Journal articles on the topic 'Hate speech – Law and legislation – France'

The goal of this research study is to shed light on the present rise in hate speech and its various elements. It provides an illustrated definition of what constitutes hate speech and explains how counter-speech might be utilised to quell such speech. Controlling hate speech has proven to be a challenging task. The anti-hate speech law is contentious since it restricts someone's ability to express themselves freely. The legal system continuously treads a fine line between control and outright prohibition.“But cases of hate speech are nevertheless on the rise despite the introduction of strict legislation. The Law Commission of India pushed for even tighter regulations in 2017 to curb this. In light of the obvious harm that hate speech does, it is vital to look beyond the current framework and uncover best practises that may be employed to address the issue of hate speech in addition to the legal framework.”1

One of the strongest arguments against hate speech legislation is the so-called Argument from Political Speech. This argument problematizes the restrictions that might be placed on political opinions or political critique when these opinions are expressed in a way which can be interpreted as ‘hateful’ towards minority groups. One of the strongest free speech scholars opposing hate speech legislation is Ronald Dworkin, who stresses that having restrictions on hate speech is, in fact, illegitimate in a liberal democracy. The right to express oneself freely concerning any political decision is, according to Dworkin, a core democratic principle; it is what self-governance – and hence liberal democracies – are built upon. Dworkin and many other free speech scholars based in the United States see hate speech legislation as a threat to expressing oneself freely and critically. I argue that Dworkin and other US-based free speech scholars tend to overlook actual hate speech legislation in countries where such laws have been implemented and have functioned for decades. Furthermore, I argue that the real threat against political speech lies not in hate speech legislation but rather outside of the law, namely, in private institutions such as universities and museums. Restrictions on political speech in various societal circumstances have been on the rise over the last decades – first and foremost in the US. I analyse why these restrictions on political speech are more widespread in the only Western country without laws against hate speech than they are in countries with implemented hate speech laws. Keywords: political speech, hate speech, hate speech legislation, private institu-tions, universities, USA

The implications of specifying certain identity categories have been widely debated in the context of hate crime laws and policies. However, they have been less thoroughly examined in the particular contexts of hate speech. Although the majority of laws regulating speech do not differentiate between identity categories, the ‘stirring up’ offences of the United Kingdom Public Order Act 1986 are stratified along grounds of race, religion and sexual orientation. This article argues that, while the concerns raised about identity categories in relation to hate crime legislation are equally relevant to the stirring up provisions, the proposed solutions cannot automatically be transposed to hate speech offences. Accordingly, this article explores challenges that are encountered in attempts to make hate crime and hate speech legislation more inclusive before advancing some tentative suggestions for how hate speech laws might move beyond identity silos.

The article is devoted to a comprehensive examination of the hate speech phenomenon in the aspect of legal and linguistic support for countering the information threats of Internet communication. The legal and linguistic analysis of the concept of “hate speech” is carried out by the authors according to the approaches of the European Court of Human Rights in the context of human rights and freedoms, as well as the protection of national security, constitutional order, public order, health and morality of the population. Verbal extremism as a criminalized part of hate speech is considered in the article from the standpoint of Russian, international and foreign legislation. The authors also analyzed the correlation of the following legal phenomena in international law: verbal religious extremism, insulting the feelings of believers, blasphemy and defamation of religions. The analysis of the scientists’ positions regarding the concept of “hate speech” and its criminalized part — verbal extremism: the analysis of the legal positions of the European Court of Human Rights, the Council of Europe, the United Nations, the Parliamentary Assembly of the Council of Europe regarding what kind of speech acts should be criminally punishable; as well as the analysis of the elements of crimes covered by the concept of “hate speech” in the criminal law of foreign states allowed the authors to formulate a list of features corresponding to extremist speech acts.

The legal regulations for the crime of hate speech have been regulated in the Criminal Code and also Law concerning information and electronic transactions. In this study using empirical juridical methods with interview qualitative techniques. This study aims to determine the efforts of the Bali Police in minimizing the crime of hate speech on social media The role of the Bali Police in dealing is carried out through preventive and repressive efforts. Preventive efforts are carried out by providing counseling to the public regarding the impact of the crime of hate speech on social media. Meanwhile, repressive efforts have been carried out, namely taking firm action against perpetrators of criminal acts based on legislation that regulates hate speech

Hate Speech is a frequent problem occurring among Internet users. Recent regulations are being discussed by U.K. representatives (“Online Safety Bill”) and by the European Commission, which plans on introducing Hate Speech as an “EU crime”. The recent legislation having passed in order to combat this kind of speech places the burden of identification on the hosting websites and often within a tight time frame (24 h in France and Germany). These constraints make automatic Hate Speech detection a very important topic for major social media platforms. However, recent literature on Hate Speech detection lacks a benchmarking system that can evaluate how different approaches compare against each other regarding the prediction made concerning different types of text (short snippets such as those present on Twitter, as well as lengthier fragments). This paper intended to deal with this issue and to take a step forward towards the standardization of testing for this type of natural language processing (NLP) application. Furthermore, this paper explored different transformer and LSTM-based models in order to evaluate the performance of multi-task and transfer learning models used for Hate Speech detection. Some of the results obtained in this paper surpassed the existing ones. The paper concluded that transformer-based models have the best performance on all studied Datasets.

Criminal acts related to hate speech are one of the crimes that occur as a result of the misuse of information technology carried out by a person or group by conveying forms of provocation, seditious actions, or in the form of insults to someone or certain other groups in terms of various indicators, namely race, skin, gender, religion and others. Research problems: how are the efforts to deal with the criminal act of distributing electronic information containing hate speech at POLDA Lampung and why there are obstacles to efforts to overcome the criminal act of distributing electronic information containing hate speech at the Regional Police located in Lampung Province. This type of research is a normative juridical research. The data analysis was done qualitatively. The approach to the problem used is the statute approach. The results of this study indicate that the law enforcement of hate speech using social media is carried out by the Sub-Directorate for Cyber Crime of POLDA Lampung through non-penal and penal means. Non-penal efforts are carried out by carrying out cyber patrols and socializing the prohibition on hate speech using social media. Penal efforts carried out by investigation and investigation. The factors that hinder efforts to overcome criminal acts of hate speech by using social media are in the aspects of legislation, aspects of law enforcement officials, facilities and infrastructure, community conditions and cultural aspects of these factors, there are dominant factors being weaknesses, namely in the aspect of law enforcers who are not yet competent and have mastered the development of types of crimes related to information technology, precisely at the Cyber Police Unit in Lampung Province.

The first part of this work analyses the concept of hate speech and its legal-philosophical foundations linked to freedom of speech, through the use of tools provided by current trends in the theory of performativity. The second part, in turn, aims to suggest two possible perspectives on the translation of these philosophical demands into positive legislation within human rights law: the first one based on a liberal conception of freedom as non-interference and a perlocutionary understanding of performative speech acts; the second one adopting a neo-republican interpretation of freedom as non-domination and an illocutionary understanding of speech acts. Finally, the work aims to critically sift through the application of the theory of performativity to the legal definitions that hate speech has acquired within this context.

AbstractEurope needs to define the term and legal (criminal & constitutional) concept of “hate speech” precisely. The definition must be written in legal literature and in legislation. It must also be offered by the European Constitutional Courts and, last but not least, by the ECtHR. A descriptive definition offered inter alia by the ECtHR judgement in case of Vejdeland vs. Sweden (2012) was only a guidance. The new ECtHR judgement in the case of Carl Jóhann Lilliendahl vs. Iceland (11th of June 2020) addressed “homophobic speech” as “hate speech” directly. By combining the ECtHR case-law on freedom of expression in the last five years with understanding of this concept in the Slovenian Criminal Code (and with only subordinated reference to the understanding of this term by the European Commission) the author offers an alternative proposal for a new, common and comprehensive European definition of “hate speech.”

<p>The regress of liberal democracy in the world has been progressing for years and the number of countries with the full democracy index is decreasing [Economist Intelligence Unit 2018, 2019; Freedom House 2018]. One of the serious threats to the rule of law and the human rights in modern democracy has become discriminatory legalism which is both strategy and weapon [Weyland 2013]. In order to weaken or marginalize the opposition and “rebellious” citizens, public authorities apply discriminatory legal instruments and democratic rules depending on who they are concerned with. Public authorities do this because of political views and use exclusion rhetoric, a language of hatred, stigmatizing all “strangers”, at last use hate speech on the Internet and beyond. The weaponization of hate speech is a convenient instrument for political struggle and the fight against inconvenient opponents. Hate speech is also used by far-right and nationalist organizations in the public sphere, which operate in an atmosphere of consent to their radical behaviour. Political hate speech plays an important role in the discriminatory legal strategy. Poland is included in the group of countries with flawed democracy (Article 7(1) TEU since 2017). The authorities introduced changes in law (which were defied as the “Frankensteinisation of legislation” by the Parliamentary Assembly of Council of Europe [PACE] in 2019), democratic institutions and the prosecution applies a discriminatory legalism strategy. This problem is highlighted by the current Commissioner for Human Rights which is an independent institution in the field of fighting hate speech (except a few independent media and NGOs informing about the hate speech phenomenon). Many of hate speech cases are discontinued or not taken up by the prosecution. The numbers of cases of hate speech and hate incidents are increasing but the Polish authorities use the underreporting mechanism. The Ombudsman warns that only 5% of cases are reported to the police. The language of hatred and contempt used by the authorities in Poland has become the weaponization in the fight against citizens as political opponents: LGBT+ community, refugees, political opponents, independent judges and others.</p>

This article provides the analysis of three recent decisions of the European Court of Human Rights on the problem of hate speech, pertinent in the context of the danger of terrorism, an infamous (anti-immigration debate, and an extreme nationalist historical mythology. The author endeavours to answer if the ‘dernier judicial design’ of these decisions is actually posing a risk of chilling effect (as some scholars have recently argued) or the earlier Strasbourg proportionality is still à la mode.

This article is focused on the enforcement of Russian anti-extremist legislation through web regulation. Russian law enforcement has shifted from a focus on preventing terrorist violence to a focus on prosecuting online hate speech and anti-authority rhetoric under current anti-extremist and anti-terrorist laws. The vague definition of extremist activity in federal law has been broadly interpreted by law enforcement agencies. Through the idea of public security, Russian law enforcement agencies have overestimated the threat of online content without regard for the context, audience, and impact of online statements. The result has been a steady increase in blocked access to web pages and sanctions on web users and providers. The article analyzes the legal norms pertaining to web content control, and details law enforcement practice and major trends. It also identifies the most common publications, people, and organizations targeted by Russian law enforcement for sanctions based on online statements.

In this contribution, I argue that every person's duty to respect others is central to section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ("the Equality Act"), otherwise known as the "hate speech" prohibition. This duty should therefore also be a central consideration in its interpretation. Related duties are those of the state to enact legislation, and of courts to interpret and apply the law to promote the spirit, purport and objects of the Bill of Rights. Our courts have in many instances considered the duty to respect others, as well as the state's and the courts' related duties, in the interpretation of socioeconomic rights and the development of the common law. In doing so, they have consistently employed the reasonableness standard. Therefore, references to relevant case law in various legal contexts provide the framework within which I examine legal duties in the context of unfair discrimination and, in particular, hate speech in terms of section 10(1) of the Equality Act. I examine the constitutional obligations of the state, the courts and private persons to promote respect for the dignity of others. I reiterate the state's specific obligation in terms of section 9(4) of the Constitution of the Republic of South Africa, 1996, to enact legislation to prevent or prohibit unfair discrimination on the grounds listed in section 9(3). Finally, I relate these duties to the section 10(1) prohibition in the Equality Act. I apply the reasonableness standard to conclude that the prohibition gives due effect to the duties of the state and every person, and that the courts are duty-bound to interpret it accordingly. This conclusion refutes the Supreme Court of Appeal's ruling in Qwelane v South African Human Rights Commission ("Qwelane")[1] that the section 10(1) prohibition was vague, overbroad and, therefore, unjustifiably infringing the right to freedom of expression. [1] 2020 3 BCLR 334 (SCA).

AbstractResponding to recent calls made within the UK Parliament for a government-backed definition of Islamophobia, this article considers the unanticipated consequences of such proposals. I argue that, considered in the context of related efforts to regulate hate speech, the formulation and implementation of a government-sponsored definition will generate unforeseen harms for the Muslim community. To the extent that such a definition will fail to address the government's role in propagating Islamophobia through ill-considered legislation that conflates Islamist discourse with hate speech, the concept of a government-backed definition of Islamophobia appears hypocritical and untenable. Alongside opposing government attempts to define Islamophobia (and Islam), I argue that advocacy efforts should instead focus on disambiguating government counterterrorism initiatives from the government management of controversies within Islam. Instead of repeating the mistakes of the governmental adoption of the International Holocaust Remembrance Alliance (IHRA)'s definition of antisemitism by promoting a new definition of Islamophobia, we ought to learn from the errors that were made. We should resist the gratuitous securitization of Muslim communities, rather than use such definitions to normalize compliance with the surveillance state.

In 1989 New South Wales became the first State in Australia to legislate against racial vilification. The introduction of this legislation, and discussion of similar provisions in other jurisdictions, rekindled debates about the legitimacy of legal limits on hate speech. However, little is known about the practical operation of antivilification laws. This report presents the results of a survey of more than 160 racial vilification complaints handled by the New South Wales Anti-Discrimination Board from 1993 to 1995. The profile of the legislation in practice presented here provides a valuable empirical foundation for critical assessment of anti-vilification provisions and of the conciliation based procedure which is currently employed in handling complaints.

Authority is what is called formal power, power comes from legislative power (given by law) or from executive administrative power. Authority, which usually consists of several powers, is power over a certain group of people or power over an area of ​​government. The purpose of this study is to analyze the arrangement of the prosecutor's authority in detaining the perpetrators of hate speech crimes on social media and to discuss the prosecutor's obstacles in detaining the perpetrators of hate speech acts carried out on social media. This research was conducted using a normative research type. The method used is normative legal research. This research approach is a conceptual and literature approach, with the primary legal sources coming from legislation and decisions, while the secondary legal sources come from legal journals and law books. The technique of collecting legal materials for this research, by collecting the literature study. Then it can be obtained that the prosecutor's authority is regulated in the criminal procedural law book, the prosecutor's authority law, which includes several laws, including Law no. it can be ascertained about the rights and authorities of the prosecutor so that law enforcers, especially the prosecutor's office, can make detentions in accordance with the rules that have been in force, so that there is no abuse of authority by law enforcers, especially the prosecutor and as appropriate the prosecutor is obliged to realize equality for all Indonesian citizens who are entangled in cases criminal, civil or otherwise.

The subject. The article reveals an understanding of the freedom of speech in French law The purpose of the article is to identify the contents of freedom of speech in the French law and to determine the boundaries of its implementation in the Internet as well as to confirm or refute the hypothesis that both the freedom of speech and the definition of the boundaries of that freedom meets the purposes of protection of human rights. The description of methodology. General scientific methods ‐ analysis, synthesis, induction, deduction, comparison ‐ were used. The authors also use the formal legal interpretation of French judicial decisions and content‐analysis of press.The main results and scope of their application. Freedom of speech is one of the foundations of French society, but it has become necessary to revise a number of rules governing freedom of speech and imposing restrictions due to widespread using of Internet in people’s life. So exceptions from freedom of speech are embedded in national legislation, despite the fact that the basis for the legal regulation of freedom of the media in a democratic society is to ensure non‐interference of the state in the content of production and dissemination of information. In some countries exceptions to freedom of speech are expressed primarily in the form of rules aimed at preventing abuses of freedom of the mass media and serving as a basis for sanctions against media editorial boards. The authors also cite actual examples of the realization of the freedom of speech in France, and draw conclusions about the possibilities for the development of this right. The proposed analysis may be used as a basis for improvement national legislation concerning limitations of freedom of speech.Conclusions. Freedom of speech and freedom of the media are not absolute in France. In order to fulfil its function of protecting and guaranteeing rights and freedoms, the state must pay equal attention both to ensuring freedom of speech (including the independence of the press, access to information) and to defining the limits of this freedom in order to prevent its unlawful abuse. Any freedom turns into chaos without proper boundaries.

