Hi everybody, thank you for coming to this discussion today and enormous thanks to everyone at KUNCI, and Ratna at Hyphen, for making my participation in the Conversation Across Commons event possible, and for their incredible hospitality over the last few days. And thank you for organizing this important and compelling discussion here.
Today I will be developing a few of the themes from a text I wrote some months ago on the manifestation of the discourse of the commons in the field of art, especially ‘commons’ as a concept, ethic or tool to revise organisational strategies and critical practices that would define themselves in proximity to social engagement or community work. I’m going to focus on the ‘law’, taken in a number of sense (norms, ethics, legal institutions, property, obligation), as a site were social antagonism may be dramatised and in the process endanger some of our most established legal concepts, such as what separates art from politics, for example. When I say ‘dramatised’, it’s to signal the ambiguity of turning a strategy into a stage – does this way of making things visible trigger re-composition and movement, or is it ‘theatre’ as distraction, keeping us occupied with the same old manoeuvres ‘within the law’ that prevent us from finding new relations to one another and to our systemic antagonists. To this end, I will be mainly thinking around Kant’s aesthetics and contemporary writing on the commons and citing as practical examples Theatro Valle, the long-term but no longer occupied theatre in Rome and the Italian artist Adelita Husni-Bey’s project at Casco in the Netherlands which is about convening a process to re-draft European housing legislation. Throughout all this, it is obvious that although I will sometimes be speaking at a certain level of abstraction which seems to carry with it a presumption of universality, it comes out of very particular experience and exposure, to Western and European legal and philosophical traditions. Global capital and its attempts to homogenize property relations and codes of law takes particular forms in different places while also enforcing a uniform set of imperatives across all of them, and its ability to do that is also influenced by particular conjunctions in turn, such as the history of centuries of colonial domination and extraction in Indonesia which is in the past yet by no means over.
Commons and the Law
I guess I will start by talking through a little bit of why I am choosing to frame the discourse of commons mainly in terms of law – as a legal category – and in terms of property law specifically. It is evident that most elaborations of the category of the commons, whether they originate in law, political theory or economics, see it as a set of practices around property (ownership, including exchange) and access (predominantly use, but can also include exchange). The often cited, if increasingly in order to be de-bunked, ‘tragedy of the commons’ (Garett Hardin, 1968) is in fact precisely about how unclear property relations as realised in a grazing ‘commons’ lead to an unlimited exploitation and ultimate degradation of a piece of land, rendering it unfit either for use or exchange. Hence most challenges to this narrative take apart its assumptions about property ownership, namely how it naturalizes and moralizes capitalist private property relations and uses a simple model – following the conventions of neo-classical economics orthodoxy – to project them backwards in time and across in space to all forms of social organization and their relationship to property.
Thus it seemed to me, as an observer and sometime participant in debates around the commons in critical theory and art discourse, that the commons as noun or verb (‘commoning’) was most helpful to us as a category of property, that is insofar as it could be a source of developing legal strategies to overturn the legitimacy of private and state property – with state property inevitably coming more and more to mediate private (corporate) interests. This would mean understanding the commons as a vehicle for social antagonism around property – with a primary example being land, building, university and workplace occupations, that is, squatting – from which institutions to confront the social relations of capital could multiply and be defended. So, on the one hand, it would be calling on the insights of Walter Benjamin in his ‘Critique of Violence’, where he distinguishes law-preserving from lawmaking violence, while also pointing out that both are implicated in one another – he calls both ‘pernicious’ and are caught up together in a vicious cycle – we must aim to overcome the law altogether:
‘All violence as a means is either lawmaking or law-preserving. If it lays claim to neither of these predicates, it forfeits all validity. It follows, however, that all violence as a means, even in the most favourable case, is implicated in the problematic nature of law itself. […] A gaze directed only at what is close at hand can at most perceive a dialectical rising and falling in the lawmaking and law-preserving formations of violence. The law governing their oscillation rests on the circumstance that all law-preserving violence, in its duration, indirectly weakens the lawmaking violence represented by it, through the suppression of hostile counter-violence. […] This lasts until either new forces or those earlier suppressed triumph over the hitherto lawmaking violence and thus found a new law, destined in its turn to decay. On the breaking of this cycle maintained by mythical forms of law, on the suspension of law with all the forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new historical epoch is founded.
