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A SHAPE OF LAW TO COME?
[1]
This version Martin Hardie March 2003
I am currently rewriting this paper for publication and I expect that
the conclusion will be quite diffrerent. Stay tuned!
P.S. - Sorry the footnotes are not anchored (yet).
The proposition contained in the book, Empire[2] that the laws of the
new imperial regime, Empire's laws, are not based upon the application
of general norms and rules, strikes at the heart of the modernist
conception of lawmaking. Already some lawyers have, perhaps
unwittingly, been dealing with the symptoms of this imperial passage. I
say unwittingly as in most cases they have recognised the symptoms but
not the passage for what Hardt and Negri propose it is. That is they
have attempted to deal with the symptoms by using the legal concepts of
modernity. In the most part consideration of these legal symptoms have
been confined to the sphere of international law [3] although the
geneology of some domestic legal systems also prefigures the method of
operation of imperial law.[4]
But, rather than delving into the realms of public international law or
constitutional theory and considering some of these symptoms of the
passage to the imperial regime, what I thought might be useful was to
initiate a discussion or project on Empire's laws by considering some
other examples of lawmaking that may allow us to begin to catch a
glimpse of the manner in which the imperial regime will be capable of
managing the multiplicity of differences arising or produced at the
local. How can the management of "hybrid identities, flexible
hierarchies, and plural exchanges through modulating networks of
command"[5] be achieved without reliance upon the application of norms
or rules but through the application of an exceptional behaviour that
is directed towards the achievement of specific ends? What seems
apparent is that there is no norm, rule, justice or logic, behind
imperial law, other than its functionality - its ability to achieve the
ends of Empire; these are the only relevant considerations as the
machine engages in the flexible management of difference. Thus by
stepping beyond modernity and looking back, and without focussing on
public international laws contradictions, is it possible to move the
focus away from the macro global level of law to see if there are other
symptoms or even aspects of the genealogy of law, that may assist in
taking us down the path to encounter or recognise a further glimpse of
Empire's laws - or as Ornette Coleman might have put it, a shape of law
to come?
Put another way can we look to see how might Empire's laws operate at
the coal face? Can we by using the example of how the intellectual
property rights of Australian Aboriginal artists are managed,
extrapolate beyond that particular local and apply its lessons to the
global? What relevance has an Aboriginal artists struggle to gain
copyright protection got to those who seek the free exchange of
information expounded by the various populations that inhabit places
within the internet? Where does, or how can an Aboriginal artists
struggle to gain copyright protection fit within our understanding (and
struggle against) the "new enclosures"[6] of intellectual property
within "third capitalism"[7]. Or, even, how might Empire's laws develop
and in what way could a counter empire successfully shift their focus?
Even if we cannot propose here to answer all these questions, I would
like in the first place simply take the opportunity to place these on
the agenda. In essence most of these questions raised above and their
relevance to this text may more or less be reduced to:
1. Are their potential lessons to be learnt from the experience of
interaction between Australian Aboriginal art and copyright for us in
understanding how Empire's laws engage in the flexible management of
difference? And
2. Are their potential lessons to be learnt from the experience of
Australian Aboriginal art for resisting the threat of the "new
enclosures"? (For example maintaining the spirit of open sourced
internet projects?)
Again, it is probably not even possible even to answer these two points
here, but this discussion may serve as a starting point from which we
can commence to consider a shape of law to come and possibly another
way in which some of us can "be against". Thus what I propose to do is
briefly outline certain aspects of the struggle of Australian
Aboriginal artists, considering the case of John Bulun Bulun[8] in
particular, and, then by considering this case and the courts response
in the light of Deleuze's[9]idea of repetition, attempt to show how it
and the tradition of equity as a form of repetition points towards the
imperial regime of law making and the flexible management of
difference.
The production of Aboriginal art and copyright.
During the last twenty or so years of the end of the twentieth century
there has been an increasingly constant call from indigenous people
throughout the world for legal protection or more specifically,
legislative intervention, as they, perceive that their "culture is …
under threat." For example it is argued that in "an age of
commercialisation, new technology and increased globalisation,
Indigenous people are concerned for the ongoing maintenance of the
culture" and subsequently "Indigenous people seek better recognition
and protection of their Indigenous Cultural and Intellectual
Property".[10]
Some of these calls have rested upon the protectionist and "false
dichotomy between the global and the local".[11] They have assumed to
an extent that indigenous or "local differences preexist the present
scene and must be defended or protected against the intrusion of
globalization".[12] As Hardt and Negri have cautioned the danger is
that these calls may "devolve into a kind of primordialism that fixes
and romanticizes social relations and identities".[13] Instead they
argue what needs to be addressed "is precisely the production of
locality, that is, the social machines that create and recreate the
identities and differences that are understood as the local. The
differences of locality are neither preexisting nor natural but rather
effects of a regime of production. … It is false, in any case, to claim
that we can (re)establish local identities that are in some sense
outside and protected against the global flows of capital and
Empire".[14]
With this in mind lets briefly consider the prodiuction of Australian
Aboriginal art, particularly in the isolated communities of northern
Australia that throughout the 1980´s experienced a rapid period
of growth. This growth was directly linked to the homeland movement -
the return of Aboriginal people from the government or church run
settlements to their ancestral homelands; that had accompanied the
coming of Land Rights to the Northern Territory of Australia. The
return to home country and the management of that country provided a
reinvigorated social and economic basis that allowed the nurturing of
the creative arts that were so intimately intertwined with country.