The Russian Federation joins a list of countries where violence and terrorism often have a religious and an ethnic basis, and where the authorities seek ways to deal with the issue of online hate speech. In this context, in May 2014 the Russian Parliament enacted Federal Law No 97-FZ (the Bloggers’ Law). This legislation required the compulsory registration of all popular bloggers with the country's internet regulatory agency, Roskomnadzor, thereby forcing the disclosure of their real identities. The Bloggers’ Law has been widely criticised, however, and although the internet community is still engaged in a heated discussion over whether there exists a legal right to online anonymity, the law made anonymous blogging in Russia a daunting undertaking. The Bloggers’ Law was repealed in the second half of 2017, and updating of the ‘Bloggers’ Register’ ceased. This article attempts to (i) analyse the context and the reasoning behind the introduction of the Bloggers’ Register; (ii) disentangle the relevant legal provisions; and (iii) assess its effectiveness, drawing conclusions based on events in the Russian blogosphere during the period 2014–17.

State censorship in Australia has been rare, controversial and short-lived. There was almost none in the liberal nineteenth century. In the twentieth century, the two world wars, the Great Depression and the new age of terrorism led to more determined, if comparatively temporary, attempts to censor publications that advocated sedition or violence. Moral censorship of obscenity was also rare in the nineteenth century, but enjoyed an ‘heroic’ period following the arrival of a new realism in literature and the age of lurid comic books. The internet has made such censorship almost totally ineffective. Blaspheming the Christian religion is no longer treated as a punishable offence, although attacking Islam may still sometimes be deemed actionable in law. The advent of multiculturalism has encouraged legislation to restrict free speech deemed to be ‘hate speech’, but its application has been episodic, unpopular and ineffective. The contest between writers demanding freedom and censors demanding standards is unending. But at the moment, the balance favours writers.

Legislators have normally exercised one of two options when enacting hate crime legislation. They either provide for punishment of ordinary criminal acts to be enhanced when the offence has been committed by reason of prejudice or hatred towards the victim, or they pass an Act which establishes an entirely new substantive offence. The United Kingdom Parliament adopted the first approach under the Crime and Disorder Act 1998, initially with regard to racially aggravated crimes and later in respect of religiously aggravated offences. In passing the Race and Religious Hatred Acts 2006, Parliament has taken the second approach and created a new substantive law. This paper considers the specific requirements that will need to be satisfied in order to establish the offence and some issues that arise in relation to proof of intention, relevance of motive and the nature of the language required to constitute hatred, in the light of the concession to freedom of speech contained in the statute.

Abstract Laws regulating historical discourse, or “memory laws,” recognize past injustices, and, as in the case of legislation regarding the Holocaust, may punish denial. They also reflect the geopolitical interests of states or supranational institutions, especially in contested histories, such as the Ottoman Empire’s persecution of Armenian subjects during the First World War. Scholarship on such legislation examines its ethical legitimacy and political impact, debating its effect on free speech and democratic governance. This discourse considers whether memory laws should ever be adopted, whether they actually achieve their goals, and the extent to which they reinforce realpolitik in governing institutions. This article reveals a hitherto little-discussed dimension of laws regulating historical discourse: performativity. Laws have performative effects in the form of meanings, intentions, and interpretations that go beyond the letter of the law. By focusing on Armenian Genocide recognition in France and Germany, this article elucidates the performative aspects of memory laws, revealing thereby underlying ideological biases and political agendas.

The difficult question of how to hold hatemongers legally accountable has lately taken on greater urgency as hate speech has risen to disturbing levels. In the fight against harmful speech, Canada is heavily reliant on the criminal law. An alternative legal remedy might be provided through civil actions for group defamation. Such lawsuits are currently permitted only in Manitoba. The Manitoba legislation was enacted in the 1930s through the efforts of Jewish MLA Marcus Hyman as a means for combating the fascist Canadian Nationalist Party headed by William Whittaker. This article provides a history of the Marcus Hyman Act. The Hyman Act has been discussed in several works but none of these sources offers a comprehensive analysis of the legislation’s origins and history. This article fills this gap. While historians have suggested that the Hyman Act—and its subsequent invocation in a lawsuit against Whittaker brought by William Tobias—was inconsequential, in fact it represented an important victory against antisemitism in the 1930s. Although it has fallen into disuse, the legislation’s history indicates that it could provide a useful mechanism for countering racism in the present day.L’enjeu difficile concernant les moyens pour tenir les semeurs de haine légalement responsables a récemment pris une importance accrue, car les discours haineux ont atteint des niveaux inquiétants. Dans la lutte contre ces types de discours, le Canada s’appuie fortement sur le droit pénal. Un autre recours juridique pourrait être fourni par des actions civiles pour diffamation collective, de telles poursuites n’étant actuellement autorisées qu’au Manitoba. La législation manitobaine a été promulguée dans les années 1930 grâce aux efforts du député juif Marcus Hyman comme moyen de lutter contre le parti nationaliste canadien fasciste dirigé par William Whittaker. Cet article présente l’historique de la Loi Marcus Hyman. La loi Hyman a été abordée dans plusieurs ouvrages, mais aucune de ces sources ne propose une analyse complète des origines et de l’histoire de la législation. Cet article comble cette lacune. Alors que les historiens ont suggéré que la loi Hyman — et son invocation ultérieure dans un procès contre Whittaker intenté par William Tobias — était sans conséquence, elle a en fait représenté une victoire importante contre l’antisémitisme dans les années 1930. Bien qu’elle soit tombée en désuétude, l’histoire de cette législation indique qu’elle pourrait constituer un mécanisme utile pour contrer le racisme de nos jours.

In this article, I shall try to outline some grounds for resisting enacting new treason-type offences. It shall be argued that an offence of treason based on the wrongness of ‘betrayal’ would add nothing extra to the protection that is already provided for in a plethora of terrorism offences that cover preparation, inchoate acts concerning terrorism as well as consummated terrorism attacks. I shall try to demonstrate that what supplies the normative case for criminalisation in these sorts of cases is culpability plus harm, not betrayal in itself. Betrayal is a minor aggravating feature that can be dealt with by sentencing judges. I also argue that there is no evidence that the sentences available in our terrorism legislation are not ample to deal with those who go abroad to fight in armed conflicts involving British forces. Finally, it is argued that while the common law offence of outraging public decency might plug gaps where returning Islamic State of Iraq and Syria brides make outrageous comments, it should be used only as a last resort when the speech involves hate speech of a serous kind.

The expansion of far-right movements constitutes a global phenomenon that has translated into the emergence and strengthening of numerous organizations, parties, and especially into the conquest of power in many countries in Europe, North America, and Latin America. In this article we will try to account for this phenomenon, first by presenting and reflecting on the different theoretical conceptions that have been held about it, namely the different related concepts used by academia, such as populism, fascism, extreme right or authoritarian neoliberalism. On a second level, we will focus our attention on Poland and Portugal. In the case of Poland, for its admittedly populist conjunctural character, ruled since2015 by the Law and Justice Party. In the case of Portugal, for its opposite character, under the management of the Socialist Party, recently reelected with 60% of the votes, but which also experiences the strengthening of extreme right-wing movements. Respecting the sociocultural and historical particularities of each, in both countries these movements are expressed both in civil society and in political society. These experiences reveal counterfaces that, despite their differences, signal approximations with the xeno-populist perspective and can shed light on the understanding of these processes. In the Polish scenario, the adoption of institutional policies and legislation against migrants, LGBTQIA+ and other minorities are notable, as well as growing manifestations of far-right movements, both based on hate speech. On the other hand, the Portuguese context, although governed by an opposite political spectrum, also experiences recent processes of strengthening of the far right. In fact, the far-right "Chega" party won third place in a recent election marked by tensions involving hate speech, xenophobia and nationalist perspectives

Terjadinya kejahatan tersebut adalah kurangnya kontribusi penegak hukum dalam melakukan pengawasan dilingkungan sekolah, masyarakat, keluarga, dan diri pribadi dalam melakukan interaksi baik di media online maupun offline. Selain itu, kurangnya pemahaman aparat kepolisian dalam mengimplementasikan esensi Surat Edaran Hate Speech Republik Indonesia, Kitab Undang-Undang Hukum Pidana (KUHP). Tujuan yang akan dicapai dalam artikel ini adalah kebijakan hukum pidana terhadap kejahatan cyber-bullying di Indonesia, dan kebijakan hukum kriminal untuk era revolusi industri 4.0 dalam menyelesaikan kejahatan cyber-bullying. Penelitian ini menggunakan penelitian yuridis normative yang bersifat kualitatif. Pengumpulan bahan-bahan hukum dilakukan dengan mengidentifikasi dan menginventarisasi peraturan perundang- undangan, meneliti bahan pustaka, dan sumber-sumber bahan hukum lainnya. Teknik analisis isu hukum (legal issue) dalam penelitian ini menggunakan logika berpikir campuran. Maksudnya penalaran (hukum) yang merupakan gabungan dari pola pikir induktif (inductive) dan deduktif (deductive) dalam persoalan hukum faktual yang konkrit. Hasil penelitian menunjukkan bahwa kebijakan hukum pidana dalam menyelesaikan kejahatan cyber-bullying dapat terapkan oleh aparat penegak hukum berupa KUHP dan Undang-Undang No. 8 Tahun 2018 tentang Informasi Teknologi Elektronik dengan melihat isi penjelasan pasal demi pasal dan konten kejahatan yang dilakukan oleh pelaku. Kebijakan hukum Pidana di era revolusi industry 4.0 tetap mengacu pada aturan yang berlaku di Indonesia. The occurrence of such crimes is the lack of law enforcement contributions in conducting supervision in school, community, family, and personal self in the interaction of both online and offline media. In addition, the lack of understanding of police officers in implementing the essence of circular Hate Speech of the Republic of Indonesia, the Criminal Code of Law (PENAL). The objectives to be achieved in this article are the policy of criminal law against cyber-bullying crimes in Indonesia, and the policy of criminal law for the era of the 4.0 industrial revolution in resolving cyber-bullying crimes. This research uses normative juridical research that is qualitative. The collection of legal materials is done by identifying and invarizing the legislation, examining the library materials, and other sources of legal materials. Technical analysis of legal issues in this study used mixed-thinking logic. It means reasoning (the law) which is a combination of inductive (inductive) and deductive mindset in the case of a concrete factual law. The results showed that criminal law policies in resolving cyber-bullying crimes could be applied by law enforcement officers in the form of penal CODE and law No. 8 year 2018 on electronic technology information by looking at the contents Article-by-article explanations and crime content committed by the perpetrator. The criminal Law policy in the 4.0 Industrial Revolution era continues to refer to the prevailing rules in Indonesia

The article examines Latvia's compliance with the EU's institutional and value strategy for promoting the principle of tolerance. The main manifestations of intolerance in the social and political life of Latvia as a "young" democracy are investigated. The legal gaps, the peculiarities of the political and legal culture of the population and other factors that cause intolerance in Latvia, despite this country's 2004 membership in the EU, have been emphasized. Institutional reforms aimed at strengthening the value of tolerance and preventing destructive intolerant practices are analysed. Providing tolerance for Latvia is called a challenge for this country. It was stressed that countering intolerance remains an important component of the country's still unfinished post- socialist democratization. Attention is paid to maintaining a high percentage of non-citizens in the population structure of Latvia. It is emphasized that in Latvia there is the highest level of sexual minority intolerance in the Baltic countries group, especially the expressed intolerance towards transgender and intersex people. It is noted that the legislation of Latvia is not yet fully consistent with the European Commission's General Policy Recommendation against Racism and Intolerance No. 7 in the fight against racism and racial discrimination. Attention is drawn to the lack of special services in law enforcement agencies to assist victims of hate speech. It has been stated that there is a lack of promotion of counter-speech in response to racist, homo- / transphobic hate speech on the part of high-ranking officials and public activists. This contributes to the fact that those who resort to hate speech do not feel public condemnation and increase their destructive presence in Latvia. Attention was drawn to the problem of preserving the marginalization of Roma, especially in the area of employment, provision of public health and education services. The article states that there are manifestations of anti-Semitism in Latvia, especially in Internet discourse. It is noted that despite the small number of refugees received in recent years by Latvia, there is a high level of intolerance of asylum seekers. At the same time, public opinion is often formed precisely because of the destructive public rhetoric of Latvian politicians. The general problem of Latvia is the high tolerance for violence in general – at home, at school, against certain social groups, etc. It is indicated that in this country there is a high tolerance for various destructive unlawful practices, such as involvement in the shadow economy, the purchase of smuggled goods, and so on. The author of the article argues that the reasons for the mentioned problems of Latvia are not least in the plane of the political and legal culture of the Latvians, in which the intolerance to diversity and the neoliberal-democratic values, on which the EU is oriented, are still quite strong.

Precedents in European Union member states for the negative referenda in France and The Netherlands on the Constitution for Europe. Evolution of the investiture of the Commission: parallel with France under Third and Fourth Republic. Double headed executive (President of the European Council and President of the Commission) and ‘double hats’ (Union Minister for Foreign Affairs) in line of the European constitutional tradition. The unborn ‘Legislative Council’ and its Austrian and German counterparts. The aborted ‘Congress of the Peoples of Europe’: forum for ‘State of the Union’ speech, not a electoral body. Protection of minority rights in the Constitution for Europe due to insistence of the Hungarian government; foreign to the dominant Western constitutional concepts. Representative democracy and the formal concept of law: European Laws and Framework Laws as ‘Acts of Parliament’. Strict limits on the possibility to delegate legislation: German, Italian, French roots. European Laws and Regulations: unachieved hierarchy and French precedent. Judiciary as a relative minor branch of government as in the British and French traditions. No German Verfassungsbeschwerde or Spanish recurso de amparo, but probably more annulment procedures and preliminary questions on legality and constitutionality than before. Parallels with German federal concepts: Union Law über Alles; no rigid Kompetenzkatolog and joint competences; distribution of competences not limited to law-making. More than lip service to decentralisation. Constitutional ping-pong and intertwined constitutionalism: territories d'outre- mer and outermost regions.

Internet access providers, online platforms and other intermediaries benefit from a protection against liability claims caused by end-users' illegal or harmful information. This liability limitation is enshrined in the 2000 Directive on Electronic Commerce, a directive considered crucial for a proper functioning of the internal market, the uptake of the information society and the protection of freedom of speech. Throughout the years, the liability protection for online intermediaries seems, however, to have been gradually carved out by case law, particularly on the Member State level. In recent cases, such as C- 236/08, Google France, and C-324/09, L'Oréal, the European Court of Justice has also interpreted relevant EU legislation. Online intermediaries are increasingly forced to monitor the activities of their users if they want to remain shielded from liability. Paradoxically, obliging online intermediaries to monitor the information transmitted or stored by users is forbidden by the same Directive on Electronic Commerce. This article proposes a balanced approach in which the intermediary protection regime can be safeguarded, whilst still protecting the rights of third parties whose rights may be infringed on the internet.

