Journal articles on the topic 'Legislators – Fiction'

Brain death is different from the traditional, biological conception of death. Although there is no possibility of a meaningful recovery, considerable scientific evidence shows that neurological and other functions persist in patients accurately diagnosed as brain dead. Elsewhere with others, I have argued that brain death should be understood as an unacknowledged status legal fiction. A legal fiction arises when the law treats something as true, though it is known to be false or not known to be true, for a particular legal purpose (like the fiction that corporations are persons). Moving towards greater transparency, it is legally and ethically justifiable to use this fiction to determine when to permit treatment withdrawal and organ transplantation. However, persistent controversy and recent conflicts between hospitals and families over the treatment of brain-dead patients demonstrate the need for clearer limits on the legal fiction of brain death. This Article argues that more people should recognize that brain death is a legal fiction and further contends that existing scholarship has inadequately addressed the appropriate use of the legal fiction of brain death in legal conflicts. For instance, as in Jahi McMath’s case (in which a mother wanted to keep her daughter on a ventilator after she was determined brain dead), families may distrust physicians and hospitals who fail to acknowledge that brain death is a legal fiction. Legislators in most states have ignored the need to permit statutory exceptions for individuals with strong sanctity of life views. When hospitals treat braindead pregnant women, as in Marlise Mu˜ noz’s case, courts have failed to weigh the fundamental constitutional rights of pregnant women against the state’s interests. Finally, judges and legislators should sometimes “pierce the veil” of brain death and should not use the legal fiction in cases involving: (1) religious and moral objections, (2) insurance reimbursement for extended care of brain-dead patients, (3) maintenance of pregnant, brain-dead women, and (4) biomedical research. The Article concludes with general guidance for judges, legislators, and other legal actors to use regarding legal fictions.

V. S. Naipaul is an eminent literary figure in the field of modern fiction, non-fiction, and travelogue writing in English literature. He earned a number of literary awards and accolades, including the covetous Nobel Prize and Booker Prize. His non-fiction e.g., An Area of Darkness, India: A Wounded Civilization, The Loss of El Dorado, India: A Million Mutinies Now and Beyond Belief are a realistic portrayal of the various types of religion, culture, customs, and people of India. As an author, the main purpose of V. S. Naipaul is to deliver the truth; because poets are the unacknowledged legislators of mankind. The fact that V. S. Naipaul has presented in his non-fiction is more authentic and realistic than that of his fiction. Nonetheless, it is fictional work that is elaborately explored, discussed, and analyzed in abundance. On the other hand, his non-fiction, by and far, remains aloof. In the last few decades, non-fictions are also taking the ground strongly. Now non-fiction writings are being analyzed, elucidated, and explored based on various theoretical principles of literary criticism. V. S. Naipaul carried the new genre to new heights and achievements. He is of Indian descent and known for his pessimistic works set in developing countries. He visited India several times, like Pearl S. Buck and E. M. Forster. So, his presentation of Indian religion, society, culture, and politics are very realistic. His vision and ideas are very close to the modern thoughts and visions of both the east and the west.

Studying fictional depictions of robots and artificial intelligence in cinematographic science fiction narratives acquires a new level of relevance as legislators' approaches to the subject seem to be strongly influenced by popular culture. This panel of Science in Public 2017 presented various on-going investigations of this kind, showing that the critical mass in this area of research is growing

The need to study the possibilities of development of legal thought in copyright is caused by the fact that imposed on the legislator since the 90s, and more actively since the 2000s, the illusion that all relations of intellectual property in general are related to trade, is not true, and regulatory approval would lead to the destruction of significant and truly human traditional institutions of the Russian system of law such as copyright. No one can argue that it is one of a kind that allows a person to get acquainted with his inner content, and hence his potentials in the scale of participation in the social order. Drawing attention to the fact that intangible benefits creative works of science, literature, art require appropriate legal protection, which, first of all, is based on respect for the personality of its author, the article refers to the fact that the material objective forms of expression of these results of human creative activity are carefully protected by national rules of law, which establish the need for gentle treatment, constant monitoring, updating, repair of cultural objects: paintings, sculptures, architectural monuments, etc. The article attempts to draw the legislators attention to the protection of creative results, which is built, at least, in two plans: at the level of protection of cultural values, carried out on the basis of generally recognized principles of international law, such as: the non-use of force and threat of force, respect for sovereignty, non-interference in internal affairs; and at the level of institutions that ensure the replenishment of the material and spiritual Fund of the Russian Federation, the main of which is copyright. And with this view of improving the norms of legislation, the state needs personnel who are rich in potential, able to actively act in their creative force aimed at creating and asserting the enduring (constant) values of humanity. The direction of improvement of legal norms on copyright is the purification of the normative body from pseudo-legal fictions that do not create consequences that favorably affect the development of creative potential of people. It is possible to think in this case when looking for ways to improve the legal technique of copyright law on the content of the concepts of creative life and personality of the author.

A Lecture delivered for the Stout Centre's "Eminent Victorians" Centennial Series in the Council Chamber, Hunter Building at Victoria University on 31 March 1999. The author pays tribute to the late Sir John Salmond by discussing the role of "fiction" in law and in the thought of Sir John. The author notes the nature of fiction as a formidable force, as it facilitates provisional escape from the tyranny of apparent fact and forget about the suspensory nature of fiction. There are three types of "fictions" in the legal world: legislative fictions, whereby the world is refashioned in accordance with the legislator's desires; constitutional fictions, which places fictional boundaries on government rule; and corporate fiction, which creates a fictional corporate personality for companies. The author concludes that it is purpose that keeps fiction honest, and that the relationship between fiction and purpose is just as important as that between hypothesis and fact.

Joint possession and settlement needed revival in 2011, yet the Legislator did not do much about it. It took from jurisprudence the regulations regarding joint possession (in the broad sense) and simply built a legal regime that in no way can satisfy the economic and social needs of joint holders. And the possibility to enter a management agreement remains in a very theoretical level that is far from practical reality, where such an agreement between joint owners does not exist. Settlement – the place where joint owners end their joint possession – was the second item that required modifications. In 1864, the Legislator took the declarative effect of settlement from French law without an analysis of its consequences on the economic level. Families were protected, but third parties, holders of real rights on the joint goods were sacrificed. This made settlement unattractive and unwanted. In 2011 the Legislator correctly identified the problem and offered the solution – that had been adopted by the French legislator since 2006, even under the rule of the declarative effect – a real subrogation with a particular title: resettlement of the guarantee on the assigned goods. This is sufficient for the rights of guaranteed creditors to be maintained in all cases. With this, the right of each joint owner to fully and efficiently use his joint ownership right was insured. Was another change in this area needed? Apparently not. Nevertheless the Legislator unexpectedly decided in 2011 to renounce the fiction of the declarative effect. What did it replace it with? The translative effect of Roman law? No! It imagined a new effect of settlement: the constitutive effect. The shock of the change was mainly felt psychologically. At that time, the fiction of the declarative effect corresponded to a psychological perception according to which the heir held the goods directly from the decreased, perception that was well grounded after more than 140 years of existence. Just as the fiction of the declarative effect – in fact a rule born out of conjunction –generated numerous debates over centuries, the new constitutive effect of settlement was had to accept in notary practice. The cause? The fear that the new consequences of the constitutive effect will conflict with the imperative rules of the community of goods in the case of settlement parties who were married on the settlement date. Indeed, any community matrimony regime is able to absorb in the settlement estate any goods purchased or obtained with onerous title by any of the spouses. But, the joint ownership right of settlement was that of an own goods. Moreover, the whole settlement was disputing own rights of the married settlement party. The doctrine limited itself to announcing the introduction of the constitutive effect without building a detailed analysis of its effects on the matrimony regimens. On our part, we suggested, at first an exhaustive analysis of the consequences of the translative and declarative effect of settlement. The purpose was to identify a ‛natural’ legal side of settlement that is its constants. Then we proved that the constitutive effect should be unitarily interpreted and applied. First of all, settlement produces a replacing effect. The share is replaced with an exclusive ownership right. It is natural that the exclusive ownership right obtained by each settlement party has the legal nature of the share it replaces. In the marital community field, this is an own goods of the married settlement party. Then, in case of settlement with allowance – that is expected to generate even more controversies – we have shown that is division does not degenerate settlement in two legal acts: settlement and sale. The settlement party who paid the allowance does not purchase anything; the settlement party receiving the allowance does not sell anything. The Legislators does not authorize such an idea, especially now that we are on the realm of the constitutive effect, where the idea of an exchange between settlement parties is excluded. The constitutive effect of settlement with allowance should be unitarily applied. For the married settlement party, the payment of the allowance represents an obligation to give that has the legal nature of an own obligation. Only its execution is carried out by using common funds of the spouses. And the increase acquiring of the goods is not a purchase in itself as it is made in the same spirit of the replacement effect of the share.

This article is devoted to defining the role of legal fictions in modern law enforcement practice. To do this, the author reveals the content of this category, paying attention to the absence of the need to consider fiction as something false and contrary to objective reality. Further, the author defines the meaning of legal fictions, conducting a detailed analysis of their main functions on the example of the civil legislation of the Russian Federation and the corresponding law enforcement practice. At the same time, its practical aspect is mainly studied. The main attention is paid to the protective function of legal fiction, the essence of which, as the author shows, is to restore violated rights and establish a balance of interests of the parties to the legal relationship, as well as to protect the rights of third parties. The features of this function are considered on the examples of the following fictions: fiction of the occurrence of a condition or non-occurrence of a condition; fiction of the presence of powers; fiction of non-conclusion of a contract. The author comes to the conclusion that fiction as a method of legal technique is used not only by the legislator, but also finds independent application in practice, which is reflected in the explanations of higher courts considered in this article.