The return to country was accompanied by the financial support of the
Aboriginal Arts Board of the Australia Council. The Australia Council
was the main vehicle for the Australian Government to fund arts and was
organized around a system of specific boards whose members were drawn
from the relevant arts community. The Aboriginal Arts Board and its
Director and former black power leader, Gary Foley, provided the
economic funds to establish a marketing infrastructure based around a
network of community controlled art and craft enterprises. These
factors, the return to country and the active role of the Aboriginal
Arts Board, coalesced and allowed the development of a marketing
infrastructure and a linkage initially with the national and
international craft markets, which in turn transformed into a linkage
with the global "high" art market. The result was a significant growth
in art production and marketing to such an extent that by the late
1980´s Aboriginal art production was reckoned as the largest
manufacturing industry in the Northern Territory of Australia.[15] This
was a region otherwise characterised by near sighted politicians,
massive Aboriginal unemployment, vast cattle empires, a mining
industry, rednecks and internationally marketed tourist images of the
red center, Crocodile Dundee and all those Australian Outback shows
that you find on The Discovery Channel.
Added to these factors was that this was the period leading up to the
"celebration of a nation", the bicentennial of the transportation of
the first fleet of convicts from the British Isles to the Australian
continent, and many within the Australian community and in particular
some within the tourist industry found themselves gaining an
appreciation of things Aboriginal. This was not an appreciation based
in altruism, empathy or a feeling of solidarity towards the indigenous
people and their communities. It was firmly based in a desire to make a
quick and easy buck by capitalising from the expected influx of
visitors to Australia, by taking advantage of the occasion, and
providing them with an opportunity to purchase affordable and
transportable items adorned with Aboriginal artworks or the like. Here
another regime of production arose, an unahamed vampire regime that fed
off the various Aboriginal locals whilst the nation sought to project
an open inclusive Australia to the world, free of the bloody stains of
its history.
But this appropriation of things Aboriginal by the rag trade struck at
the heart of the raison d´etre of the various Aboriginal locals
and their regimes of production. The appropriation by the souvenir
industry seeking to market products reproducing Aboriginal artworks was
not necessarily a new phenomenon, but the scale of unauthorised
reproduction during the late 1980´s had not been seen before.
Given that the artists' property rights hadn't even been deigned to be
considered, it was no real surprise that neither had there been any
thought of consultation with the various communities of Aboriginal
people, that, had since time immemorial, regarded the images in
question as their collective property. In fact it was this idea of
community ownership that was used against the artists to argue that
their works did not fall within the realm of copyright law.
What followed was a series of law making legal cases brought by
Aboriginal artists and decided by the Federal Court of Australia,
concerning the reproduction of major works of Aboriginal Art on items
in the main, such as T Shirts, Carpets and even underpants. The cases
became known as the Aboriginal Copyright Cases and the decisions of the
Federal Court are the only form of legal response given by the
Australian state to the calls by the Aboriginal community for some form
of legal control over their production of culture. This is
notwithstanding the funding by government, since the late 1960's of a
multitude of reports by experts to advise government on how to deal
with the problem of the property rights of Aboriginal artists and
communities.
The cases are, in historical order:
1. Bulun Bulun v Nejlam Investments (the T Shirts' Case)[16];
2. Yumbulul v The Reserve Bank of Australia (the $10 Note case)[17];
3. Milpurrurru v Indofurn (the Carpets' case)[18]; and
4. Bulun Bulun v R & T Textiles (the Bulun Bulun case)[19].
Prior to these cases Aboriginal art was perceived as not being subject
to the law of copyright, it was an artistic Other. Its traditional, non
European basis, the "traditional" nature of its designs -were regarded
as not capable of being "original" within the meaning of copyright law.
Aboriginal art was excluded from the realm of real art and thus
Aboriginal artists were not worthy or capable of possessing the same
property rights as real artists. These cases changed that position
irreversibly. Aboriginal art moved from folklore to art. The battle for
copyright recognition, to have a property right on equal terms with non
Aboriginal artists was won in the $10 Note case. Aboriginal art was
thus now capable of being consumed by the global art market as art and
not as folklore.
It was in the last of these cases, Bulun Bulun, that the Federal Court
moved to a position whereby not only an artists copyright was
enforceable in the Australian courts but also a mechanism was
enuinciated that allowed for courts to intervene to protect an
Aboriginal community's cultural production from exploitation in cases
that may be characterized as being contrary to a particular law and
custom. Thus the court accepted that a separate and distinct right to
any property right subsisting in an artistic work existed. And by
positing equity against the law it superimposed a communal right over
the property right. In doing so the court had to strike a balance
between the property right of the artist and the communal interest of
those who were also involved in the production of the religious,
political, social and economic structures intertwined with the very
production of the artworks in the first place. By doing equity the
court found that the property subsisting in the artwork (the copyright)
was held by the artist as a fiduciary for those with a communal
interest. In practice the approach taken by the Federal Court in Bulun
Bulun allows for both communal interests and copyright interests to be
litigated.
It has been argued[20] that this approach is a "conservative" approach
and that the "progressive" approach necessarily entails legislative
intervention in order that all members of Aboriginal communities,
wherever they are situated and whatever their custom, could enforce a
general legal or legislative right - that is all Aboriginal artists
should be treated equally or the same under a general norm or rule
recognizing communal ownership. This argument seriously misunderstands
the essence of the Bulun Bulun decision and the importance and
progressive nature of adopting a differential approach. Not only is it
arguable that a general or legislative response would entail a law that
would treat all the subjects of the proposed law (Aboriginal artists)
generally and according to the definitions of an overarching applicable
law, it may also it would call for or lead to a static definition of
what is Aboriginal "tradition" that would in practice need to be
stretched to incoherence to be made applicable to the interchangeable
particulars of different Aboriginal locals. In considering this we must
recall that the term Aboriginal, is in itself a "colonizing,
homogenizing term"[21] that denies the differences that exist between
and within Aboriginal locals. Moreover, the calls for legislative
approaches proceed from a view that law has and will continue to have
its modern, normative role and quality. That is, it will continue to
use at its core mechanism a normative value that can be applied
generally by fitting different factual matrixes within a rule.