From the second half of the 20th century the revisionist movement has spread among scientists, public and political figures. Publicists and scientists are known for criticizing the testimonies of concentration camp prisoners and their executioners, as well as denying the possibility of mass extermination of prisoners in terms of the technical capabilities of gas chambers.Attempts to reinterpret historical events often border on extremism and pose a threat to national security, leading to a significant deterioration in international relations. At the international level, a number of acts have been adopted indicating that the Holocaust is a fact established by the verdict of the Nuremberg Tribunal, and calling on states to reject any denial of the Holocaust. International organizations that oppose attempts to rewrite history include the Council of Europe, the United Nations, and UNESCO.At the national level, responsibility for denying and justifying the Holocaust has been established in a number of states. The first group includes states that are responsible for denying and approving the Holocaust and other crimes committed by the Nazis (Germany, France, Austria, Israel). The second group includes states that equated Nazi crimes in their legislation with crimes of communism (Hungary, Czech Republic, Lithuania). The third group consists of states that prohibit the denial and justification of any genocide (Switzerland, Luxembourg). Some states (for example, the United States) refused to introduce such bans, citing freedom of speech and belief.In 2014, the Criminal Code of the Russian Federation introduced article 354.1 "Rehabilitation of Nazism", which sets forth responsibility for denying the facts established by the Nuremberg Tribunal verdict. At the same time, the legislator should not selectively approach the protection of historical events. It would be fair to criminalize the denial of genocide and other international crimes recognized by the international community, regardless of any criteria relating to the perpetrators.

ازداد انتشار خطاب الكراهية في الآونة الأخيرة في الكثير من المجتمعات، حيث يعمل خطاب الكراهية على تحفيز مشاعر الحقد والضغينة تجاه جماعة معينة بسبب العرق أو العقيدة أو الجنس؛ ما يؤدي إلى الانتهاكات الجماعية لحقوق الإنسان، وتهدف الدراسة إلى الكشف عن مختلف القواعد القانونية التي سنتها الدول وآليات الوقاية التي أنشأتها قصد التخفيف من انتهاكات حقوق الإنسان التي يفرزها خطاب الكراهية، فقد أصدر المشرع الجزائري القانون رقم 20-05 المتعلق بالوقاية من التمييز وخطاب الكراهية ومكافحتهما على غرار العديد من الصكوك الدولية التي تهدف إلى تحقيق هذا المسعى. إلا أن التصدي لخطاب الكراهية لا يتحقق إلا بتشديد العقاب على مرتكبي جرائم التحريض على الكراهية والقضاء على الأسباب الجذرية للكراهية من خلال نشر ثقافة التسامح والحوار.

SYSTEM ERROR: Where Big Tech Went Wrong and How We Can Reboot by Rob Reich, Mehran Sahami, and Jeremy M. Weinstein. New York: HarperCollins Publishers, 2021. 352 pages. Hardcover; $27.99. ISBN: 9780063064881. *Remember when digital technology and the internet were our favorite things? When free Facebook accounts connected us with our friends, and the internet facilitated democracy movements overseas, including the Arab Spring? So do the authors of this comprehensive book. "We shifted from a wide-eyed optimism about technology's liberating potential to a dystopian obsession with biased algorithms, surveillance capitalism, and job-displacing robots" (p. 237). *This transition has not escaped the notice of the students and faculty of Stanford University, the elite institution most associated with the rise (and sustainment) of Silicon Valley. The three authors of this book teach a popular course at Stanford on the ethics and politics of technological change, and this book effectively brings their work to the public. Rob Reich is a philosopher who is associated with Stanford's Institute for Human-Centered Artificial Intelligence as well as their Center for Ethics in Society. Mehran Sahami is a computer science professor who was with Google during the startup years. Jeremy Weinstein is a political science professor with experience in government during the Obama administration. *The book is breathtakingly broad, explaining the main technical and business issues concisely but not oversimplifying, and providing the history and philosophy for context. It accomplishes all this in 264 pages, but also provides thirty-six pages of notes and references for those who want to dive deeper into some topics. The most important section is doubtless the last chapter dealing with solutions, which may be politically controversial but are well supported by the remainder of the book. *Modern computer processors have enormous computational power, and a good way to take advantage of that is to do optimization, the subject of the first chapter. Engineers love optimization, but not everything should be done as quickly and cheaply as possible! Optimization requires the choice of some quantifiable metric, but often available metrics do not exactly represent the true goal of an organization. In this case, optimizers will choose a proxy metric which they feel logically or intuitively should be correlated with their goal. The authors describe the problems which result when the wrong proxy is selected, and then excessive optimization drives that measure to the exclusion of other possibly more important factors. For example, social media companies that try to increase user numbers to the exclusion of other factors may experience serious side effects, such as the promotion of toxic content. *After that discussion on the pros and cons of optimization, the book dives into the effects of optimizing money. Venture capitalists (VCs) have been around for years, but recent tech booms have swelled their numbers. The methodology of Objectives and Key Results (OKR), originally developed by Andy Grove of Intel, became popular among the VCs of Silicon Valley, whose client firms, including Google, Twitter, and Uber, adopted it. OKR enabled most of the employees to be evaluated against some metric which management believed captured the essence of their job, so naturally the employees worked hard to optimize this quantity. Again, such a narrow view of the job has led to significant unexpected and sometimes unwanted side effects. *The big tech companies are threatened by legislation designed to mitigate some of the harm they have created. They have hired a great many lobbyists, and even overtly entered the political process where possible. In California, when Assembly Bill 5 reclassified many independent contractors as employees, the affected tech companies struck back with Proposition 22 to overturn the law. An avalanche of very expensive promotion of Proposition 22 resulted in its passage by a large margin. *It is well known that very few politicians have a technical background, and the authors speculate that this probably contributes to the libertarian leaning prominent in the tech industry. The authors go back in history to show how regulation has lagged behind technology and industrial practice. An interesting chapter addresses the philosophical question of whether democracy is up to the task of governing, or whether government by experts, or Plato's "philosopher kings" would be better. *Part II of the book is the longest, addressing the fairness of algorithms, privacy, automation and human job replacement, and free speech. The authors point out some epic algorithm failures, such as Amazon being unable to automate resumé screening to find the best candidates, and Google identifying Black users as gorillas. The big advances in deep learning neural nets result from clever algorithms plus the availability of very large databases, but if you've got a database showing that you've historically hired 95% white men for a position, training an algorithm with that database is hardly going to move you into a future with greater diversity. Even more concerning are proprietary black-box algorithms used in the legal system, such as for probation recommendations. Why not just let humans have the last word, and be advised by the algorithms? The authors remind us that one of the selling points of algorithmic decision making is to remove human bias; returning the humans to power returns that bias as well. *Defining fairness is yet another ethical and philosophical question. The authors give a good overview of privacy, which is protected by law in the European Union by the General Data Protection Regulation. Although there is no such federal law in America, California has passed a similar regulation called the California Consumer Privacy Act. At this point, it's too soon to evaluate the effect of such regulations. *The automation chapter is entitled "Can humans flourish in a world of smart machines?" and it covers many philosophical and ethical issues after providing a valuable summary of the current state of AI. Although machines are able to defeat humans in games like chess, go, and even Jeopardy, more useful abilities such as self-driving cars are not yet to that level. The utopian predictions of AGI (artificial general intelligence, or strong AI), in which the machine can set its own goals in a reasonable facsimile of a human, seem quite far off. But the current state of AI (weak AI) is able to perform many tasks usefully, and automation is already displacing some human labor. The authors discuss the economics, ethics, and psychology of automation, as human flourishing involves more than financial stability. The self-esteem associated with gainful employment is not a trivial thing. The chapter raises many more important issues than can be mentioned here. *The chapter on free speech also casts a wide net. Free speech as we experience it on the internet is vastly different from the free speech of yore, standing on a soap box in the public square. The sheer volume of speech today is incredible, and the power of the social media giants to edit it or ban individuals is also great. Disinformation, misinformation, and harassment are rampant, and polarization is increasing. *Direct incitement of violence, child pornography, and video of terrorist attacks are taken down as soon as the internet publishers are able, but hate speech is more difficult to define and detect. Can AI help? As with most things, AI can detect the easier cases, but it is not effective with the more difficult ones. From a regulatory standpoint, section 230 of the Communications Decency Act of 1996 (CDA 230) immunizes the platforms from legal liability due to the actions of users. Repealing or repairing CDA 230 may be difficult, but the authors make a good case that "it is realistic to think that we can pursue some commonsense reforms" (p. 225). *The final part of the book is relatively short, but addresses the very important question: "Can Democracies Rise to the Challenge?" The authors draw on the history of medicine in the US as an example of government regulation that might be used to reign in the tech giants. Digital technology does not have as long a history as medicine, so few efforts have been made to regulate it. The authors mention the Association for Computing Machinery (ACM) Software Engineering Code of Ethics, but point out that there are no real penalties for violation besides presumably being expelled from the ACM. Efforts to license software engineers have not borne fruit to date. *The authors argue that the path forward requires progress on several fronts. First, discussion of values must take place at the early stages of development of any new technology. Second, professional societies should renew their efforts to increase the professionalism of software engineering, including strengthened codes of ethics. Finally, computer science education should be overhauled to incorporate this material into the training of technologists and aspiring entrepreneurs. *The authors conclude with the recent history of attempts to regulate technology, and the associated political failures, such as the defunding of the congressional Office of Technology Assessment. It will never be easy to regulate powerful political contributors who hold out the prospect of jobs to politicians, but the authors make a persuasive case that it is necessary. China employs a very different authoritarian model of technical governance, which challenges us to show that democracy works better. *This volume is an excellent reference on the very active debate on the activities of the tech giants and their appropriate regulation. It describes many of the most relevant events of the recent past and provides good arguments for some proposed solutions. We need to be thinking and talking about these issues, and this book is a great conversation starter. *Reviewed by Tim Wallace, a retired member of the technical staff at the MIT Lincoln Laboratory, Lexington, MA 02421.

The legitimacy of public memory and socially normative standards of civility is questioned through rumors that abound on online social media platforms. On the Net, the proclivity of rumors is particularly prone to acts of bullying and frameworks of hate speech. Legislative attempts to limit rumors operate differently in France and throughout Europe from the United States. This article examines the impact of online rumors, the mob mentality, and the politicization of bullying critics within a cyber culture that operates within the limitations of law.

In Australia, gendered hate speech against women is so pervasive and insidious that it is a normalised feature of everyday public discourse. It is often aimed at silencing women, and hindering their ability to participate effectively in civil society. As governmental bodies have recognised, sexist and misogynist language perpetuates gender-based violence by contributing to strict gender norms and constructing women as legitimate objects of hostility. Thus, gendered hate speech, like other forms of hate speech, produces a range of harms which ripple out beyond the targeted individual. The harmful nature of vilification is recognised by the various Australian laws which prohibit or address other forms of hate speech. But as we map out in this article, gendered hate speech is glaringly absent from most of this legislation. We argue that by failing to address gendered hate speech, Australian law permits the marginalisation of women and girls, and actively exacerbates their vulnerability to exclusion and gender-based harm.

In South African Human Rights Commission v Qwelane (hereinafter “Qwelane”) the constitutionality of the threshold test for the hate speech prohibition in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter the “Equality Act”) was challenged. Although the court had no difficulty in finding that the publication in question fell squarely within the parameters of hate speech, the judgment is both incoherent and flawed. The court’s conjunctive interpretation of the section 10(1) requirements for hate speech also differs from the disjunctive interpretation given to the same provision in Herselman v Geleba (ECD (unreported) 2011-09-01 Case No 231/09 hereinafter “Herselman”) by the Eastern Cape High Court. The consequence is a “fragmented jurisprudence” which impacts on legal certainty, and which is especially dangerous when the legislation in question is critical to the achievement of the constitutional mandate (Daniels v Campbell NO 2004 (5) SA 331 (CC) par 104 hereinafter “Daniels”).This note demonstrates that the Qwelane court misapplied a number of key principles. These include: the court’s mandate in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (hereinafter the “Constitution”); the need to strike an appropriate balance between competing rights in the constitutional framework; the importance of definitional certainty for a hate speech threshold test; the meaning to be ascribed to the terms “hate”, “hurt” and “harm” in the context of hate speech legislation; and the role of international law when interpreting legislation intended to give effect to international obligations.The consequence of these errors for hate speech regulation in South Africa is profound.

AbstractThe right to freedom of expression is a qualified right: it allows expression that might ‘offend, shock or disturb’ but prohibits ‘insults’, ‘abusive attacks’ and ‘hate speech’. Applying the Convention test I argue that all cartoons of the Prophet Muhammad, which although might offend Muslims, are an acceptable form of expression in Western democracies except cartoon number two implying the Prophet Muhammad as a ‘terrorist’ which is ‘insulting’ and ‘an abusive attack’ on the Muslim community and Islam. In the post-9/11 circumstances, it may be viewed as a vehicle for instigating hatred against the Muslim community. By critiquing the inaction of Denmark and France, I argue that failure to prosecute Jyllands-Posten and Charlie Hebdo violates Articles 9(1) of the European Convention and the Danish Criminal Code and the French Freedom of Press Act 1881. Relying on ECtHR’s jurisprudence, I argue that the values of the Convention and democracy aim to nurture a society based on tolerance, social peace, non-discrimination and broad-mindedness. The public space is a shared space and no single group – religious and non-religious – can monopolise nor intimidate it.

In recent years and decades, authoritarian regimes and illiberal democracies have passed and enforced punitive memory laws, intending to ban certain interpretations of past events or sheltering official versions of history against challenges. This comes with no surprise in countries whose governments undermine pluralism and assume the existence of a historical truth that is stable over time, invariable, and self-explanatory. But why do liberal democracies, committed to political pluralism and open debate, pass laws that penalize challenges to certain interpretations of the past and restrict freedom of speech? This article argues that liberal democracies may do so yielding to bottom–up pressure by courts and to regulate civil law disputes for which existing legislation and jurisprudence may not suffice. Based on case studies from Germany, France, Switzerland, Poland, Ukraine, Russia, Turkey, Rwanda, and the former Yugoslavia, we also found punitive memory laws in liberal democracies narrower and more precise than in nonliberal states.