The article considers the legal symbol and legal fiction as special legal categories. The correctness of anarrow approach to their essence was established according to which the notion of «legal fiction» does notinclude fictitious phenomena, and the notion of «legal symbol» does not cover symbols prohibited by law,and symbols which represent certain values. It was revealed that both considered categories have a certaindegree of conventionality, in a specific way according to the scheme established by the legislator, thereforethey are sometimes mixed in the literature. Legal symbols, unlike legal fictions, are more fundamental, buthave an auxiliary character, since they reflect an existing legal precept, and are not part of a new legal norm,contain an encrypted meaning, but do not distort the legal reality.Legal symbols and legal fictions play a very important role in legal regulation, since they optimize it andmake it more quality, and also provide legal and linguistic economy.

The article examines the essence of legal fiction. Based on an analysis of the current legislation of the Russian Federation, the author has established ways of using legal fiction in civil law. It has been substantiated that legal fiction finds expression in the construction of a legal entity and the institution of fictitious transactions. Legal fiction is used to extend the legal regime of one object to another object, as well as the legal status of one subject to another subject. Legal fiction is used when it is necessary to overcome a situation of legal uncertainty, to recognize as real non-existent circumstances to restore the violated rights of persons who have suffered as a result of the actions of unscrupulous participants in civil-law transactions. Finally, the method of legal fiction is widely used by the legislator the legal economy. As a result of the study, a conclusion was made about the importance of legal fiction for the process of lawmaking.

In the article, the author researches the problematic aspects of silence in law, in particular, the definition of silence is provided, its meaning at various stages of historical development is outlined, the types of silence are described, the legal consequences of silence are discussed, and the place of silence in the sphere of legal conventions (legal presumptions, fictions, substitution). The author provides the following definition of silence: silence is a legitimate or unlawful inaction of the subject of legal relations, from which the conditional content of the subject’s will on a legal issue follows and (or) with which a positive law (transaction) directly connects the occurrence of legal consequences. Since silence can be interpreted as a sign of agreement or disagreement, it can be argued that it creates uncertainty. Given the fact that legal certainty in modern life is a constitutional value, positive law should exclude or mitigate this uncertainty, or the content of the will arising from silence should be predetermined by positive law or transaction. The result arising from the silence falls within the realm of legal conventions and in order to find out whether silence is a legal presumption, legal fiction or substitution, the article compares these categories. The author concludes that the legislator can formulate the same provision regarding silence both with the help of legal fiction (fictitious consent) and with the help of a legal presumption (presumed consent). At the same time, the article provides a justification for the impossibility of considering tacit consent as a legal substitution, in view of the fact that in objective reality there is no conditional silence, which is an essential reason for excluding the basis of legal substitution.

Such components of a specific criminal punishment as life imprisonment are examined in the article. To this day, the issue of the application of parole to life imprisonment convicts remains opened and there are lively discussions among theoreticians and practitioners on the feasibility of introducing this institution to life imprisonment convicts. The article analyzes the different views of different lawyers who insist on changes in the legislation, proving the ineffectiveness of the existing legal norm in their scientific papers regarding pardoning the lifelong convicts by the decree of the President of Ukraine, and they insist on the expediency of introducing a conditional early release. There are other opinions of scientists who are categorically against it and they believe that under today’s correction of Art. 81 of the Criminal Code of Ukraine, the court cannot resolve such an issue even after pardoning the convicted person and replacing life imprisonment with imprisonment for a certain period of time. Moreover, the expediency of applying this type of exemption from serving a sentence to persons sentenced to life imprisonment is denied. The author presents the well-founded position on this issue. The proposed innovations of the law on criminal liability may lead to an incorrect legal construction of a legal norm, a misinterpretation of a criminal legal norm, to fiction. The use of fiction in criminal law is that they serve as means of implementing the policy of the legislator. Criminal-legal fiction is a technical-legal technique used by the legislator in the norms of the Criminal Code of Ukraine, with the help of which criminal and legal relations are organized and established, which are expressed in the recognition of non-existent facts as existing ones and vice versa, in order to simplify the interpretation of certain phenomena. Key words: life imprisonment, isolation, Constitutional Court of Ukraine, criminal law, pardoning, parole, fiction.

The article examines the compromise model of building criminal proceedings in Russia on the example of special proceedings provided for in Chapters 40 and 40.1 of the Criminal Procedure Code of the Russian Federation. The dynamics of their application, emerging practical difficulties and incidents are monitored. The prospect of further use of special proceedings in criminal cases of serious and especially serious crimes is considered. Based on the analysis of specific criminal cases, it is proved that a significant reduction in the amount of punishment “guaranteed” by these proceedings is a legal fiction. Multiple negative features of their implementation are considered. The author substantiates the opinion that a special procedure for considering criminal cases for all serious and especially serious crimes, regardless of the forms of post-criminal behavior of the accused, is inadmissible.

En este artículo nos adentramos en las representaciones que TVE difunde de la mujer trabajadora en las series de ficción durante la tercera legislatura de Felipe González. Son los años en los que el Instituto de la Mujer establece el primer Plan para la Igualdad de Oportunidades de las Mujeres (PIOM, 1988-1990) que favorece la integración masiva de las mujeres en el mercado laboral remunerado, esto es, a su "profesionalización". Esta imagen se transmite en las series en la que la caracterización y las narrativas se presentan bajo la óptica patriarcal respecto a la imagen de la mujer. Es más, las mujeres de clase trabajadora están sistemáticamente invisibilizadas y/o minusvaloradas a través de bromas sexistas, violencia verbal...

Nowadays, information technologies are developing every year with faster and faster and have almost become an integral part of our daily life. The development of the information technology, of course, carries such positive aspects as the improving of communication between people, the possibility of receiving a distance education, the use of information technology by the government agencies and business, and etc. At the same time, the information technologies like everything new and good can become an object for their use for criminal purposes. One of such a technology, which will be discussed in this article, is called a deepfake and, as its separate kind, a pornographic deepfake. The authors propose a solution to the problem of pornographic deepfakes at the level of the criminal legislation of the Russian Federation, since at present the Criminal code does not provide for responsibility for their creation and distribution. In particular, the authors formulate the proposals to the domestic legislator to make appropriate changes to Art. 137 and Art. 242 of the Criminal Code of the Russian Federation, where the notion of a pornographic deepfake would be revealed in a note of the latter. In initially, it is considered the legal aspect of the pornographic deepfake as a phenomenon of modern digitalization and informatization of the society and the use of new methods for creating a virtual reality of objects harmful to humans: photo, video, and audio information. The results of the research can be used in further researches on this topic as well as in improving the legislation and law enforcement activities not only in the Russian Federation, but also in other foreign countries.

There are three stages in the development of the securities market in the 20th — early 21st centuries: the paper period, the period of electronization and the period of digitalization. Electronization and digitalization of the stock market have significantly influenced the development of legislation in this area. When the Russian legislator tried to react to the electronic stock market, an internally contradictory term (legal fiction) appeared – an uncertified (book-entry) security. Its use generates a number of problems that have not been resolved to date. It is necessary to distinguish between securities in the form of an electronic document and sets of rights accounted for by account entries. Electronic charges under Russian law are defined as electronic documents, but at the same time they refer to uncertified (book-entry) securities, which is logically incorrect. Eliminating the imperfections of the legal regulation of the stock market caused by electronization, the Russian legislator, limiting itself to changes in general legal acts, did not make appropriate changes to the legislation concerning individual securities. Unlike Russia, effective legal ways of including digital assets in the legal system have been formed in Western countries. The Russian legislator is required to determine their legal nature every time. Shares issued in the form of digital financial assets constitute an unjustifiably cumbersome legal structure, since they simultaneously belong to two different types of objects of civil rights — digital rights and uncertified securities. It is advisable to introduce a special term «investment financial instrument» to designate a group of equity and similar securities, as well as similar digital financial assets.

The essence and subject matter of fiction in the Criminal Code of Ukraine, namely fiction in the legislative structure of exemption from criminal responsibility in connection with the expiry of limitations period are analyzed in the article. The analysis of normative-legal acts, scholars’ views on the problem of fictitious norms is carried out. In particular, the author provides a description and analyzes the legislative structure of exemption from criminal responsibility in connection with the expiry of limitations period in the Criminal Codes of such foreign countries as: Poland, France, Germany. Based on the positive foreign experience, it is proposed to amend Article 49 of the Criminal Code of Ukraine with a new part 7 as follows: “The limitations period starts to be calculated from the moment of expiration. If the consequence that is a part of the act occurs later, the limitations period begins from this point”. It is mentioned that the exemption from criminal responsibility is an independent criminal and legal institution. However, its legal quintessence has the following features: since the de jure exemption does not result in the conviction of a person who has committed a criminal offense, such a person avoids the adverse criminal consequences that this person has as a result of the conviction. It is clarified that the essence of the legislative structure of exemption from criminal responsibility in connection with the expiry of limitations period has a controversial nature in the science of Ukraine’s criminal law. The view according to which the basis of existence in criminal law of institute of prescription is loss of public danger of the committed act remains actual. It is concluded that the fiction in the legislative structure of exemption from criminal responsibility in connection with the expiry of limitations period is expressed in the limitation of time limits of criminal responsibility with the law on criminal responsibility. The Criminal Code of Ukraine denies the criminal and legal significance of the committed act and its consequences outside the time limits of criminal responsibility. This lack of correspondence between the real facts and their legal consolidation is a fiction of the institution of prescription. Key words: expiry of limitations period, fiction, exemption from criminal responsibility, legislator, criminal offense.

