Abstracted Law, Abstracted Art

Abstracted Law,
Abstracted Art:
Clearing the Way for
Global Ideology?
Fernand Keuleneer
A contemporary art biennial is
not an art fair, or at least, so it
claims. Recently, some biennials
have taken this a step further and
seen it as their mission to move
beyond the presentation of art,
and instead to contribute to a
critical artistic reflection on the
social and political environment in
which they take place. To a degree,
this is also true of the new Brussels
Biennial. The Brussels World Fair
of 1958, introducing modernity
into the fabric of the city, lies at
the basis of the reflection that will
characterize this first edition of
the Biennial. As was stated in the
letter requesting this essay: “The
2008 Biennial is situated in a very
different epoch of modernity, in
a time when the possibilities of
modernism are reconsidered in a
climate of globalization and the
ideologies of post-nationalism,
diversity and hybridization.” Quite
a handful of heavily-laden terms in
one sentence! Later in the letter,
the description of current epoch is
appropriately toned down to one
of “intuitive insight,” rather than the
well-considered conclusion of a
rational analysis.
The mission of this contribution
is to describe current transformative
developments in the area
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of law, as much within the legal
system itself as with regard to the
functions given to it by policymakers
and opinion leaders. The
ultimate aim of this exercise, which
might look a little far-fetched at first
sight, is to speculate on whether
there might be some link or similarity
between those developments
and certain trends in contemporary
art, both on the artistic level and
as regards the uses made of. And
if there is, can a biennial, and more
specifically a contemporary art
biennial in Brussels, or any other
artistic forum or “intuitive insight,”
genuinely and usefully contribute
to a meaningful debate about the
issues raised? I propose to discuss
what I call the risk, to both law and
contemporary art, of fragmentation
by abstraction. (Bear with me,
I readily admit this requires some
clarification).
Western Europeans commonly
consider Brussels to be the capital
of the European Union, if not the
center of Europe. However, prior
even to being the capital of the
European Union, Brussels was, and
still is, the linchpin of Belgium, and
by extension of the wider region,
which the organizers of the Brussels
Biennial sometimes refer to
as the “Eurocore.” Throughout
European history, this region has
been a permeable space, a meeting
ground for purposes of peaceful
exchange as well as confrontation
between cultures and political
forces. The “Eurocore” region is
not only an idea; it has for a very
long time been an unmistakable
geo-political reality. The big question
before us is this: will Europe
and the European Union continue
to emanate from, incorporate and
indeed embody these geographical,
historical, political and cultural
realities? Or will the new European
construction become an abstraction,
i.e. a “new order” decoupled
from and superimposed upon the
fabric of particulars that has come
to constitute, in the course of
history, a complex of connections
understood as a whole?
I would argue that the new
European order is increasingly taking
shape as an abstraction, based
on the notion of the “European
Citizen,” thereby radically hollowing
out the historically evolved
social and political tissue of states,
nations, societies and cultures,
and replacing it with a great deal of
ideology. The new Europe does not
have to follow this direction, but it
looks likely that it will from this point
on. To illustrate this development,
let us consider some of the developments
in the area of the law.
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A legal system can be described
as a fabric of coherent
and enforceable rules and principles
that help to organize state
and society and which govern the
relationships among citizens. Any
legal system is intimately linked with
a political system, which is about
power (including the power to
shape, enforce and change the law)
that is exercised through political
decisions. In a democracy (which
requires communities that are sufficiently
coherent), political decisions
are made by elected representatives,
almost always after debate
and compromise. For the past few
hundreds of years, such communities
have been known as nationstates
and have formed the basis
of democratic politics. A process
of democratic politics instils public
debate, and imperfect as it may be,
the notion of common good.
Both law and politics
ultimately aim to create or maintain
a just society, or at least this is
what they are supposed to aim
for. The currency of politics is the
regulated but undisguised exercise
of power. The classical modus
operandi of the law is different.