The Article concerns the Jurisprudence of the European Court of Human Rights of 2020. It does not have an ambitious objective to give an exhaustive analysis of the Court’s Case – Law, it only tries to show several important issues, which reflect current approaches of the Court and tendencies or directions of its Case-Law development. The following issues and cases will be discussed in the Article: jurisdiction of a State (art.1) and its interconnection with the admissibility of the application (inter-state case Slovenia v. Croatia, concerning an alleged violation of convention rights of a legal entity, which could not be classified as a “non-governmental organization” in the meaning of the art. 34); refusal by the Court to acknowledge extra-territorial jurisdiction in respect of the foreign nationals who apply for a visa at an embassy or consulate abroad ( M.N and Others v. Belgium); extra-territorial effect of a refugee status within the EU (SHIKSAITOV v. Slovakia); just satisfaction in respect of property outside of a respondent state territory and indirect binding nature of the Court’s judgment for a State, which was not a party in convention proceedings (MOLLA v. Greece ); issue of a state responsibility (in the meaning of violation of negative or positive obligations) for acts committed by a state agent in his private capacity, and the issue of whether and under what circumstances the approval by a state of a committed act raises its responsibility before the Convention; obligations in the context of extradition and arbitrary release from serving a prison sentence for a racially motivated hate crime (MAKUCHYAN and Minasyan v. Azerbaijan and Hungary); importance of the freedom of expression of a member of Parliament from the opposition political party (SELAHATTINDEMIRTA v. Turkey,); and of an accused person during his case hearing in the context of the statements for self-defense that resulted in his conviction for defamation (MILJEVI v. Croatia); compatibility of an organized calling for boycott with the art. 10 and the threshold, that should never be overstepped while exercising freedom of speech (BALDASSI and Others v. France), etc. It is emphasized in the Article that the Court has developed a number of new approaches and principles in order to protect VULNERBE groups (Roma community, asylum seekers, homosexuals, victims of domestic violence or trafficking, children (from ill-treatment by their parents)), as well as to introduce more detailed criteria to estimate the foreseeability of criminal provisions, concept of “tribunal established by law” (within the meaning of art.6) or more guarantees for personal data protection, etc. The Author is of an opinion that ECHR does follow its way of harmonious interpretation of the Convention with the other International law instruments and, in later cases, extends the application of the principle of subsidiarity including making its judgments indirectly binding for a State, which was not a party in the convention proceedings.

Preface In the last twelve years of following copyright developments, I have witnessed an accelerating growth in the agitation over its application and increasing cries for reform. This was triggered by a mounting corporate hysteria for strengthening copyright which seems to mask other anxieties and other issues of bad faith beside the one at hand. This is in contrast with the more reasonable stance of the U.S. government in the 1980s when Congress refused to regulate video rentals and the Courts refused to cite the video recorder for ‘contributory infringement.’ In the 1990s, the Republican-controlled Congress passed several pieces of legislation extending copyright and punishing reverse engineering. Congressional giveaways and corporate shrillness has inspired a progressive movement to defend the intellectual ‘commons.’ The reality is that intellectual property is not owned by intellectuals, and so people are realising that further extensions of copyright no longer benefits the sciences and useful arts. Developments in copyright are driven by the challenges of new technologies of communication. This is a problem for the law, which does not like surprises and certainly proceeds by analogising new situations to old ones in order to build continuity. Case law (which is law that is developed by judges’ decisions and interpretations) proceeds by precedent. Yet old technologies are not the accurate precedents for new technology and this is particularly the situation today. The new technologies have a particular impact on the situation since they change not just one variable in the earlier balance of copyright, but all the variables. While the courts and the corporations have concentrated on the one variable of easy reproduction of content, we should also pay attention to how the new technologies have changed the very balance between the so-called ‘real world’ and cultural expression. The material world is now composed to a significant extent by cultural expression. We walk through physical landscapes dominated by billboards and other totems of the marketplace, while our mentalscapes are filled with trademarks and other commodity bits. This was not the case as copyright law developed; it is the case now, and the various underpinnings of copyright law have become embarrassingly ineffective in this new world. Edelman Bernard Edelman pushes back to find the moment of embarrassment. He finds it in photography. As Paul Hirst points out, ‘[Edelman’s title] Le Droit saisi par la photographie puns on the law being seized or caught by photography, surprised or caught out by it. Photography, a technical innovation developing independently of law, contradicts the existing formulations of property right in representations of things’ (Hirst 1-2). Prior to photography, representation inherently had stamps of personality that allowed such representation (painting, drawing, engraving et alia) to be easily and significantly distinguished from that part of the material world it was representing, as well as from other artistic representations (even of the same referent). The earliest French legal pronouncements on photography were reluctant to grant it copyright protection, precisely because it was thought to have no personality and to be a mechanical copy of nature. When the court did extend copyright protection to photography and admitted its personality, it was faced with how to distinguish it from the natural. The camera could no longer be interpreting as transparently reproducing the real. Edelman calls this the subjectivisation of the machine. The camera can no longer be both a transparent reproducer of the real; it has been found always to invest the real with the personality of its subject (the photographer). This has resulted in a number of ad hoc decisions to prevent ‘over-appropriation’ of the real. Anglo-American versus French Law Anglo-American writing about copyright has never wasted much time on subjectivisation of the machine. The basis of British copyright was pragmatic and economic to begin with, having originated with the Tudors’ desire to encourage printing by granting monopoly rights to printers, and to control and censor printing. The relocation of copyright ownership from printer to author in the 18th century was also an economically driven consideration reflecting the new spirit of competitive capitalism. Certainly the language of the U.S. Constitution that authorised the federal prerogative in setting copyright law was very pragmatic in its emphasis on promoting the progress of science and the ‘useful’ arts (Article 1 Section 8). The French tradition, which is somewhat paralleled by the German and those of other continental nations, was born out of a more courtly regard for the rights of genius. Although France recognised that works ‘made for hire’ were owned by the employer, it vested certain inalienable moral privileges in the real person of the artist. This legal doctrine is known as droit d’auteur. (see Ginsburg) Idea/Expression Yet the American tradition is not totally pragmatic. The balance between copyright and the First Amendment commitment to an absolute freedom of speech calls for a certain degree of abstraction. It was Thomas Jefferson who cautioned about the chilling effect copyright law might have with the spread of ideas. Fortunately in written language it was rather easy to work out that the way to protect ideas from property claims was to distinguish between the expression, which can be copyrighted, and the idea, which cannot. Siva Vaidhyanathan (109-15) goes over Judge Learned Hand’s development of the test to distinguish the idea from the expression in the 1920s and 1930s as particularly instructive for striking the balance. In Nichols v. Universal (1929), Hand develops the theme of ‘patterns of increasing generality’ as more incident is left out. At some point the abstraction is too great to be protected, since it now is more in the realm of idea then of particular expression. (45 F.2d 120) But Edelman’s work poses the question whether this works, as we move from machines of writing to machines of visual reproduction. Doesn’t Apply to Mechanical Mimetic Reproduction Photographs can be taken of the imaginary world and indeed the subjectivisation model holds that every photograph is determined by the imagination of the author. But it is commonsensical that photographs begin as traces of the material world. This is not analogous to the written word. The structural nature of language removes the written word from a direct relationship with its physical referent. Indeed, the entire linguistic turn in post-war philosophy is premised on the lack of any transparent or even determined relationship between language and things. Even in pre-war jurisprudence it was this lack of coincidence that allowed the easy split of the idea from its expression. As the expression floats above the idea, the word floats above the physical. Vincent Porter argues that in contrast to language, visual and audio recordings do not have this split, they do not float above the physical. He noted sound/image recordings have presented a problem in that they are speech acts without a language system, or in a distinction borrowed from Saussure ‘a series of paroles without a langue.’ (Porter 12) After all does a photograph fit into a grammar of images? Are there photographs that are ‘patterns of increasing generality?’ Where is the photograph that is the same idea as another photograph without being the same photograph? Is there a photograph that can do the same work as the word ‘mother?’ No. Every photograph will be of a particular mother of a particular age and particular ethnic group and the same difficulty applies even if we photograph a group of mothers or edit a montage of mothers. This has the effect of making the idea the same as the expression. If you protect one you have protected the other. At this point I was not certain how decisive an intervention these concepts could make in the current copyright ferment. Certainly the most exciting argument was the one mounted at the Berkman Institute at Harvard by several lawyers and argued before the Supreme Court by Lawrence Lessig in Eldred v. Ashcroft (2003). This presented the argument that the government had strayed from the original Constitutional mandate to allow exclusive rights only for a limited time. But as I read Lessig’s Free Culture and as I re-read Edelman, it strikes me that the idea/expression test does not adequately help the First Amendment rights of technologies of mimetic reproduction (film, audio recordings). It is that these technologies allow reproductions to easily re-enter the material world. When these reproductions do re-enter they will naturally become part of the domain of creative expression. Our artists must be allowed to freely comment on the world in which we live and the world in which we live is now visually and aurally full of copyrighted material. This image came to mind forcefully when Lessig explained the difficulties of documentarians when they film their subjects watching TV and then have to edit out the TV image rather than deal with the risk of being sued for infringement (Aufderheide and Jaszi 95-8). This image also comes to mind when reading of farmers who are not allowed to harvest their seed because they come from patented plants. But I will defer to patent philosophers on that apparent travesty of natural rights. I wish to stay focused on the argument that is the corollary of Edelman’s subjectivisation of the camera. The camera records the physical world and in turn that recording enters that world. This is to say that the genius of copyright is in the literary domain because written language never re-enters the material world. When copyright was extended beyond the literary, policy makers should have noticed that earlier tests were no longer capable of maintaining balance between our divine right to express our lives and the practical right to own our own expressions (for a limited time). The new test is almost already present in the law: it is the protection of parody from copyright infringement violation. The courts recognise that parody positions the original expression as an artifact of the world in order to comment on it. If only the policy makers could extend that view to documentarians and others who film the world and include in their film the physical fact of other videos being displayed in the world. Just as in parody they ought to consider the intent of the video makers is to comment on the original, not to plagiarise it. References Aufderheide, P., and P. Jaszi. Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers. 2004. 25 April 2005 http://www.centerforsocialmedia.org/rock/index.htm>. Edelman, B. Ownership of the Image: Elements for a Marxist Theory of Law. London: Routledge & Kegan Paul, 1979. Eldred v. Ashcroft, Attorney General. United States Supreme Court decision, 15 January 2003. http://www.supremecourtus.gov/opinions/02pdf/01-618.pdf>. Ginsburg, J. C. “A Tale of Two Copyrights: Literary Property in Revolutionary France and America.” Tulane Law Review 64.5 (1990): 991-1032. Hirst, P. Q. “Introduction.” In Bernard Edelman, Ownership of the Image: Elements for a Marxist Theory of Law. London: Routledge & Kegan Paul, 1979. Lessig, L. Free Culture. 2004. 8 April 2005 http://free-culture.org/get-it>. Porter, V. “Copyright: The New Protectionism.” InterMedia 17.1 (1989): 10-7. Vaidhyanathan, S. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: NYU Press, 2001. Citation reference for this article MLA Style Wasser, Frederick. "When Did They Copyright the World Without Us Noticing?." M/C Journal 8.3 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0507/05-wasser.php>. APA Style Wasser, F. (Jul. 2005) "When Did They Copyright the World Without Us Noticing?," M/C Journal, 8(3). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0507/05-wasser.php>.