So going via this set of ideas, we could think about the proposition that the challenge or alternative to property law embodied in the discourse of the commons must be understood as as a challenge both to law-preserving violence, that is the particular structures and codes of the legalized violence of property law and a challenge to the lawmaking violence embodied by the law as an institution, as it asserts impartiality in a field of unequal power relations and elevates the state or the public to a neutral instance above the economy. We see how Benjamin equates the law as such, the law in abstraction from its particular instantiations, with state power. Yet I would argue that the challenge to or the perspective of abolition of the law seen in these terms can, and should, take a legal form as a strategic consideration, keeping in mind the dialectics between the totality of revolution and the piecemealness of civil rights within the law as the outcome of the struggles of the oppressed and thus not to be neglected as a site of social antagonism, even if apparently caught in the cycle of law-preserving and lawmaking violence that Benjamin characterizes as the status quo which eclipses all possibilities to go beyond it.
I thus became interested in the beni communi movement in Italy, which was developing a legal infrastructure for struggles around the (social, historical – there is no natural) commons, such as the provision of water, the protection of the lifeworld of the Susa Valley from the high-speed train line or the occupation of cultural spaces the local state wished to appropriate for commercial goals. What interested me about it was, apart from certain victories like defeating a nation-wide state agenda for water privatisation – one which no doubt relied on many other contingencies and coalitional politics, as well as the seal of the Constitutional Court for the legitimacy of the referendum result that stopped the privatisation – it acknowledged the commons as a strategy rather than an ideal, and it was emphatic that the strategy could only be successful in the context of a social movement. As I wrote in my earlier text: ‘Most salient on the agenda of this movement is the explicit acknowledgement of the antagonism and social complexity that any politics which proposes to reconfigure property relations for the whole of society must both develop subjectivities and implement in new legal instruments and institutions which keep the violence of the state at bay. In brief, it is an “aggressive” rather than a defensive (or passive-aggressive) concept of the commons which does not just seek to more horizontally administer the few leftover resources that can be scavenged for the “community” from the rapacity of capital and state. It is interested in overturning the millennia-old apparatus of private property, which both state and capital represent, however nostalgically these might still be polarised as agents of different value systems. […] There is thus an acknowledgement that for struggles in the framework of the commons to succeed beyond transitory spaces and limited spheres of empowered adherents, they need to become viable and resilient. That means contesting the time and space to which they can lay claim in the hostile field of law:
“If properly theorized and politically perceived, the Commons can serve the crucial function of reintroducing social justice into the core of the legal and economic discourse by empowering the people to direct action. […] The commons cannot be reduced to managing the leftovers of the Western historical banquet, which is the preoccupation of the contemporary political scene. To the contrary, we believe that the commons must be elevated as an institutional structure that genuinely questions the domains of private property, its ideological apparatuses and the State—not a third way but a challenge to the alliance between private property and the state.” (Ugo Mattei)
Rather than the regulatory approach often taken by commons discourses, it was this empiricist approach rooted in anti-capitalist politics and the necessity of struggle – that is, conscious of the violence underlying the law – that seemed to distinguish this campaign as a practical deployment of the discourse of the commons. If the pushback against water privatisation of the beni communi movement succeeded, the attempt to form a foundation which would elaborate the commons in legal terms to enable the Theatro Valle to remain as an institution-in-process and resist an eviction justified by a mix of state and private property laws and statutes has so far failed, though it is certain the process itself continues. In essence, they have been evicted by the municipality but are still active, holding events in collaboration with other projects and continuing to try to negotiate with both local and national institutions, but seem to be at a standstill for now. As an Italian correspondent notes, ‘They aim at a fully self-managed space without the intrusion of the state; but a weak state such as the Italian one is afraid of losing its already little power over the territory; especially after the recent election and the emergence of the 5star party; an anti-state party par excellence.’ Without going into too much detail, another interesting aspect of this case is that as the political winds shifted from ‘right’ to ‘left’ in the city administration, the Theatro Valle occupation’s prospects took a turn for the worse – some say it is because the Left have to be seen as tough on law and order, and some say the far right mayor tolerated the occupation because if he insisted on its eviction, the focus would turn to the long-tolerated far-right squatted social centre Casa Pound. This case then gives an insight into the possibility of forming a counter-institution of the commons on a terrain which is insecurely held by the state politically, but a state which still holds the monopoly on violence, legal and direct and which holds alternative projects hostage to its own pragmatic ends (law-preserving violence).