We may then (whilst not rejecting legislation's future role in the
management of the differences) seek to consider the difference between
this normative conceptions of law, as it has been shaped and as we have
known it, and how it may be shaped in the future. That is, law as a
mechanism that is to be directed to the achievement of specific ends
without apparent reference to a general normative value or rule based
approach. What relevance has Bulun Bulun to all of this and as we
proceed on hypothesized the passage to Empire and can we in turn shift
our focus from the general approach to the global context and consider
that Bulun Bulun may provide us with a sign of a shape of laws to come?
Bulun Bulun and Repetition.
I propose that by reading Bulun Bulun in the light of the concept of
law as posed by Gilles Deleuze[22], we are able to gain some notion of
a possible configuration and shape of law to comen as Bulun Bulun seems
to possess more of a quality of what Deleuze has called repetition than
they do of his description of law. It is possible that by following
this line of enquiry it is arguable that it is through repetition and
resonance that Empire's laws are formed and that this may be how law
manages differences arising at the local.
In the opening pages of Repetition and Difference, Deleuze poses
repetition in contradistinction to generality. He writes that:
"...generality expresses a point of view according to which one term
may be exchanged or substituted for another. The exchange or
substitution of particulars defines our conduct in relation to
generality. …. By contrast, we can see that repetition is a necessary
and justified conduct only in relation to that which cannot be
replaced. Repetition as a conduct and as a point of view concerns
non-exchangeable and non-substitutable singularities. ...".[23]
Deleuze poses law as generality: "… generality belongs to the order of
laws. … It is against the law: against the similar form and the
equivalent content of law. If repetition can be found, … it is in the
name of a power which affirms itself against the law, which works
underneath laws, perhaps superior to laws. … In every respect,
repetition is a transgression. It puts law into question, it denounces
its nominal or general character in favour of a more profound and more
artistic reality".[24] Generality, for Deleuze, exists where a one term
may be exchanged or substituted for another. The legislative or norm
based approach to dealing with the "protection" problem and Aboriginal
art seeks such a solution. There would be a definition, a rule,
relating to what is Aboriginal art or culture and what, defined by the
general rule is worthy of protecting or regulating the use thereof, the
rule that is applied equally across the board. But we would need to
distort the facts, each singular experience in each case to fit it into
that rule. The law would condemn the different locals to change. "As an
empty form of difference, an invariable form of variation, a law
compels its subjects to illustrate it only at the cost of their own
change".[25]
In contradistinction Deleuze tells us that repetition is the
application of an idea to different circumstances - or better a
necessary and justified conduct only in relation to something that
cannot be replaced or substituted. "To repeat is to behave in a certain
manner, but in relation to something unique or singular which has no
equal or equivalent. ...".[26] Deleuze's concept of law, those of the
common law and the continental tradition, privilege form over
substance. Whereas, as we shall see, the idea of equity reverses the
equation in order to focus upon the conscience, to get to the
intention, or to the heart of a matter. The plea for a general, sui
generis law to deal with all uses of Aboriginal art is opposed to the
equitable, differential case-by-case approach of Bulun Bulun. Thus
Bulun Bulun is opposed to the generality of law.
In Bulun Bulun an idea is applied, or better there is a certain
repeated behaviour that seeks a functional, adequate specific end. The
result is not achieved in Bulun Bulun by applying a general rule but by
acting in a certain manner. The form of behaviour is drawn from the
"artifact"[27] of equity and the idea of conscience, as equity tells
us, its cases are never closed, the idea or behaviour can be repeated
in any number of circumstances, in relation to different things meeting
different descriptions. The behaviour revolves around the idea of
acting with, or according to equity or conscience. Is it that Empire's
laws that do not rely on the application of rules consistent with the
sense of law proposed by Deleuze but act in a manner more in keeping
with his idea of repetition? Equity exercises its power by judging what
is appropriate to obtain a specific end - what those involved in the
specific local of production intended to do according to their
conscience. Not whether the particulars fit within a given rule. Moving
from considering repetition and its similarity with the manner in which
equity operates it is possible the idea and artifact of equity give us
a form with which we can move to better envisage a system of Empire's
laws. Before moving on it is probably useful to go back to Bulun Bulun
and see how the court repeated the idea of equity in that instance.
Equity and Bulun Bulun.
The decision in Bulun Bulun centered upon the equitable or more
precisely fiduciary duty that was owed by Bulun Bulun to other members
of his society. More generally the court stated that the "interest of
Ganalbingu people in the protection of that ritual knowledge from
exploitation which is contrary to their law and custom is deserving of
the protection of the Australian legal system".[28] Thus the court
would behave in a manner that rejected exploitation of the knowledge of
the Ganalbingu in a way contrary to their law and custom.
In Bulun Bulun after an examination of the factual matrix of the local
regime of production presented by the evidence,[29] the court concluded
that the most appropriate remedy to achieve the end was that described
as an equitable relationship of a fiduciary. The categories of
fiduciary relationships recognised by the common law are not fixed but
there are for example some that are common such as that of a lawyer and
their client, a doctor and their patient or even a priest and their
penitent. The idea of a fiduciary is described as one "undertakes or
agrees to act for or on behalf of or in the interests of another person
in the exercise of a power or discretion which will affect the
interests of that other person in a legal or practical sense. The
relationship between the parties is therefore one which gives the
fiduciary a special opportunity to exercise the power or discretion to
the detriment of that other person who is accordingly vulnerable to
abuse by the fiduciary of his position ... It is partly because the
fiduciary's exercise of the power or discretion can adversely affect
the interests of the person to whom the duty is owed and because the
latter is at the mercy of the former that the fiduciary comes under a
duty to exercise his power or discretion in the interests of the person
to whom it is owed".[30]
Thus fiduciaries repeat the equitable behaviour or idea of exercising
power not in their own interests but in the interests of the persons
whose interests their actions may affect. The relationship between
Bulun Bulun "as the author and legal title holder of the artistic work
and the Ganalbingu people (was) unique"[31], Bulun Bulun's permitted
use of the ritual knowledge of the Ganalbingu people, and its
embodiment in the painting in accordance with the law and customs of
the Ganalbingu people was the unique "transaction"[32] that gave rise
to, or allowed for Bulun Bulun to repeat (or not) his equitable act.
