discussion sites, and have spread to every possible phobia (spiders, small holes), negative experience (violence, mental illness, self-harm), and then further to the content of opinions with which a person disagrees (sexism, ageism, homophobia, transphobia). In this process, trigger warnings moved from a specific context to the wider public sphere, to structure the way in which people engage with cultural products.

Sexual assaults and phobias have started to take on a general and metaphoric resonance, as being in some way emblematic of people’s encounters in the public sphere. Sexual assault becomes a metaphor for our encounter with books or films with which we disagree: we are being undone, violated in the most intimate manner.

The trigger warning moves beyond the subjective perspective of the person being triggered, and starts to become an actual system for organising cultural products and people’s relationship to them. Websites such as ‘thiscouldbetriggering’ or ‘whatsthetriggerwarning’ have begun the encyclopaedic project of organising the works of humanity according to their specific trauma-causing qualities.

Works are given tags, labels: the Great Gatsby gets ‘violence against women’ and ‘sexism’. A Streetcar Named Desire gets: domestic violence, suicide, homophobia, rape, statutory rape, and mental illness. The tendency over time is for these categories to escalate, and people are encouraged to write in suggesting new tags or new areas of cultural life to consider in this manner: Can you add a transphobia tag? Can you add ableism? Can you also do songs? The answer is always yes.

Therefore, with the trigger warning we see how the subjective feeling of offence, or discomfort, has been raised into a system in public life: it becomes a school of criticism, a way of systematically reading a work and categorising it. While the triggered person is undone, wordless, the author of the trigger warning is clinical and systematic. One US student had the perseverance to read the works of Ovid and count the number of sexual assaults: she clearly maintained her wherewithal throughout. People work their way through whole television series, or literary tomes, systematically allotting works their respective labels.

These trigger warning critics have the same indifferent clinical approach as a state board of film classification. Everybody recognises that the board of film classification tells you nothing about a film: the statement that a film ‘contains moderate nudity and extreme language’ is a category slapped by officials on the world of culture.

Trigger warnings, by contrast, are produced by the public itself, and become part of the way in which people engage with and categorise artworks. As a result, trigger warnings start to transform the meaning of a work; they are not seen as an external imposition, slapped on, but rather start to become a system that structures interpretation and evaluation.

A novel or film is tainted by its trigger warning in a way it was not by the Board of Film Classification. One novelist described how his reading of Lolita had been forever tainted by his literary professor’s statement that it ‘represented the systematic rape of a young girl’. A work he had looked to for inspiration was reduced to this single negative dimension. A work that ‘contains’ sexism or racism, as opposed to nudity or strong language, becomes subsumed by that negative judgement. In the novelists’ phrase, the trigger warning is a ‘pre-emptive defacement’. A novel or artwork becomes its label; it cannot be looked at in the same way again.

This ‘trigger warning’ school of literary criticism has the peculiar detachment of state censors, whose only concern in a love scene is the precise parts of the anatomy revealed. A book about slavery is found to ‘contain racism’, even if it ultimately is a condemnation of such oppression. The dimensions of the work are flattened out, so that an essentially humanist text can be turned into its opposite.

The trigger warning is a tag which dissuades people from encountering the art object. The warning is there so that you can leave the room, put down the book, turn off the television. Therefore, the individual need never undergo the experience of dissonance with an artwork; they need never encounter the things they find disturbing or the views with which they disagree. The trigger warning, as a system, becomes a guide through the world of culture, such that dissonance can be avoided.

The individual is defined by their tags, the specific elements in the world which undo them. Their exchange with the cultural world can be negotiated, such that clashing tags need never meet. People who are triggered often have friends who watch films for them, test them out, before they are declared safe to be viewed. They move through the world like a paranoid king who fears that every food item or gift contains poison and must be tested first.

The university professor Todd Gitlin criticised his students’ dislike of anything ‘uncomfortable’ and defended the importance of discomfort in teaching. It is the experience of dissonance which takes us out of ourselves, shocks us with another view, and so forms us; it is in the encounter with our contrary that we are developed. This is why negative experiences can often teach us more than positive ones. One psychiatrist argued that trigger warnings even go against treatment of genuine trauma and phobia: it is in repeatedly encountering the object of their fears that the person is reinforced, made self-sufficient, and eventually can face the world again.

The works of art and literature should be cleaned of these defacing warning signs – we must defend the free encounter between individual and artwork, and the developmental value of dissonance.

‘Gay cake’ wars and the eclipse of conscience

An Oregon baker has been ordered to pay $135,000 damages to a lesbian couple after refusing to bake a cake for their wedding. A Colorado bakery was ordered to fulfill gay wedding orders and to send its staff for sensitivity training. The ‘gay cake’ wars show the lamentable position into which the idea of conscience has fallen.

These cases are not about an actual conflict of interest: the couples could have found another baker who was happy to fulfill the order and attend the wedding with good heart. Instead, a battle of conscience is being sought where it could have been avoided, brushed over. One person is taking the case in order to force another to affirm their values or way of life.

Indeed, it appears that in some cases gay activists are searching out traditionalist bakers in order to ask them to bake wedding cakes. They had specifically chosen the bakery that they knew would not want to make the cake. In a similar spirit, Christians are seeking out liberal bakers to ask them to make cakes bearing slogans such as ‘God hates fags’, and going to court when they refuse. The cake becomes a means to make someone else voice your views; the case plays the role of the victory of one conscience over another.

These battles show how sorely we are missing the idea of conscience – one’s grounding in a private life or belief, and one’s respect for other people who are similarly grounded. When the idea of conscience emerged in the 17th century it was as an almost sacred faculty implanted by God. The one and only rule of ethics was: do not go against your conscience and do not violate the conscience of another. The primary value was sincerity, and your rights to free expression were derived from your duty to be sincere, to only say things you sincerely believed (1).

In the view of philosopher Pierre Bayle, it was not a sin to err, only to go against one’s conscience;  the ‘erring conscience’ had rights to respect and toleration as much as any other. The notion of conscience at heart implied a reciprocity, that ‘each could recognise in the other the sincerity of their convictions, even if the truth that he sustained differed from ours’ (2).

In these terms, belief was a largely private matter, something like one’s internal reckoning or inner relationship with God. When the formation of belief moved into the public sphere in the 18th century – with coffee shops, publications, salons – and people came together in discussion, these were independent consciences that were brought into dispute. The public culture brought together independent men and women, independent consciences, into reciprocal relation. The relation of argument or persuasion is one that respects this inner core: a person can be won only through reason, and of their own volition.

Now, this reciprocal relation has collapsed. There is at once a lack of respect for the conscience of the other, and a concomitant lack of grounding in oneself. This is why the refusal of a cake order is experienced as a violation or delegitimation of oneself. A man who had a pro-gay marriage cake refused in Northern Ireland said that this made him feel ‘unworthy, a lesser person’. The two Oregon women claimed 88 and 90 different forms of damage respectively, covering every aspect of their psychological and physical being, including: ‘acute loss of confidence’, ‘doubt,” ‘excessive sleep’, ‘felt mentally raped, dirty and shameful’, ‘high blood pressure’, ‘impaired digestion’, ‘loss of appetite’, ‘migraine headaches’, ‘pale and sick at home after work’, ‘resumption of smoking habit’, ‘shock’, ‘stunned’, ‘surprise’, ‘uncertainty’, ‘weight gain’ and ‘worry’.

If one is grounded in one’s own private values, then the encounter with alternative values does not lead to unraveling in this manner. There is no reason why the polite refusal of a cake order need make someone feel unworthy or shameful, or strike at the core of their being.

When a conscience lacks its own grounding, it is touchy and offended at every turn; it is also through overcoming opposing views that it seeks to ground itself. In forcing someone else to affirm your views or way of life – even, or especially, against their own beliefs – then your own values are apparently affirmed. By winning court cases against Christians, gay activists seek to establish the value of their way of life. The relation of mutual respect between independent consciences is transformed into a fight to the death, where one seemingly exists only through the violation of the other.

Yet in truth, the violation of the other turns – with all the justice of the dialectic – into the violation of the self. Ultimately, ‘gay cake’ cases strip these gay relations and weddings of their intrinsic meaning and value. By becoming the subject of a court case, these relations become a parody of themselves, just as a religion is emptied out when it is forced down the throats of heretics.

(By the same accounts, there is also a parody version of Christian marriage, defined against gay marriage: Christian marriage is not grounded in itself, but becomes not-gay-marriage, and defines itself by the question of the ‘compatibility of organs’ and the act of physical consummation. This may be the thing that separates it from gay marriage but it is an entirely brutalist account of the marital union which harks back to the primitive marriage ceremony, with the demonstration of blood on the sheets to the awaiting relatives. As Hegel wrote already in 1821 (3), modern marriage is primarily a ‘spiritual union’, and the physical or ‘natural character’ is downgraded.)

The demand that gay relations or families be universally celebrated is just as distorting of these relations as any criticism. The value of a family – gay or straight, single parent or step-parent, religious or secular or hippy – is that it is a private life-world, founded in the bonds among the members and their friends and extended family. The couple or family does not have to justify itself to society at large, nor does it require universal affirmation for its existence.