So with the concrete phenomenon of the eviction, we confront a central contradiction in the attempt to use the law against the law, a minor law within and against a majority law, as Deleuze and Guattari wrote about minor literature operating in the cramped spaces allowed to it by the majority articulation of language and sensibility. The contradiction is that the law as state and corporate power will very rarely give space to the attempts to develop a counter-law since it recognizes that these are, ultimately, attempts at developing a counter-power, if control over property is access to social and material power. However, the law – and the law comes up as an issue of course in the law-defying or law-disregarding idiom of direct action as much as in specifically legal activism of the kind I’ve been describing, and each lends a kind of legitimacy to the other at different times – is the most generative approach to the commons, I think, because it recognizes that changes in the practice of everyday life, how resources and capacities are assumed and distributed, cannot happen, or only very transiently happen, without shifts on the level of what Marxists like to call the ‘totality’, that is the conditions within which social reproduction takes place not just the methods and affects of this reproduction. This is perhaps the place to address a point that came up in the discussion yesterday around Kathryn’s paper, about the difference between commons and communism. I agree with Kathryn’s initial response, that actually-existing historical communism has featured a strong role for the state in terms of ownership and direction of the productive apparatus and property, no less than the governance of society. Additionally, we could say that the commons is most often an ameliorative discourse, looking for partnership or accommodation with the state and the market in the distribution of resources rather than proposing any kind of political perspective for the transformation of society dominated by those forces. And of course in a context where the state and the legal system cannot be negotiating partners that can offer recognition or support to commons initiatives, the need for the discussion around commons to develop a political perspective becomes even more urgent. It is my contention that the identification of the law, especially property law, as the core of commons help in this respect by offering a key vector of organization and struggle which is both inside and beyond the power apparatus of the capitalist state.
So while the law may also present a screen or a distraction, its relationship to power and hence to social antagonism makes it a central site for challenging the relationship between the monopoly on property and the monopoly of violence that state and corporate power enjoys in capitalist societies, however extra-judicial or criminal the forms this monopoly may take. Inextricable from this, however, is posing the commons as another, political relation to property which doesn’t fall into compliance with or end up furthering the agendas of either state or private actors; and this, again, requires a social movement behind it, as judicial activism will only obtain at best equivocal results on its own. In terms of inscription into private agendas, we can see the role of digital commoning practices into the entrepreneurial profiles of corporations like Google and the concomitant rise of the ‘sharing economy’, a simple case of monetising the commons as private property coded as individual emancipation from the economy. The state agenda we can see in the problematic conjunction of self-organised service provision or ‘commoning’ and the injunctions of the austerity agenda for citizens to take responsibility for their own social reproduction as these are now considered an unaffordable cost rather than operating expense for capitalist economies. This situation itself at least in the West often calls forth defences of the public against the private and a call for the state to become a socially responsive and redistributive entity once again as in the golden days of the welfare state, an ineffectual and de-politicised position as we can see in a critique recently published in the culture and politics journal Mute. The critique particularly focuses on the often-unexamined class and racial assumptions of the category of ‘the public’, especially as it’s appeared in recent debates around housing in the UK., and how this admirable but threatened ‘public’ sphere was only ever established through contracts of exclusion (women, racialised or migrant others, the poor) and the compliance with these contracts:
access to ‘public goods’ has never been simply defined in terms of universal rights; rather national resources are allocated on the basis of particular kinds of legal status, themselves the result of the classification of people into ethno-nationalistic categories.
From this perspective, the ‘public interest’, hardly functions as the ethical representation of ‘social value’ […] the domain of the ‘public’ is always already defined through the exclusionary act of classification according to which one either does or does not belong.