Equity did not need to "treat the law and custom of the Ganalbingu
people as part of the Australian legal system"[33] but recognised that
by doing or repeating equity in the circumstances of this unique
factual matrix, a relationship of "mutual trust and confidence"[34] was
recognisable and enforceable by the Australian courts.
The court found that the relationship and the law of equity imposed
Bulun Bulun an obligation "not to exploit the artistic work in a way
that is contrary to the laws and custom of the Ganalbingu people, and,
in the event of infringement by a third party, to take reasonable and
appropriate action to restrain and remedy infringement of the copyright
in the artistic work".[35] In the absence of such behviour by the
fiduciary the other members of the local group could take necessary
action.
Lawyers who have considered Bulun Bulun have often overlooked the
progressive implications of the distinction between the rule of
copyright and the method of behaving, between the concept of the
property right and the idea of the equitable duty. But there is no
doubt that what the court envisaged was that the law would recognise
the need to protect rights held by virtue of ritual or communal
knowledge and that the courts would in each "unique" case behave in a
way that protected the integrity of the "project" at hand. Although the
statement in Bulun Bulun was clearly directed towards the court's power
and ability to restrain inappropriate uses of ritual knowledge or
cultural production using whatever tools were necessary, repeating
equity in this way may have implications for other projects where a
community seeks to maintain the integrity of their project of
production - this is something I will return to in conclusion.
What is essential in Bulun Bulun is that the court was not acting
through the application of a conccept of law based upon rules but
behaved in a certain manner based upon the idea of its general or
equitable power. This was how it achieved the end it sought; in this
case the end was the maintenance of the project of Ganalbingu community
knowledge within the larger scheme of capital. In doing so the court
struck a balance so that the local regime of production could interact
in a functional way with the global whilst maintaining the integrity of
the local project.
Equity and Repetition.
So how does the fiduciary relationship, or equity as an idea or form of
behaviour resemble the Deleuzian idea of repetition? Equity's history,
its genealogy as an exceptional form of behaviour, its economic
quality, its language, its existence as an idea, form of behaviour and
legal remedy and the manner in which it creates its artifact, are all
relevant in this regard.
The term equity comes from the Latin æquitas: meaning "even" or
"fair". It is regarded as a form of justice applied in circumstances
not covered by rules of law. The Latin æquitas also enters legal
discourse through the maxim "ex aequo et bono", that is "according to
what is just and good". "Ex aequo et bono" find sits way into
international law through its inclusion in the staatute of the
International Court of Justice: the parties to a case before the court
may dispense with law alltogether and seek to resolve the dispute soley
on the basis of what is just and good.[36]
Its philosophical roots appear to extend back beyond England and Rome
to Greece, as "the fundamental institutional reasons for principled
responses to the failing of rules have been recognized at least since
the time of Aristotle: human conduct is too varied and unpredictable to
allow the perfection of a fair set of rules".[37] In Book Ten of the
Nichomachean Ethic, Aristotle described equitable (to epiekes): "the
equitable is … but a correction of legal justice. The reason is that
all law is universal but about some things it is not possible to make a
universal statement which shall be correct".[38] Thus equity "appears
as both means and ends … in order to ensure that the law reached fair
and right ends in given cases".[39] It is a body of law that concerns
itself more with fairness than with the strict, and sometimes harsh,
application of law. Equity like one aspect of its artifact, the
fiduciary, "can be described but not defined".[40]
In the English, common law tradition equity was, historically, the body
of law developed by the Court of Chancery in England from around the
12th century up until it's merging with law in 1873. Its justification
was that it corrected, supplemented and amended the common law. It
softened and modified many of the injustices inherent in common law,
and provided remedies where at law they were either inadequate or
non-existent.".[41] Equity's "growth proceeded in a haphazard ad hoc
manner, never traveling any given course or developing any clear
doctrinal basis … "the accidents of history made equity a fragmentary
thing … it was not possible to erect a general theory of equity."[42]
"In the first period of equity, the mediaeval period, it was at its
most incoherent. It centred around the person of the Lord Chancellor of
England. His position was unique. He was the head of the King's
Council; the King's prime minister; the source of enourmous
ecclesiastical patronage; the head of Chancery, which by 1300 had
become a great department of state; the keeper of the Great Seal; a
transcendent, multifarious and indefinable office; and the possessor of
a multitude of other heads of power". The Lord Chancellor " received
all manner of petitions addressed to the King, the King-in-Council, or
to himself …" and he "… was the emanation of the Crown whose function
it became to receive, digest and deal with all petitions…" There was
"no limit to their variety" but in one way or another they appealed to
"conscience".[43] What was essential was that the Chancellor and later
the Court of Chancery had the power to decide the exception to the law.
In the early days of equity, that is during the 13th century equity and
the law coexisted without much problem.[44] But it was "…during the
course of the fourteenth century everything changed. The courts of the
common law surrendered their discretionary powers, disavowed any
reliance on conscience and opted for rigor juris. They were constantly
reminded: "You must not allow your conscience to prevent you doing
law".[45] It was during this period that equitable doctrines really
emerged as such and from then on equity and the law were in dispute
until the law subsumed the equity courts in 1873. To borrow an analogy,
in 1873 the counterrevolution of objective rules overcame the forces of
deciding matters by reference to conscience. But equity continues to
exist as a sub current within the law and its use has grown as we move
through the passage we now find ourselves within.