Judges used to apply and interpret
the law; they did not legislate,
and for good reason. One of the
most critical political and societal
decisions is to determine whom
we entrust with the final say on key
political issues. In a democracy,
this final say resides with elected
representatives, not with unelected
judges.
There is a current general tendency
whereby supranational and
international courts and judges are
being increasingly entrusted with
taking fundamental political decisions.
This is by no means a merely
technical shift. On the contrary, it
amounts to a creeping and hidden
transformation of the political and
legal system, entrusting the judiciary,
rather than elected bodies,
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with the final say on societal issues
of basic importance.
The preferred instrument or
technique to achieve and accelerate
this transformation is the
legalization of politics through a
multiplication of rights—thus legal
norms, rather than moral concepts
or policy guidelines. In doing so,
it is relatively easy to translate a
program of political action that
requires a majority vote to be
accepted, into legal norms, to be
ruled upon and enforced by courts.
Particularly powerful and efficient
in this respect are “human rights,”
which are considered to be fundamental
and constitutional rights,
and therefore find their place at
the top and in the core of the legal
system. At the top of the hierarchy,
these rights always prevail over
norms, which are positioned on a
hierarchically inferior rank, such as
legislation that would violate those
fundamental rights. Therefore, the
vaster the scope and domain of
human rights, the less influence
a democratic change of power
by means of elections will have.
So, if essential societal decisions
only require a vote by a handful
of appointed judges and can be
maintained even against a political
majority that might decide otherwise,
why bother to try to convince
the majority of the people, or
wage election campaigns? Whoever
controls the judicial power,
will no longer need to convince
the people: his word will be law.
Through the legalization of politics,
using the proliferation of human
rights as a seemingly innocent and
even laudable instrument, a new
elite imposes itself, and changes
the distribution of power in society.
Here is a first connection with
contemporary art biennials and
their artistic communities: the elevation
of ever more human rights
to the top of the legal hierarchy,
moral and good at first sight as this
may be, is broadly supported by
the artistic community and meets
with little resistance. But making
an abstraction of human rights,
isolating them from their political
and institutional environment (let
alone creating a quasi-religion of
human rights) may have unintended
(or intended?) consequences. An
intuitive or moral decision cannot
replace the hard analysis of what
the effects are in the context of the
political and the legal system, and
certainly should not replace the
eternal political question: “Who
benefits?” In this case, definitely
not democracy as traditionally
understood.
The project for a European
Constitution, copied into the
Treaty of Lisbon, illustrates this
obfuscated process. The Treaty
clears the way for a gouvernement
des juges [a government of
judges.] Which kind of decisions
will be transferred to the final say
of the Union judiciary? Out of the
Treaty’s lucky bag of general principles
of law, classical freedom
rights, political rights, and economic
and social rights pop out:
the principle of “inviolability of
human dignity,” the “right to life,”
“freedom of thought, conscience
and religion,” “freedom of the
arts and sciences,” the “right of
education,” the principle of “nondiscrimination,”
the “rights of the
child,” the “rights of the elderly,”
“workers’ right to information and
consultation within the undertaking,”
the “right of access to placement
services,” the “right to health
care,” the “right to a high level of
consumer protection”… And this
is only a selection. One can barely
think of a domain of public life in
which courts do not obtain the
power to rule that they should have
the final say.
It is far from clear which
types of claims can originate from
this range of fundamental rights,
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and these rights and freedoms,
all on an equal footing, will often
collide with each other. Defining,
streamlining, interpreting and
applying them touches upon the
very essence of the representative
democratic model, which enables
citizens to express strongly diverse
political convictions through elected
representatives, who will then
have to reach an understanding
based upon deliberation. However,
as stated, this model is being buried.
In the new order, courts take
the final decisions, less as a result
of predictable legal reasoning (for
which there is no sound basis,)
than as a function of the preferences
of the court. These decisions
will be increasingly arbitrary, since
they rely on vague and conflicting
principles. As a result—reduced
as it is to a mere instrument in a
less and less ordered struggle for
power—the law itself degenerates.