This is in many ways a familiar critique of the ethical and political premises of universality as a category of governance, which is to say, policy, as Stefano Harney and Fred Moten have written, predicated on recognition by and accommodation with power and not emancipation, and one which could equally challenge some of the programmatic optimism of commons discourses. One of the sharpest critiques recently formulated of the politics of universalism has been by Angela Mitropoulos in her book Contract and Contagion. The ‘exclusionary act of classification’ of course goes further than a simple determination of who’s in and who’s out of the universalist notion of the public. Such a universal notion itself rests on the ongoing process of what Marx calls ‘primitive accumulation’ – the enclosure, murder and exploitation both domestically and imperially that created the material conditions for bourgeois or socialist public spheres to arise in the first place, even if they, importantly, were always a site of struggle for who counted as a member of the public. And which has now eroded these conditions beyond recognition in most of the world, although with very specific historical and political variations.
Thus, the potential of commons in animating this rather consolidated terrain is realised by linking it to practical forms of posing organized challenges to property relations as operationalised in legal violence and public consensus about the legitimacy of that violence. And to emphasize that these organized challenges can be very quotidian – not wanting to move, for example – and that everyday practices of maintenance and social reproduction can themselves be seen by the law and the state as defying its monopolies on who counts as the public (nowadays it’s people with access to financial flows, of course). Thus social antagonism over use and access to resources which have to be owned by someone in this society is always transpiring in the field of the law because law in capitalist societies primarily takes property as its object, which is why those with more property also have access to more law.
However, there are a few other connections between commons and law I’d like to draw our attention to, a few other implications of the ‘legal’, if we are going to also explore how and by what authority aesthetics is relevant to a terrain defined in terms of the law.
Aesthetics and Law
In philosophical aesthetics, the relationship between art and law generally finds its starting point in Immanuel Kant’s Critique of Judgement. I will quickly indicate, and it will have to be quick for the purposes of this talk, the two ways in which art, or aesthetics more broadly – for Kant, aesthetics relates rather to nature than to art – figures in terms of law, or legality, and one way in figures in terms of commons. First, judgement, in Kant, is a legislative concept; it is called judgement since it is an assessment made by a subject of an object of thought or experience which at the same time, in order to be valid, has to potentially be generalizable to everyone else. Hence the legislative notion of aesthetics; if I say something is beautiful, I am implying it should be beautiful for everyone who encounters it. Importantly, the legislative power of aesthetic judgement is of quite a weak degree, for Kant; unlike ideas of reason, it has no concept to base itself on, only the feeling of pleasure or harmony between the faculties of sensing – it is thus called a reflective judgement rather a determinant judgement with the difference being that ‘Judgement in general is described as ‘the faculty of thinking the particular as contained under the universal’, and if the universal is already given ‘then the judgement which subsumes the particular under it is determinant ’ (CJ §IV). If, on the other hand, ‘only the particular is given and the universal has to be found for it, then the judgement is simply reflective.’ This is the first way that aesthetic judgement is conceived as a kind of lawmaking faculty with definite – that is to say, constitutive – limitations. The second is the notion of the autonomy of aesthetic judgement, which is connected with the first on the basis of the subjective basis of judgement which have an inbuilt, speculative expectation of objectivity. Also, that it is a reflective judgement, that is, reflecting on itself rather than for an external purpose – a pure end in itself. This autonomy of the aesthetic, which has often been extended in a more critical, institutional as well as ontological sense to the ‘autonomy of art’, means ‘that which gives itself its own law’ and is not controlled by external forces – external control or dependency would be ‘heteronomy’ literally the law of others (nomos means law in Greek). Thus aesthetics is in principle a self-governing realm, independent from material interests of all kinds. Finally, the way this relates to ‘commons’ is that Kant discusses a ‘sensus communis’, a ‘common sense’ which every aesthetic judgement implies or calls for in order to be valid; no aesthetic judgement is possible without this at least imaginary dimension of collectivity or publicness. This is one of the main reasons aesthetic judgement is a bridge between the first two of Kant’s Critiques, the Critique of Pure Reason and the Critique of Practical Reason. Like aesthetic judgements, morality is its own end and makes its own law, on the condition that this law can in principle be extended to include everyone (Kant’s categorical imperative).