To go back to Deleuze "If exchange is the criterion of generality,
theft and gift are those of repetition. There is, therefore, an
economic difference between the two".[46] Similarly, the idea of equity
acts, in personem, on the conscience and conduct of people towards an
end, where the concept of law acts in rem, on property, based upon
rules. Thus there is an economic difference between a law that acts
over property and an equitable idea that acts on the person's
conscience. Equity's language, like repetitions, is also of gift and
theft. Equity deals with gifts (fiduciaries, trusts, wills, intention)
and with theft (undue influence, unconscionability, restitution and
other breaches of equitable duties). It may be here that in their
economic and quality and in their language, equity and repetition are
most closely related.
Equity can be said not to be about the concept of rules but about an
idea, a bevaviour. It not only looks to substance, over form it regards
as done, what ought to have been done, thus one who seeks equity must
come with clean hands, they must have done equity themselves to be
entitled to equity's relief. It will not reward those that it regards
as scoundrels, those lacking in conscience or virtue.
Equity builds its body of law, its "artifact … and testament"[47] not
through the creation of rules but through the idea of repeating
behaviour over time. The singular repetition of equity is the "singular
subject, the interiority and the heart of the other"[48], its
"artifact" the "other is only the external envelope, the abstract
effect".[49]
Repetition, Equity and the Global
In The Politics of International Law, Martti Koskenniemi[50] examines
how laws normative principles can always be used to argue for the
result that one wants, or better that either side of the argument can
be supported by reference to the same normative rule. He uses the
example of international territorial disputes and continental shelf
delimitations, to illustrate this point and remarks that normative
approaches based upon fact and law: "dissolve into each other in a way
which makes it impossible for the court or tribunal to solve the case
by merely choosing one over the other".[51] He continues that the "Late
modern practice of solving sovereignty disputes pays hardly more than
lip-service to the traditional bases", that is the normative rules "of
territorial entitlement. Deciding such questions is now thought of in
terms of trying to establish the most equitable solution".[52]
From Koskenniemi's perspective "the various interpretations and
pragmatic considerations, as well as the final appreciation of the
equity of the proposed solution, cannot be justified by reference to
legal rules"[53] and as such modernity's legal practice characterises
equity as a "capitulation to arbitrariness"[54] that undermines laws
rigor, a rigor that seeks to deny any political choice in the pursuit
of objectivity and reason. But as Koskenniemi's reminds us it "is
impossible to make substantive decisions within the law which would
imply no political choice. The late modern turn to equity in the
different realms of international law is, in this sense, a healthy
admission of something that is anyway there: in the end, legitimizing
or criticizing state behaviour is not a matter of applying formally
neutral rules but depends on what one regards as politically right, or
just".[55]
Is it here that we are able to recognize another appearance of Empire's
laws: "where it is not a matter of applying formally neutral rules but
depends on what one regards as politically right, or just".[56] Does
equity and repetition allow us to glimpse a configuration of law, not
where the "universality and equality of administrative actions were
paramount" but where "what is fundamental is the singularity and
adequacy of the actions to specific ends"?[57] Empire's laws and their
legitimacy are achieved by seeking what is regarded as politically
right, functionally effective, for the imperial machine. Empire's laws
thus are aimed at the specific ends of ensuring production and exchange
and of the control, management and administration of life.[58] These
are the ends the imperial regime seeks to achieve and the exceptional
law power is repeated to ensure the achievement of these ends. If this
is the terrain of Empire's laws, a form of legal biopower where
everything that is appropriate and adapted or adequate is legitimate,
where there is no other reason for law's being, where law, like Empire
is characterized by an "ontological lack",[59] it is arguable that
Empire's laws can also form a terrain of resistance, as where "there is
no longer a place that can be recognised as outside, we must be against
in every place".[60]
Tracing this incomplete genealogy as I have attempted is it possible
that the tool of Empire's laws be turned into weapons of
resistance?[61] Can Empire's laws be resisted by highlighting in a
myriad of ways their ontological lack? Is there still another form of
resistance available that would allow us to challenge the hollow shell
of Empire's laws, a form of resistance that push us beyond Empire to a
new form of law, the law of a counter power or counter empire? A law,
that is similarly based upon ends and not rules, still based upon
repetition and not generality, but distinctly based upon conscience,
virtue, desire, based upon maintaining the integrity of a project of
community, a law with an ontology, that is, a law of communities? If
what Koskenniemi suggests is correct, that what law comes down to in
the end is political choice, resistance includes pushing Empire's laws
to become a repeated form of behaviour that allows decisions and
choices to be made that are "of life" rather than "over life" that is
aimed at promoting life not aimed at administering, controlling and
managing life. The genealogy of equity may not only help us explain how
Empire's laws may operate, but it may also give us a manner in which we
can package or envisage a form of resistance, a new system of laws
aimed at specific ends - what it requires, as does the project of the
counter empire is to make up for the ontological lack.
Aboriginal artists and their reliance on copyright law may have, in the
first instance acted to enclose the commons of their local knowledge.
It may have made the artists concerned more functional members of the
global art market by allowing them to participate in all facets of that
form commodity exchange regardless of their race, their culture or
their locality. It may have provided some legitimacy to the vampire
regime feeding of their production, but the developments in Bulun Bulun
and the behaviour of the court in Bulun Bulun, or rather the idea
encompassed in that action, may indeed help point to a manner in which
a counter empire, or parts of it can engage with, to use a specific
example, the intellectual property regime of Empire. We can engage with
Empire not only through refusing or resisting the property aspects of
the "new enclosures" but we can also through the injection of an
ontology propose alternatives for the maintenance of a counter project
within Empire.