Abstract: the article is concerned with determining the moment of receiving a juridically meaningful message which implies the corresponding civil consequences occurrence for the addressee. It is justified that the legislator’s position of determining the moment of occurrence of the consequences of juridically meaningful messages is erroneous, since delivery differs from the message receipt. The moment of the message delivery may be applicable when constructing a fiction of the message receipt. The conclusion was made that if the addressee failed to appear for receiving the message, or was absent at the address at which the message was sent, then the moment of receiving the juridically meaningful message is viewed as the moment when the message was delivered to the addressee. The same principle should be used when determining the moment of receiving juridically meaningful electronic messages – as the moment of the message delivery to the zone of the addressee’s effective control, the moment after which he gets a real opportunity to read the message.

The aim of the article is to try to evaluate actions taken by the country, which are supposed to change the image of public administration perceived as an employer, who refuses to employ people with disabilities or whose only motivation is to avoid being charged with contribution to PERON. An evaluation will be based on further answers to some essential questions. In the first place, the author will try to establish whether the actions taken by the country in order to remove barriers to employing people with disabilities were also effective with organs, which are its emancipation. It will require referring to many normative regulations in force in RP; both these which are the results of actions of national legislator and those, which result from Poland making commitments in the international arena. Subsequently one must be considered if actions of specific public administration body are taken for the employment of people with disabilities, may be considered as effective and whether the rights of people with disabilities were there respected. This thought in turn will require referring to how institutions responsible for increasing the employment of people with disabilities in public administration work in practice.

Dalam sistem pembentukan peraturan perundang-undangan di Indonesia, masih kita temui adanya pemberlakuan teori fiksi hukum.Dimana semua orang dianggap tahu hukum apabila sudah diundangkan dalam lembaran resmi dan ketidaktahuan seseorang atas hukum atau peraturan perundang-undangan yang berlaku tidak membebaskan seseorang itu dari tuntutan hukum (igronantia iuris neminem excusat).Hal ini tentu bertentangan dengan nilai-nilai keadilan yang ada di masyarakat.Diperlukan upaya-upaya untuk mengikis keberlakuan teori fiksi hukum ini.Hal inilah yang menjadi pokok permasalahan dalam tulisan ini.Metode penelitian yang digunakan adalah metode penelitian hukum normatif dan untuk memperoleh data digunakan studi perundang-undangan dan telaah kepustakaan.Dari hasil penelitian memperlihatkan bahwa teori fiksi hukum masih diberlakukan dalam sistem peraturan perundang-undangan di Indonesia. Untuk mengikis keberlakuan teori fiksi hukum dapat dilakukan 2 (dua) upaya baik dari pemerintah maupun dari masyarakat, yaitu publikasi oleh lembaga pembentuk peraturan perundang-undangan dan partisipasi aktif dari masyarakat dalam proses pembentukan peraturan perundang-undangan tersebut.AbstractIn Indonesia, we still find an enactment of law fiction theory in the system of legislation formation. Where everyone is regarded to know the law when it is legislated in the official gazette and one`s ignorance on the law or provisions of legislation do not make one free of prosecution (igronantia iuris neminem excusat). It is against the justice values in the society. It is needed effort to erase its enactment, that is the main problem in this research. It uses normative law method. Collecting data by literature and legislation search. The result of this research shows that Indonesia still enact law fiction theory in legislation system. To efface its efficacy can be conducted 2 (two) attempts, both government and society as well, that is publication by lawmaker or legislator and society participation in the establishment of legislation process.

This article explores a core question in the law of slavery: how was an individual's status as slave or free socially discerned and formally adjudicated? Under the doctrine of “freedom by prescription,” a person who had in good faith “lived as free” could argue that the absence of exercise of ownership for a specified term of years extinguished a prior owner's title. In the medieval Siete Partidas of Alfonso the Wise, which continued as a legal point of reference in Louisiana well after the end of Spanish rule, both the law of status and the law of property confirmed this path to freedom. From 1808 onward, Louisiana jurists and legislators sought to eliminate the remnants of the doctrine, but it lingered in popular and even judicial consciousness. The 1853 kidnapping of a woman named Eulalie Oliveau, six of her children, and eleven of her grandchildren for sale in the New Orleans slave market brought the question of “freedom by prescription” back into the courts. The awkward resolution of that case, and the uncertain fate of Eulalie Oliveau and her children, foreshadowed Reconstruction-era struggles over the content of legal freedom and the rights that freedom might bring to those who had once been held as property.

Computer technology - whether it is hardware, software or the internet - is the headache that just won't go away for anyone grappling with the law of intellectual property. With the Copyright Act 1994, the New Zealand legislature attempted to meet some of the challenges but it largely avoided the issue, passing the headache onto the judiciary should any tricky issues arise. One such issue is copyright protection for computer programs. The Copyright Act 1994 makes it clear that computer programs are protected as a literary work but how far does that protection extend (or how far do we carry the fiction that a computer program is literary work)? This article attempts to second guess what level of protection our courts might provide. It argues that New Zealand has shown a willingness to protect functional items and would protect the "look and feel" of a program, providing a level of protection which courts in the United States have considered undesirable.

AbstractThe article argues that Juan Luis Vives’s (1492/1493–1540) conceptualization of Islam in De veritate fidei Christianae can be placed inside the Erasmian paradigm of toleration of error. De veritate presents a fictional dialogue between a Christian and a Muslim in which the flaws of Islam are systematically traced back to the unethical nature of Muhammad. In describing the initial failure of Muhammad to grasp universal law, Vives equates the Muslim prophet with a failed legislator or a tyrant. Vives’s strategy does not save Islam but it portrays the Muslim interlocutor as a victim of an error. In the dialogue the Muslim appears as a man of good judgment, he is adopted into the sphere of dialogue but only in order to overcome his error.

By the Act of 11 January 2018 amending certain acts in order to increase the participation of citizens in the process of selecting, functioning and controlling certain public bodies, a new institution was introduced to local government in the form of a vote of confidence. It was she who became the subject of the analysis of this study. While the procedure of adopting a resolution on granting a vote of confidence does not arouse controversy, the question arises whether it is possible to pass a resolution with the opposite content in the same procedure, i.e. not to pass the vote? This is largely the result of the fact that the legislator, in the regulations concerning the vote of confidence, additionally provided for the construction of a legal fiction, modeled on the solutions that had been operating for years in the local government, regarding the discharge procedure, establishing the presumption that failure to adopt a resolution on granting a vote of confidence to the tantamount to adopting a resolution not to grant it. Adopting such a structure raises further doubts which the author submits to a thorough analysis and tries to answer the bothering questions.

Abstract Izutarō Suehiro (1888–1951), Uso no kōyō The Utility of Lies (1922). This translation presents an essay by the influential professor for private law at Tokyo Imperial University, Izutarō Suehiro that gives some insight into the historical roots of modern Japanese civil law methodology as it highlights the shift in Japanese jurisprudence away from the so-called German ‘conceptual jurisprudence’. Rejecting the traditional formalistic application of rigid statutory law, which in Suehiro’s eyes forced judges regularly to resort to legal fictions and lies about the facts of a case in order to be able to deliver humane judgements, his new ‘Japan-compatible’ approach expected the judiciary to develop flexible case law, which would enable judges to achieve ‘concretely appropriate’ judgements. In this context the judiciary was no longer to assume litigants as rationally acting, self-concerned individuals in general, but to admit the possibility of irrational, altruistic etc. personalities and to adjust the application of law to these individual differences. This raises however concerns regarding the principle of equality before the law and the role of a democratically legitimated legislator.

Recently, the Supreme Court ruled that a document issued by the governor of the Financial Supervisory Service(FSS) is considered a public document according to Articles 29 and 69(1) of the Act on the Establishment of the Financial Services Commission. Article 69 of this Act states that individuals who are not public officials are treated as public officials when it comes to applying penalties under the Criminal Code or other laws. The governor of the FSS is classified as a public official by presidential decree, thus falling under this Legal Fiction of Public Officials. Based on this regulatory framework, the Supreme Court concluded that a document issued by the governor of the FSS should be considered an official document. This interpretation is justified as it is appropriate to interpret the governor of the FSS and other employees as public officials for the purpose of imposing equal responsibilities and providing them with the same protection as public officials. However, this interpretation does not justify treating crimes against non-government employees as crimes against government employees, as it broadens the scope of the current penalty system and serves as a compensatory mechanism for excessive punishment. According to this interpretation, there are always errors of the the actor. In this case, it would be appropriate to penalize the actor for falsifying a document under Article 15(1) of the Criminal Code. Despite the lack of merit in this interpretation, it is difficult to agree that interpreting, when they provide penalties for non-public officials based on the 'type of criminal law fiction,' exceeds the limits of interpretation. The role of the judiciary is to declare what the law is, and if bad legislation exists, it is the responsibility of the legislature to correct it through new legislation. Expanding the scope of punishment for bad legislation through an interpretation that goes beyond the literal meaning of the text.

The article analyzes dogma, scientific concepts and judicial practice on the acquisition of immovable property in case of its unauthorized alienation in Germany and Russia. The author proposes to improve the Russian model of real estate ownership protection, which is based on German legal constructions. Reasonable the acquirer should check the powers of the counterparty (the title) and doubt them, for example, when the price of the contract is non-market. However, such logic is nonsense in the sphere of civil turnover of real estate, because the legislator establishes the presumption of registered rights and guarantees the credibility of the registry data. Registrars carry out a legal expertise of title documents, therefore, purchasers should not take the risk if the records in the registry are erroneous. There is no need to investigate the gross negligence of the purchasers, and this changes the approach to understanding their bona fide. The essence of public credibility of the real estate register should be reflected in Articles 8.1, 223, 302 of the Civil Code of the Russian Federation: the acquirer does not become the owner if he knows about the uncertainty of the register, or there are marks about an objection or a court dispute regarding the registered right of the alienator. Such public credibility is not conditioned by the will of the previous owner or the payments of the acquirer. The rules of unjustified enrichment (Chapter 60 instead of prescription possession under Article 234, paragraph 4 of Article 302 of the Civil Code of the Russian Federation) can be applied to balance interests, if the victim has economic losses, and the acquirer has not incurred costs. A transaction between a trusting acquirer and an unauthorized alienator means that there is no personal and economic identity between them (family ties, relations of a corporation with its sole participant, transformation of joint ownership into shared ownership between the same persons, etc.). Despite the absence in Russia of a mandatory notarial form of alienation of real estate and an abstract real contract, the legislator can transform the negative system of registration of rights and establish a fiction (the acquisition on the basis of public credibility of register, i.e. a partially positive or fiduciary registration system).