The principles of tolerance and formal respect in public life allow different people to pursue very different paths, yet to mutually respect one another. The urbanist Jane Jacobs argues that discretion is essential for public civility. She describes how people would leave their keys with a particular Deli owner for friends borrowing their flat: the deli owner owner combined a ‘feeling of good will with a feeling of no personal responsibility about our private affairs’. He did not judge who they had chosen to lend their flat to, and they did not ask for his approval. Mutual respect requires a certain formal distance, an understanding that people have their own lives to lead that are nobody else’s business.

Public coexistence requires a certain discretion and not forcing the issue. If a Jew cannot work a Friday night, or a Muslim cannot eat sausages, then they require neither condemnation nor enthusiastic affirmation, but merely an accommodation of their private position. It requires a certain tact and avoiding of conflict: this is how very different belief systems can coexist harmoniously.

Such formal respect is as vital to the freedom and equality of gays as it is to other groups. We should halt these absurd battles over the icing of confectionery – live our own lives, and allow others to live theirs.

(1) La Tolerance, Julie Saada-Gendron, Flammarion, Paris, 1999

(2) La Tolerance, Julie Saada-Gendron, Flammarion, Paris, 1999

(3) The Philosophy of Right, OUP, 2008

(4) The Life and Death of Great American Cities, Jane Jacobs, p78

Twitter storms: the terroristic destruction of the individual

The twitter storm is driven by a similar spirit to Isis’ destruction of ancient monuments. Both pretend to have a principled motivation, but this is just a guise: the actual content is only the drive to destroy, to bring something hallowed low.

The life of an individual such as Nobel laureate Tim Hunt took time and work to build, with an accretion over the years of discoveries, achievements, reputation. A person’s life is just as much a work as an ancient monument. A twitter storm or scandal drives towards the destruction a person, for them to be  – in Hunt’s words – ‘finished’, ‘toxic’. To lose their jobs, their honours, ideally their family and friends.

This has an element of sport, and is often discussed as such. Tim Hunt’s casting out from University College London was heralded as a ‘moment to saviour’. A previous storm targeting PR executive Justine Sacco was described as the best moment of 2013: people stayed up to see the conclusion, they skipped parties and dates. ‘I was piling on for sport’, said one of Slate’s writers, reflecting on his reasons for joining another ‘outrage-fueled pig pile’. This is the human drama of a person being ruined.

What is striking is that the person is not generally being ruined for what they believed, or for a deliberate action, but for a joke, aside or an innuendo: it is the informal moment that is the focus for the storm. It is notable that ‘racist’ or ‘sexist’ twitter storms tend to target individuals who are not actually racist or sexist.

There would be no sport in targeting the actual racists or the actual outcasts. Part of the frisson is the fact that this person is unsuspecting: that their life is turned upside down suddenly, without warning, and they do not really know why. There is sporting tension in the dissonance between how they might see themselves, and how they are now being seen by others. Hence the hashtag #hasjustinelandedyet, which trended across the world after Sacco made a joke about AIDS then boarded a 13-hour flight to South Africa. The crowd had this insight over her, that she was ruined and did not yet know it, and the moment of her realisation was savoured as a climax, a clash of drums.

The victim of such events cannot sit back like a ruined hero at the end of a Greek tragedy and say ‘the fault was mine’. This person is not bearing the consequences of their beliefs, standing and falling on ideas that are actually in conflict with society as a whole.

The individual targeted in a twitter storm was condemned not by their actions, but by the image of themselves that had been created in the storm. Their actual life, their actual opinions or beliefs are of no interest or consequence. The storm can turn black into white and white into black, and indeed this is part of the power at play.

There was a case of a woman complaining about bongos who was the subject of tweets accusing her of being a white yuppie moaning about black people. She said that she was black and the bongo player was white. The response was  ‘I don’t know whether you are white or not’;‘forever publicly shamed on Twitter LOL … #whitetears.’ For the purposes of twitter she had been made white, because that is what she needed to be.

Individuals here are only a vehicle for the negative mobilisation. They are human material against which others are defining themselves: it is not about them, but about the needs and perspective of the storm. This is why any attempt at self-justification will make matters worse. ‘Just don’t engage’, one former victim of a storm advised another: be ‘an inert bundle of molecules’. Anything you say will be a sign of life, and therefore an incitement: you aren’t dead yet?

The subject matter of a twitter storm doesn’t make sense before the storm has begun, when there is puzzlement, or after, when there is regret. There is a regular cycle of stages. It is only in the moment of somebody being destroyed that the matter takes on its particular frame. Before and after, a lame joke is just a lame joke. Only in the eye of the storm does it take on this question of grand principle and provide the focus for such unleashing of negative energies.

The dynamic of the storm is a moment of collective mobilisation, an expression of collective subjectivity, at a time when more grounded forms of political mobilisation have gone. The collective cannot any longer be constituted positively, substantively, towards any particular positive end. Instead, it is constituted only at the point of the annihilation of an individual. This is how people stake a point of principle and are part of making something happen.

The collective exists only in the moment when a person is being ruined, just as the terrorists’ Islamic principle exists only at the moment when the columns are crashing down.

University College London’s behaviour in the Tim Hunt scandal was indicative: the university cut him loose with a decisive swipe. He was toxic and the institution didn’t hesitate to remove itself from any implication or contamination. Strikingly, when Sacco’s media company sacked her, the company nonetheless said something in her defence: ‘We hope, however, that time and action, and the forgiving human spirit, will not result in the wholesale condemnation of an individual who we have otherwise known to be a decent person at core.’ The company made the distinction between the person they knew, and the person created as the projection of public outrage. What institutions universities have become, what hollow machines, to show less solidarity towards their Nobel laureate than a media company does towards one of its own.

The same patterns have long been seen in newspaper scandals, where it is also the case that the further the fall, the better the sport. Hence the delight at government ministers brought down for misdemeanors such as speeding points and rows with police officers. ‘The man who fell to earth’, read the headlines after cabinet minister Chris Huhne was convicted of passing on speeding points to his wife. The drive of a scandal is to bring the mighty low, the mask crashing to the floor.

When acts of destruction provide the confirmation of the self and collective, this leads to a new barbarism. It was this barbarian-narcissist culture that, watching a man landing a probe on a comet, focused on the fact that he had scantily dressed women on his shirt. The scientist was humbled by the reaction, reduced to tears. A man is landing a probe on a comet and he is made to cry because of the shirt he is wearing.

When the individual is reduced to human material for others, things of substantial and lasting value are cast away as if they were nothing. Immunology is sacrificed on a joke, meteorology on a shirt. We may look on with horror at Isis’ exploding columns, but really this isn’t a world away.

Why Magna Carta should still be our constitution

The distinctive thing about Magna Carta is that it is a constitution owned by society rather than the state.

That is, the meaning of Magna Carta is not stamped in official parchment and interpreted by the courts, who then say, you have this right or you don’t. Rather, since the seventeenth century Magna Carta has been something for people to pick up and wield to their own purposes, against state authority. In the Civil War a person being arrested by the king’s agents would carry or read aloud from the charter, as if the document in itself had the power to ward off illegitimate authority. Magna Carta provided a point of authority outside the state from which to appeal.

Magna Carta became a modern constitution when the feudal rights and duties described in the text had long since dissolved: when there was no longer scutage, castle guard, reliefs upon the knighting of your eldest son or inheriting an estate. In the thirteenth century, Magna Carta was a precise legal document: the text stated exactly what was owed by the various categories of vassals to their lords. With the dissolving of these feudal relations, the clauses that affirmed the principle of limited power in the application of feudal law took on the broader significance of the protection of the citizen against state authority.

Now, Magna Carta played the role not so much of a legal document as an allegory. The allegory of Magna Carta is quite different to that of other constitutions and accounts of the founding of states, such as a founder-hero giving the people good laws, or a group of citizens sitting down and agreeing to form a state on certain terms. Magna Carta was a deal extracted, with the barons and knights camped as an occupying army and the king escaping every night to sleep in safety elsewhere. State authority was forced to agree terms and limit itself.

The rationality of any claim invoking Magna Carta lay not in legal reasoning, but the social legitimacy of the claim. The question was not whether the text could actually be proven to have x or y reasoning, or whether learned judges or antiquarians found this to be so. The force of a claim invoking Magna Carta lay in the individual’s certainty and assertion of their rights, and in the crowds following behind in support.

This is why Civil War rebel John Lilburne quoted Magna Carta first against the king, then later against parliament; why it could be used by both the suffragettes and colonies demanding independence. The meaning of the text was grounded in the subjectivity of civil society: it was civil society that provided the content for the legal form.

It is for this reason that Magna Carta has now vanished so completely from social and political life. While the constitutions of France or the USA continue to have a juridical-administrative life, and structure fundamental aspects of social life, Magna Carta has vanished without trace. It is no longer quoted or invoked.

Magna Carta has disappeared because civil society has ceased to defend itself against the state. There is no longer that sense of tension between state authorities and citizens; there is no longer a principled separation of domains, or the notion that the use of coercion is an incursion on a prior realm of freedom, and must be subject to very strict conditions.

Our new constitution – the Human Rights Act – has emerged as a reflection of this predicament. This is the antithesis of Magna Carta: in its origins it is not the assertion of society against the state, but the pure legalism of an act of international diplomacy.