As a preliminary, and admittedly ill thought out example, recently
there were reports on the nettime list regarding the ethics of open
sourced projects being used to support the U.S. war effort.[62] The
general response seems to have been that ethics were important but that
open source was open source and any control was bad. But why should the
fruits of the multitudes labour be used for such an "over life" purpose
as war? Leaving aside the complexties of this issue for the purposes of
this analogy, and whether open source means open use for and against
the multitude, by specifically repeating the actions repeated in Bulun
Bulun to the categories of knowledge developed by the open source
movement, we could envisage a manner in which the legal regime of
Empire could be turned back on itself and used to enforce, or at least
propose a method for the maintenance of community projects in a manner
not based upon contracts or licences. To take the analogy a little
further, an open source program may be used by anyone within the
network. It can be used for a person's own benefit, it maybe packaged
and sold as a product (such as with Linux) by anyone, and they may
enforce their property right thus arising. But a use inconsistent with
the 'project' is a use that is capable of being restrained. This form
of restraint is based upon gift and equity, rather than exchange and
law, and thus another manner, another tool; another form of resistance
to the control of Empire may emerge. The idea of equity may be a tool
capable of also being a weapon with which we can be against, as well as
being a way in which we can envisage a terrain or a shape of laws to
come. What I probably trying to enunciate is that we need to be alive
to every tool available that may be used as a weapon, as Bulun Bulun
did, so that we can pursue and maintain our various projects "of life".
It is not enough to be simply against intellectual property and the
laws of the new enclosures, there can be no unified position of the
multitude against intellectual property. Rather than casting all
regimes of intellectual property as the evil to be overcome, rather
than rejecting the right of some to seek to maintain their local
project and the way it interacts with the global, we need to move
beyond simply refusing intellectual property and shift the focus to not
only a critical reading of the role of intellectual property within
Empire or Third Capitalism, and we must also develop a counter law of
intellectual property so that the each person, each community is able
to break "with (the) group of puppets ... (and) ... determine their
objectives, their positions, and their needs, all alone, in autonomy.
... they (must) retreat among themselves and determine the common
ground on which they are going to build something".[63]
In making the propositions I have, I am find some measure of support in
Harry Cleaver's example of the wage: "the wage is a key instrument to
divide the working class and weaken it, to ensure its exploitability.
But at the same time it can be turned into a weapon to attack that very
division"[64]. By the same token, intellectual property law may be a
key instrument of control of the new imperial regime, but it is also a
weapon with which to attack that control. Another further example
highlighted by Cleaver,[65] which may be of assistance, is to consider
the analogy of the struggle for the working week. The laws that finally
recognised the structure of the working week, "these [legal] minutiae .
. . were not at all the products of Parliamentary fancy. They developed
gradually ...(t)heir formulation, official recognition, and
proclamation by the State, were the result of a long struggle of
classes."[66] In a similar way, the legal recognition of control over
their cultural production by Bulun Bulun and his fellow artists was not
the result of governmental altruism. It was the product of a real
struggle (the bare bones of which I have only alluded to here) and
without that struggle, capital would have been quite content to feed
off the labour of the artists by appropriating their artworks with no
regard for any concept of property right or idea of equity subsisting
in them. But it was resistance, the struggle of these artists that
resulted in the state in the form of the courts, finally recognising
and acting in a manner that would not permit an "unauthorised" vampire
like feeding.
To break with the groups of IP puppets, we must articulate a new way of
informing the hollow shell of Empire's laws so that an idea based upon
conscience and virtue, a new law of community, can be repeated. In this
way we may be able to move the emphasis of law from exchange, from one
with an "ontological lack" to being able to enunciate a theory of
intellectual property, information or knowledge (and of law for that
matter) that has specific ends that will be as Delueze suggests, based
on the notions of gift, are "of life" and not directed to exchange and
the control, management and administration of life. The question may
not to be against the repetition of a new form of law but to focus upon
what are the specific ends sought to be achieved.
Footnotes
[1] Prepared for the Conference, Born of Desertion: Singularity,
Collectivity, Revolution. March 20-22 at the University of Florida,
Gainesville, USA. Presented by Center for the Humanities and Public
Sphere, the Department of English, and the Marxist Reading Group. With
apologies to Ronald Dworkin (at one stage i included the phrase
"Empire's Laws" in the title but settled on just following Ornette
Coleman http://www.cootiesjazz.com/discs/shapejazz.htm &
http://www.hup.harvard.edu/catalog/DWOLAW.html) and hsi seminal album
"The Shape of jazz to Come" and thanks to Ben Murphy (Manchester and
Panama City) , Sally McCausland (Sydney) and Nate Holdren (Chicago),
Yann Moulier Boutang (Paris) and Paul Austin (Cleveland and Panama City
)for comments and encouragement and to Dr. Gerald Cooklin and the
Academic Standards Committee at Florida State University Panama for
their support in allowing me to attend the conference.
[2] Michael Hardt and Antonio Negri, Empire, Harvard University Press,
2000, available at http://www.electronicorphanage.com/negri/empire.htm.
In the preface to Empire the authors state,at vii-viii: "Our basic
hypothesis is that sovereignty has taken a new form, composed of a
series of national and supranational organisms united under a single
logic of rule. This new global form of sovereignty is what we call
Empire. ... The declining sovereignty of nation-states and their
increasing inability to regulate economic and cultural exchanges is in
fact one of the primary symptoms of the coming of Empire....The passage
to Empire emerges from the twilight of modern sovereignty. In contrast
to imperialism, Empire establishes no territorial center of power and
does not rely on fixed boundaries or barriers. It is a decentered and
deterritorializing apparatus of rule that progressively incorporates
the entire global realm within its open, expanding frontiers. Empire
manages hybrid identities, flexible hierarchies, and plural exchanges
through modulating networks of command."