This contribution analyses whether the Court of Justice of the European Union (CJEU) provides clarifications on the normative implications that the precautionary principle entails in the context of Regulation 1107/2009, laying out the EU authorisation procedure for pesticides, in its recent judgement in Case C-616/17. In this judgement, which is a response to a request for a preliminary ruling by a French criminal court on the compatibility of certain aspects of Regulation 1107/2009 with the precautionary principle, the CJEU concludes that the questions of the referring court reveal nothing capable of affecting the validity of the regulation. According to the CJEU, to ensure conformity with the precautionary principle, the EU legislature must establish a normative framework that makes available to competent authorities sufficient information to adequately assess the risks to health resulting from the pesticide in question. However, the CJEU’s substantive analysis of the compatibility of the different aspects of Regulation 1107/2009 with the precautionary principle is not conducted concretely in light of this legal standard, but constitutes a mere testing of the general adequacy of Regulation 1107/2009. Furthermore, the CJEU’s judgement examines Regulation 1107/2009 in a vacuum without considering problems that have occurred in its implementation or application.

The article expresses the views on the controversial attitudes relating to the interpretation of law at different stages of development of science in general and legal science in particular. Tracing the respective changes, the author comes to the conclusion that classics was based on the rule of law; art Nouveau was aimed to destroy the rule of law; postmodern — on departure from reality. In the postmodern world-both legislator, and his will — are all the essence of fiction. Classical science was concerned to establish the objective truth; modernism believes all truth is relative; the postmodern — denies the establishment of the truth. The author suggests the answer to the question as to where the perspectives of the science lie should be sought in the realm of conjunction of natural and humanitarian sciences. And in the context of such cognitive-information theory the author draws the attention to importance of modern scientific trend-memetics and the use thereof in the field of jurisprudence. As a subtype of memetics the author suggests to introduce the notion of lawmemetics to be employed to study the two types of the mems: the entity of legal reality and the entity of psychological reality. The substantial aspect memetics is called to be the resumption and poliform-like repetition of what was originally coded as the mem information and was designed to secure its values as applied to the new circumstances of place and time.

В статье анализируются предусмотренные в ст. 210 УК РФ основания уголовной ответственности лиц, занимающих высшее положение в преступной иерархии, к которым относятся, прежде всего, такие лидеры общеуголовной среды, как «воры в законе». Отмечается, что появление этой статьи в действующем УК РФ является результатом развития двух тенденций в уголовном законодательстве. Первая тенденция связана со стремлением законодателя криминализировать общественно опасную деятельность лидеров преступной среды, которая направлена на ее сплочение, однако отчуждена от совершения конкретных преступлений, не является соучастием в них. Вторая тенденция связана с расширением законодателем уголовно-правового значения общественной опасности личности, совершившей преступление, иное общественно опасное деяние или правонарушение (при совершении преступления с квалифицирующим признаком, характеризующим личность виновного, при административной преюдиции, при наличии у лица определенного социального статуса и т. п.). Констатируется, что установление уголовной ответственности за принадлежность лица к «ворам в законе» противоречит как закрепленному в ст. 3 УК РФ принципу законности, в соответствии с которым устанавливается преступность и наказуемость деяния, а не социального статуса, так и закрепленному в ст. 8 УК РФ положению, согласно которому основанием уголовной ответственности является деяние, содержащее все признаки состава преступления, а не социальный статус. The article analyses the grounds for criminal liability provided for in Art. 210 of the Criminal Code of the Russian Federation for persons who occupy a higher position in the criminal hierarchy, which include, first of all, such leaders of the general criminal environment as “thieves in the law”. It is noted that the appearance of this article in the current Criminal Code of the Russian Federation is the result of the development of two trends in criminal legislation. The first trend was related to the legislator’s desire to criminalize the socially dangerous activities of the perpetrators of the criminal environment, which were aimed at bringing it together, but were alienated from the commission of specific crimes, and were not complicit in them. The second trend is related to the expansion by the legislator of the criminal legal value of the public danger of the person who committed the crime, other socially dangerous act or offence (In the case of a crime with a quali-fictive characteristic characterizing the identity of the perpetrator, in the case of administrative prelude, in the case of a person having a certain social status, etc.). It is stated that the establishment of criminal liability for belonging to “thieves in the law” is contrary to the principle of legality enshrined in Art. 3 of the Criminal Code of the Russian Federation, Which establishes the criminality and punishability of an act rather than social status, And the provision contained in article 8 of the Criminal Code, according to which the basis of criminal liability is an act containing all the characteristics of the offence, not social status.

The paper highlights the main stages of the formation of such a philological and legal phenomenon as a metaphor. From ancient times to the present time, the "metaphorical imperative" has determined the most important aspects of the emerging legal reality. The transfer of meanings in jurisprudence took the form of analogy and the objective influence of symbolization and virtual legal structures.Metaphors were also considered as factors of the formation of legal theories acting as some kind of "preforms". Metaphors did not perceive existing similarities, but they themselves created them. This was their significance as "demiurg tools". Therefore, metaphorical expression produced effects rather than meanings, but meanings leading to change. The birth of a new legal meaning was largely spontaneous and unpredictable: it is known that law enforcement sometimes differs from the original intention of the lawmaker and legislator. For the precise establishment of the content of the law, legal knowledge of its original meaning is also necessary. The hermeneutic problem is to bridge the gap between the law and the incident. A change in the social or political situation should not determine the current law to obsolescence: the inherent irrational elasticity of a legal idea provides a field of action.There are also "resonating" metaphors that induce a large number of implications, stimulating new interpretations that reveal hidden implications. Thus, a certain loss of meaning inevitably takes place.The paper clarifies: in the history of law, the metaphor has gone from mythological and traditional ideas to modern legal fiction and "simulacrum".

The subject of this article is a consideration of recent changes to the current Polish criminal procedure. The changes concern in particular the investigation. Initially, the Supreme Court issued two resolutions, which eliminated the actual coverage of the funds in the account by order on physical evidence (this is a legal fiction - funds in an account are not physical objects). At that time, the public prosecutor could only use the "transaction suspension" or "blocking of an account" to freeze the funds. Later, the Polish legislator added Art. 236b to the Code of Criminal Procedure. The purpose of this provision is to outdate the above-mentioned resolutions. Instead of a suspension or blockade, the actual coverage of the funds in the account by order on physical evidence may take place. However, in the authors' opinion, this should only take place in the case of an ultima ratio action. This means, firstly, the end of the maximum duration of the "transaction suspension" or "blocking of an account" and, secondly, the impossibility to apply property collateral. These restrictions are not currently in Polish law. This means that the Polish public prosecutor can theoretically omit the provisions on the "transaction suspension" or "blocking of an account". This possibility applies to fiduciary currencies and virtual currencies. This paper may be useful in considering the options currently available to the public prosecutor in relation to a request for legal assistance to Polish law enforcement authorities which concerns the seizure of funds in an account.

A rule of law is effective when it adequately reflects objective needs and corresponds to the laws of the development of public relations. However, information technologies are developing faster than the corresponding legislative regulation. Programs equipped with artificial intelligence, once considered science fiction, are being increasingly used in various spheres of life every day. Advanced technologies are designed to significantly facilitate the life of a modern person, allowing him to transfer monotonous and technical tasks to units, i.e. carriers of artificial intelligence. However, the use of AI systems does not always turn out to be absolutely positive and safe – sometimes in practice, due to various factors, damage to property, health and even human life is caused during the operation of the unit. In this regard, legitimate questions arise about legal liability for such consequences, about the suitability of existing legislation to regulate such relations and about the need to improve and specialize legal regulation for new torts. This work is also aimed at participating in this discussion. For the purposes of the article, all negative manifestations of AI are reduced to three situations: causing harm due to flaws in the program or its incorrect operation; using technology by a person to commit an offense; causing harm by an artificial intelligence unit independently and on its own initiative. The paper examines all these cases, offers options for their legal resolution, critically evaluates existing approaches, projects and special legal acts already adopted. The conclusion is made that there is no need for a radical reform of the legal system for artificial intelligence, the theory of its legal personality is denied, it is argued that a person is responsible for all its mistakes – the manufacturer, user, owner, etc. In general, the strategy of the domestic legislator on the development of artificial intelligence is supported, but it is proposed to pay more attention to other ways to improve the security of AI systems (user liability insurance, unified accounting of units, etc.), rather than sanctions against them as "electronic persons".