The Human Rights Act is a statement of rights which seems to come entirely from without, from elsewhere. Nobody thinks of themselves as having a ‘right to life’ or ‘right to a family life’. The language is odd, foreign, not because it is not British but because it is abstracted from the categories and relations of social life, the points of actual tension between individuals and the state. When you read a human rights judgement it feels as if you have never experienced this thing that is being spoken about.

The fact that rights are now conceived largely in terms of this document shows that the question of the limits on state power is now decided entirely within the terms of the state. The question of the division of the domains of state and society occurs entirely within the formal-legal sphere, as with the negotiation between government departments. Those who wish to challenge a measure must do so on these terms and in this language.

Bringing a case under the Human Rights Act is rather like going to see an oracle: you are not asserting a right but going on bended knee, to ask whether you do indeed have this right. Has one of the articles been infringed? The judgement reads like an occult revelation, as something secret revealed. The QC or judge has gone off to consult the sacred texts and they have found that, yes, rights have been infringed, or no, they have not.

Whether they rule in your favour or not, the action has confirmed your subject status. The ‘rights’ being given in a Human Rights case victory are not something claimed, in one’s own voice, but rather are a revealed gift. The judge may say, yes, this police search was an infringement of your ‘right to privacy’, but this judgement is not a concrete recognition of the private domain of your home; your freedom is given back to you as something else.

With Magna Carta, a legal document became the allegory for civil society. With the Human Rights Act, civil society becomes the allegory of a legal document: society’s own autonomy, its own sphere, is sold back to it in an estranged, foreign form. The question of the legitimate domain of state power is now owned entirely by the state alone.

This is why people’s rights can be violated, without their ‘human rights’ being touched. A mother who had her child forcibly adopted is found to not have had her ‘right to a family life’ infringed; the Scottish government’s appointing of a ‘state parent’ for every child is not, apparently, an infringement of their ‘right to privacy’; buskers’ right to ‘free expression’ is not affected by the requirement that they buy a licence from the council before playing in the streets.

At the same time, human rights are commonly seen as a means to defend the undeserving and dubious: reflected in stories that a criminal claimed to have a ‘human right’ to KFC, or a prisoner to hard-core pornography.

It is notable that the invoking of ‘human rights’ tends to have the opposite effect to that of invoking Magna Carta in the past: rather than endowing the claim with authority, it seems to delegitimise it. If someone mentions human rights people tend to see it as an effete and irrelevant claim. If a person says, ‘an infringement of my human rights’, people groan; they immediately lose sympathy. Those seeking to use the Human Rights Act have to spend a lot of time defending it from negative public perceptions. It is unusual for bills of rights to have to be defended against the public.

In the period ahead, what is needed is not so much a new code, or more legal cases, but a development of the conflicts that are presenting themselves between social life and the state. Every skirmish between civil society and the state – whether it is buskers defending their right to play in public space, or skateboarders their rights to skate in a park – does something to re-establish the autonomy of the realms, and the principle of limited power. If we have a document in our hands then let it be Magna Carta.

Extremism Disruption Orders: state officials become outlaws

For centuries, kings’ coronation oaths included a pledge to serve justice and maintain the laws. Indeed, the English state was unified by law: England formed as a country not through the spread of state administrators, but through the spread of a legal jurisdiction (1). The growth of national courts from the 12th century – overtaking private feudal jurisdictions – was the result of their ability to deliver speedy and fair resolutions to injustices and disputes. England was one country under one law; the authority of the state stood on the fact that it represented the law.

We are now in the unique position where law proper plays a vanishing role in the uses of state power. Officials today seek to escape legal rules specifying the course of action in any particular case; they no longer even claim to be ‘representing the law’.

We see this most clearly with the growth of summary powers to issue ‘orders’. The prime minister recently argued that ‘extremism disruption orders’ were necessary to ‘bring our country together’: for too long, he said, the government had told citizens ‘as long as you obey the law, we will leave you alone’.

Extremism disruption orders would allow for coercion to be exercised outside the application of the law. A person could be prohibited from broadcasting and would have to seek police approval before posting on social media. It would be a crime to violate the order, even if their publishing were entirely anodyne.

This is the latest in a long list of powers to order, including: Football Banning Orders, Dispersal Orders, Control Orders, Anti-Social Behaviour Orders, Community Protection Orders, Public Spaces Protection Orders, Designated Public Place Orders, Eviction Orders, Closure Orders….

In these terms, the state doesn’t specify a rule; it doesn’t lay out a domain of prohibited activity, or specify procedures for the resolution of conflict. Instead, it makes it a crime to disobey the specific order of a specific official. It makes the official’s word in itself the law.

It henceforth becomes a crime to go to a football match (if one has been issued with a football banning order), to stand in a public place (if issued with a dispersal order), to enter one’s own house if that house has been subject to a closure order. The use of coercion loses any systematic basis, but is simply whatever officials find to be expedient in a particular case.

Officials are gaining the power to issue precise on-the-spot directions to individuals. In Newquay the council is issuing buskers with ‘community protection orders’, which can impose certain limits on the busker as the official believes to be necessary. This could be ‘you must not play in the town of Newquay’, or ‘you must not use amplification’, or ‘you must not play for more than an hour in the same spot’. It will then be a crime for that person to violate this specific direction of their musical activity.

Some of these orders go through a court, some do not, but this distinction is not great because the condition being tested is not the relation of this case to a defined body of rules, but rather whether the order meets the conditions under which an order can be made. Normally, a power can be invoked on the basis of authorities’ ‘suspicion’ or ‘belief’ that somebody’s behaviour ‘may lead to’ or ‘may be associated with’ some condition such as ‘harrassment, alarm or distress’; or that the order is necessary ‘in order to prevent’ or ‘reduce the likelihood of’ these things occurring.

The role of the court, then, is not to enforce the law, but to establish the conditions under which officials can make up the law.

This represents a fundamental constitutional shift. AV Dicey argued that the difference between English and French law was not that English law was more lenient, but that it was more predictable: it was defined by the ‘rule of law’ (2). The ‘rule of law’ precluded arbitrary actions on the part of officials. The law specified certain crimes, and anything outside of these specific areas was allowed. If officials were to use their powers in ways unspecified by the law, then it was they who were the criminals: they could be sued for trespass or theft in the ordinary courts.

Indeed, the current disdain for legal principle disrupts the very basis of a modern state. The sociologist Max Weber argued that the ‘calculability of the functioning of the coercive machinery’ is one of the essential conditions for the development of a modern state and market economy (3). Yet now, the rules can be changed overnight: people wake up and there is a new crime.

Suddenly it is a crime to sleep rough on the streets of Hackney, after the council passed a ‘public spaces protection order’ prohibiting this and a host of other activities such as ‘loitering’. This order appears like a revelation: there was no public consultation or prior discussion, and the exact text of the order appears only towards the back of a Hackney council magazine.

Councils including Lincoln have passed public spaces protection orders prohibiting ‘legal highs’; nightclubs and private homes are issued with closure orders on the basis of disorder ‘associated’ with the premises. In other areas, councils have banned the sale of high-strength alcohol or certain brands of alcohol, leading to losses of hundreds of thousands of pounds for small retailers.

Here, somebody has set up a business or purchased stock on the basis of a certain legal state of affairs. Overnight, they find their shop closed because an official has decided that their activities have or might lead to anti-social behaviour in the vicinity.

You might say: they are just legal highs; this person was a nuisance to their neighbours. But this is important. These are legal highs, they are within the domain of permitted activity, so a person sets up a business and invests money. Within weeks, the council declares this activity illegal. Worse, it threatened one shop with a ‘closure order’ before it passed the ban, and issued another shop with a Community Protection Notice before the ban came into force.

The council says that the shop or nightclub is ‘anti-social’ and fostering disorder, but in this case it is the legal high seller who represents the principle of the law, and the council who represents the principle of disorder and arbitrary will.

The enforcement of the law through the prosecution of a criminal returns social life to an axis: it affirms the fundamental principles of the operation of social life. The application of an order disrupts the idea of orderliness: it states that the only rule is the contingent, arbitrary will of officialdom.

These summary orders make it difficult to organise your affairs, because you do not know what you can do and what you cannot. More fundamentally, they make the question of right and wrong entirely contingent and based on arbitrary will.

A raid on a legal high shop or nightclub is not just an infringement against that individual, it is an assault on the whole idea of law in state and society. This is far more disruptive and fostering of chaos than any shop or club ever was.


(1) The French state was unified through administration – through a central state administrator in every region – while the English state was unified much earlier through the development of a common legal system. (The State and the Rule of Law, Blandine Kriegel, Princeton UP, 1995.)

(2) AV Dicey, Introduction to the Study of The Law of the Constitution

(3) Max Weber On Law In Economy and Society, HUP, 1954, p72

From rights to privileges – the refeudalisation of the public sphere

In feudal society there was no such thing as a ‘right’, in the sense of a domain of autonomy held in principle by everyone. Any domain of autonomy was unique to a particular group, the result of their particular status or negotiations. The merchants of a city or a baron might hold certain ‘liberties’ – to elect a mayor, for example, or to export a particular item, be exempt from a tax, or levy toll duties. Feudal society was an intricate patchwork of immunities and benefits, all of which had the status of privileges, an allowance conferred by the grace of an over-lord or the king.

There is something feudal about the status of rights in contemporary society. It has become very difficult for groups or individuals to make a general claim for their rights as citizens, as allied in principle with those of other citizens. Instead, there has been a return to claiming rights only as a form of privilege.