1. Guy Debord in the Land of the Long WeekendIt’s the weekend – leisure time. It’s the interlude when, Guy Debord contends, the proletarian is briefly free of the “total contempt so clearly built into every aspect of the organization and management of production” in commodity capitalism; when workers are temporarily “treated like grown-ups, with a great show of solicitude and politeness, in their new role as consumers.” But this patronising show turns out to be another form of subjection to the diktats of “political economy”: “the totality of human existence falls under the regime of the ‘perfected denial of man’.” (30). As Debord suggests, even the creation of leisure time and space is predicated upon a form of contempt: the “perfected denial” of who we, as living people, really are in the eyes of those who presume the power to legislate our working practices and private identities.This Saturday The Weekend Australian runs an opinion piece by Christopher Pearson, defending ABC Radio National’s Stephen Crittenden, whose program The Religion Report has been axed. “Some of Crittenden’s finest half-hours have been devoted to Islam in Australia in the wake of September 11,” Pearson writes. “Again and again he’s confronted a left-of-centre audience that expected multi-cultural pieties with disturbing assertions.” Along the way in this admirable Crusade, Pearson notes that Crittenden has exposed “the Left’s recent tendency to ally itself with Islam.” According to Pearson, Crittenden has also thankfully given oxygen to claims by James Cook University’s Mervyn Bendle, the “fairly conservative academic whose work sometimes appears in [these] pages,” that “the discipline of critical terrorism studies has been captured by neo-Marxists of a postmodern bent” (30). Both of these points are well beyond misunderstanding or untested proposition. If Pearson means them sincerely he should be embarrassed and sacked. But of course he does not and will not be. These are deliberate lies, the confabulations of an eminent right-wing culture warrior whose job is to vilify minorities and intellectuals (Bendle escapes censure as an academic because he occasionally scribbles for the Murdoch press). It should be observed, too, how the patent absurdity of Pearson’s remarks reveals the extent to which he holds the intelligence of his readers in contempt. And he is not original in peddling these toxic wares.In their insightful—often hilarious—study of Australian opinion writers, The War on Democracy, Niall Lucy and Steve Mickler identify the left-academic-Islam nexus as the brain-child of former Treasurer-cum-memoirist Peter Costello. The germinal moment was “a speech to the Australian American Leadership Dialogue forum at the Art Gallery of NSW in 2005” concerning anti-Americanism in Australian schools. Lucy and Mickler argue that “it was only a matter of time” before a conservative politician or journalist took the plunge to link the left and terrorism, and Costello plunged brilliantly. He drew a mental map of the Great Chain of Being: left-wing academics taught teacher trainees to be anti-American; teacher trainees became teachers and taught kids to be anti-American; anti-Americanism morphs into anti-Westernism; anti-Westernism veers into terrorism (38). This is contempt for the reasoning capacity of the Australian people and, further still, contempt for any observable reality. Not for nothing was Costello generally perceived by the public as a politician whose very physiognomy radiated smugness and contempt.Recycling Costello, Christopher Pearson’s article subtly interpellates the reader as an ordinary, common-sense individual who instinctively feels what’s right and has no need to think too much—thinking too much is the prerogative of “neo-Marxists” and postmodernists. Ultimately, Pearson’s article is about channelling outrage: directing the down-to-earth passions of the Australian people against stock-in-trade culture-war hate figures. And in Pearson’s paranoid world, words like “neo-Marxist” and “postmodern” are devoid of historical or intellectual meaning. They are, as Lucy and Mickler’s War on Democracy repeatedly demonstrate, mere ciphers packed with the baggage of contempt for independent critical thought itself.Contempt is everywhere this weekend. The Weekend Australian’s colour magazine runs a feature story on Malcolm Turnbull: one of those familiar profiles designed to reveal the everyday human touch of the political classes. In this puff-piece, Jennifer Hewett finds Turnbull has “a restless passion for participating in public life” (20); that beneath “the aggressive political rhetoric […] behind the journalist turned lawyer turned banker turned politician turned would-be prime minister is a man who really enjoys that human interaction, however brief, with the many, many ordinary people he encounters” (16). Given all this energetic turning, it’s a wonder that Turnbull has time for human interactions at all. The distinction here of Turnbull and “many, many ordinary people” – the anonymous masses – surely runs counter to Hewett’s brief to personalise and quotidianise him. Likewise, those two key words, “however brief”, have an unfortunate, unintended effect. Presumably meant to conjure a picture of Turnbull’s hectic schedules and serial turnings, the words also convey the image of a patrician who begrudgingly knows one of the costs of a political career is that common flesh must be pressed—but as gingerly as possible.Hewett proceeds to disclose that Turnbull is “no conservative cultural warrior”, “onfounds stereotypes” and “hates labels” (like any baby-boomer rebel) and “has always read widely on political philosophy—his favourite is Edmund Burke”. He sees the “role of the state above all as enabling people to do their best” but knows that “the main game is the economy” and is “content to play mainstream gesture politics” (19). I am genuinely puzzled by this and imagine that my intelligence is being held in contempt once again. That the man of substance is given to populist gesturing is problematic enough; but that the Burke fan believes the state is about personal empowerment is just too much. Maybe Turnbull is a fan of Burke’s complex writings on the sublime and the beautiful—but no, Hewett avers, Turnbull is engaged by Burke’s “political philosophy”. So what is it in Burke that Turnbull finds to favour?Turnbull’s invocation of Edmund Burke is empty, gestural and contradictory. The comfortable notion that the state helps people to realise their potential is contravened by Burke’s view that the state functions so “the inclinations of men should frequently be thwarted, their will controlled, and their passions brought into subjection… by a power out of themselves” (151). Nor does Burke believe that anyone of humble origins could or should rise to the top of the social heap: “The occupation of an hair-dresser, or of a working tallow-chandler, cannot be a matter of honour to any person… the state suffers oppression, if such as they, either individually or collectively, are permitted to rule” (138).If Turnbull’s main game as a would-be statesman is the economy, Burke profoundly disagrees: “the state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, callico or tobacco, or some other such low concern… It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection”—a sublime entity, not an economic manager (194). Burke understands, long before Antonio Gramsci or Louis Althusser, that individuals or social fractions must be made admirably “obedient” to the state “by consent or force” (195). Burke has a verdict on mainstream gesture politics too: “When men of rank sacrifice all ideas of dignity to an ambition without a distinct object, and work with low instruments and for low ends, the whole composition [of the state] becomes low and base” (136).Is Malcolm Turnbull so contemptuous of the public that he assumes nobody will notice the gross discrepancies between his own ideals and what Burke stands for? His invocation of Burke is, indeed, “mainstream gesture politics”: on one level, “Burke” signifies nothing more than Turnbull’s performance of himself as a deep thinker. In this process, the real Edmund Burke is historically erased; reduced to the status of stage-prop in the theatrical production of Turnbull’s mass-mediated identity. “Edmund Burke” is re-invented as a term in an aesthetic repertoire.This transmutation of knowledge and history into mere cipher is the staple trick of culture-war discourse. Jennifer Hewett casts Turnbull as “no conservative culture warrior”, but he certainly shows a facility with culture-war rhetoric. And as much as Turnbull “confounds stereotypes” his verbal gesture to Edmund Burke entrenches a stereotype: at another level, the incantation “Edmund Burke” is implicitly meant to connect Turnbull with conservative tradition—in the exact way that John Howard regularly self-nominated as a “Burkean conservative”.This appeal to tradition effectively places “the people” in a power relation. Tradition has a sublimity that is bigger than us; it precedes us and will outlast us. Consequently, for a politician to claim that tradition has fashioned him, that he is welded to it or perhaps even owns it as part of his heritage, is to glibly imply an authority greater than that of “the many, many ordinary people”—Burke’s hair-dressers and tallow-chandlers—whose company he so briefly enjoys.In The Ideology of the Aesthetic, Terry Eagleton assesses one of Burke’s important legacies, placing him beside another eighteenth-century thinker so loved by the right—Adam Smith. Ideology of the Aesthetic is premised on the view that “Aesthetics is born as a discourse of the body”; that the aesthetic gives form to the “primitive materialism” of human passions and organises “the whole of our sensate life together… a society’s somatic, sensational life” (13). Reading Smith’s Theory of Moral Sentiments, Eagleton discerns that society appears as “an immense machine, whose regular and harmonious movements produce a thousand agreeable effects”, like “any production of human art”. In Smith’s work, the “whole of social life is aestheticized” and people inhabit “a social order so spontaneously cohesive that its members no longer need to think about it.” In Burke, Eagleton discovers that the aesthetics of “manners” can be understood in terms of Gramscian hegemony: “in the aesthetics of social conduct, or ‘culture’ as it would later be called, the law is always with us, as the very unconscious structure of our life”, and as a result conformity to a dominant ideological order is deeply felt as pleasurable and beautiful (37, 42). When this conservative aesthetic enters the realm of politics, Eagleton contends, the “right turn, from Burke” onwards follows a dark trajectory: “forget about theoretical analysis… view society as a self-grounding organism, all of whose parts miraculously interpenetrate without conflict and require no rational justification. Think with the blood and the body. Remember that tradition is always wiser and richer than one’s own poor, pitiable ego. It is this line of descent, in one of its tributaries, which will lead to the Third Reich” (368–9).2. Jean Baudrillard, the Nazis and Public MemoryIn 1937, during the Spanish Civil War, the Third Reich’s Condor Legion of the Luftwaffe was on loan to Franco’s forces. On 26 April that year, the Condor Legion bombed the market-town of Guernica: the first deliberate attempt to obliterate an entire town from the air and the first experiment in what became known as “terror bombing”—the targeting of civilians. A legacy of this violence was Pablo Picasso’s monumental canvas Guernica – the best-known anti-war painting in art history.When US Secretary of State Colin Powell addressed the United Nations on 5 February 2003 to make the case for war on Iraq, he stopped to face the press in the UN building’s lobby. The doorstop was globally televised, packaged as a moment of incredible significance: history in the making. It was also theatre: a moment in which history was staged as “event” and the real traces of history were carefully erased. Millions of viewers world-wide were undoubtedly unaware that the blue backdrop before which Powell stood was specifically designed to cover the full-scale tapestry copy of Picasso’s Guernica. This one-act, agitprop drama was a splendid example of politics as aesthetic action: a “performance” of history in the making which required the loss of actual historical memory enshrined in Guernica. Powell’s performance took its cues from the culture wars, which require the ceaseless erasure of history and public memory—on this occasion enacted on a breathtaking global, rather than national, scale.Inside the UN chamber, Powell’s performance was equally staged-crafted. As he brandished vials of ersatz anthrax, the power-point behind him (the theatrical set) showed artists’ impressions of imaginary mobile chemical weapons laboratories. Powell was playing lead role in a kind of populist, hyperreal production. It was Jean Baudrillard’s postmodernism, no less, as the media space in which Powell acted out the drama was not a secondary representation of reality but a reality of its own; the overheads of mobile weapons labs were simulacra, “models of a real without origins or reality”, pictures referring to nothing but themselves (2). In short, Powell’s performance was anchored in a “semiurgic” aesthetic; and it was a dreadful real-life enactment of Walter Benjamin’s maxim that “All efforts to render politics aesthetic culminate in one thing: war” (241).For Benjamin, “Fascism attempts to organize the newly created proletarian masses without affecting the property structure which the masses strive to eliminate.” Fascism gave “these masses not their right, but instead a chance to express themselves.” In turn, this required “the introduction of aesthetics into politics”, the objective of which was “the production of ritual values” (241). Under Adolf Hitler’s Reich, people were able to express themselves but only via the rehearsal of officially produced ritual values: by their participation in the disquisition on what Germany meant and what it meant to be German, by the aesthetic regulation of their passions. As Frederic Spotts’ fine study Hitler and the Power of Aesthetics reveals, this passionate disquisition permeated public and private life, through the artfully constructed total field of national narratives, myths, symbols and iconographies. And the ritualistic reiteration of national values in Nazi Germany hinged on two things: contempt and memory loss.By April 1945, as Berlin fell, Hitler’s contempt for the German people was at its apogee. Hitler ordered a scorched earth operation: the destruction of everything from factories to farms to food stores. The Russians would get nothing, the German people would perish. Albert Speer refused to implement the plan and remembered that “Until then… Germany and Hitler had been synonymous in my mind. But now I saw two entities opposed… A passionate love of one’s country… a leader who seemed to hate his people” (Sereny 472). But Hitler’s contempt for the German people was betrayed in the blusterous pages of Mein Kampf years earlier: “The receptivity of the great masses is very limited, their intelligence is small, but their power of forgetting is enormous” (165). On the back of this belief, Hitler launched what today would be called a culture war, with its Jewish folk devils, loathsome Marxist intellectuals, incitement of popular passions, invented traditions, historical erasures and constant iteration of values.When Theodor Adorno and Max Horkheimer fled Fascism, landing in the United States, their view of capitalist democracy borrowed from Benjamin and anticipated both Baudrillard and Guy Debord. In their well-know essay on “The Culture Industry”, in Dialectic of Enlightenment, they applied Benjamin’s insight on mass self-expression and the maintenance of property relations and ritual values to American popular culture: “All are free to dance and enjoy themselves”, but the freedom to choose how to do so “proves to be the freedom to choose what is always the same”, manufactured by monopoly capital (161–162). Anticipating Baudrillard, they found a society in which “only the copy appears: in the movie theatre, the photograph; on the radio, the recording” (143). And anticipating Debord’s “perfected denial of man” they found a society where work and leisure were structured by the repetition-compulsion principles of capitalism: where people became consumers who appeared “s statistics on research organization charts” (123). “Culture” came to do people’s thinking for them: “Pleasure always means not to think about anything, to forget suffering even where it is shown” (144).In this mass-mediated environment, a culture of repetitions, simulacra, billboards and flickering screens, Adorno and Horkheimer concluded that language lost its historical anchorages: “Innumerable people use words and expressions which they have either ceased to understand or employ only because they trigger off conditioned reflexes” in precisely the same way that the illusory “free” expression of passions in Germany operated, where words were “debased by the Fascist pseudo-folk community” (166).I know that the turf of the culture wars, the US and Australia, are not Fascist states; and I know that “the first one to mention the Nazis loses the argument”. I know, too, that there are obvious shortcomings in Adorno and Horkheimer’s reactions to popular culture and these have been widely criticised. However, I would suggest that there is a great deal of value still in Frankfurt School analyses of what we might call the “authoritarian popular” which can be applied to the conservative prosecution of populist culture wars today. Think, for example, how the concept of a “pseudo folk community” might well describe the earthy, common-sense public constructed and interpellated by right-wing culture warriors: America’s Joe Six-Pack, John Howard’s battlers or Kevin Rudd’s working families.In fact, Adorno and Horkheimer’s observations on language go to the heart of a contemporary culture war strategy. Words lose their history, becoming ciphers and “triggers” in a politicised lexicon. Later, Roland Barthes would write that this is a form of myth-making: “myth is constituted by the loss of the historical quality of things.” Barthes reasoned further that “Bourgeois ideology continuously transforms the products of history into essential types”, generating a “cultural logic” and an ideological re-ordering of the world (142). Types such as “neo-Marxist”, “postmodernist” and “Burkean conservative”.Surely, Benjamin’s assessment that Fascism gives “the people” the occasion to express itself, but only through “values”, describes the right’s pernicious incitement of the mythic “dispossessed mainstream” to reclaim its voice: to shout down the noisy minorities—the gays, greenies, blacks, feminists, multiculturalists and neo-Marxist postmodernists—who’ve apparently been running the show. Even more telling, Benjamin’s insight that the incitement to self-expression is connected to the maintenance of property relations, to economic power, is crucial to understanding the contemptuous conduct of culture wars.3. Jesus Dunked in Urine from Kansas to CronullaAmerican commentator Thomas Frank bases his study What’s the Matter with Kansas? on this very point. Subtitled How Conservatives Won the Heart of America, Frank’s book is a striking analysis of the indexation of Chicago School free-market reform and the mobilisation of “explosive social issues—summoning public outrage over everything from busing to un-Christian art—which it then marries to pro-business policies”; but it is the “economic achievements” of free-market capitalism, “not the forgettable skirmishes of the never-ending culture wars” that are conservatism’s “greatest monuments.” Nevertheless, the culture wars are necessary as Chicago School economic thinking consigns American communities to the rust belt. The promise of “free-market miracles” fails ordinary Americans, Frank reasons, leaving them in “backlash” mode: angry, bewildered and broke. And in this context, culture wars are a convenient form of anger management: “Because some artist decides to shock the hicks by dunking Jesus in urine, the entire planet must remake itself along the lines preferred” by nationalist, populist moralism and free-market fundamentalism (5).When John Howard received the neo-conservative American Enterprise Institute’s Irving Kristol Award, on 6 March 2008, he gave a speech in Washington titled “Sharing Our Common Values”. The nub of the speech was Howard’s revelation that he understood the index of neo-liberal economics and culture wars precisely as Thomas Frank does. Howard told the AEI audience that under his prime ministership Australia had “pursued reform and further modernisation of our economy” and that this inevitably meant “dislocation for communities”. This “reform-dislocation” package needed the palliative of a culture war, with his government preaching the “consistency and reassurance” of “our nation’s traditional values… pride in her history”; his government “became assertive about the intrinsic worth of our national identity. In the process we ended the seemingly endless seminar about that identity which had been in progress for some years.” Howard’s boast that his government ended the “seminar” on national identity insinuates an important point. “Seminar” is a culture-war cipher for intellection, just as “pride” is code for passion; so Howard’s self-proclaimed achievement, in Terry Eagleton’s terms, was to valorise “the blood and the body” over “theoretical analysis”. This speaks stratospheric contempt: ordinary people have their identity fashioned for them; they need not think about it, only feel it deeply and passionately according to “ritual values”. Undoubtedly this paved the way to Cronulla.The rubric of Howard’s speech—“Sharing Our Common Values”—was both a homage to international neo-conservatism and a reminder that culture wars are a trans-national phenomenon. In his address, Howard said that in all his “years in politics” he had not heard a “more evocative political slogan” than Ronald Reagan’s “Morning in America”—the rhetorical catch-cry for moral re-awakening that launched the culture wars. According to Lawrence Grossberg, America’s culture wars were predicated on the perception that the nation was afflicted by “a crisis of our lack of passion, of not caring enough about the values we hold… a crisis of nihilism which, while not restructuring our ideological beliefs, has undermined our ability to organise effective action on their behalf”; and this “New Right” alarmism “operates in the conjuncture of economics and popular culture” and “a popular struggle by which culture can lead politics” in the passionate pursuit of ritual values (31–2). When popular culture leads politics in this way we are in the zone of the image, myth and Adorno and Horkheimer’s “trigger words” that have lost their history. In this context, McKenzie Wark observes that “radical writers influenced by Marx will see the idea of culture as compensation for a fragmented and alienated life as a con. Guy Debord, perhaps the last of the great revolutionary thinkers of Europe, will call it “the spectacle”’ (20). Adorno and Horkheimer might well have called it “the authoritarian popular”. As Jonathan Charteris-Black’s work capably demonstrates, all politicians have their own idiolect: their personally coded language, preferred narratives and myths; their own vision of who “the people” might or should be that is conjured in their words. But the language of the culture wars is different. It is not a personal idiolect. It is a shared vocabulary, a networked vernacular, a pervasive trans-national aesthetic that pivots on the fact that words like “neo-Marxist”, “postmodern” and “Edmund Burke” have no historical or intellectual context or content: they exist as the ciphers of “values”. And the fact that culture warriors continually mouth them is a supreme act of contempt: it robs the public of its memory. And that’s why, as Lucy and Mickler’s War on Democracy so wittily argues, if there are any postmodernists left they’ll be on the right.Benjamin, Adorno, Horkheimer and, later, Debord and Grossberg understood how the political activation of the popular constitutes a hegemonic project. The result is nothing short of persuading “the people” to collaborate in its own oppression. The activation of the popular is perfectly geared to an age where the main stage of political life is the mainstream media; an age in which, Charteris-Black notes, political classes assume the general antipathy of publics to social change and act on the principle that the most effective political messages are sold to “the people” by an appeal “to familiar experiences”—market populism (10). In her substantial study The Persuaders, Sally Young cites an Australian Labor Party survey, conducted by pollster Rod Cameron in the late 1970s, in which the party’s message machine was finely tuned to this populist position. The survey also dripped with contempt for ordinary people: their “Interest in political philosophy… is very low… They are essentially the products (and supporters) of mass market commercialism”. Young observes that this view of “the people” was the foundation of a new order of political advertising and the conduct of politics on the mass-media stage. Cameron’s profile of “ordinary people” went on to assert that they are fatally attracted to “a moderate leader who is strong… but can understand and represent their value system” (47): a prescription for populist discourse which begs the question of whether the values a politician or party represent via the media are ever really those of “the people”. More likely, people are hegemonised into a value system which they take to be theirs. Writing of the media side of the equation, David Salter raises the point that when media “moguls thunder about ‘the public interest’ what they really mean is ‘what we think the public is interested in”, which is quite another matter… Why this self-serving deception is still so sheepishly accepted by the same public it is so often used to violate remains a mystery” (40).Sally Young’s Persuaders retails a story that she sees as “symbolic” of the new world of mass-mediated political life. The story concerns Mark Latham and his “revolutionary” journeys to regional Australia to meet the people. “When a political leader who holds a public meeting is dubbed a ‘revolutionary’”, Young rightly observes, “something has gone seriously wrong”. She notes how Latham’s “use of old-fashioned ‘meet-and-greet’campaigning methods was seen as a breath of fresh air because it was unlike the type of packaged, stage-managed and media-dependent politics that have become the norm in Australia.” Except that it wasn’t. “A media pack of thirty journalists trailed Latham in a bus”, meaning, that he was not meeting the people at all (6–7). He was traducing the people as participants in a media spectacle, as his “meet and greet” was designed to fill the image-banks of print and electronic media. Even meeting the people becomes a media pseudo-event in which the people impersonate the people for the camera’s benefit; a spectacle as artfully deceitful as Colin Powell’s UN performance on Iraq.If the success of this kind of “self-serving deception” is a mystery to David Salter, it would not be so to the Frankfurt School. For them, an understanding of the processes of mass-mediated politics sits somewhere near the core of their analysis of the culture industries in the “democratic” world. I think the Frankfurt school should be restored to a more important role in the project of cultural studies. Apart from an aversion to jazz and other supposedly “elitist” heresies, thinkers like Adorno, Benjamin, Horkheimer and their progeny Debord have a functional claim to provide the theory for us to expose the machinations of the politics of contempt and its aesthetic ruses.ReferencesAdorno, Theodor and Max Horkheimer. "The Culture Industry: Enlightenment as Mass Deception." Dialectic of Enlightenment. London: Verso, 1979. 120–167.Barthes Roland. “Myth Today.” Mythologies. Trans. Annette Lavers. St Albans: Paladin, 1972. 109–58.Baudrillard, Jean. Simulations. New York: Semiotext(e), 1983.Benjamin, Walter. “The Work of Art in the Age of Mechanical Reproduction.” Illuminations. Ed. Hannah Arendt. Trans. Harry Zorn. New York: Schocken Books, 1969. 217–251.Burke, Edmund. Reflections on the Revolution in France. Ed. Conor Cruise O’Brien. Harmondsworth: Penguin, 1969.Charteris-Black, Jonathan. Politicians and Rhetoric: The Persuasive Power of Metaphor. Houndmills: Palgrave Macmillan, 2006.Debord, Guy. The Society of the Spectacle. Trans. Donald Nicholson-Smith. New York: Zone Books, 1994.Eagleton, Terry. The Ideology of the Aesthetic. Oxford: Basil Blackwell, 1990.Frank, Thomas. What’s the Matter with Kansas?: How Conservatives Won the Heart of America. New York: Henry Holt and Company, 2004.Grossberg, Lawrence. “It’s a Sin: Politics, Post-Modernity and the Popular.” It’s a Sin: Essays on Postmodern Politics & Culture. Eds. Tony Fry, Ann Curthoys and Paul Patton. Sydney: Power Publications, 1988. 6–71.Hewett, Jennifer. “The Opportunist.” The Weekend Australian Magazine. 25–26 October 2008. 16–22.Hitler, Adolf. Mein Kampf. Trans. Ralph Manheim. London: Pimlico, 1993.Howard, John. “Sharing Our Common Values.” Washington: Irving Kristol Lecture, American Enterprise Institute. 5 March 2008. ‹http://www.theaustralian.news.com.au/story/0,25197,233328945-5014047,00html›.Lucy, Niall and Steve Mickler. The War on Democracy: Conservative Opinion in the Australian Press. Crawley: University of Western Australia Press, 2006.Pearson, Christopher. “Pray for Sense to Prevail.” The Weekend Australian. 25–26 October 2008. 30.Salter, David. The Media We Deserve: Underachievement in the Fourth Estate. Melbourne: Melbourne UP, 2007. Sereny, Gitta. Albert Speer: His Battle with Truth. London: Picador, 1996.Spotts, Frederic. Hitler and the Power of Aesthetics. London: Pimlico, 2003.Wark, McKenzie. The Virtual Republic: Australia’s Culture Wars of the 1990s. St Leonards: Allen & Unwin, 1997.Young, Sally. The Persuaders: Inside the Hidden Machine of Political Advertising. Melbourne: Pluto Press, 2004.