Both those who are critical of the current structure of corporate governance, and those who support it, share a common set of prenaises. The corporation is owned by its shareholders: managers exert power and responsibility on behalf of their shareholders: corporate governance is a question of effective accountability to shareholders. If there are problems, they should be dealt with by making these mechanisms more effective. This article challenges that view.The principal-agent model bears no relationship to the way large companies are actually run. The attempt to bring reality in line with the model is one possible road to reform: another is to adjust the model to reality. Shareholders do not own large companies, in any ordinary sense of the word own. Firms like BT or BP are social institutions, owned by nobody. The distinction between plc and the owner managed limited company should be real, and not just titular. Corporate managers are not the agents of the shareholders, but the trustees of the assets of the corporation, which include its reputation, its distinctive capabilities, and the skills of the employees and suppliers. Their objective should not be to maximise shareholder value but to further the interests of the business.This account is probably a better description of the current state of British company law than the principal-agent model, but we advocate a new company statute to put the matter beyond doubt. Disposing of the fiction that executives are the agents of shareholders allows us to establish an effective system for achieving the key goals of corporate governance: freedom for managers to manage, combined with real accountability for their performance. We advocate a fixed four-year term for company chief executives, involving a wide ranging and searching review of effectiveness which would involve not only directors and shareholders but advisors, associated companies and employees.It is better that property should be private, but that man should make it common in use …. it is the task of the legislator to see that the citizens become like that. Aristotle

Статья посвящена рассмотрению проблем реализации принципа презумпции невиновности на современном этапе в контексте соотношения с другими средствами юридической техники – аксиомами, фикциями, преюдициями. Делаются значимые для практического применения выводы. Принципиально выражая согласие с законодателем, авторы вносят свои предложения по наполнению принципа презумпции невиновности новым смыслом. Материалы и методы. Нормативную основу исследования образует Кодекс Российской Федерации об административных правонарушениях, закрепляющий основные положения реализации принципа презумпции невиновности в соотношении с другими средствами юридической техники – аксиомами, фикциями, преюдициями. Методологической основой исследования послужил комплекс общенаучных (анализ и синтез, индукция и дедукция, системно-структурный подход) и специальных методов познания. Результаты исследования. Авторы приходят к выводу, что для достижения эффективности реализации принципа презумпции невиновности необходимо рассматривать его в соотношении с другими средствами юридической техники при всестороннем, полном и объективном исследовании всех доказательств по делу, не принимая многие из них за основу. В исследовании отмечается влияние принципа презумпции невиновности на другие процессуальные принципы, установленные ст. 26.11 КоАП РФ. Отдельно уделяется внимание судебной практике, которая только нарабатывается и в настоящее время является малоизученной. Выводы и заключения.Анализ проблем на практике может применяться всеми участниками правоприменительной деятельности. The article is devoted to the consideration of problems of realisation of the principle of presumption of innocence at the present stage in the context of correlation with other means of legal technique - axioms, fictions, prejudices. The conclusions significant for practical application are made. Agreeing in principle with the legislator, the authors make their proposals to fill the principle of presumption of innocence with new meaning. Materials and Methods: the normative basis of the study is formed by the Code of the Russian Federation on Administrative Offences, which enshrines the main provisions of the implementation of the principle of presumption of innocence in correlation with other means of legal technique - axioms, fictions, prejudices. The methodological basis of the study was a set of general scientific (analysis and synthesis, induction and deduction, system-structural approach) and special methods of cognition. The Results of the Study:The authors conclude that in order to achieve the effectiveness of the implementation of the principle of presumption of innocence it is necessary to consider it in correlation with other means of legal technique in a comprehensive, complete and objective study of all the evidence in the case, without taking many of them as a basis. The study notes the influence of the principle of presumption of innocence on other procedural principles established by Article 26.11 of the CAO RF. Separate attention is paid to the judicial practice, which is only being developed and is currently understudied. Findings and Conclusions:Analysis of problems in practice can be applied by all participants in law enforcement activities.

AbstractI have been a judge for twenty-four years and have taught Torts for sixty years. What has all that taught me about Torts, about federal-state relations in this field, and about judges and judging? The first thing I learned is how important Torts and Torts reasoning are in many areas that we don’t think of as being traditionally Torts. The second thing I have come to realize is how significant federal preemption has become to the field. The third thing I have come to understand is why judges and judicial lawmaking are particularly important in Torts: the people who are active in pushing and resisting Torts “reforms” before legislatures are bound to be repeat players; courts, instead, are invoked by non-repeat parties. My fourth realization upon becoming a judge is a completely different one: there are situations in traditional Torts-negligence law that seem sufficiently rare to require little attention but are, in fact, central to areas of law that a federal judge sees all the time. My fifth point has to do with how little federal judges in general, and federal appellate judges in particular, know or understand about Tort law. My last reflections go to something of a totally other sort. And that is the difference I have come to see in the roles of scholars and of judges. It is often said of judges that they should “do justice though the heavens fall.” That is, of course, nonsense. A judge who truly risked causing the heavens to fall would be thrown off the bench in no time. The role of scholars is quite different. As scholars, our role is to tell and write the truth as we have come to see it, fully and courageously, though the heavens fall. Our job is to look in dark places, shine light on what we believe is really going on, and reveal what is actually occurring in the face of the human subterfuges and legal fictions that obscure the truth.

Since the last century, computer science has not stopped growing, innovating and producing changes in society. Facing these changes, the legislator is called to create certain rules that can accompany computer science and, especially, artificial intelligence (AI) in its constant development, providing legal security to users, to the scientific and business community and, in general, to the whole society. The problem posed by artificial intelligence focuses on the fact that law will have to create institutions in order to regulate the “behavior” of these computer systems, which today have wide autonomy. Law, conceived to regulate the behavior of the human being, needs to make substantial changes in its interior. This study aims to analyze this situation in the light of the theories that consider natural law as the foundation of law. For this purpose, in a first phase, artificial intelligence, its definition and characteristics were analyzed, as well as the legal areas where there is concern about the changes originated from the introduction of the AI. Then, general considerations about natural law, its definition, functions and importance are presented. Finally, observations were made about the advisability of considering natural law theories, in the search for solutions to questions presented in the legal field by the evolution of AI in society. This study is documentary-type, based on the consultation and consideration of different specialized texts on the subject. The special technique of direct observation was used to describe and analyze homogeneous characteristics of the phenomena studied, so it is classified as a descriptive study. The study of AI allows us to observe the benefits it has given to society areas such as medicine, entertainment, public administration and even in the practice of law through systems that allow helping lawyers. Some of the problems analyzed are those related to civil liability, personal data protection, algorithm contracts and transhumanism. Some emblematic cases regarding the use of AI are presented, as the case of the citizenship granting to a robot endowed with AI, the consideration of the copyright of a work created through AI in China and the discovery of powerful drugs. It was also possible to determine that the legal problem of AI is in the degree of autonomy that these systems possess. The analysis of natural law allowed us to observe its influence on the creation of the current conception of law and its formative and critical function. The doctrine, in the search for a solution to this problem, has proposed to use a dogmatic consistent with the theories that support contemporary law, without resortingto unsustainable fictions. The proposal of a new legal status for autonomous artificial intelligence systems seems to be a viable solution. Theories of natural law could be useful to guide the formulation of legal precepts applicable to the subject of artificial intelligence; in addition, to provide deep and effective criticisms of the proposed solutions. These new rules must present a solution within the values and principles of the legal system, which respects its unity and maintains the main value of the person.

The aims of the present study have been: 1) to ascertain the actual conditions of the courts' decisions applying penalties and other measures towards multiple recidivists; 2) to determine the present penal policy towards this category of convicted persons; 3) to compare this policy with the assumptions included in the Penal Code in force. Punishment imposed upon multiple recidivists is regulated by the provisions of Art. 60, para. 2 and 3 Art. 61 of the Penal Code. Their formulation is as follows: on a perpetrator sentenced twice in the conditions specified in para. 1 (special basic recidivism), who has served altogether at leat one year of deprivation of liberty and in the period of 5 years after the serving of the last penalty commits again an intentional offence with the purpose of obtaining a material benefit or of a hooligan character, similar to at least one of the previously committed offencęs, the court shall impose a penalty within the limits of from three times the lowest sanction, but not less than 2 years, up to the highest statutory sanction increased by one half, and if the highest statutory sanction is not higher than 3 years: up to 5 years deprivation of liberty. The increase of the lowest statutory sanction provided in para. 1 or 2 shall not apply, when the offence is a serious offence; in this case the court shall consider the commission of the offence in the conditions specified in para 1 or 2 as a circumstance increasing the penalty. In particularly justified cases when even the lowest penalty imposed on the basis of Art. 60. paras 1 or 2 would be incommeasurably Severe by reason of the motives for the action of the perpetrator, his traits and personal conditions as well as his way of life before the commission and his behaviour after the perpetration of the offence, the court when imposing the penalty may refrain from applying the rules specified in Art. 60. paras 1 or 2; in these cases the court shall take into consideration the commission of the offence in the conditions specified in Art. 60, para 1or 2 as circumstances influencing increasing the penalty. With regard to a perpetrator sentenced in the conditions specified in Art. 60, para. 2 he court shall adjudge protective supervision; if adjudging this supervision is not sufficient to prevent recidivism, the court shall adjudge .the commitment of the sentenced person to a social readaptation centre. (Art. 62, para. 2). The present work has been based on the author's own research and to a minimum extent only on the analysis of the national statistical data. The point of departure for the study of the actual conditions of the courts decisions were the conditions specified in the Penal Code now in force. The conditions specified in Art. 61 of the Penal Code and related to the offender only have been assumed to form the ratio legis of special recidivism in the Polish penal legislation. If, however, when aplying this provision, the courts prefer the conditions related to the most recent act of the offender, this mignt be an indication of their different attitude towards the aim of punishment in the case of the discussed category of offenders. The existence of such divergences between the conditions of application of Art 61 of the Penal Code as included in the law on the one hand, and those applied by the courts on the other hand has been one of the hypotheses verified in the present study. The study has been based on the examination of court records. All the accessible records of criminal cases (230) have been included in it, in which Sentences were passed with regard to multiple recidivists (under Art 60. para. 2 and Art. 61 in connection with Art. 60, para. 2 of the Penal Code) in the District Court of the city of Poznań in the years 1975-1981. The question arised whether this could be treated as an equivalent to a random sample of the national population of convicted multiple recidivists. As shown by a comparison of distributions in question are highly convergent. A questionnaire to investigate the ourt records consisted of 41 questions concerning the convicted recidivist, his previous offences and criminal record, his last offence and the content of the last sentence. The impact of a number of variables on the application of Art. 61 of the Penal Code, on the length of the prison sentence and on the decision of commitment to a social readaptation centre has been analysed in succession. Conclusions from the study are as follows: 1. In the application of Art.61 of the Penal Code ,the predominating part is played by the conditions connected with the degree of socil danger of the act and with its legal label. The conditions connected with the person of the perpetrator seem to have a much smaller effect. The reason of this state of affairs may be seeked in the fact that the court is obligated by Art. 60, para.2 of the Penal Code to impose long-term penalties of deprivation or liberty regardless of the degree of social danger (seriousness) of the offence which may be trivial in particular cases. Therefore, it is not to be wondered at that in these cases the courts apply Art. 61 of the Penal Code so as to impose a lower or more lenient penalty in order to make it commeasurable with the offence. The following conditions have been found to exert the greatest influence on the length of sentences to deprivation of liberty under Art. 60, para. 2: firstly, the legal appraisal of the offence and the related content of the instructions for meting out punishment specified in Art. 60, para. 2 of the Penal Code, and secondly, the degree of social danger of the offence. The character of the offence and the appraisal of its social danger influence the sentence too, including the type of penalty, when Art. 61 of the Penal Code is applied by the court. This is probably a further result of following the same conditions already when deciding on the application of Art. 61 of the Penal Code. When adjudging the commitment of convicted persons to a social readaptation centre, the courst were guided by the conditions connected with intense symptoms of demoralization of these persons and with a previous application of various penal measures towards them; thus the conditions were formally the same as those to be found in the Penal Code. At the same time, conditions connected with the recently committed offence were left out of account here. One should be particularly careful when interpreting the findings in this case aS the decisions in question may be conditioned by the courts' various attitudes towards the practical functioning of the centers, and by different purposes of their adjudgement in definite cases. The length of the perod for which commitment to a social readaptation centre was adjudged has appeared to increase with the length of the sentence to deprivation of libety. Admittedly, outright conclusions as to the need for amendments of the provisions of the Penal Code in its part concerning recidivists do not follow immediately from the findings of the present study. These findings have. however, demonstrated the degree to which the instructions for meting out, punishment specified in Art. 60, para. 2 of the Penal Code sever the relation between the offence and punishment, as well as the fact that the corrective function of punishment imposed upon multiple recidivists - officially assumed by the legislator-has a fictious character in practice. In consequence, Art. 61 of the Penal Code is used in discord with its purpose; it is applied to adjust the adjudicated punishment to the seriousness of the offence committed.