The distinction between positive and negative rights – the classic freedom-from or freedom-to distinction – has been eclipsed. In many cases rights are seen as privileges, and vice versa. People talk about their ‘right to a quiet life’ or ‘right to self-esteem’, but then say that freedom of speech is ‘not a right’ but a ‘privilege’ or ‘responsibility’. In fact, these different claims have the same status, as a benefit conferred by some higher authority.

One of the ways one can defend interests today is by demanding special exemption from a restriction, on the basis of the special qualities or needs of your particular group. Musicians may claim that they should be exempt from entertainment licensing, for example, because of the particular value of music in social life. Or homeless organisations may seek to exempt rough sleeping from public space regulation, on the grounds of this group’s particular vulnerabilities or needs. For campaigners the pressures pushing you to pose your demand in these terms are very strong indeed: this is the existing way in which demands can be put and positions defended.

There is again a sense that one sphere of autonomy is exclusive of and set against those of others. This is why it is common for groups, in defending their own ‘rights’, to call for restrictions upon the rights of other groups. Big Issue sellers in Oxford supported the council’s ban on begging; local buskers supported a busking license because it benefits them over outsiders. Street traders often support leafleting licenses, as do institutions which are already prevented from leafleting as a result of their alcohol licenses.

In feudal times, if you had a right to export cloth, this in principle excluded others from carrying out this activity: a liberty was a monopoly. Now councils horse-trade over the use of public space in a similar way, as if one use were exclusive of other uses.

We are seeing the official micromanagement of public spaces as a patchwork of distinct and rival privileges. Woking Borough Council, for example, has divided up the town centre into a series of ‘event zones’, each with special allowances and restrictions for activities such as busking, leafleting or charity collecting. (The only activity allowed in all areas is ‘council events’: this is the right of the over-lord). So charity collection can take place in seven different zones, but a permit is required, and only one organisation with a maximum of four representatives can collect at any one time. Leafleting can occur in two locations, but is limited to one ‘booking’ a month.

There is no conception within this schema of any rights of free action in public space. Your realm of action exists only as sanctioned by authority, as licensed in some way. There are now licences for busking, leafleting, playing music, charity collecting, even for dancing: one can act only when one has a permission slip, and generally paid a fee. Your activity is not a right but a privilege, and a privilege explicitly set against the unauthorised group who are excluded from performing this action. A local musician will wave their ‘licensed busker’ card at an out-of-town musician who has just set up, showing their permission slip and so claiming their superior rights to use the space. In certain local authorities buskers must actually audition for council officials before receiving their licence.

And yet, the nature of these new privileges are quite different to those in feudal times. Feudal privileges represented fixed status divisions and customary rights, a hierarchical stratification which structured social relations from top to bottom. A particular licence was a recognition of the dues owing as a result of a person’s status as baron or churchman, or of past agreements or custom. By contrast, the pseudo-feudal divisions in today’s public sphere have an artificial quality. They are entirely contingent, constituted only through the whim of officialdom or the chance of circumstance.

There is a great difference between the status of different activities in official regulations, and their status in social life. There is no recognised Woking custom that leafleting should only happen once a month, or in certain areas of the town: Woking Borough council’s ‘public realm usage policy’ is a pristine invention of the realm of officialdom. The licensed busker takes on a status that is quite alien to their status among a public audience or fellow buskers: their position depends not on the quality of their music but on whether they have been compliant and jumped through the hoops. Therefore, the new realms of privilege are not a reflection of social reality, but an official construction laid upon it.

In this context, it is a progressive task to pose claims in terms of general rights, held by all people as citizens. In truth, homeless people have a right to use a bench, or buskers to set up in a spot, not because they are special but because they are citizens as much as anyone else; they have the same rights to use the space as anyone else. It is only by defending such general rights that the interests of groups could coincide, that the autonomy of one is also the autonomy of the other.

There is an objective potential for the uniting of different parts of civil society. The distinctive quality of state regulation today is that it is turned without exception against every part of social life. Public space regulations are not exclusively targeted at homeless people, buskers, or any other particular group, but against activities of almost any kind. War veterans must queue up with Greenpeace protesters to gain their ‘charity collection licence’; lost cat posters and nightclub adverts are equally prosecuted for unlicensed flyposting. The contemporary state has no favourites among the different sections of social life.

This suggests that there is a state-consciousness, already in existence. We dearly need a civil society consciousness to rise up in counter and opposition to these measures.

Why are councils banning pigeon feeding? ‘Public spaces protection orders’ and the destruction of public space

Why are councils banning virtually every conceivable activity in public spaces: pigeon feeding, begging, busking, rough sleeping, smoking in parks? And why are these bans so often popular?

At base, it seems to be because civil society is seen as a war of all against all. Any person’s activity is seen immediately as a restriction upon or violation of another. This is expressed in sayings such as: ‘Your right to smoke violates my right to a smoke-free environment.’ One person’s freedom to play music means that another’s life is ‘made a misery’ . One person feeding the birds means that another gets ‘covered in mess’.

The conceptual model of civil society is that of individuals facing each other as implacable and opposed interests. Any one activity – any freedom of one person – is resolved purely and simply into the negative effect on another. The activity, indeed, becomes defined only in terms of this negative effect: busking becomes ‘noise pollution’, leafleting and pigeon feeding become ‘littering’, ball games become an ‘obstruction’ or ‘nuisance’, begging for money is ‘intimidation’.

It is for this reason that activities previously seen as a benign, even positive part of the urban environment are today classed as ‘anti-social behaviour’ and acquire an aspect of criminality. It becomes inconceivable that anyone would defend the ‘right’ to drink or feed pigeons in public spaces. ‘Are you saying that it is a human right to engage in unsocial behaviours?’ asks one man. ‘Do you really think people should get drunk, publicly beg, do wheelies in carparks, intimidate the public in parks?’ asks another.

These activities are criminalised because they are viewed – and to some extent, experienced – only as a violation of other people. The definition of crime, previously restricted to a significant violation of person or property, becomes generalised to almost any public action which could ‘affect’ others.

Indeed, for some individuals their mere presence in public space is seen as harmful: hence council bans on ‘loitering’ or police crackdowns on young people ‘congregating’. One BBC Radio London presenter suggested that street drinkers should be stopped from ‘lounging’ on a park bench. Councils are banning smoking in parks because it ‘exposes others including children to smoking behaviours’. Your crime is merely that you have exposed others to the sight of yourself or your activity (which is objectified into something foreign and described as a behaviour).

This model of civic life is quite different to that which motivated Victorian bylaws, with their nit-picky bans on playing music in the park or playing cards on the street. In these cases, the ban had a class basis, elite versus masses, and the question of freedom in the newly formed public spaces was almost entirely a working-class cause. It was they who pushed back the legal boundary for protests into Hyde Park, filled the streets with pamphleteers and players and pavement artists. The ban was motivated by an elite fear of the public acting in concert, of the unpredictable, restive energies of the crowd.

Today, by contrast, freedom in public spaces is seen as an effete, ivory tower position, which nobody with any real experience of urban life could possibly support. The model of an unregulated public space is some kind of hell: wheelies in carparks, vomiting, urinating, firing BB guns, shooting up, ‘winged rats’, vermin, bird and dog faeces. It is a cacophony of barbarity. It is supposed that the public lacks any self-constituting power. There is nothing in the free association of individuals which could bring any kind of order or civility, any kind of mutual benefit or pleasure. As a result, it is supposedly only through the state that the public space is established as a compact.

Implacably opposed individuals face one another and cannot resolve their conflict for themselves; as soon as one moves the other is harmed, and vice versa. So the official mediator is called in, to place restrictions on activities – to say, as with Oxford City council, that the city centre shall not be a place for anybody to do anything. Or else, if people must do things, they must do them in discrete ‘zones’, where different activities can be carried out without meeting or coming into conflict. In a park there is a playground area for children (no dogs, no smoking), a dog walking area (no children), a ballgames area (no dogs), a field (no ballgames, no drinking, no dogs). One park even allocated a specific bench for street drinkers to sit on. The public space is sliced up, feudalised into its separate interests.

Yet this appearance of things is misleading. It may appear that the conflict within civil society necessitates state regulation, but in fact the opposite is more the case: that state regulation generates a conflict within civil society. It is the regulation and orchestration of public spaces, the ever-presence of the third party mediator, which polarises individuals as implacable opposed interests. It is the existence of an anti-social behaviour hotline which means that neighbours no longer go around to ask someone to turn the music down: they communicate not directly but through official mechanisms, which polarises a minor disagreement into an all-out conflict.

In fact, the pleasantness of public spaces depends in large part on their freedom from regulation. In the 1960s the American urbanist Jane Jacobs described the intricate web of urban interactions: the way in which people going about their business as private individuals look out for each other and enhance each others lives (1). Drinkers at the soda stand keep an eye on kids playing; the deli owner keeps people’s keys and packages. Jacobs notes how a ‘slum’ neighbourhood – with its soda stands, sweet shops and bars, sidewalks full of kids playing ball and adults loitering and chatting  – was a model of lively civility. By contrast, in the new housing ‘project’ opposite, with its manufactured public meeting rooms and cultural centres, kids were busy squirting fire hydrants through people’s windows.