Anyone contemplating the role of a “hermeneutics of suspicion” in literary and cultural studies must concede that the phrase is rarely used—even by its most devout practitioners, who usually think of themselves engaged in something called “critique.” What, then, are the terminological differences between “critique” and “the hermeneutics of suspicion”? What intellectual worlds do these specific terms conjure up, and how do these worlds converge or diverge? And what is the rationale for preferring one term over the other?The “hermeneutics of suspicion” is a phrase coined by Paul Ricoeur to capture a common spirit that pervades the writings of Marx, Freud, and Nietzsche. In spite of their obvious differences, he argued, these thinkers jointly constitute a “school of suspicion.” That is to say, they share a commitment to unmasking “the lies and illusions of consciousness;” they are the architects of a distinctively modern style of interpretation that circumvents obvious or self-evident meanings in order to draw out less visible and less flattering truths (Ricoeur 356). Ricoeur’s term has sustained an energetic after-life within religious studies, as well as in philosophy, intellectual history, and related fields, yet it never really took hold in literary studies. Why has a field that has devoted so much of its intellectual energy to interrogating, subverting, and defamiliarising found so little use for Ricoeur’s phrase?In general, we can note that hermeneutics remains a path not taken in Anglo-American literary theory. The tradition of hermeneutical thinking is rarely acknowledged (how often do you see Gadamer or Ricoeur taught in a theory survey?), let alone addressed, assimilated, or argued over. Thanks to a lingering aura of teutonic stodginess, not to mention its long-standing links with a tradition of biblical interpretation, hermeneutics was never able to muster the intellectual edginess and high-wattage excitement generated by various forms of poststructuralism. Even the work of Gianni Vattimo, one of the most innovative and prolific of contemporary hermeneutical thinkers, has barely registered in the mainstream of literary and cultural studies. On occasion, to be sure, hermeneutics crops up as a synonym for a discredited model of “depth” interpretation—the dogged pursuit of a hidden true meaning—that has supposedly been superseded by more sophisticated forms of thinking. Thus the ascent of poststructuralism, it is sometimes claimed, signaled a turn away from hermeneutics to deconstruction and genealogy—leading to a focus on surface rather than depth, on structure rather than meaning, on analysis rather than interpretation. The idea of suspicion has fared little better. While Ricoeur’s account of a hermeneutics of suspicion is respectful, even admiring, critics are understandably leery of having their lines of argument reduced to their putative state of mind. The idea of a suspicious hermeneutics can look like an unwarranted personalisation of scholarly work, one that veers uncomfortably close to Harold Bloom’s tirades against the “School of Resentment” and other conservative complaints about literary studies as a hot-bed of paranoia, kill-joy puritanism, petty-minded pique, and defensive scorn. Moreover, the anti-humanist rhetoric of much literary theory—its resolute focus on transpersonal and usually linguistic structures of determination—proved inhospitable to any serious reflections on attitude, disposition, or affective stance.The concept of critique, by contrast, turns out to be marred by none of these disadvantages. An unusually powerful, flexible and charismatic idea, it has rendered itself ubiquitous and indispensable in literary and cultural studies. Critique is widely seen as synonymous with intellectual rigor, theoretical sophistication, and intransigent opposition to the status quo. Drawing a sense of intellectual weightiness from its connections to the canonical tradition of Kant and Marx, it has managed, nonetheless, to retain a cutting-edge sensibility, retooling itself to fit the needs of new fields ranging from postcolonial theory to disability studies. Critique is contagious and charismatic, drawing everything around it into its field of force, marking the boundaries of what counts as serious thought. For many scholars in the humanities, it is not just one good thing but the only conceivable thing. Who would want to be associated with the bad smell of the uncritical? There are five facets of critique (enumerated and briefly discussed below) that characterise its current role in literary and cultural studies and that have rendered critique an exceptionally successful rhetorical-cultural actor. Critique, that is to say, inspires intense attachments, serves as a mediator in numerous networks, permeates disciplines and institutional structures, spawns conferences, essays, courses, and book proposals, and triggers countless imitations, translations, reflections, revisions, and rebuttals (including the present essay). While nurturing a sense of its own marginality, iconoclasm, and outsiderdom, it is also exceptionally effective at attracting disciples, forging alliances, inspiring mimicry, and ensuring its own survival. In “Why Has Critique Run Out of Steam?” Bruno Latour remarks that critique has been so successful because it assures us that we are always right—unlike those naïve believers whose fetishes we strive to expose (225–48). At the same time, thanks to its self-reflexivity, the rhetoric of critique is more tormented and self-divided than such a description would suggest; it broods constantly over the shame of its own success, striving to detect signs of its own complicity and to root out all possible evidence of collusion with the status quo.Critique is negative. Critique retains the adversarial force of a suspicious hermeneutics, while purifying it of affective associations by treating negativity as an essentially philosophical or political matter. To engage in critique is to grapple with the oversights, omissions, contradictions, insufficiencies, or evasions in the object one is analysing. Robert Koch writes that “critical discourse, as critical discourse, must never formulate positive statements: it is always ‘negative’ in relation to its object” (531). Critique is characterised by its “againstness,” by its desire to take a hammer, as Latour would say, to the beliefs of others. Faith is to be countered with vigilant skepticism, illusion yields to a sobering disenchantment, the fetish must be defetishised, the dream world stripped of its befuddling powers. However, the negativity of critique is not just a matter of fault-finding, scolding, and censuring. The nay-saying critic all too easily calls to mind the Victorian patriarch, the thin-lipped schoolmarm, the glaring policeman. Negating is tangled up with a long history of legislation, prohibition and interdiction—it can come across as punitive, arrogant, authoritarian, or vitriolic. In consequence, defenders of critique often downplay its associations with outright condemnation. It is less a matter of refuting particular truths than of scrutinising the presumptions and procedures through which truths are established. A preferred idiom is that of “problematising,” of demonstrating the ungroundedness of beliefs rather than denouncing errors. The role of critique is not to castigate, but to complicate, not to engage in ideas’ destruction but to expose their cultural construction. Barbara Johnson, for example, contends that a critique of a theoretical system “is not an examination of its flaws and imperfections” (xv). Rather, “the critique reads backwards from what seems natural, obvious, self-evident, or universal in order to show that these things have their history” and to show that the “start point is not a (natural) given, but a (cultural) construct, usually blind to itself” (Johnson xv–xvi). Yet it seems a tad disingenuous to describe such critique as free of negative judgment and the examination of flaws. Isn’t an implicit criticism being transmitted in Johnson’s claim that a cultural construct is “usually blind to itself”? And the adjectival chain “natural, obvious, self-evident, or universal” strings together some of the most negatively weighted words in contemporary criticism. A posture of detachment, in other words, can readily convey a tacit or implicit judgment, especially when it is used to probe the deep-seated convictions, primordial passions, and heart-felt attachments of others. In this respect, the ongoing skirmishes between ideology critique and poststructuralist critique do not over-ride their commitment to a common ethos: a sharply honed suspicion that goes behind the backs of its interlocutors to retrieve counter-intuitive and uncomplimentary meanings. “You do not know that you are ideologically-driven, historically determined, or culturally constructed,” declares the subject of critique to the object of critique, “but I do!” As Marcelo Dascal points out, the supposedly non-evaluative stance of historical or genealogical argument nevertheless retains a negative or demystifying force in tracing ideas back to causes invisible to the actors themselves (39–62).Critique is secondary. A critique is always a critique of something, a commentary on another argument, idea, or object. Critique does not vaunt its self-sufficiency, independence, and autotelic splendor; it makes no pretense of standing alone. It could not function without something to critique, without another entity to which it reacts. Critique is symbiotic; it does its thinking by responding to the thinking of others. But while secondary, critique is far from subservient. It seeks to wrest from a text a different account than it gives of itself. In doing so, it assumes that it will meet with, and overcome, a resistance. If there were no resistance, if the truth were self-evident and available for all to see, the act of critique would be superfluous. Its goal is not the slavish reconstruction of an original or true meaning but a counter-reading that brings previously unfathomed insights to light. The secondariness of critique is not just a logical matter—critique presumes the existence of a prior object—but also a temporal one. Critique comes after another text; it follows or succeeds another piece of writing. Critique, then, looks backward and, in doing so, it presumes to understand the past better than the past understands itself. Hindsight becomes insight; from our later vantage point, we feel ourselves primed to see better, deeper, further. The belatedness of critique is transformed into a source of iconoclastic strength. Scholars of Greek tragedy or Romantic poetry may mourn their inability to inhabit a vanished world, yet this historical distance is also felt as a productive estrangement that allows critical knowledge to unfold. Whatever the limitations of our perspective, how can we not know more than those who have come before? We moderns leave behind us a trail of errors, finally corrected, like a cloud of ink from a squid, remarks Michel Serres (48). There is, in short, a quality of historical chauvinism built into critique, making it difficult to relinquish a sense of in-built advantage over those lost souls stranded in the past. Critique likes to have the last word. Critique is intellectual. Critique often insists on its difference from everyday practices of criticism and judgment. While criticism evaluates a specific object, according to one definition, “critique is concerned to identify the conditions of possibility under which a domain of objects appears” (Butler 109). Critique is interested in big pictures, cultural frameworks, underlying schema. It is a mode of thought well matched to the library and seminar room, to a rhythm of painstaking inquiry rather than short-term problem-solving. It “slows matters down, requires analysis and reflection, and often raises questions rather than providing answers” (Ruitenberg 348). Critique is thus irresistibly drawn toward self-reflexive thinking. Its domain is that of second-level observation, in which we reflect on the frames, paradigms, and perspectives that form and inform our understanding. Even if objectivity is an illusion, how can critical self-consciousness not trump the available alternatives? This questioning of common sense is also a questioning of common language: self-reflexivity is a matter of form as well as content, requiring the deployment of what Jonathan Culler and Kevin Lamb call “difficult language” that can undermine or “un-write” the discourses that make up our world (1–14). Along similar lines, Paul Bove allies himself with a “tradition that insists upon difficulty, slowness, complex, often dialectical and highly ironic styles,” as an essential antidote to the “prejudices of the current regime of truth: speed, slogans, transparency, and reproducibility” (167). Critique, in short, demands an arduous working over of language, a stoic refusal of the facile phrase and ready-made formula. Yet such programmatic divisions between critique and common sense have the effect of relegating ordinary language to a state of automatic servitude, while condescending to those unschooled in the patois of literary and critical theory. Perhaps it is time to reassess the dog-in-the-manger attitude of a certain style of academic argument—one that assigns to scholars the vantage point of the lucid and vigilant thinker, while refusing to extend this same capacity to those naïve and unreflecting souls of whom they speak.Critique comes from below. Politics and critique are often equated and conflated in literary studies and elsewhere. Critique is iconoclastic in spirit; it rails against authority; it seeks to lay bare the injustices of the law. It is, writes Foucault, the “art of voluntary insubordination, that of reflected intractability” (194). This vision of critique can be traced back to Marx and is cemented in the tradition of critical theory associated with the Frankfurt School. Critique conceives of itself as coming from below, or being situated at the margins; it is the natural ally of excluded groups and subjugated knowledges; it is not just a form of knowledge but a call to action. But who gets to claim the mantle of opposition, and on what grounds? In a well-known essay, Nancy Fraser remarks that critical theory possesses a “partisan though not uncritical identification” with oppositional social movements (97). As underscored by Fraser’s judicious insertion of the phrase “not uncritical,” critique guards its independence and reserves the right to query the actions and attitudes of the oppressed as well as the oppressors. Thus the intellectual’s affiliation with a larger community may collide with a commitment to the ethos of critique, as the object of a more heartfelt attachment. A separation occurs, as Francois Cusset puts it, “between academics questioning the very methods of questioning” and the more immediate concerns of the minority groups with which they are allied (157). One possible strategy for negotiating this tension is to flag one’s solidarity with a general principle of otherness or alterity—often identified with the utopian or disruptive energies of the literary text. This strategy gives critique a shot in the arm, infusing it with a dose of positive energy and ethical substance, yet without being pinned down to the ordinariness of a real-world referent. This deliberate vagueness permits critique to nurture its mistrust of the routines and practices through which the everyday business of the world is conducted, while remaining open to the possibility of a radically different future. Critique in its positive aspects thus remains effectively without content, gesturing toward a horizon that must remain unspecified if it is not to lapse into the same fallen state as the modes of thought that surround it (Fish 446).Critique does not tolerate rivals. Declaring itself uniquely equipped to diagnose the perils and pitfalls of representation, critique often chafes at the presence of other forms of thought. Ruling out the possibility of peaceful co-existence or even mutual indifference, it insists that those who do not embrace its tenets must be denying or disavowing them. In this manner, whatever is different from critique is turned into the photographic negative of critique—evidence of an irrefutable lack or culpable absence. To refuse to be critical is to be uncritical; a judgment whose overtones of naiveté, apathy, complacency, submissiveness, and sheer stupidity seem impossible to shrug off. In short, critique thinks of itself as exceptional. It is not one path, but the only conceivable path. Drew Milne pulls no punches in his programmatic riff on Kant: “to be postcritical is to be uncritical: the critical path alone remains open” (18).The exceptionalist aura of critique often thwarts attempts to get outside its orbit. Sociologist Michael Billig, for example, notes that critique thinks of itself as battling orthodoxy, yet is now the reigning orthodoxy—no longer oppositional, but obligatory, not defamiliarising, but oppressively familiar: “For an increasing number of younger academics,” he remarks, “the critical paradigm is the major paradigm in their academic world” (Billig 292). And in a hard-hitting argument, Talal Asad points out that critique is now a quasi-automatic stance for Western intellectuals, promoting a smugness of tone that can be cruelly dismissive of the deeply felt beliefs and attachments of others. Yet both scholars conclude their arguments by calling for a critique of critique, reinstating the very concept they have so meticulously dismantled. Critique, it seems, is not to be abandoned but intensified; critique is to be replaced by critique squared. The problem with critique, it turns out, is that it is not yet critical enough. The objections to critique are still very much part and parcel of the critique-world; the value of the critical is questioned only to be emphatically reinstated.Why do these protestations against critique end up worshipping at the altar of critique? Why does it seem so exceptionally difficult to conceive of other ways of arguing, reading, and thinking? We may be reminded of Eve Sedgwick’s comments on the mimetic aspect of critical interpretation: its remarkable ability to encourage imitation, repetition, and mimicry, thereby ensuring its own reproduction. It is an efficiently running form of intellectual machinery, modeling a style of thought that is immediately recognisable, widely applicable, and easily teachable. Casting the work of the scholar as a never-ending labour of distancing, deflating, and diagnosing, it rules out the possibility of a different relationship to one’s object. It seems to grow, as Sedgwick puts it, “like a crystal in a hypersaturated solution, blotting out any sense of the possibility of alternative ways of understanding or things to understand” (131).In this context, a change in vocabulary—a redescription, if you will—may turn out to be therapeutic. It will come as no great surprise if I urge a second look at the hermeneutics of suspicion. Ricoeur’s phrase, I suggest, can help guide us through the interpretative tangle of contemporary literary studies. It seizes on two crucial parts of critical argument—its sensibility and its interpretative method—that deserve more careful scrutiny. At the same time, it offers a much-needed antidote to the charisma of critique: the aura of ethical and political exemplarity that burnishes its negativity with a normative glow. Thanks to this halo effect, I’ve suggested, we are encouraged to assume that the only alternative to critique is a full-scale surrender to complacency, quietism, and—in literary studies—the intellectual fluff of aesthetic appreciation. Critique, moreover, presents itself as an essentially disembodied intellectual exercise, an austere, even abstemious practice of unsettling, unmaking, and undermining. Yet contemporary styles of critical argument are affective as well as analytical, conjuring up distinctive dispositions and relations to their object. As Amanda Anderson has pointed out in The Way We Argue Now, literary and cultural theory is saturated with what rhetoricians call ethos—that is to say, imputations of motive, character, or attitude. We need only think of the insouciance associated with Rortyan pragmatism, the bad-boy iconoclasm embraced by some queer theorists, or the fastidious aestheticism that characterises a certain kind of deconstructive reading. Critical languages, in other words, are also orientations, encouraging readers to adopt an affectively tinged stance toward their object. Acknowledging the role of such orientations in critical debate does not invalidate its intellectual components, nor does it presume to peer into, or diagnose, an individual scholar’s state of mind.In a related essay, I scrutinise some of the qualities of a suspicious or critical reading practice: distance rather than closeness; guardedness rather than openness; aggression rather than submission; superiority rather than reverence; attentiveness rather than distraction; exposure rather than tact (215–34). Suspicion, in this sense, constitutes a muted affective state—a curiously non-emotional emotion of morally inflected mistrust—that overlaps with, and builds upon, the stance of detachment that characterises the stance of the professional or expert. That this style of reading proves so alluring has much to do with the gratifications and satisfactions that it offers. Beyond the usual political or philosophical justifications of critique, it also promises the engrossing pleasure of a game-like sparring with the text in which critics deploy inventive skills and innovative strategies to test their wits, best their opponents, and become sharper, shrewder, and more sophisticated players. In this context, the claim that contemporary criticism has moved “beyond” hermeneutics should be treated with a grain of salt, given that, as Stanley Fish points out, “interpretation is the only game in town” (446). To be sure, some critics have backed away from the model of what they call “depth interpretation” associated with Marx and Freud, in which reading is conceived as an act of digging and the critic, like a valiant archaeologist, excavates a resistant terrain in order to retrieve the treasure of hidden meaning. In this model, the text is envisaged as possessing qualities of interiority, concealment, penetrability, and depth; it is an object to be plundered, a puzzle to be solved, a secret message to be deciphered. Instead, poststructuralist critics are drawn to the language of defamiliarising rather than discovery. The text is no longer composed of strata and the critic does not burrow down but stands back. Instead of brushing past surface meanings in pursuit of hidden truth, she dwells in ironic wonder on these surface meanings, seeking to “denaturalise” them through the mercilessness of her gaze. Insight, we might say, is achieved by distancing rather than by digging. Recent surveys of criticism often highlight the rift between these camps, underscoring the differences between the diligent seeker after buried truth and the surface-dwelling ironist. From a Ricoeur-inflected point of view, however, it is their shared investment in a particular ethos—a stance of knowingness, guardedness, suspicion and vigilance—that turns out to be more salient and more striking. Moreover, these approaches are variously engaged in the dance of interpretation, seeking to go beyond the backs of texts or fellow-actors in order to articulate non-obvious and often counter-intuitive truths. In the case of poststructuralism, we can speak of a second-order hermeneutics that is less interested in probing the individual object than the larger frameworks and conditions in which it is embedded. What the critic interprets is no longer a self-contained poem or novel, but a broader logic of discursive structures, reading formations, or power relations. Ricoeur’s phrase, moreover, has the singular advantage of allowing us to by-pass the exceptionalist tendencies of critique: its presumption that whatever is not critique can only be assigned to the ignominious state of the uncritical. As a less prejudicial term, it opens up a larger history of suspicious reading, including traditions of religious questioning and self-scrutiny that bear on current forms of interpretation, but that are occluded by the aggressively secular connotations of critique (Hunter). In this context, Ricoeur’s own account needs to be supplemented and modified to acknowledge this larger cultural history; the hermeneutics of suspicion is not just the brain-child of a few exceptional thinkers, as his argument implies, but a widespread practice of interpretation embedded in more mundane, diffuse and variegated forms of life (Felski 220).Finally, the idea of a suspicious hermeneutics does not invalidate or rule out other interpretative possibilities—ranging from Ricoeur’s own notion of a hermeneutics of trust to more recent coinages such as Sedgwick’s “restorative reading,” Sharon Marcus’s “just reading” or Timothy Bewes’s “generous reading.” Literary studies in France, for example, is currently experiencing a new surge of interest in hermeneutics (redefined as a practice of reinvention rather than exhumation) as well as a reinvigorated phenomenology of reading that elucidates, in rich and fascinating detail, its immersive and affective dimensions (see Citton; Macé). This growing interest in the ethos, aesthetics, and ethics of reading is long overdue. Such an orientation by no means rules out attention to the sociopolitical resonances of texts and their interpretations. It is, however, no longer willing to subordinate such attention to the seductive but sterile dichotomy of the critical versus the uncritical.ReferencesAnderson, Amanda. The Way We Argue Now: A Study in the Cultures of Theory. Princeton: Princeton UP, 2005.Asad, Talal. “Free Speech, Blasphemy, and Secular Criticism.” Is Critique Secular? Blasphemy, Injury, and Free Speech. Ed. Talal Asad, Wendy Brown, Judith Butler, and Saba Mahmood. Berkeley: Townsend Center for the Humanities, 2009. 20–63. Bewes, Timothy. “Reading with the Grain: A New World in Literary Studies.” Differences 21.3 (2010): 1–33.Billig, Michael. “Towards a Critique of the Critical.” Discourse and Society 11.3 (2000): 291–92. Bloom, Harold. The Western Canon: The Books and School of the Ages. New York: Harcourt Brace, 1994.Bove, Paul. Mastering Discourse: The Politics of Intellectual Culture. Durham: Duke UP, 1992. Butler, Judith. “The Sensibility of Critique: Response to Asad and Mahmood.” Is Critique Secular? Blasphemy, Injury, and Free Speech. Ed. Talal Asad, Wendy Brown, Judith Butler, and Saba Mahmood. Berkeley: Townsend Center for the Humanities, 2009. 101–136.Citton, Yves. Lire, interpréter, actualiser: pourqoi les études littéraires? Paris: Editions Amsterdam, 2007. Culler, Jonathan and Kevin Lamb, “Introduction.” Just Being Difficult? Academic Writing in the Public Arena. Ed. Jonathan Culler and Kevin Lamb. Stanford: Stanford UP, 2003. 1–14. Cusset, Francois. French Theory: How Foucault, Derrida, Deleuze, & Co. Transformed the Intellectual Life of the United States. Trans. Jeff Fort. Minneapolis: U of Minnesota P, 2008.Dascal, Marcelo. “Critique without Critics?” Science in Context 10.1 (1997): 39–62.Felski, Rita. “Suspicious Minds.” Poetics Today 32.2 (2011): 215–34.Fish, Stanley. Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies. Durham: Duke UP, 1989.Foucault, Michel. “What is Critique?” The Political. Ed. David Ingram. Oxford: Blackwell, 2002. 191–211. Fraser, Nancy. “What’s Critical about Critical Theory? The Case of Habermas and Gender.” New German Critique 35 (1985): 97–131. Hunter, Ian. Rethinking the School: Subjectivity, Bureaucracy, Criticism. New York: St Martin’s Press, 1994.Johnson, Barbara. “Translator’s Introduction.” Jacques Derrida’s Dissemination. London: Continuum, 2004. vii–xxxv. Koch, Robert. “The Critical Gesture in Philosophy.” Iconoclash: Beyond the Image Wars in Science, Religion, and Art. Ed. Bruno Latour and Peter Weibel. Cambridge: MIT, 2002. 524–36. Latour, Bruno. “Why Has Critique Run Out of Steam? From Matters of Fact to Matters of Concern.” Critical Inquiry 30 (2004): 225–48.Macé, Marielle. Facons de lire, manières d’être. Paris: Gallimard, 2011. Marcus, Sharon. Between Women: Friendship, Desire, and Marriage in Victorian England. Princeton: Princeton UP, 2007.Milne, Drew. “Introduction: Criticism and/or Critique.” Modern Critical Thought: An Anthology of Theorists Writing on Theorists. Oxford: Blackwell, 2002. 1–22. Ricoeur, Paul. Freud and Philosophy: An Essay on Interpretation. New Haven: Yale UP, 1970. Ruitenberg, Claudia. “Don’t Fence Me In: The Liberation of Undomesticated Critique.” Journal of the Philosophy of Education 38.3 (2004): 314–50. Sedgwick, Eve Kosofsky. “Paranoid Reading and Reparative Reading, Or, You’re So Paranoid, You Probably Think This Essay is About You.” Touching Feeling: Affect, Pedagogy, Performativity. Durham: Duke UP, 2003. 123–52. Serres, Michel and Bruno Latour. Conversations on Science, Culture, and Time. Trans. Roxanne Lapidus. Ann Arbor: U of Michigan P, 1995.Vattimo, Gianni. Beyond Interpretation: The Meaning of Hermeneutics for Philosophy. Trans. David Webb. Stanford: Stanford UP, 1997.