Some claim that the Treaty
does not extend the powers and
competences of the European
Union and that, at any rate, the
principle of subsidiarity is maintained.
This statement stains the
truth. Whoever succeeds in presenting
an issue over which Europe
has no jurisdiction (yet) as a dispute
pertaining to a “fundamental
right of the Union”which is not that
difficult to accomplish taking into
consideration its extremely wide
scope—succeeds in transforming
the said issue into a matter of European
law. Therefore, this Treaty
facilitates a gigantic transfer of
powers from the member states to
the Union. Admittedly, on Britain’s
initiative, the Treaty provides that
the new fundamental rights do not
extend the powers of the European
Union, that they only apply to the
institutions of the European Union
and that they only bind the member
states when they implement European
law. However, can one really
imagine that the new human rights
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provisions, one of the key elements
of such a basic document, will only
apply to a limited segment of the
law (i.e. European law) that governs
the lives of citizens? Before long,
the European Courts will decide
otherwise.
This development within the
European Union goes hand in glove
with a broader transformation of
international law and a concomitant
power shift to new supranational
and international institutions and
elites. Again, this is accomplished
through the legalization of politics,
and again, it is to the detriment
of the democratic model as it has
been understood until now.
Classical international law (the
Law of Nations) governed the legal
aspect of relations among states.
The international political or legal
system did not have any direct authority
vis-à-vis the individual, who
had to depend on his own state
and its political and legal system
for the protection of his individual
rights.
As the concept “sovereign
state” gradually occupies a much
less central place in the international
order, and may even be threatened
with disappearance if some
lobbies have their way, powerful
advocates are attempting (though
increasingly fiercely resisted by
the new or returning world powers)
to transform international law into
global law. Unlike classical international
law, such a global law would
intervene in a variety of domestic
matters, directly address individuals
and bypass states, thereby
profoundly modifying the balance
between international and national
(domestic) law. Legal globalists are
attempting to structure and shape
a unified “international citizen community”
of individuals, which would
take the place of the “national
community.” Two key instruments
to this end are, once again, the
introduction of human rights and
fundamental rights at the top of the
new international legal system, and
the attribution of an international
law status to non-governmental
organizations (NGOs).
Of course, there is nothing
wrong, as such, with a worldwide
respect for the dignity of man;
quite the contrary, indeed. But this
is not what it is all about. Again,
one should ask which purposes
are served, in this particular legal
context, by the proliferation of human
rights. The answer is that they
do not serve in the first place to
achieve the noble goals that their
promoters pretend to achieve, but
primarily to redistribute power, to
the detriment of states and their
sphere of sovereign autonomy.
This proliferation benefits both the
imperial powers that consider sovereign
states as obstacles to their
conquest, and global agencies and
networks whose legitimacy is often
self-imposed. With such networks
increasingly assuming the tasks
and roles of states, concern with
respect to the lack of democratic
accountability of such mechanism
seems to be more than justified.
Moreover, society will not become
more humane; quite the contrary, in
fact. Since the “international citizen
community” lacks the coherence
of a national community that makes
it acceptable for a minority to
at least provisionally accept the
vote of a majority, the limited and
rules-based competition among
forces and ideas will be replaced
by a generalized permanent and
unordered conflict.