Drawing on research conducted by the authors in the frame of the POSTING.STAT research project, this article explores the legal fiction that posted workers do not, at any time, ‘gain access’ to the labour market of a host State where they are in fact (temporarily) working. Hence, it analyses following question: at what point and under which circumstances are posted workers considered as working in a given Member State? To do so, it considers the use of the concept of ‘labour market’ across the case law of the Court of Justice concerning posting workers, to identify the constitutive elements of the implicit definition adopted by the Court. This analysis is compared with economic/statistical assumptions applied when measuring employment in a country. From a statistical point of view, the labour market appears to be demarcated by the place of establishment of the employer, thus excluding work (i.e., services) carried out through non-established employers. Consequently, cross-border labour mobility through the freedom to provide services does not fall within these boundaries and means that posted workers are counted in the employment statistics of their Member State of origin. The approach to posted workers in the labour market of the host State is therefore not only a legal, but also a statistical/economic, fiction. Based on an empirical reality that shows a strong concentration of posted workers in certain sectors, Member States or regions, we argue that courts and legislators, and also national statistical offices, should reconsider this approach.

This paper discusses comparative law and literature as an approach to studying law culturally, addressing how the study of literature from the standpoint of comparative law identifies one way of coding legal cultural knowledge in literature. The interaction between the worlds of law and culture is addressed through imaginary legal transplants. By transplanting legal ideas from the real world to literature, authors imagine worlds as they construct legal meanings in their storytelling. Whereas a legal transplant is a notion filled with problems and paradoxes, in literature it is far less problematic. Imaginary legal transplants are different from real-world transplants because in the real world legal diffusion takes place in mutant form, transforming transplants into irritants. The legislator never controls the world completely, whereas in fictional literature the creator of a written work controls the created world. In this sense, it is argued, imaginary legal transplants are perfect transplants.

In this text, I discuss my recent artistic work with meteorites in relation to possible future schemes to exploit non-terrestrial resources. Meteorites have been entangled with human cultures for thousands of years, from tool-making to religious practices, in scientific research and as commodities in online-markets. Whereas space mining has been a staple of Science Fiction narratives for over a century, national legislations have recently started to allow for actual future extraction and commercial use of resources on other celestial bodies. By employing the conceptual framework of “un·Earthing” as a transdisciplinary approach to explore existing and potential transformations of humans by and in outer space, I approach meteorites and their current commodification as a “pre-enactment” of these possible future scenarios of interplanetary extractivism. In collaboration with the Institute of Pharmaceutical Technologies at the University of Vienna, I produced pharmaceutical products containing meteoritic material and documented the process as well as my performative attempts to approach non-terrestrial material. The resulting short film raises questions about meteorites as a pharmakon of the ambivalent processes of un·Earthing and human-non-earthly relations.