It was the manufactured, state-constructed neighbourhoods that were the sites of barbarity, not the spontaneous, mixed-use sidewalks, where strangers stepped in swiftly to resolve children’s arguments.

The same would be the case today – except that public spaces have become so regulated, civic relations so mediated by bureaucratic organs that there is rarely any chance for relations to form or be negotiated on independent terms. These points occur not so much as an everyday habit, but more as a moment, something rare breaking through. We all witness these occasionally and find them immortalised on YouTube: with videos of a Liverpudlian drunk starting a crowd imitating his one-foot dance, or a boy stealing a busker’s mike to sing a solo. Here, buskers, street drinkers, children and adults are shown not in hostile opposition, but as enhancing one another. Such unexpected influences and inspirations are as much a part of public spaces as are disputes or disagreements.

The truth is that the ‘public spaces protection order’ doesn’t protect public space, it destroys it. The PSPO is founded on a model of civil society as a war of all against all, and in being enacted starts to bring about this very hell.

(1) The Death and Life of Great American Cities, Jane Jacobs

Billy Boys: The rampant subjectivity of the criminal law

In the week when a man was imprisoned for singing the Rangers’ ‘Billy Boys’ song, we have to ask: who can say anymore what is a crime and what is not?

Since the first criminal code in 14th century BC, the world’s civilised nations have sought to define the nature of different crimes in precise, objective terms. If your horse eats your neighbour’s crop, you shall pay him back twice the quantity of grain. If your neighbour strikes you and injures your head, he shall give you 3 half shekels of silver.

The attempt to be precise led to the meticulous specification in Anglosaxon law of every conceivable kind of personal injury – one eye, both eyes, two spots of blood, a pool of blood – and the payments required for each.

The law should be objective, predictable, universal – this much was inherent in the earliest customary codes, in spite of their lack of legal theory or enforcing machinery.

Yet now – with all our complex legal machinery and coercive institutions – there is a blithe indifference to the definition of crime. No other age has shown so little interest in defining in objective, universal terms, what is a crime, and what is not, and specifying the punishment that should apply in each case.

New crimes are consciously created in order to be enforced in a subjective manner. The new terrorism offences, anti-social behaviour offences, speech crime offences – these are all described as ‘flexible’, as ‘tools’. The concept of ‘anti-social behaviour’ is not a precise one – it does not mean engaging in particular subversive activities, or belonging to particular groups. It is, at base, nothing more than the subjective experience of some form of conflict: the experience of ‘offence’, ‘distress’, ‘annoyance’, that one person’s feeling that another person had a ‘detrimental effect’ on their ‘quality of life’, or made them feel ‘uncomfortable’.

This gives crime an inherently unstable and unpredictable quality. The Welsh Parliament is currently legislating to allow tenants to be evicted if they cause ‘nuisance and annoyance’ to their neighbours or passersby. As a petition against the measure pointed out, what exactly is nuisance and annoyance? The petition gives examples of the kinds of everyday disputes between people, where the tenant could find themselves out on the street.

Increasingly, the content of a crime is nothing more than the subjective experience of the moment of conflict. Oxford’s City Council’s consultation on whether rough sleeping and begging should be banned in the city centre, asked people whether they had been ‘affected’ by this activity. There is no attempt to objectify the experience of having been ‘affected’, to say: what was the act, what kind of harm was it, what was the person’s responsibility for the harm, and so on.

Officials are equally enacting their own subjective perspective, and will seek to ban busking or homeless people if they think they look ‘messy’ or ‘undesirable’. Although they bear special coercive powers in their hands, they do not tend to think of themselves as a special kind of citizen, with a special mode of operation and restraints. Instead, they talk about powers as ‘useful’ and ‘flexible’: what is valued is the degree to which laws can give expression of their subjective perspective.

How then do we measure the degree of offence? Every criminal code had some way of measuring degrees of crime. For earlier codes, it was the literal damage to the body, or the property value of a person or object. Murder would carry different penalties according to the value of the person: this depended on their status and sex, and whether a woman was of childbearing age or pregnant. Modern criminal codes punish willful acts violating the liberty of another. The various categories of offences – GBH, theft, burglary, robbery, manslaughter, murder – is each is an objective kind of violation, involving a particular combination of intent, act and harm.

It is the claim to objectivity which distinguishes the criminal law from everyday conflicts in civil society. The realm of civil society is its own sphere, with its own modes of operation and forms of pressure and argument. Civil society is the sphere of particularity where things are open to debate and not a priori right or wrong, where likes and dislikes can be expressed and discussed. This is quite distinct from the sphere of criminal justice, where certain precise lines are drawn, and special coercive mechanisms employed.

What is occurring now is, in effect, the dissolution of the criminal justice infrastructure into civil society, into the immediacy of perspective of one person versus another. The coercive machinery starts to mediate everyday interactions and disputes between people, and between people and the state.

Any moment of conflict, any negative experience or sentiment, can now be a point for the intervention of the criminal law. Anything one doesn’t like – smoking in playgrounds, parents parking outside schools, buskers, pigeon feeding – is seen as an appropriate object for intervention. The debate about whether something should be criminalised or not depends on how much you dislike it. That is, the debate about the criminal law is not in principle different to the expression of one’s opinion in public debate.

This arbitrary and subjective character is different to past broad-brush laws – sedition, obscenity, and so on – which though on paper may have been broad, were in practice enforced tightly and specifically. A 1938 book by W Ivor Jennings, ‘The Law and the Constitution’, noted that sedition and blasphemy laws were extremely broad, but prosecutions were ‘hardly ever’ taken. Even an entirely arbitrary power such as the power of Lord Chamberlain to censor all stage plays, was enforced in a manner that attempted to be objective. In 1965, Lord Cobbard, the last Lord Chamberlain, said that he tried ‘to assess the norm of educated, adult opinion and if possible to keep just a touch ahead of it…. I have to make a positive effort to keep my own personal tastes, likes and dislikes out of the picture’ (1).

No official today would attempt to discipline themselves in this way; it is ‘likes and dislikes’ which drive the use of coercive powers.

The law is no longer predictable, enforced in the same way for everyone. A person can be locked up, like a lightning strike, where a thousand people who did the same thing would walk free. Your fate depends not on a set of rational, spelt-out principles, but on the vicissitudes of how a particular officer or your neighbours happen to be feeling on a particular day.

So we reach the worrying juncture where no one – not even legal experts – can explain why one thing is a crime and another thing is not, why one person is punished and another not; when people can be punished on little more than somebody’s subjective impulse.

Gay/bi/top/bottom…fake identities and the structuring of public life

One of the first questions gay men ask each other is: ‘Are you a top or a bottom?’ A person’s preference of sexual position becomes what one is: a top, or a bottom. The question of subjective preference in the context of a relationship becomes hardened into different categories of people – as if, one gay man said, ‘two entirely different species of gay male humans’.

A similar process is at work in many other areas of life. Indeed, it is such stereotyped categories of identity which to a large extent provide the structure for social life now. These categories both form personal identity, group individuals together, and structure their relations to one another and to other groups.

We can see this in the process of electoral campaigning: there is a pink battle bus for women, an Operation Black Vote, Operation Disabled Vote, Operation Muslim vote, and so on. This is the way in which an electorate is categorised and structured: not Labour v Tory, Middle England v Welsh pit towns; not constituencies of interest but categories of individuals.

With the end of the political party and association, some social theorists imagined that social life would be without structure. Zygmunt Bauman talked about the endless ‘fluidity’ of life, individuals moving into temporary and structureless connections with others: his ‘liquid modernity’ is formless and insubstantial. Jean Baudrillard imagined the post-political society as like a ‘mass’, a silent, expressionless and immobile lump which absorbed all meaning.

Yet what has happened is not this, but the emergence of a new social structure based on the category. Society is becoming an interlocking series of boxes, which break down into endless subdivisions. A person is male/female; gay/straight/bi/BDSM; top/bottom; versatile top/total top…and so on.

These categories have a rigid, caste-like quality. Even if you choose to be gay or straight, Muslim or non-Muslim, there is a way in which the category takes on a life of its own and seems to structure you. A study of the relations of top and bottom quoted men saying: ‘I sort of fell into this image of myself as being a very aggressive bottom’; ‘There’s a mindset about being a top’; ‘I hate to say it, but I’m a bottom … I don’t like to be identified like that because I feel it turns me into something all the way from my feet up to my head.’

Having chosen a box, they found that the box then ‘turns me into something’; it took away some of their individuality and made them a stereotype of a person, as well as determining their relations to others along stereotyped lines. The identity category, like the old social structures of caste, or feudal estate, is experienced as something foreign and external to the individual, as determining them.

This is quite different to the relationship of the individual to a  political party or association of which they are a member. As a party member, subjective interests are channelled into social forms, and in turn structured by them. An individual is part of the living body that is the association: one makes and is made by it. In the life of a voluntary association, the individual and the social group are in constant relation, forged by one another.

The category is more like a box: a box as an external form within which the individuals sit as separate items. It is a social form based not on dynamic interrelation between individuals, but on some common quality possessed by them: a genus. These categories have the appearance of something very private and personal to the individual – their sexuality or preference – but in fact they are ossified and hardened, and take over the inner life.

As part of a category, one’s actual personal and subjective life is eclipsed. You start to become your category, and to relate to others not as yourself but through it.