For the past twenty years, academics and other social commentators have, by and large, shared the view that the phase of modernity through which we are currently passing is defined by two interrelated catalysts of change: the physical movement of people and the virtual movement of information around the globe. As we enter the second decade of the new millennium, it is certainly a timely moment to reflect upon the ways in which the prognoses of the scholars and scientists writing in the late twentieth century have come to pass, especially since—during the time this special issue has been in press—the revolutions that are gathering pace in the Arab world appear to be realising the theoretical prediction that the ever-increasing “flows” of people and information would ultimately bring about the end of the nation-state and herald an era of transnationalism (Appadurai, Urry). For writers like Arjun Appadurai, moreover, the concept of diaspora was key to grasping how this new world order would take shape, and how it would operate: Diasporic public spheres, diverse amongst themselves, are the crucibles of a postnational political order. The engines of their discourse are mass media (both interactive and expressive) and the movement of refugees, activists, students, laborers. It may be that the emergent postnational order proves not to be a system of homogeneous units (as with the current system of nation-states) but a system based on relations between heterogeneous units (some social movements, some interest groups, some professional bodies, some non-governmental organizations, some armed constabularies, some judicial bodies) ... In the short run, as we can see already, it is likely to be a world of increased incivility and violence. In the longer run, free from the constraints of the nation form, we may find that cultural freedom and sustainable justice in the world do not presuppose the uniform and general existence of the nation-state. This unsettling possibility could be the most exciting dividend of living in modernity at large. (23) In this editorial, we would like to return to the “here and now” of the late 1990s in which theorists like Arjun Appaduri, Ulrich Beck, John Urry, Zygmunt Bauman, Robert Robertson and others were “imagining” the consequences of both globalisation and glocalisation for the twenty-first century in order that we may better assess what is, indeed, coming to pass. While most of their prognoses for this “second modernity” have proven remarkably accurate, it is their—self-confessed—inability to forecast either the nature or the extent of the digital revolution that most vividly captures the distance between the mid-1990s and now; and it is precisely the consequences of this extraordinary technological revolution on the twin concepts of “glocality” and “diaspora” that the research featured in this special issue seeks to capture. Glocal Imaginaries Appadurai’s endeavours to show how globalisation was rapidly making itself felt as a “structure of feeling” (Williams in Appadurai 189) as well as a material “fact” was also implicit in our conceptualisation of the conference, “Glocal Imaginaries: Writing/Migration/Place,” which gave rise to this special issue. This conference, which was the culmination of the AHRC-funded project “Moving Manchester: Literature/Migration/Place (2006-10)”, constituted a unique opportunity to gain an international, cross-disciplinary perspective on urgent and topical debates concerning mobility and migration in the early twenty-first century and the strand “Networked Diasporas” was one of the best represented on the program. Attracting papers on broadcast media as well as the new digital technologies, the strand was strikingly international in terms of the speakers’ countries of origin, as is this special issue which brings together research from six European countries, Australia and the Indian subcontinent. The “case-studies” represented in these articles may therefore be seen to constitute something of a “state-of-the-art” snapshot of how Appadurai’s “glocal imaginary” is being lived out across the globe in the early years of the twenty-first century. In this respect, the collection proves that his hunch with regards to the signal importance of the “mass-media” in redefining our spatial and temporal coordinates of being and belonging was correct: The third and final factor to be addressed here is the role of the mass-media, especially in its electronic forms, in creating new sorts of disjuncture between spatial and virtual neighborhoods. This disjuncture has both utopian and dystopian potentials, and there is no easy way to tell how these may play themselves out in the future of the production of locality. (194) The articles collected here certainly do serve as testament to the “bewildering plethora of changes in ... media environments” (195) that Appadurai envisaged, and yet it can clearly also be argued that this agent of glocalisation has not yet brought about the demise of the nation-state in the way (or at the speed) that many commentators predicted. Digital Diasporas in a Transnational World Reviewing the work of the leading social science theorists working in the field during the late 1990s, it quickly becomes evident that: (a) the belief that globalisation presented a threat to the nation-state was widely held; and (b) that the “jury” was undecided as to whether this would prove a good or bad thing in the years to come. While the commentators concerned did their best to complexify both their analysis of the present and their view of the future, it is interesting to observe, in retrospect, how the rhetoric of both utopia and dystopia invaded their discourse in almost equal measure. We have already seen how Appadurai, in his 1996 publication, Modernity at Large, looks beyond the “increased incivility and violence” of the “short term” to a world “free from the constraints of the nation form,” while Roger Bromley, following Agamben and Deleuze as well as Appadurai, typifies a generation of literary and cultural critics who have paid tribute to the way in which the arts (and, in particular, storytelling) have enabled subjects to break free from their national (af)filiations (Pearce, Devolving 17) and discover new “de-territorialised” (Deleuze and Guattari) modes of being and belonging. Alongside this “hope,” however, the forces and agents of globalisation were also regarded with a good deal of suspicion and fear, as is evidenced in Ulrich Beck’s What is Globalization? In his overview of the theorists who were then perceived to be leading the debate, Beck draws distinctions between what was perceived to be the “engine” of globalisation (31), but is clearly most exercised by the manner in which the transformation has taken shape: Without a revolution, without even any change in laws or constitutions, an attack has been launched “in the normal course of business”, as it were, upon the material lifelines of modern national societies. First, the transnational corporations are to export jobs to parts of the world where labour costs and workplace obligations are lowest. Second, the computer-generation of worldwide proximity enables them to break down and disperse goods and services, and produce them through a division of labour in different parts of the world, so that national and corporate labels inevitably become illusory. (3; italics in the original) Beck’s concern is clearly that all these changes have taken place without the nation-states of the world being directly involved in any way: transnational corporations began to take advantage of the new “mobility” available to them without having to secure the agreement of any government (“Companies can produce in one country, pay taxes in another and demand state infrastructural spending in yet another”; 4-5); the export of the labour market through the use of digital communications (stereotypically, call centres in India) was similarly unregulated; and the world economy, as a consequence, was in the process of becoming detached from the processes of either production or consumption (“capitalism without labour”; 5-7). Vis-à-vis the dystopian endgame of this effective “bypassing” of the nation-state, Beck is especially troubled about the fate of the human rights legislation that nation-states around the world have developed, with immense effort and over time (e.g. employment law, trade unions, universal welfare provision) and cites Zygmunt Bauman’s caution that globalisation will, at worst, result in widespread “global wealth” and “local poverty” (31). Further, he ends his book with a fully apocalyptic vision, “the Brazilianization of Europe” (161-3), which unapologetically calls upon the conventions of science fiction to imagine a worst-case scenario for a Europe without nations. While fourteen or fifteen years is evidently not enough time to put Beck’s prognosis to the test, most readers would probably agree that we are still some way away from such a Europe. Although the material wealth and presence of the transnational corporations strikes a chord, especially if we include the world banks and finance organisations in their number, the financial crisis that has rocked the world for the past three years, along with the wars in Iraq and Afghanistan, and the ascendancy of Al-Qaida (all things yet to happen when Beck was writing in 1997), has arguably resulted in the nations of Europe reinforcing their (respective and collective) legal, fiscal, and political might through rigorous new policing of their physical borders and regulation of their citizens through “austerity measures” of an order not seen since World War Two. In other words, while the processes of globalisation have clearly been instrumental in creating the financial crisis that Europe is presently grappling with and does, indeed, expose the extent to which the world economy now operates outside the control of the nation-state, the nation-state still exists very palpably for all its citizens (whether permanent or migrant) as an agent of control, welfare, and social justice. This may, indeed, cause us to conclude that Bauman’s vision of a world in which globalisation would make itself felt very differently for some groups than others came closest to what is taking shape: true, the transnationals have seized significant political and economic power from the nation-state, but this has not meant the end of the nation-state; rather, the change is being experienced as a re-trenching of whatever power the nation-state still has (and this, of course, is considerable) over its citizens in their “local”, everyday lives (Bauman 55). If we now turn to the portrait of Europe painted by the articles that constitute this special issue, we see further evidence of transglobal processes and practices operating in a realm oblivious to local (including national) concerns. While our authors are generally more concerned with the flows of information and “identity” than business or finance (Appaduri’s “ethnoscapes,” “technoscapes,” and “ideoscapes”: 33-7), there is the same impression that this “circulation” (Latour) is effectively bypassing the state at one level (the virtual), whilst remaining very materially bound by it at another. In other words, and following Bauman, we would suggest that it is quite possible for contemporary subjects to be both the agents and subjects of globalisation: a paradox that, as we shall go on to demonstrate, is given particularly vivid expression in the case of diasporic and/or migrant peoples who may be able to bypass the state in the manufacture of their “virtual” identities/communities) but who (Cohen) remain very much its subjects (or, indeed, “non-subjects”) when attempting movement in the material realm. Two of the articles in the collection (Leurs & Ponzanesi and Marcheva) deal directly with the exponential growth of “digital diasporas” (sometimes referred to as “e-diasporas”) since the inception of Facebook in 2004, and both provide specific illustrations of the way in which the nation-state both has, and has not, been transcended. First, it quickly becomes clear that for the (largely) “youthful” (Leurs & Ponzanesi) participants of nationally inscribed networking sites (e.g. “discovernikkei” (Japan), “Hyves” (Netherlands), “Bulgarians in the UK” (Bulgaria)), shared national identity is a means and not an end. In other words, although the participants of these sites might share in and actively produce a fond and nostalgic image of their “homeland” (Marcheva), they are rarely concerned with it as a material or political entity and an expression of their national identities is rapidly supplemented by the sharing of other (global) identity markers. Leurs & Ponzanesi invoke Deleuze and Guattari’s concept of the “rhizome” to describe the way in which social networkers “weave” a “rhizomatic path” to identity, gradually accumulating a hybrid set of affiliations. Indeed, the extent to which the “nation” disappears on such sites can be remarkable as was also observed in our investigation of the digital storytelling site, “Capture Wales” (BBC) (Pearce, "Writing"). Although this BBC site was set up to capture the voices of the Welsh nation in the early twenty-first century through a collection of (largely) autobiographical stories, very few of the participants mention either Wales or their “Welshness” in the stories that they tell. Further, where the “home” nation is (re)imagined, it is generally in an idealised, or highly personalised, form (e.g. stories about one’s own family) or through a sharing of (perceived and actual) cultural idiosyncrasies (Marcheva on “You know you’re a Bulgarian when …”) rather than an engagement with the nation-state per se. As Leurs & Ponzanesi observe: “We can see how the importance of the nation-state gets obscured as diasporic youth, through cultural hybridisation of youth culture and ethnic ties initiate subcultures and offer resistance to mainstream cultural forms.” Both the articles just discussed also note the shading of the “national” into the “transnational” on the social networking sites they discuss, and “transnationalism”—in the sense of many different nations and their diasporas being united through a common interest or cause—is also a focus of Pikner’s article on “collective actions” in Europe (notably, “EuroMayDay” and “My Estonia”) and Harb’s highly topical account of the role of both broadcast media (principally, Al-Jazeera) and social media in the revolutions and uprisings currently sweeping through the Arab world (spring 2011). On this point, it should be noted that Harb identifies this as the moment when Facebook’s erstwhile predominantly social function was displaced by a manifestly political one. From this we must conclude that both transnationalism and social media sites can be put to very different ends: while young people in relatively privileged democratic countries might embrace transnationalism as an expression of their desire to “rise above” national politics, the youth of the Arab world have engaged it as a means of generating solidarity for nationalist insurgency and liberation. Another instance of “g/local” digital solidarity exceeding national borders is to be found in Johanna Sumiala’s article on the circulatory power of the Internet in the Kauhajoki school shooting which took place Finland in 2008. As well as using the Internet to “stage manage” his rampage, the Kauhajoki shooter (whose name the author chose to withhold for ethical reasons) was subsequently found to have been a member of numerous Web-based “hate groups”, many of them originating in the United States and, as a consequence, may be understood to have committed his crime on behalf of a transnational community: what Sumiala has defined as a “networked community of destruction.” It must also be noted, however, that the school shootings were experienced as a very local tragedy in Finland itself and, although the shooter may have been psychically located in a transnational hyper-reality when he undertook the killings, it is his nation-state that has had to deal with the trauma and shame in the long term. Woodward and Brown & Rutherford, meanwhile, show that it remains the tendency of public broadcast media to uphold the raison d’être of the nation-state at the same time as embracing change. Woodward’s feature article (which reports on the AHRC-sponsored “Tuning In” project which has researched the BBC World Service) shows how the representation of national and diasporic “voices” from around the world, either in opposition to or in dialogue with the BBC’s own reporting, is key to the way in which the Commission has changed and modernised in recent times; however, she is also clear that many of the objectives that defined the service in its early days—such as its commitment to a distinctly “English” brand of education—still remain. Similarly, Brown & Rutherford’s article on the innovative Australian ABC children’s television series, My Place (which has combined traditional broadcasting with online, interactive websites) may be seen to be positively promoting the Australian nation by making visible its commitment to multiculturalism. Both articles nevertheless reveal the extent to which these public service broadcasters have recognised the need to respond to their nations’ changing demographics and, in particular, the fact that “diaspora” is a concept that refers not only to their English and Australian audiences abroad but also to their now manifestly multicultural audiences at home. When it comes to commercial satellite television, however, the relationship between broadcasting and national and global politics is rather harder to pin down. Subramanian exposes a complex interplay of national and global interests through her analysis of the Malayalee “reality television” series, Idea Star Singer. Exported globally to the Indian diaspora, the show is shamelessly exploitative in the way in which it combines residual and emergent ideologies (i.e. nostalgia for a traditional Keralayan way of life vs aspirational “western lifestyles”) in pursuit of its (massive) audience ratings. Further, while the ISS series is ostensibly a g/local phenomenon (the export of Kerala to the rest of the world rather than “India” per se), Subramanian passionately laments all the progressive national initiatives (most notably, the campaign for “women’s rights”) that the show is happy to ignore: an illustration of one of the negative consequences of globalisation predicted by Beck (31) noted at the start of this editorial. Harb, meanwhile, reflects upon a rather different set of political concerns with regards to commercial satellite broadcasting in her account of the role of Al-Jazeera and Al Arabiya in the recent (2011) Arab revolutions. Despite Al-Jazeera’s reputation for “two-sided” news coverage, recent events have exposed its complicity with the Qatari government; further, the uprisings have revealed the speed with which social media—in particular Facebook and Twitter—are replacing broadcast media. It is now possible for “the people” to bypass both governments and news corporations (public and private) in relaying the news. Taken together, then, what our articles would seem to indicate is that, while the power of the nation-state has notionally been transcended via a range of new networking practices, this has yet to undermine its material power in any guaranteed way (witness recent counter-insurgencies in Libya, Bahrain, and Syria).True, the Internet may be used to facilitate transnational “actions” against the nation-state (individual or collective) through a variety of non-violent or violent actions, but nation-states around the world, and especially in Western Europe, are currently wielding immense power over their subjects through aggressive “austerity measures” which have the capacity to severely compromise the freedom and agency of the citizens concerned through widespread unemployment and cuts in social welfare provision. This said, several of our articles provide evidence that Appadurai’s more utopian prognoses are also taking shape. Alongside the troubling possibility that globalisation, and the technologies that support it, is effectively eroding “difference” (be this national or individual), there are the ever-increasing (and widely reported) instances of how digital technology is actively supporting local communities and actions around the world in ways that bypass the state. These range from the relatively modest collective action, “My Estonia”, featured in Pikner’s article, to the ways in which the Libyan diaspora in Manchester have made use of social media to publicise and support public protests in Tripoli (Harb). In other words, there is compelling material evidence that the heterogeneity that Appadurai predicted and hoped for has come to pass through the people’s active participation in (and partial ownership of) media practices. Citizens are now able to “interfere” in the representation of their lives as never before and, through the digital revolution, communicate with one another in ways that circumvent state-controlled broadcasting. We are therefore pleased to present the articles that follow as a lively, interdisciplinary and international “state-of-the-art” commentary on how the ongoing revolution in media and communication is responding to, and bringing into being, the processes and practices of globalisation predicted by Appadurai, Beck, Bauman, and others in the 1990s. The articles also speak to the changing nature of the world’s “diasporas” during this fifteen year time frame (1996-2011) and, we trust, will activate further debate (following Cohen) on the conceptual tensions that now manifestly exist between “virtual” and “material” diasporas and also between the “transnational” diasporas whose objective is to transcend the nation-state altogether and those that deploy social media for specifically local or national/ist ends. Acknowledgements With thanks to the Arts and Humanities Research Council (UK) for their generous funding of the “Moving Manchester” project (2006-10). Special thanks to Dr Kate Horsley (Lancaster University) for her invaluable assistance as ‘Web Editor’ in the production of this special issue (we could not have managed without you!) and also to Gail Ferguson (our copy-editor) for her expertise in the preparation of the final typescript. References Appadurai, Arjun. Modernity at Large: Cultural Dimensions of Globalisation. 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