[3] From the standpoint of a modernist lawyer, the end of the Cold War
should have provide an opportunity, in the UN security Council for
example, a higher occurrence of consensus and less use of the bipolar
veto. Lawyers had hoped that the post Cold War international community
would move further towards the principles of collective security
contained in the Charter, not further away from them. Instead, to their
confusion and dismay we have seen an increased call, or even clamour,
for the acceptance of the use of a unilateral right of intervention,
that is for the use of force to be justified without the sanction of
the UN Charter or Security Council. Lawyers are thus at odds to explain
why non authorized intervention, or as it is known in more benign
language, humanitarian intervention, and its relations such as the
right to "democratic" governance, the reoccurrence of just war and the
emergence of the right to preemptive self defence, have emerged
contrary to their hopes and predictions. These emerging symptoms of
imperial rule do not fit within their rule based, norm based world and
at this international level law seems to be dematerializing before
their very eyes. These are just some of a number of examples, existing
contradictions, or symptoms which the thesis of Hardt and Negri's
assists in explaining. The lack of normative character and the
exceptional nature of the decisions of the Security Council during the
1990's concerning "threats to international peace and security (see:
Simon Chesterman, 'Just War or Just Peace? Humanitarian Intervention
and International Law, Oxford University Press, New York, 2001, note in
particular Chapter 4), the exceptional nature of the measures arising
from the war on terrorism (see: Frédéric Mégret,
'War'? Legal Semantics and the Move to Violence, European Journal of
International Law, Volume 13 (2002) No. 2, 361,
http://www.ejil.org/journal/Vol13/No2/art1.html.) and the contemporary
revival of "just war", are all symptoms of the emergence of the
imperial regime that to a certain extent dominate or influence current
legal political discourse.
[4] One constitutional aspect of the genealogy of law, evident for
example in U.S., Australian and even recently European
constitutionalism, is that used by superior courts to test the validity
or legitimacy of a law. Courts, since the time of Chief Justice
Marshall and the US Supreme Court decision of Marbury v Madison, US
Supreme Court, 5 U.S. 137 (1803), have adjudged a laws validity by
measuring, whether it is an appropriate and adapted means to the
achievement of a specific end. Although the end in this context is
generally one included in the enumerated powers delegated by the
constitutional text to a legislative body, this test or form of
analysis of a law, certainly rings very loud bells when considered in
the light of Empire's laws. See also Mc Cullough v Maryland, 17 U.S.
316 (1819) at 357: " The court, in inquiring whether congress had made
a selection of constitutional means, is to compare the law in question
with the powers it is intended to carry into execution; not in order to
ascertain whether other or better means might have been selected, for
that is the legislative province, but to see whether those which have
been chosen have a natural connection with any specific power; whether
they are adapted to give it effect; whether they are appropriate means
to an end". The test has been applied on many occasions by the High
Court of Australia and may be well summarised by the following
paragraph from Castlemaine Tooheys Ltd. v. South Australia (1990) 169
CLR 436,
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/169clr436.html?query=%7e+castlemaine+toohey:
"40. ... The question whether a particular legislative enactment is a
necessary or even a desirable solution to a particular problem is in
large measure a political question best left for resolution to the
political process. The resolution of that problem by the Court would
require it to sit in judgment on the legislative decision, without
having access to all the political considerations that played a part in
the making of that decision, thereby giving a new and unacceptable
dimension to the relationship between the Court and the legislature of
the State. ... The true object of the law in such a case is critical to
its validity. The Court has upheld the validity of legislative
provisions if they are appropriate and adapted to the implementation of
the provisions of the treaty ... But if the means which the law adopts
are disproportionate to the object to be achieved, the law has not been
considered to be appropriate to the achievement of the object...".
[5] Hardt and Negri, op cit at page vii.
[6] Yann Moulier Boutang, Los nuevos cercamientos: nuevas
tecnologías de la información y de la
comunicación, o la revolución rampante de los derechos de
propiedad, Unpublished Paper.
[7] Yann Moulier Boutang, ibid.
[8] John Bulun Bulun & Anor v R & T Textiles Pty Ltd (1998) 157
ALR 193
http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/1082.html
[9] Gilles Deleuze, Difference and Repetition, Columbia University
Press, 1995.
[10] Terri Janke & Michael Frankel, Our Culture, Our Future,
Indigenous Culture and Intellectual Property Rights, Report on
Australian Indigenous Cultural and Intellectual Property Rights,
http://www.icip.lawnet.com.au/).
[11] Hardt and Negri, op cit, at 44.
[12] ibid at 44-45.
[13] ibid at 45.
[14] ibid at 45.
[15] Australian Government Printing Service (AGPS), The Aboriginal Arts
and Crafts Industry, Report of the Review Committee, Canberra, July,
1989.
[16] Bulun Bulun v Nejlam Investments, unreported proceedings, 1988
before Olney J, Federal Court of Australia Darwin District Registry.
[17] Terry Yumbulul v Reserve Bank of Australia, Aboriginal Artists
Agency and Anthony Wallis, (1991) IPR 481.
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/unrep4955.html
[18] George Milpurrurru, Banduk Marika, Tim Payunka and the Public
Trustee for the Northern Territory v. Indofurn Pty Ltd, (1994) 54 FCR
240 http://www.austlii.edu.au/au/cases/cth/federal_ct/unrep7290.html
[19] John Bulun Bulun & Anor v R & T Textiles Pty Ltd (1998)
157 ALR 193
http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/1082.html. On
these cases see my unpublished paper, Aboriginal Art, Copyright and
Equal Protection: Is it what Wandjuk Wanted?
http://mailer.fsu.edu/~mhardie/wandjuk.html
[20] Stephen Gray, Peeking into Pandora's Box ...Griffith Law Review,
Vol. 9, No. 2 (2000) 227 at 228.
[21] F. Nichol, The Art of Reconciliation: Art, Aboriginality and the
State, (1993) 54(2) Meaanjin 705 at 709 and Sally Mc Causland,
unpublished Masters Thesis at 88.