It is striking how the different identity groups are so hostile towards one another. The gay/lesbian/bi/trans community is taken up with fractious bickering between the different sections; a jostling for priority, and arguments about who is ‘included’ or ‘excluded’ in any particular initiative.

This can even reach the level of ‘trans’ people demanding that lesbians ‘accept them as sexual partners’; and lesbian feminists in turn defending the ‘safe space’ of their toilets against these trans invaders. The question of who has sex with whom, and which toilets people use, takes the strange form of a negotiation between tribes, as if sex again is a matter of endogamy or exogamy. There even appears to be a certain hostility between ‘tops’ and ‘bottoms’.

This hostility has a different quality to past relations of social antagonism between, say, different professions, classes, or religious sects. In these cases, the antagonism was the consequence of the internal life of the association – it reflected the extent to which the interests of the association came into conflict with those of others.

By contrast, today’s identity categories lack this genuine internal life and real social existence: they are not an association but an aggregation of individuals. In a way, therefore, a category only comes to life in conflict with opposing categories. What one is is therefore defined primarily in the moment of conflict, set against what one is not.

A person is increasingly only really ‘trans’ or ‘Muslim’ when they are complaining about Islamophobia or the ‘lack of trans representation’. Only in the moment of opposition is a category-identity constituted – albeit in a shallow and stereotyped fashion – which is why these conflicts seem to be sought out as an opportunity for self-constitution.

This explains why individuals who have almost nothing to complain about spend all their time complaining. People have an opportunity to be who they want, love who they want, follow the religion they want – yet they seem to be prisoners to their labels, and locked in relations of mutual hostility with different labels.

The proper war now is not between the fake categories of identity, but of people against the categories. ‘We have to stop letting these titles wear us’ writes one gay man; another calls the divisions ‘stupid’: ‘whatever happened to love, chemistry and falling for a person?’

This is a claim both to be yourself, and to form meaningful relationships and associations with others. The war of people against the stereotyped and boxed forms of social identity would be the salvation of both the individual and the collective association – not to mention romance.

Chelsea fans: The return of the show trial

What punishment should be given to the Chelsea fans who pushed a black man off a Paris train and chanted a racist song?

What is striking is that calls for the ‘strongest possible punishment’ are based less on a weighing of the acts committed, than as a way to show others that ‘such behaviour is abhorrent and has no place in football or society’.

In football as in other areas, criminal punishment is increasingly taking on a didactic function, as a way of ‘sending a message’ that a particular behaviour is ‘unacceptable’. It has become common to treat criminal trial and judgement as a sort of pubic press release about social mores. For example:

  • Upon evicting a man from his home, police announced: ‘We hope that our actions send out a clear message that we will not tolerate any sort of behaviour that has such a negative impact on the quality of people’s lives’.
  • The prosecution of men for homophobic leaflets was heralded as sending ‘out a message that Derbyshire Constabulary will not tolerate any form of hate crime’.
  • The jailing of a man for an antisemitic tweet was welcomed by the communities minister: ‘This ruling sends out  a message to all those who use social media to send out antisemitic, anti-Muslim, homophobic and racist  comments that it is unacceptable’.
  • Scottish police said that football banning orders are imposed to ‘send a message to those who use football as an excuse to create disorder that this anti social behaviour will not be tolerated’.

In a civilised jurisdiction, the only thing that should matter is the objective value of the harm committed, and the degree of personal responsibility for that harm.

Yet the prosecution and punishment of crime today has taken on elements of the show trial. The punishment of a criminal act is no longer seen as an exact weighing of the harm committed to person and property, and the degree of responsibility of the actor. Instead, punishments of all kinds are held to have a didactic or demonstrative value.

In these terms, the judicial process is being used to make an example out of somebody. The person being judged is therefore not being entirely respected: they become an object for the judicial process, a vehicle for the transmission of messages to others. Their body, their liberty, is used for the purposes of public communication.

This is a feature of primitive legal systems, where courts and the rule of law are not sufficiently independent and well-developed, and criminal justice is a tool for the cohering of social authority.

For example, the prosecution and punishment of treason was demonstrative, a form of communication. The performance of hanging, drawing and quartering was not intended as a measured punishment to fit the crime. There was no weighing involved. The king was using the tortured body of the offender as a means of sending a message to others: the offender’s body was being used to perform a didactic function.

It seems that we are well aware that Egypt’s recent mass trials were being used for an ideological purpose, and so are unjust. Yet a not dissimilar logic is being employed in our own system without a blink.

Indeed, overt miscarriages of justice become acceptable. One litter charity welcomed the prosecution of a woman for throwing a straw wrapper out of the car window, though she protested her innocence, on the grounds that it ‘got people talking about the issue’. Whether she did it or not – and if she did, whether her actions merited a £400 fine – were seen as less essential than the opportunity to make a point.

When punishment takes on a didactic function there is no gradation of harm, no increment of misdemeanour which at a certain point becomes sufficiently severe to classify as a criminal offence. Instead, there is ‘zero tolerance’: any manifestation of a particular misdemeanour, whether serious or not, will be punished equally. Therefore, there is a sort of equivalence in councils’ treatment of someone dropping an apple core and someone fly tipping, since both provide the same communication opportunity.

Several people have been fined £900 pounds for dropping a cigarette butt; in every case the council promptly press released the verdict, saying that the prosecution would ‘send a message’ about the council’s ‘zero tolerance’ approach to littering. The question of proportionality – £900 for a cigarette butt – is not entertained. For the authorities, the trial is not really about that individual but about the council’s policy for public space.

The notion of ‘zero tolerance’ was also found in legal systems of the past which punished crimes for didactic reasons. The full-on guts-ripping punishment for treason was used equally on those who merely speculated about alternative heirs to the throne, as well as for those who actually committed regicide. The slightest step in the direction of treason could not be tolerated: there was no gradation between speech and the act of murder. Similarly, the eighteenth century’s bloody criminal code punished every theft with the death penalty, equally for a bread roll as for an armed robbery. The slightest theft, however small, would not be tolerated.

At these points, a central state was attempting to impose order and ideological rules upon an unruly or out of control population; the criminal law was used as a rough tool for social integration and discipline. With the development of public institutions and the stabilisation of the state, the criminal law was no longer required to be an overt agent of socialisation and discipline: the ‘bloody code’ was reformed at the start of the nineteenth century.

In a developed and rational criminal justice system, the didactic role of punishment is fulfilled by the simple enforcement of the law. An individual is judged only for their responsibility for causing harm; they are in the dock for their actions alone, and the punishment is concerned with them. The ‘message’ sent by open and fair justice is not a separate element, laid on top of the trial, but only the trial itself.

The return to making an example of people – and using their punishment to communicate social mores – shows that our criminal justice system is again assuming barbaric and irrational elements. This suggests an underlying institutional weakness and ideological uncertainty: criminal justice is used for the purpose of socialisation when other methods fail.

Whatever its causes, the show trial tendency should be resisted in the strongest possible terms. The individual in the dock is a citizen whose acts should be carefully weighed: they are a person, not the subject for a press release.

In defence of choice – lessons from ancient Athens

Today there is a large literature on the notion of ‘choice’, which discusses the concept in peculiar detachment from philosophical or historical context. It is as if we are the first generation to have discovered the idea, and discovered it only to slight it.

From a variety of different perspectives, books on choice suggest: that we have ‘too many’ choices; that choice is experienced as a ‘tyranny’; choices are difficult, leaving us anxious and unfulfilled; we make ‘flawed choices’, leading to sub-optimal outcomes for both us and society, and should be ‘nudged’ to make ‘better decisions’. At the same time, these books often argue that we don’t actually have that many choices, because we are in the grip of biology or our physical environment, influenced by other people or driven by temptation.

Yet the emergence of an early notion of choice, in fifth century BC Athens, was not in circumstances where individuals had perfect control over their lives. Nor did they uncomplicatedly make the ‘right choices’ or experience these choices as leading to optimal outcomes. From the beginning, the making of choices was accompanied with a great deal of suffering and uncertainty.

The ‘choice’ that we see in Greek tragedy is the small space opening up for the exercise of individual volition in a world they did not control. This appearance of individual volition was a moment of drama and nobility, and staged as intrinsically interesting and valuable, irrespective of its consequences.

We see this in Aeschylus’ play ‘The Suppliants’, which is framed around the making of a choice. A king is asked to shelter a group of women against their cousins, who are approaching with an army to carry the women off. The king must decide whether to protect the women or not; he stands for a moment sunk in thought, reflecting ‘downward into the depth’. This is the exercise of volition in circumstances he did not choose, and either course of action spells doom: if he gives the women up, he will violate the law of hospitality; if he protects them, he violates the claims of the brothers and will bring war upon the city.

In this, as in other tragic plays, there are different sets of tension going on: between individual volition and some larger force, whether fate, gods or the city; and between different principles and sets of loyalties, whether ancient law, city law or the individual’s own independent morality.

Choice therefore emerges when the individual separates out from the community, and becomes conscious of having a volition that gives rise to his actions, as well as the fact that he is faced with several possible courses of action. Actions are no longer predetermined, but within limited boundaries could take this course or that: A or B.