Introduction Documentary film has grown significantly in the past decade, with high profile films such as Fahrenheit 9/11, Supersize Me, and An Inconvenient Truth garnering increased attention both at the box office and in the news media. In addition, the rising prominence of web-based media has provided new opportunities for documentary to create social impact. Films are now typically released with websites, Facebook pages, twitter feeds, and web videos to increase both reach and impact. This combination of technology and broader audience appeal has given rise to a current landscape in which documentary films are imbedded within coordinated multi-media campaigns. New media have not only opened up new avenues for communicating with audiences, they have also created new opportunities for data collection and analysis of film impacts. A recent report by McKinsey and Company highlighted this potential, introducing and discussing the implications of increasing consumer information being recorded on the Internet as well as through networked sensors in the physical world. As they found: "Big data—large pools of data that can be captured, communicated, aggregated, stored, and analyzed—is now part of every sector and function of the global economy" (Manyika et al. iv). This data can be mined to learn a great deal about both individual and cultural response to documentary films and the issues they represent. Although film has a rich history in humanities research, this new set of tools enables an empirical approach grounded in the social sciences. However, several researchers across disciplines have noted that limited investigation has been conducted in this area. Although there has always been an emphasis on social impact in film and many filmmakers and scholars have made legitimate (and possibly illegitimate) claims of impact, few have attempted to empirically justify these claims. Over fifteen years ago, noted film scholar Brian Winston commented that "the underlying assumption of most social documentaries—that they shall act as agents of reform and change—is almost never demonstrated" (236). A decade later, Political Scientist David Whiteman repeated this sentiment, arguing that, "despite widespread speculation about the impact of documentaries, the topic has received relatively little systematic attention" ("Evolving"). And earlier this year, the introduction to a special issue of Mass Communication and Society on documentary film stated, "documentary film, despite its growing influence and many impacts, has mostly been overlooked by social scientists studying the media and communication" (Nisbet and Aufderheide 451). Film has been studied extensively as entertainment, as narrative, and as cultural event, but the study of film as an agent of social change is still in its infancy. This paper introduces a systematic approach to measuring the social impact of documentary film aiming to: (1) discuss the context of documentary film and its potential impact; and (2) argue for a social science approach, discussing key issues about conducting such research. Changes in Documentary Practice Documentary film has been used as a tool for promoting social change throughout its history. John Grierson, who coined the term "documentary" in 1926, believed it could be used to influence the ideas and actions of people in ways once reserved for church and school. He presented his thoughts on this emerging genre in his 1932 essay, First Principles of Documentary, saying, "We believe that the cinema's capacity for getting around, for observing and selecting from life itself, can be exploited in a new and vital art form" (97). Richard Barsam further specified the definition of documentary, distinguishing it from non-fiction film, such that all documentaries are non-fiction films but not all non-fiction films are documentaries. He distinguishes documentary from other forms of non-fiction film (i.e. travel films, educational films, newsreels) by its purpose; it is a film with an opinion and a specific message that aims to persuade or influence the audience. And Bill Nichols writes that the definition of documentary may even expand beyond the film itself, defining it as a "filmmaking practice, a cinematic tradition, and mode of audience reception" (12). Documentary film has undergone many significant changes since its inception, from the heavily staged romanticism movement of the 1920s to the propagandist tradition of governments using film to persuade individuals to support national agendas to the introduction of cinéma vérité in the 1960s and historical documentary in the 1980s (cf. Barnouw). However, the recent upsurge in popularity of documentary media, combined with technological advances of internet and computers have opened up a whole new set of opportunities for film to serve as both art and agent for social change. One such opportunity is in the creation of film-based social action campaigns. Over the past decade, filmmakers have taken a more active role in promoting social change by coordinating film releases with action campaigns. Companies such as Participant Media (An Inconvenient Truth, Food Inc., etc.) now create "specific social action campaigns for each film and documentary designed to give a voice to issues that resonate in the films" (Participant Media). In addition, a new sector of "social media" consultants are now offering services, including "consultation, strategic planning for alternative distribution, website and social media development, and complete campaign management services to filmmakers to ensure the content of nonfiction media truly meets the intention for change" (Working Films). The emergence of new forms of media and technology are changing our conceptions of both documentary film and social action. Technologies such as podcasts, video blogs, internet radio, social media and network applications, and collaborative web editing "both unsettle and extend concepts and assumptions at the heart of 'documentary' as a practice and as an idea" (Ellsworth). In the past decade, we have seen new forms of documentary creation, distribution, marketing, and engagement. Likewise, film campaigns are utilizing a broad array of strategies to engage audience members, including "action kits, screening programs, educational curriculums and classes, house parties, seminars, panels" that often turn into "ongoing 'legacy' programs that are updated and revised to continue beyond the film's domestic and international theatrical, DVD and television windows" (Participant Media). This move towards multi-media documentary film is becoming not only commonplace, but expected as a part of filmmaking. NYU film professor and documentary film pioneer George Stoney recently noted, "50 percent of the documentary filmmaker's job is making the movie, and 50 percent is figuring out what its impact can be and how it can move audiences to action" (qtd. in Nisbet, "Gasland"). In his book Convergence Culture, Henry Jenkins, coined the term "transmedia storytelling", which he later defined as "a process where integral elements of a fiction get dispersed systematically across multiple delivery channels for the purpose of creating a unified and coordinated entertainment experience" ("Transmedia"). When applied to documentary film, it is the elements of the "issue" raised by the film that get dispersed across these channels, coordinating, not just an entertainment experience, but a social action campaign. Dimensions of Evaluation It is not unreasonable to assume that such film campaigns, just like any policy or program, have the possibility to influence viewers' knowledge, attitudes, and behavior. Measuring this impact has become increasingly important, as funders of documentary and issue-based films want look to understand the "return on investment" of films in terms of social impact so that they can compare them with other projects, including non-media, direct service projects. Although we "feel" like films make a difference to the individuals who also see them in the broader cultures in which they are embedded, measurement and empirical analysis of this impact are vitally important for both providing feedback to filmmakers and funders as well as informing future efforts attempting to leverage film for social change. This type of systematic assessment, or program evaluation, is often discussed in terms of two primary goals—formative (or process) and summative (or impact) evaluation (cf. Muraskin; Trochim and Donnelly). Formative evaluation studies program materials and activities to strengthen a program, and summative evaluation examines program outcomes. In terms of documentary film, these two goals can be described as follows: Formative Evaluation: Informing the Process As programs (broadly defined as an intentional set of activities with the aim of having some specific impact), the people who interact with them, and the cultures they are situated in are constantly changing, program development and evaluation is an ongoing learning cycle. Film campaigns, which are an intentional set of activities with the aim of impacting individual viewers and broader cultures, fit squarely within this purview. Without formulating hypotheses about the relationships between program activities and goals and then collecting and analyzing data during implementation to test them, it is difficult to learn ways to improve programs (or continue doing what works best in the most efficient manner). Attention to this process enables those involved to learn more about, not only what works, but how and why it works and even gain insights about how program outcomes may be affected by changes to resource availability, potential audiences, or infrastructure. Filmmakers are constantly learning and honing their craft and realizing the impact of their practice can help the artistic process. Often faced with tight budgets and timelines, they are forced to confront tradeoffs all the time, in the writing, production and post-production process. Understanding where they are having impact can improve their decision-making, which can help both the individual project and the overall field. Summative Evaluation: Quantifying Impacts Evaluation is used in many different fields to determine whether programs are achieving their intended goals and objectives. It became popular in the 1960s as a way of understanding the impact of the Great Society programs and has continued to grow since that time (Madaus and Stufflebeam). A recent White House memo stated that "rigorous, independent program evaluations can be a key resource in determining whether government programs are achieving their intended outcomes as well as possible and at the lowest possible cost" and the United States Office of Management and Budget (OMB) launched an initiative to increase the practice of "impact evaluations, or evaluations aimed at determining the causal effects of programs" (Orszag 1). Documentary films, like government programs, generally target a national audience, aim to serve a social purpose, and often do not provide a return on their investment. Participant Media, the most visible and arguably most successful documentary production company in the film industry, made recent headlines for its difficulty in making a profit during its seven-year history (Cieply). Owner and founder Jeff Skoll reported investing hundreds of millions of dollars into the company and CEO James Berk added that the company sometimes measures success, not by profit, but by "whether Mr. Skoll could have exerted more impact simply by spending his money philanthropically" (Cieply). Because of this, documentary projects often rely on grant funding, and are starting to approach funders beyond traditional arts and media sources. "Filmmakers are finding new fiscal and non-fiscal partners, in constituencies that would not traditionally be considered—or consider themselves—media funders or partners" (BRITDOC 6). And funders increasingly expect tangible data about their return on investment. Says Luis Ubiñas, president of Ford Foundation, which recently launched the Just Films Initiative: In these times of global economic uncertainty, with increasing demand for limited philanthropic dollars, assessing our effectiveness is more important than ever. Today, staying on the frontlines of social change means gauging, with thoughtfulness and rigor, the immediate and distant outcomes of our funding. Establishing the need for evaluation is not enough—attention to methodology is also critical. Valid research methodology is a critical component of understanding around the role entertainment can play in impacting social and environmental issues. The following issues are vital to measuring impact. Defining the Project Though this may seem like an obvious step, it is essential to determine the nature of the project so one can create research questions and hypotheses based on a complete understanding of the "treatment". One organization that provides a great example of the integration of documentary film imbedded into a larger campaign or movement is Invisible Children. Founded in 2005, Invisible Children is both a media-based organization as well as an economic development NGO with the goal of raising awareness and meeting the needs of child soldiers and other youth suffering as a result of the ongoing war in northern Uganda. Although Invisible Children began as a documentary film, it has grown into a large non-profit organization with an operating budget of over $8 million and a staff of over a hundred employees and interns throughout the year as well as volunteers in all 50 states and several countries. Invisible Children programming includes films, events, fundraising campaigns, contests, social media platforms, blogs, videos, two national "tours" per year, merchandise, and even a 650-person three-day youth summit in August 2011 called The Fourth Estate. Individually, each of these components might lead to specific outcomes; collectively, they might lead to others. In order to properly assess impacts of the film "project", it is important to take all of these components into consideration and think about who they may impact and how. This informs the research questions, hypotheses, and methods used in evaluation. Film campaigns may even include partnerships with existing social movements and non-profit organizations targeting social change. The American University Center for Social Media concluded in a case study of three issue-based documentary film campaigns: Digital technologies do not replace, but are closely entwined with, longstanding on-the-ground activities of stakeholders and citizens working for social change. Projects like these forge new tools, pipelines, and circuits of circulation in a multiplatform media environment. They help to create sustainable network infrastructures for participatory public media that extend from local communities to transnational circuits and from grassroots communities to policy makers. (Abrash) Expanding the Focus of Impact beyond the Individual A recent focus has shifted the dialogue on film impact. Whiteman ("Theaters") argues that traditional metrics of film "success" tend to focus on studio economic indicators that are far more relevant to large budget films. Current efforts focused on box office receipts and audience size, the author claims, are really measures of successful film marketing or promotion, missing the mark when it comes to understanding social impact. He instead stresses the importance of developing a more comprehensive model. His "coalition model" broadens the range and types of impact of film beyond traditional metrics to include the entire filmmaking process, from production to distribution. Whiteman (“Theaters”) argues that a narrow focus on the size of the audience for a film, its box office receipts, and viewers' attitudes does not incorporate the potential reach of a documentary film. Impacts within the coalition model include both individual and policy levels. Individual impacts (with an emphasis on activist groups) include educating members, mobilizing for action, and raising group status; policy includes altering both agenda for and the substance of policy deliberations. The Fledgling Fund (Barrett and Leddy) expanded on this concept and identified five distinct impacts of documentary film campaigns. These potential impacts expand from individual viewers to groups, movements, and eventually to what they call the "ultimate goal" of social change. Each is introduced briefly below. Quality Film. The film itself can be presented as a quality film or media project, creating enjoyment or evoking emotion in the part of audiences. "By this we mean a film that has a compelling narrative that draws viewers in and can engage them in the issue and illustrate complex problems in ways that statistics cannot" (Barrett and Leddy, 6). Public Awareness. Film can increase public awareness by bringing light to issues and stories that may have otherwise been unknown or not often thought about. This is the level of impact that has received the most attention, as films are often discussed in terms of their "educational" value. "A project's ability to raise awareness around a particular issue, since awareness is a critical building block for both individual change and broader social change" (Barrett and Leddy, 6). Public Engagement. Impact, however, need not stop at simply raising public awareness. Engagement "indicates a shift from simply being aware of an issue to acting on this awareness. Were a film and its outreach campaign able to provide an answer to the question 'What can I do?' and more importantly mobilize that individual to act?" (Barrett and Leddy, 7). This is where an associated film campaign becomes increasingly important, as transmedia outlets such as Facebook, websites, blogs, etc. can build off the interest and awareness developed through watching a film and provide outlets for viewers channel their constructive efforts. Social Movement. In addition to impacts on individuals, films can also serve to mobilize groups focused on a particular problem. The filmmaker can create a campaign around the film to promote its goals and/or work with existing groups focused on a particular issue, so that the film can be used as a tool for mobilization and collaboration. "Moving beyond measures of impact as they relate to individual awareness and engagement, we look at the project's impact as it relates to the broader social movement … if a project can strengthen the work of key advocacy organizations that have strong commitment to the issues raised in the film" (Barrett and Leddy, 7). Social Change. The final level of impact and "ultimate goal" of an issue-based film is long-term and systemic social change. "While we understand that realizing social change is often a long and complex process, we do believe it is possible and that for some projects and issues there are key indicators of success" (Barrett and Leddy, 7). This can take the form of policy or legislative change, passed through film-based lobbying efforts, or shifts in public dialogue and behavior. Legislative change typically takes place beyond the social movement stage, when there is enough support to pressure legislators to change or create policy. Film-inspired activism has been seen in issues ranging from environmental causes such as agriculture (Food Inc.) and toxic products (Blue Vinyl) to social causes such as foreign conflict (Invisible Children) and education (Waiting for Superman). Documentary films can also have a strong influence as media agenda-setters, as films provide dramatic "news pegs" for journalists seeking to either sustain or generation new coverage of an issue (Nisbet "Introduction" 5), such as the media coverage of climate change in conjunction with An Inconvenient Truth. Barrett and Leddy, however, note that not all films target all five impacts and that different films may lead to different impacts. "In some cases we could look to key legislative or policy changes that were driven by, or at least supported by the project... In other cases, we can point to shifts in public dialogue and how issues are framed and discussed" (7). It is possible that specific film and/or campaign characteristics may lead to different impacts; this is a nascent area for research and one with great promise for both practical and theoretical utility. Innovations in Tools and Methods Finally, the selection of tools is a vital component for assessing impact and the new media landscape is enabling innovations in the methods and strategies for program evaluation. Whereas the traditional domain of film impact measurement included box office statistics, focus groups, and exit surveys, innovations in data collection and analysis have expanded the reach of what questions we can ask and how we are able to answer them. For example, press coverage can assist in understanding and measuring the increase in awareness about an issue post-release. Looking directly at web-traffic changes "enables the creation of an information-seeking curve that can define the parameters of a teachable moment" (Hart and Leiserowitz 360). Audience reception can be measured, not only via interviews and focus groups, but also through content and sentiment analysis of web content and online analytics. "Sophisticated analytics can substantially improve decision making, minimize risks, and unearth valuable insights that would otherwise remain hidden" (Manyika et al. 5). These new tools are significantly changing evaluation, expanding what we can learn about the social impacts of film through triangulation of self-report data with measurement of actual behavior in virtual environments. Conclusion The changing media landscape both allows and impels evaluation of film impacts on individual viewers and the broader culture in which they are imbedded. Although such analysis may have previously been limited to box office numbers, critics' reviews, and theater exit surveys, the rise of new media provides both the ability to connect filmmakers, activists, and viewers in new ways and the data in which to study the process. This capability, combined with significant growth in the documentary landscape, suggests a great potential for documentary film to contribute to some of our most pressing social and environmental needs. A social scientific approach, that combines empirical analysis with theory applied from basic science, ensures that impact can be measured and leveraged in a way that is useful for both filmmakers as well as funders. In the end, this attention to impact ensures a continued thriving marketplace for issue-based documentary films in our social landscape. References Abrash, Barbara. "Social Issue Documentary: The Evolution of Public Engagement." American University Center for Social Media 21 Apr. 2010. 26 Sep. 2011 ‹http://www.centerforsocialmedia.org/›. Aufderheide, Patricia. "The Changing Documentary Marketplace." Cineaste 30.3 (2005): 24-28. Barnouw, Eric. Documentary: A History of the Non-Fiction Film. New York: Oxford UP, 1993. Barrett, Diana and Sheila Leddy. "Assessing Creative Media's Social Impact." The Fledgling Fund, Dec. 2008. 15 Sep. 2011 ‹http://www.thefledglingfund.org/media/research.html›. Barsam, Richard M. Nonfiction Film: A Critical History. Bloomington: Indiana UP. 1992. BRITDOC Foundation. The End of the Line: A Social Impact Evaluation. London: Channel 4, 2011. 12 Oct. 2011 ‹http://britdoc.org/news_details/the_social_impact_of_the_end_of_the_line/›. Cieply, Michael. "Uneven Growth for Film Studio with a Message." New York Times 5 Jun. 2011: B1. Ellsworth, Elizabeth. "Emerging Media and Documentary Practice." The New School Graduate Program in International Affairs. Aug. 2008. 22 Sep. 2011. ‹http://www.gpia.info/node/911›. Grierson, John. "First Principles of Documentary (1932)." Imagining Reality: The Faber Book of Documentary. Eds. Kevin Macdonald and Mark Cousins. London: Faber and Faber, 1996. 97-102. Hart, Philip Solomon and Anthony Leiserowitz. "Finding the Teachable Moment: An Analysis of Information-Seeking Behavior on Global Warming Related Websites during the Release of The Day After Tomorrow." Environmental Communication: A Journal of Nature and Culture 3.3 (2009): 355-66. Jenkins, Henry. Convergence Culture: Where Old and New Media Collide. New York: New York UP, 2006. ———. "Transmedia Storytelling 101." Confessions of an Aca-Fan. The Official Weblog of Henry Jenkins. 22 Mar. 2007. 10 Oct. 2011 ‹http://www.henryjenkins.org/2007/03/transmedia_storytelling_101.html›. Madaus, George, and Daniel Stufflebeam. "Program Evaluation: A Historical Overview." Evaluation in Education and Human Services 49.1 (2002): 3-18. Manyika, James, Michael Chui, Jacques Bughin, Brad Brown, Richard Dobbs, Charles Roxburgh, and Angela Hung Byers. Big Data: The Next Frontier for Innovation, Competition, and Productivity. McKinsey Global Institute. May 2011 ‹http://www.mckinsey.com/mgi/publications/big_data/›. Muraskin, Lana. Understanding Evaluation: The Way to Better Prevention Programs. Washington: U.S. Department of Education, 1993. 8 Oct. 2011 ‹http://www2.ed.gov/PDFDocs/handbook.pdf›. Nichols, Bill. "Foreword." Documenting the Documentary: Close Readings of Documentary Film and Video. Eds. Barry Keith Grant and Jeannette Sloniowski. Detroit: Wayne State UP, 1997. 11-13. Nisbet, Matthew. "Gasland and Dirty Business: Documentary Films Shape Debate on Energy Policy." Big Think, 9 May 2011. 1 Oct. 2011 ‹http://bigthink.com/ideas/38345›. ———. "Introduction: Understanding the Social Impact of a Documentary Film." Documentaries on a Mission: How Nonprofits Are Making Movies for Public Engagement. Ed. Karen Hirsch, Center for Social Media. Mar. 2007. 10 Sep. 2011 ‹http://aladinrc.wrlc.org/bitstream/1961/4634/1/docs_on_a_mission.pdf›. Nisbet, Matthew, and Patricia Aufderheide. "Documentary Film: Towards a Research Agenda on Forms, Functions, and Impacts." Mass Communication and Society 12.4 (2011): 450-56. Orszag, Peter. Increased Emphasis on Program Evaluation. Washington: Office of Management and Budget. 7 Oct. 2009. 10 Oct. 2011 ‹http://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_2010/m10-01.pdf›. Participant Media. "Our Mission." 2011. 2 Apr. 2011 ‹http://www.participantmedia.com/company/about_us.php.›. Plantinga, Carl. Rhetoric and Representation in Nonfiction Film. Cambridge: Cambridge UP, 1997. Trochim, William, and James Donnelly. Research Methods Knowledge Base. 3rd ed. Mason: Atomic Dogs, 2007. Ubiñas, Luis. "President's Message." 2009 Annual Report. Ford Foundation, Sep. 2010. 10 Oct. 2011 ‹http://www.fordfoundation.org/about-us/2009-annual-report/presidents-message›. Vladica, Florin, and Charles Davis. "Business Innovation and New Media Practices in Documentary Film Production and Distribution: Conceptual Framework and Review of Evidence." The Media as a Driver of the Information Society. Eds. Ed Albarran, Paulo Faustino, and R. Santos. Lisbon, Portugal: Media XXI / Formal, 2009. 299-319. Whiteman, David. "Out of the Theaters and into the Streets: A Coalition Model of the Political Impact of Documentary Film and Video." Political Communication 21.1 (2004): 51-69. ———. "The Evolving Impact of Documentary Film: Sacrifice and the Rise of Issue-Centered Outreach." Post Script 22 Jun. 2007. 10 Sep. 2011 ‹http://www.allbusiness.com/media-telecommunications/movies-sound-recording/5517496-1.html›. Winston, Brian. Claiming the Real: The Documentary Film Revisited. London: British Film Institute, 1995. Working Films. "Nonprofits: Working Films." Foundation Source Access 31 May 2011. 5 Oct. 2011 ‹http://access.foundationsource.com/nonprofit/working-films/›.