Notwithstanding the sort of
May 68 ring that the prominence
of human rights has to it, a similar
analysis is now also being made
by authors affiliated with the (true)
left, as Ugo Mattei writes in his
essay on the theory of imperial law:
The rhetorical device used in
the process of repressing deviance
has been a genuinely legal
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concept, that of “international
human rights.” Indeed, a doctrine
of limited sovereignty in the interest
of international human rights has
threatened the traditional nature of
international law as a decentralized
system based on territoriality, and
has advocated the need for centralization
in order to make international
law more similar to systems
of national law. The International
Criminal Court is the most advanced
point of this shift. Ad hoc
courts, such as the one presently
used against former Yugoslavian
president Slobodan Milosevic, are
the product of an even more open
use of international law as en ex
post facto legitimating factor of
war. Today we believe that international
law is not natural but positive
law, whose fundamental sources
are treaties and customs. Tomorrow,
we might believe that international
law is a worldwide legal
system grounded in uniformity and
in commonly shared ideals of law
and order…Hence, sovereignty can
be routinely addressed as deviance
from a standard of legality grounded
in U.S.-constructed international
human rights. 1
Michael Hardt and Antonio
Negri, in their seminal Empire point
to the same conclusion: It is in fact
through the extension of internal
constitutional processes that we
enter into a constituent process
of Empire. The transition we are
witnessing today from traditional
international law, which was defined
by contracts and treaties, to
the definition and constitution of a
new sovereign, supranational world
order (and thus to the imperial notion
of right), however incomplete,
gives us a framework in which to
read the totalizing social process
of Empire. 2
The amalgamation of the
national and international spheres
into a global sphere is favored by
groups and lobbies from different
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philosophical and political angles.
First of all, there are those motivated
by an anti-statist philosophy,
who believe that individuals ought
to be the only subjects of a world
community and its legal order,
and the free associations of civil
society their principal actors. State
and government are considered
oppressive and encroaching on
the domain of freedom. The global
order should be a market order.
Natural rights should be non-negotiable
and enforceable everywhere,
and the legal order of the world
community should provide the instruments
to this effect. This group
is traditionally situated on the
libertarian right, has limited affinity
with international bodies and agencies,
but seems to be very much
in favor of “constitutional litigation”
individualizing the process of
balancing rights through litigation,
rather than through political debate.
Its operating basis is mostly
the United States, but its influence
in Europe is marginally increasing
through a network of think tanks.
Some European free-market liberals/conservatives
would fit into this
category.
A second category is constituted
by those counting on networks
to promote a new social and
political agenda, one of personal
autonomy and multiculturalism,
which is apparently less easily pursued
through majoritarian decisionmaking.
Here one finds organized
attempts to form, through interplay
with international bodies and
NGOs, a new international consensus
on the basis of human rights.
This consensus should serve as the
basis for new norms and principles
of international law, to be imported
into national legal systems. The adherents
of this approach are influential
in the media and use courts
as their favored transmission channel.
Traditionally strong among
the American liberal left, they have
gained influence in Europe. The
EU Charter of Fundamental Rights,
and its incorporation into the Treaty
of Lisbon, came into being under
the influence of this group.
A third current endeavors to
create a new world order based on
the principles of democratic capitalism.
Some in this group find their
inspiration in natural law and moral
theology. They are opposed to the
“new human rights” agenda and
to judicial activism, but still want
the legal system to enhance the
agenda of spreading democratic
capitalism.
Different as the three currents
may be on substantive issues, they
do not seem to be that far apart in
their concept of the proper relationship
of national to international
law. All three see international law
as an instrument that should serve
to usher nations into a global order,
under the supervision of either
the United Nations or the United
States.
Whereas the promotion and
safeguarding of the dignity of man
in a just society ought to be the
ultimate goal and criterion of all
political action, not all rights said to
be fundamental human rights are
perceived as such in all cultures.
Seeking to enhance human dignity
does not translate automatically
into the need to create a global
legal system. Such a system does
not generally achieve the goals that
its promoters, of different political
colors, pretend they seek to
achieve, but serves to redistribute
power to the detriment of autonomous
and sovereign states and
for the benefit of global players,
sometimes of doubtful legitimacy.
The biennial movement is
itself a diverse movement, broad
in scope, but nevertheless known
or perceived to be outspoken in its
criticism of “neo-capitalism,” “neoliberalism”
and the “marketization
of society.” All very well, but does
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it not itself constitute a globetrotting
elite, constantly on the move,
poorly connecting to the social
tissue around its events? To what
extent do the installations shown
carry a message that is meaningful
to a broader public, beyond the
limited circle of curators and their
disciples? If biennials are about art
that is not embedded in a particular
cultural context that makes it
understandable and meaningful
to a community, it abstracts and
de-links art from its natural environment
in the same way as the
normative legal order may become
de-coupled and de-linked from any
particular community. When the
abstract notion of human rights,
with all its contradictions and arbitrariness,
becomes the supreme
legal norm and replaces a system
rooted in the realities of history and
tradition, law cedes to power plays.