One of the earliest forms of choice is the rebellious choice – the simple rejection of a given authority. Hesiod’s Prometheus in late eighth century BC is nothing more than a ‘crooked-schemer’, a trickster and underminer of Zeus’ authority, yet by the fifth century Prometheus’ rebellious decision to help mankind takes on the nobility of a conscious and principled act. Prometheus’ defiance of Zeus is the source of great suffering personal suffering, and yet he feels his claim is right and will not submit. ‘Never would I exchange my evil fortunes for thy servitude’, he tells the minion Hermes in Aeschylus’ play.

Another early form of choice is the simple affirmation of destiny, which appears in tragedy in the chosen sacrificial death. The character is told: you must die. They reply: no, I choose to die. To bring about by one’s own hands and will the event that must occur means that the individual is no longer a mere object of events and fate; destiny is made to bear the impress of their will.

Therefore, the first space for individual volition is simply whether to reject or affirm destiny or other greater forces. Yet in this small space the individual is nonetheless faced with a genuine dilemma between different principles and loyalties. Should they follow ancient codes of honour or obey the city law? Should one trust the oracles, the king, or look only within oneself for the guide to action? The chorus sways this way and that with the swaying sympathies of the audience.

In the context of this, the contemporary literature on ‘choice’ appears myopic to say the least. Today’s authors make great play of the fact that choices are difficult, that sometimes we make the wrong choices, or that we make choices in a world we do not control…. welcome to the human condition! Choice is declared futile now on the flimsiest of grounds. It is striking how many of the books about the ‘tyranny’ or ‘myth’ of choice recount the author’s experience of not knowing which biscuits or jeans to buy, which they then take as indicating the futile nature of volition as a whole.

We would have to go back further to Homer for the innocence of a world without choices. Occasionally Homer stages a moment where the character has a dilemma, and they stand there debating with themselves, but they generally realise that there is actually no choice in the matter: ‘why do I stand here debating the point?’ Actually, the course of conduct is laid out for the individual: honour dictates that he stand and fight, or ill omens dictate that he retreat. The individual exists in a certain form (Achilles is persuaded by goddess Athena to still his hand, not forced), but this individual is not aware of his separation from or opposition to larger forces of fate, the gods or custom. Therefore, there is a clarity and ease to the Homeric world, a lack of tension which comes essentially from there being no choice.

So yes, in certain ways it is easier to not have choices, and they are often the source of suffering. And yet should we wish them away? The value of volition is not – and has never been – because of its beneficial results, or because it leads to increases in subjective happiness. The grandeur of a choice is simply in the fact that it is not ordained, not following by rote, but decided for oneself, and this gives these actions a sort of glow or special quality which makes them distinct from other actions.

The exercise of volition necessarily involves tensions and conflicts, between the individual and society, and within the individual. These tensions and conflicts should not be avoided but sought out as some of the most fertile points of existence, the means by which we can learn about ourselves and the world.

I will be giving a talk ‘In defence of choice’ at the London Philosophy Club on 18 February.

The censorious student and the corrosion of character

The growth of censorship in universities (highlighted this week by spiked) indicates that something fundamental has changed in human character in the past decade or two.

For the new generation of young adults, opinions are not things they hold privately as a matter of conscience, nor are they developed through argument and debate. Instead, opinions appear to be integrally bound up with their identity and sense of self. They experience the encounter of opposing views almost as a threat to their existence, as an unravelling of the self: as ‘unsafe’, ‘dangerous’, or causing ‘severe distress’.

This week a comedy act was cancelled after the threat of a picket from some women who disagreed with her views on ‘sex work, religion and trans issues’. The comedian wasn’t going to talk about prostitution, yet it seems that the female students objected to the presence on campus of a person with a different view to their own. For a campus to be ‘their’ campus, for that person to feel as if they belong in an institution, they attempt to keep off those who present a counter-point to these views.

The invitation of external speakers becomes a process fraught with risk: the National Union of Students has produced a guide on ‘managing the risks associated with external speakers’, with a lengthy and legalistic filtering process before a bearer of opinion can express themselves in the public space of the campus. The ‘safe spaces’ in universities are muted, restrained, free of conflict and the encounter with opposition: student unions ban items exuding a charge of controversy, including ‘racist’ sombreros or the ‘sexist’ Sun newspaper, as well as critical ‘hand gestures’ or sarcastic applause.

This means nothing less than the unravelling of the modern individual: the individual who forms opinions in the process of debate. In the late 1600s and 1700s people began to view the conflict of opinion as productive, and argued that it was in the contest between ‘for and against’ that truth could be discovered and one’s own view developed. In 1684, Basnage de Beauval argued for religious toleration on the basis that truth resulted from the ‘confrontation of dogmas’; the ‘opposition between two parties’ serves to ‘pressure and excite’ one another to virtue (1). He saw conflict as like a ‘sting’ which keeps one awake and shakes away ignorance, and argued that disputes between learned men were ‘advantageous and useful for the public’.

By contrast, in the Medieval period the moment of conflict of opinion was seen as singularly destructive, of both the individual soul and civic life. It was thought that heretical opinions undid the social bond: the moment of conflict undid the order of things, the unified trinity of faith, law and state. Social relations could only be constituted through a single faith and worldview: to relate meant to be of the same mind. The heretic dissolves the social bond, argued St Thomas Aquinas (2). Those who tolerated difference, it was argued, were those who did not really care about truth or the inner life (the pragmatism of the Roman Empire), or those who for reasons of weakness were temporally unable to constitute a proper social order.

So now, again, the self unravels when faced with the opposition of another, and the battle against ‘heretics’ is a fight to maintain one’s own integrity.

Yet this new censorious self appears to be a fragile sort of thing, lacking deep foundations in inner conviction or conscience. The opinions students and others are defending do not seem to have much private or authentic character, which is perhaps why they are so prickly. It is the instability of identity which means that people are unsettled by alternatives.

Opinions are bonded with the self, but this is not the inner core of the self, and more a shirtsleeve or a lapel. A YouTube video shows a speaker at the University of Galway trying to make the case against a boycott of Israel, drowned out by a student dressed in the colours of a Palestinian flag shouting ‘Fucking Zionist fucking pricks […] Get the fuck off our campus now.’  The student’s position seemed to be something like the shirt he wore: thin and constituted only in the view of others, which is why he might seek out the public occasion at which to stage this aggressive performance.

Therefore, the new generation also lack that other dimension of modern character: the inner dimension of conscience. The reflecting, private conscience, elaborated by John Locke and others in the 1600s, experiences opinion and truth as inner and personal, a conviction. This feeling of conscience developed in private spaces – private worship, private discussion, inner reflection. The public sphere of people debating and opposing one another presumed the inner world of conscience; conscience provided the space where a person’s opinions were grounded and the point to which they returned. The inner conviction is the counterpoint to the more transitive, provisional character of views developed in public debate, whereby an opinion held today can be changed tomorrow in the face of new evidence.

In today’s students, we see how these two dimensions of modern character have collapsed into something much more one-dimensional. Opinions are bound up with something like the outer shell of the self, which is neither developed through public engagement, nor is it privately developed or held.

The new dialectic is not between the public and private sides of the self: it is between the virulent hostility of someone screaming ‘get the fuck off our campus now’, and the ‘safe space’ of inexpression where individuals exist side by side in their separate shells.

That is, instead of private reflection and public debate, there is rage, and silence. Which should make us fear for the public sphere of the future.

(1) La Tolérance, Julie Saada-Gendron, Paris: Garnier-Flammarion, p71

(2) La Tolérance, Julie Saada-Gendron, Paris: Garnier-Flammarion, p21

Modern censorship and the return of taboo

In the Enlightenment the usual approach to something with which you did not agree was to republish quotes from the text along with your own devastating critique. Indeed, some works are remembered more by the critique than the original (1).

Now, there is a return to something more like the pre-modern approach to texts and images: disapproved of images should not be shown, texts should not be read. The effects of words and images are thought to unravel automatically, through the dynamics of attraction or repulsion, without the mediation of critical reflection or individual intent.

When the French journalist Caroline Fourest showed Charlie Hebdo’s Mohammed cover in a Sky News interview, the editors reacted as if they had received an electric shock. They terminated the interview and cut away without so much as a goodbye, apologising to viewers for any offence caused. In a similar way, the Al-Qaeda manual and other terrorist publications cannot be viewed. It is an offence to possess or download any terrorist document (for which two Nottingham University students were arrested: one downloaded the document, the other printed it out as a favour). This makes it difficult for students to complete the terrorism module of international relations courses: how can they critique publications they are not allowed to see?

The question of whether you approve or disapprove of images becomes one of whether they are displayed or hidden away. A disapproved of image is not shown with an accompanying critique: it is invested with a negative charge and cannot be shown. Instead of a conflict over interpretation or meaning – what does this text or image mean?; is it right or wrong? – there is a conflict over the display or seclusion of the item in question. This means a return to an immediate relation to words and images.

It is not just that texts now are held to have a given meaning – as they did for example in the Medieval period, where the meaning of texts was prescribed by a strict religious and political hierarchy.

Now, it is not so much that texts have a given meaning, but something more like a given charge – a positive or negative power – which has certain similarities with the traditional tribal taboo. With the tribal taboo, if a word leaves your mouth or your eyes fall upon a forbidden image, the offence is committed. Taboo objects unleash a contagion in the mind and in the world, like a force of nature. There is no mediation of a person’s critical faculties; no account given for their intent. Offences against taboo are often committed by accident: somebody happens to glance at the king, or says something he should not, and the contagion strikes.