[22] Gilles Deleuze op cit.
[23] ibid, at 1.
[24] ibid, at 2-3.
[25] ibid.
[26] ibid at 1.
[27] Steve Sheppard, Associate Professor of Law, The University of
Arkansas, Fayetteville, Arkansas, U.S.A, EQUITY AND THE LAW,. in United
Nations Educational, Scientific, and Cultural Organization, UNESCO
ENCYCLOPEDIA OF LIFE SUPPORT SYSTEMS (Subject Article 6.31.4.2) at 5.
[28] op cit, John Bulun Bulun & Anor v R & T Textiles Pty Ltd
[29] See Appendix "Excerpt From Bulun Bulun" compiled at:
http://dev45217-01.sp03.fsu.edu/cgi-bin/view/Main/ExcerptFromBulunBulun
[30] op cit, John Bulun Bulun & Anor v R & T Textiles Pty Ltd
[31] ibid
[32] ibid
[33] ibid
[34] ibid
[35] ibid
[36] Note article 38(2) of the Statute of the International Court of
Justice, Article 38: 1. The Court, whose function is to decide in
accordance with international law such disputes as are submitted to it,
shall apply: a. international conventions, whether general or
particular, establishing rules expressly recognized by the contesting
states; b. international custom, as evidence of a general practice
accepted as law; c. the general principles of law recognized by
civilized nations; d. subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the determination of rules
of law. 2. This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto.
[37] Sheppard op cit at 4.
[38] ibid at 14.
[39] ibid at 7.
[40] Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 3rd
edition, 1992, Butterworths at 3.
[41] ibid at 3 paragraph 101.
[42] ibid at 3 paragraph 102.
[43] ibid at 3 paragraph 103.
[44] ibid at paragraph 108.
[45] ibid at paragraph 109.
[46] Gilles Deleuze op cit at page 1.
[47] Sheppard op cit at 4.
[48] Gilles Deleuze op cit at page 24.
[49] ibid.
[50] Martti Koskenniemi, The Politics of International Law, European
Journal of International Law, Vol. 1 1990 No. 1/2,
http://www.ejil.org/journal/Vol1/No1/art1.html#TopOfPage
[51] ibid. This notion that law and fact dissolve into each oher seems
to me to be related to the discussion of natural and aartificial
blockages in Gilles Delleuze, op cit, where he describes natural
blockages of concepts as occuring due to their discrete extension or
finite comprehension.
[52] ibid.
[53] ibid.
[54] ibid.
[55] ibid.
[56] ibid.
[57] Hardt and Negri op cit at 340.
[58] Regarding the notion that the imperial regimes concept of human
rights is functional it is interesting to note: Anne Orford, Locating
the International: Military and Monetary Interventions after the Cold
War, Spring, 1997, 38 Harv. Int'l L.J. 443. At 463-4 Orford argues that
the neoliberal vision of human rights has "radically circumscribed" a
broader idea of human rights to fit its "vision of procedural
democracy" as the end after cases of international intervention. She
state that there has been a " confident narrowing of the meaning of
human rights" which ignores the "the lively debate raging about whether
civil and political rights should be given priority over economic,
social, and cultural rights ... Whatever definition of rights and
democracy we adopt, it remains necessary to question the assumption
that the powerful international institutions operating in the economic
and security areas are the bearers of even these limited liberal
versions of democracy and rights in the post-Cold War era." To Orford's
examination it could be added in the context of this discussion, that
this "radically circumscribed" vision of human rights contains only
those rights that the imperial regime regards as necessary for the
effective functioning of the machine.
[59] Hardt and Negri op cit at 62.
[60] ibid at 211.
[61] In this regard I think its useful to commence by remembering that
when: "[1] … power … takes life as its aim or object, then resistance
to power already puts itself on the side of life, and turns life
against power . . . [2] Life becomes resistance to power when power
takes life as its object . . . [3] When power becomes bio-power
resistance becomes the power of life, a vital power that cannot be
confined within species, environment or the paths of a particular
diagram" Alex Galloway, Protocol, or, How Control Exists after
Decentralization, RETHINKING MARXISM Volume 13, Number 3/4 (Fall/Winter
2001), citing Gilles Deleuze, G. 1986. Foucault. Trans. S. Hand.
Minneapolis,University of Minnesota Press at 92.
[62] Nettime, [Nettime-bold] Re: Should Open SOurce Developers help the
US prepare forWar..???!,
http://amsterdam.nettime.org/Lists-Archives/nettime-bold-0302/msg01823.html,
see also Should Open SOurce Developers help the US prepare forWar?,
News Forge, Wednesday February 26, 2003,
http://newsforge.com/newsforge/03/02/25/195228.shtml?tid=4 and also
[Nettime-bold] Jonathan Peizer: The Great Software Debate,
http://amsterdam.nettime.org/Lists-Archives/nettime-bold-0302/msg01300.html.
On opens ource and the GNU project generally see:
http://www.opensource.org/licenses/ and
http://www.gnu.org/gnu/thegnuproject.html.
[63] Stany Grelet, The Art of Flight: An Interview with Yann
Moulier-Boutang, Rethinking Marxism, Volume 13, Number 3/4 (Fall/Winter
2001).
[64] Harry Cleaver, Reading Empire Politically, Originally published in
the United States by the University of Texas Press and in England by
Harvester Press in 1979, see the Chapter 1 Introduction. The text is
available at http://www.eco.utexas.edu/faculty/Cleaver/357krcp.html.
[65] ibid Chapter 2 The Commodity Form.
[66] Karl Marx, Capital, Volume I, Chapter 10, Section 6, p. 296
(International Publishers edition) available at
http://www.marxists.org/archive/marx/works/1867-c1/ch10.htm#S6