Something similar is going on in the
art world. Until recently, the mere
self-expression of the artist was
considered a valued freedom, but
no more than that. Now, self-expression
is increasingly developing
into the ultimate, untouchable and
virtually uncriticizable norm to determine
what constitutes art. “Art”
therefore is becoming denuded
from, and thus also unchecked and
uncontained by, communal notions
that are a product of history and
tradition. As a result, the arbitrary
replaces the rich, complex and
evolving ordered reality of art. My
word is or at least ought to be law!
My statement is or at least ought
to be art! This way, pure selfimportance,
often coupled with
a ruthless will to power, come to
determine what law is, or what art
is. Abolishing any obstacle to this
process, in particular neutralizing
resistant mediating structures and
worlds such as law and art (at least
as they were commonly understood
until recently), seems to be a
priority for the adherents of global
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ideology. To the extent that they
promote this new art and help to
superpose these new art elites, biennials—as
critical as they may be
or pretend to be—might therefore
be highly instrumental for those
who have an interest in accelerating
the process of fragmentation
by abstraction as described in this
essay. As we have argued, power is
the name of the game here.
Neo-liberalism and a globalmarket
society have undoubtedly
many shortcomings (the main failure
of neo-liberalism being the promotion
of capitalism where capital
is replaced by debt—a system that
is arguably the opposite of capitalism.)
However, more immediately
consequential may be the disruption
of a valuable social fabric
through the break-up of common
institutions and their replacement
by mere assertions of individual
rights and claims. Such an institutional
break-up would reinforce
and go in tandem with a cultural
break-up of societies. The cult of
un-ordered diversity, through the
celebration of radical individualism,
the rejection of a heritage manifesting
itself in the ridiculing of popular
culture and values, are clear symptoms
of this, while the concomitant
superposition of new elites is an
inevitable side-effect, if not the
explicitly aimed-for objective.
A biennial cannot escape the
question of where it positions itself
in this universe. As Udo Di Fabio
points out 3 , the critics of capitalism
in fact gave the starting signal for
the globalization of the economy.
Detached and “liberated” as they
were from the bounds of tradition,
and de-legitimizing state, family,
education and educational institutions,
they laid the groundwork
for the single market without any
cultural barriers to entry.
In a society where so much is
fake, where the rhetoric of human
rights is less about the dignity of
man than about the redistribution
of power, where wars are started
on the basis of deception disguised
in human-rights clothing, at
least art should not be fake. A biennial
should in the first place present
genuine and meaningful art, which,
like building a coherent system of
law, requires craft and vision and
never exists by virtue of a mere intention
or concept (like abstracted
human rights.) Art always relates
to an actual and living community.
Whether artists like it or not, art,
just like law, is always embedded
in a context of meaning determined
by the complex interaction
of history and tradition, individuals
and nations, nature and culture,
religion and rebellion…This context
of meaning is never explainable
in a fully rational way. It remains
very much intuitive. In that sense,
intuition constitutes an essential
characteristic of art, just as it is an
essential characteristic of law.
The author thanks his law associate
Jelle Flo for his valuable comments
and suggestions.
Notes
1. Ugo Mattei, “A Theory of Imperial
Law: A Study on U.S. Hegemony and the Latin
Resistance,” Global Jurist Frontiers, Volume 3,
Issue 2, Article 1, 2003, pp. 16–17. Available at:
http://www.bepress.com/gj/frontiers/vol3/
iss2/art1
2. Michael Hardt and Antonio Negri,
Empire, Cambridge: Harvard University Press,
2001, 182, pp. 9–10.
3. Udo di Fabio, Die Kultur der Freiheit,
Munich: C.H. Beck Verlag, 2005), p. 40.
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