Now too, offences can be committed by accident, and the saying of certain words contaminates the speaker. Hence the lists of words which should only be referred to euphemistically as ‘y-word’, ‘n-word’ or ‘f-word’. For the word to pass one’s lips is itself an offence, regardless of how one is using it. Young black men are told that they cannot say ‘yo nigger’ to their friends, while Jews and gays cannot call themselves ‘yid’ or ‘faggot’. Jeremy Clarkson got into contortions apologising for having appeared to say the ‘n-word’ in unused takes of Top Gear, without being able to say the word (for to say that he did not say it would be saying it). ‘In one of the mumbled versions if you listen very carefully with the sound turned right up it did appear that I’d actually used the word I was trying to obscure’.

In this context, words are not being used by one person to communicate meaning to another: nor are the words grounded in a given set of equal or unequal social relations. Instead, words become yes-words or no-words, approved or disapproved, to be repeated or never to pass one’s lips. It is because words are invested with such an inherent charge that offences can be committed by accident. Your lips are stained, regardless of the meaning intended – indeed, regardless of any meaning which would be clear to anyone else looking on.

What the new and old taboos have in common is an immediate and inarticulate relation to given objects. Of course, in other respects they are completely different. Taboo in tribal societies is a belief in an actual physical charge possessed by objects (‘mana’), which makes that object at once sacred and dangerous. ‘Persons or things which are regarded as taboo may be compared to objects charged with electricity; they are the seat of a tremendous power which is transmissible by contact’ (2). The power of taboo objects is the magical role they play in managing relations between members of the group – a king is taboo – as well as the group’s relationship with nature.

Today, by contrast, images and texts are not attributed with a single consistent meaning – everybody has their own list of taboo words – and this is clearly not a question of any magical role. The new taboos do not reflect a new social order, but rather an absence, a lack: the vanishing of the rational-critical individual as a recognised unit of public life. Individuals are imagined to be without governing critical faculties or independent purpose; therefore, words and images flow through them like automatic forces. The power attributed to images or objects is only a reflection of the supposed incapacity of viewers or listeners.

What has been lost is the mediating role of individual scrutiny which developed in the eighteenth century. With the development of the modern public sphere, texts and images were definitively stripped of any sacred or forbidden character. With the emergence of pamphlets, salons and coffee shops, works of writing or art became profane objects for examination and discussion. A book was no longer immediately good or evil: it was held at arm’s length, critically examined. Art lost its sacramental character and became an object for the examination and assessment of the public (3).

New taboos can only accentuate the problem of the waning of the public sphere. The hiding of images and texts serves to degrade the quality of public debate, and to restrict the use of critical faculties. Every banned word further estranges our relationship with language; every hidden image weakens the use of judgement. Ultimately, we need the end of taboos and the return of critique.


(1) Nobody would remember Sir Robert Filmer’s views on the innate rights of kings were it not for John Locke’s critique in his Treatises on Government.

(2) Wundt, quoted in Freud, Totem and Taboo, Routledge 2007, p22

(3) The sacred charge of art objects in the Middle Ages was the result of those objects’ role in forms of religious worship and displays of social status: they were the bearer of status relations. Habermas, The Structural Transformation of the Public Sphere, MIT, 1999, p36


Charlie Hebdo: The crisis of the public sphere

Charlie Hebdo embodied the spirit of the early public sphere: the negative-critical consciousness, which questions every authority and holds nothing sacred. This is the scurrilous, anarchistic principle that defined the early French Revolution, with its sudden explosion of critical pampleteering and obscene caricatures.

The universality of Charlie Hebdo‘s targets is shown by the fact that anti-Islamic Michel Houellebecq was mocked on the front cover the day the editorial team were shot for insulting Islam. This is satire pursued with a kind of Socratic diligence, revealing the pretensions or limitations of every position.

Such anarchistic universal irreverence was characteristic of the early public sphere, but has now largely been eclipsed. Therefore, Reason magazine is correct when is says that Charlie Hebdo wasn’t representative of a general culture of liberty, but rather its solitary bearers.

The attackers, by contrast, who were Parisian born and bred, did not represent some strange and foreign principle, even as they employed barbarous and extraordinary methods. Instead, they were enacting a principle that has become a mainstream, even constituting part of public life in Western societies.

This principle is the way in which the use of coercion has become an ordinary way of relating in public life. Virtually every interest group now invests the primary part of its energies in seeking to ban or restrict its political opponents. Gay rights organisations become organisations for the prohibition of homophobic opinions, just as Islamic organisations invest their energies in prosecuting anti-Islamic points of view (including Charlie Hebdo).

Indeed, French republicanism itself has increasingly been defined through the suppression of ‘anti-republican’ points of view or symbols. The debate about republican identity takes the form of definition by exclusion. This is why over the past decade there has been a growing restriction on the Islamic veil. Jacques Chirac said there is ‘something aggressive’ about the veil, and politicians heralded the niqab ban as ‘constitutive of our collective history’, a ‘founding principle of our republic’ . Left liberals now call for a ban on the headscarf in private crèches, which they say ‘puts collective life in peril’.

On the other side, French republicanism is also defined by the exclusion of the National Front (who were in effect barred from the Charlie Hebdo march on Sunday), as well as critics of Islam. In 2012, then foreign minister criticised Charlie Hebdo for ‘provocation’ of Muslims, and recently foreign minister Manuel Valls criticised Michel Houellebecq’s new novel Soumission about the Islamic takeover of France. Yet Manuel Valls was himself sued for ‘provocation of discrimination and hatred’ for comments he made about Islam in 2013.

This dynamic of offence-coercion is a universal and reciprocal way of relating: everybody is trying to prosecute or ban everybody else. In this sense it is distinct from previous forms of censorship – such as obscenity, blasphemy, or sedition – which were about enforcing dominant mores against a minority.

There is a way in which any particular political position cannot bear the existence of its opposite, and experiences any criticism as an unbearable ‘provocation’ and offence. But at the same time, its own position is only defined through the act of coercion exerted over its opposite. One’s own identity, one’s own position in public life, is increasingly defined only through the attempt to suppress opposing points of view. Only through the suppression of an opposing view is one’s own view given shape.

This routine use of coercion – to the extent that it becomes one of the primary ways of relating and of arguing – short-circuits the public sphere. The public sphere which formed in 18th century England and France consciously disregarded relations of status or economic dependence, which stood one person over another. The new public composed of private persons, as Jurgen Habermas says, met as equals, the ‘parity on whose basis alone the authority of the better argument could assert itself against that of social hierarchy…’.

Now, when people meet in debate they are always trying to stand one over the other. Censorship occurs through non-violent means of court cases, online petitions or twitter storms, but there is a violence to the use of coercion which ultimately seeks to eclipse a person or a publication from public life. The plaintiff seeks not to counter an argument in the independent realm of public debate, but to annihilate the argument with which they do not agree, to deny it the right to exist in the public world: to withdraw or destroy a publication or to imprison a speaker.

There is a way in which the terrorists enacted this principle of coercion through violence by their own hands. With Islamic extremism, the dynamic of offence-coercion is mediated through a consciousness of otherness: people who feel themselves to be outside of and hostile to mainstream society. The offence-coercion dynamic is experienced not as a relation between individuals or groups within a society, but between Muslims as outsiders, and that society. So they feel themselves to be their own authority, to do with their own hands and guns what others may seek to do by judicial means. They sought the eclipse of their adversary in fact, firing the shots that left dead bodies: ‘we have killed Charlie Hebdo’.

In the attacks, we see how these men – weed-smoking petty criminals and irregular mosque attenders – constituted their faith primarily through the act of violence against critics. In these terms, their Muslim identity is primarily founded on the eclipse of the ‘insulters of Islam’; it is through the act of violence that they constitute their faith.

Therefore, the truth of events is in some ways the opposite of the way it appears. There is an appearance of the unity of society against the terrorists, everyone is Charlie, whereas in certain ways it was Charlie Hebdo who were the marginal figures, representative of an outdated public spirit, and it was the terrorists who represented the mainstream principle of coercion, albeit in extraordinary and barbarous manner.

On the French radio station France Info on Sunday an artist said that it amused him to see so many ‘hommes politiques’ who have ‘nothing to do with liberty’ lining up in the Charlie Hebdo march. Others noted the presence of Islamic groups who had sought to take the magazine to court, as well as the statesmen of countries without a free press.

And yet in the spontaneous demonstrations of support for the magazine there was something of the nascent sensibility of the public sphere: a sense of ease, conviviality, face-to-face dealing with fellow citizens. In France these demonstrations sprung up in small towns and regional cities as well as Paris. The revival of public spirit should be the correct response to events. That is, not to further restrict the internet, or to limit French citizens’ right to travel overseas – as some are suggesting – but to eclipse coercion from the sphere of public debate.

Another interviewee on France Info said that the demonstrations wouldn’t change everything in themselves, but they would provide a benchmark, something by which people could be held to account next time they called for a publication to be banned or a group to be taken to court. ‘You can hold them to account for the things that they have said today.’ In this respect, we should start with the 54 people being charged for the offence of ‘apology for terrorism’, including the comedian Dieudonné who briefly posted a satirical message on Facebook mocking the Charlie marches.

Are we really all Charlie? If so, this would mean nothing less than the reconstitution of the public sphere in Western societies.

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