So where does this trajectory through philosophical aesthetics connect to the relationship between discourses or practices of the commons in contemporary art today? What can be interesting for us here is the paradoxical relationship between communality and autonomy as the conditions for art as a distinctive kind of practice or faculty, a paradoxical relationship which can be equally attributed to the relation between art/cultural activity and other social or political practices. This account would say that it is only to the extent that art is autonomous can it acquire the power to act in other realms, even as the character of art and what makes it a distinct mode or institution from other practices is continuously up for question – like the institutions of the commons I talked about in the last section, it needs to claim its own space in order to challenge the legitimacy of legalized structures of violence, and for that it struggles on a legislative or judicial terrain – what does it mean to collectively make your own laws, which in principle should be extended to everyone – but as part of a historical movement and in solidarity with them, not as the kind of ‘civilizing force’ art often gets called upon to play by states and NGOs. This then brings in a response to the rosy picture of subjective universalism on which the judgement of taste – aesthetic judgement – is predicated. Much has been written on how Kant’s model of the aesthetic subject is the outcome of a modern class structure and mode of production that was just falling into place in the Europe of the late 18th century when he was theorising it. As we will see further on, the determined – and determining – neglect of the material conditions of possibility for the kind of universal subject Kant is sketching, though lending it some of its emancipatory critical force, also sets the template for the modern institutionalization of art as an activity transcendent of its conditions of production.
In this context, it could be illuminating to look at a current instance of art using its own contexts of production – its practical autonomy- to initiate a collective lawmaking process, at least in theory (I have only read about the project). Adelita Husni-Bey’s current project at Casco, a Dutch space for art, design and theory production which has a long-term relationship to KUNCI, is an iteration of research she has been conducting since last year on legal regimes around property and housing in Europe. Against the backdrop of the criminalization of squatting in NL and UK in 2010, and the larger processes of enclosure and dispossession triggered by austerity, particularly housing speculation and homelessness, in this stage of the research she is organizing a kind of ‘constituent process’, gathering people, experts and non-experts, to draft a new housing law which would be binding across the EU. ‘The Public Drafting Meetings evolve around themes specific to each of the five sessions with a sixth for revising the law. For each meeting there is a committee made up of participants that include jurists, squatters, sans-papiers, activists, and members of the public. Per session we aim to produce at least one article subject to revision going forward.’ (from the Casco website). Titles of meetings include ‘The Legal Form’, ‘The Subject’, ‘Modes of Re-Imagining’ and ‘Vacant Property as Theft’.
Like the Theatro Valle, Husni-Bey is appropriating the relative autonomy of the space of culture, in her case legally, in their case illegally (through an occupation of a building as well as the space of culture) to propose a challenge to the legal regime of state and private property using the medium of the law and spelled out in terms of commons. In the process, she is also pushing to change the unwritten law of autonomy – that art must always evade or exceed power rather than confront it, at the risk of losing its independence and a usually notional, though at some level real, critical distance. She is thus expanding the ‘legal’ terrain of art at the same time as using the space and resources of art to initiate a social process. We can recall here Theodor Adorno’s phrase, ”Art is autonomous and it is not; without what is heterogeneous to it, its autonomy eludes it.’
But to return to ‘primitive accumulation’, any attempt to re-draft a law, especially property law, has to reckon with the violence and inequality which both precedes the law, enforces the law, and uses the law to legitimate its continued operation. The commons strategy would need to find a way of using the law to contest the law also on this unspoken and unspeakable basis – the historical and ongoing, ever-renewed and shifting process of dispossession, commodification and violence which produces subjectivities unable to envision a ‘good life’ (Berlant) without those conditions. This can only ever materialise, I suggest, if we think of the commons as ‘the generative and general antagonism’ as Stefano Harney and Fred Moten write, and all its legal strategies and institutional trajectories can ill afford to lose sight of the equivocal nature of the universals it – even if tactically – defends.
Marina Vishmidt is a London-based writer occupied mainly with ques-tions around art, labour and value. She is the author of Speculation as a Mode of Production (Brill, early 2016) and A for Autonomy (with Kerstin Stakemeier) (Textem, 2015). She also writes often with Anthony Iles and with Melanie Gilligan. She works with artists and contributes to journals such as Mute, Afterall, Texte zur Kunst, and the South Atlantic Quarterly, as well as co-/edited collections and cata- logues. She is part of the faculty of the Dutch Art Institute, a visiting lecturer at Middlesex University and the University of Brighton, and has taught at the University of the Arts in Berlin, Central Saint Martins, and Goldsmiths.
This paper was presented at Conversation Across Commons.