Pornography is a fictional media genre that depicts sexual fantasies and explicitly presents naked bodies and sexual activities for the purpose of sexual arousal (Williams, 1989; McKee et al., 2020). Regarding media ethics and media effects, pornography has traditionally been viewed as highly problematic. Pornographic material has been accused of portraying sexuality in unhealthy, morally questionable and often sexist ways, thereby harming performers, audiences, and society at large. In the age of the Internet, pornography has become more diverse, accessible, and widespread than ever (Döring, 2009; Miller et al., 2020). Consequently, the depiction of sexuality in pornography is the focus of a growing number of content analyses of both mass media (e.g., erotic and pornographic novels and movies) and social media (e.g., erotic and pornographic stories, photos and videos shared via online platforms). Typically, pornography’s portrayals of sexuality are examined by measuring the prevalence and frequency of sexual practices or relational dynamics and related gender roles via quantitative content analysis (for research reviews see Carrotte et al., 2020; Miller & McBain, 2022). This entry focuses on the representation of safer sex practices as one of eight important dimensions of the portrayals of sexuality in pornography. Field of application/theoretical foundation: In the field of pornographic media content research, different theories are used, mainly 1) general media effects theories, 2) sexual media effects theories, 3) gender role, feminist and queer theories, 4) sexual fantasy and desire theories, and different 5) mold theories versus mirror theories. The DOCA entry “Conceptual Overview (Portrayals of Sexuality in Pornography)” introduces all these theories and explains their application to pornography. The respective theories are applicable to the analysis of the depiction of safer sex practices as one dimension of the portrayals of sexuality in pornography. References/combination with other methods of data collection: Manual quantitative content analyses of pornographic material can be combined with qualitative (e.g., Keft-Kennedy, 2008) as well as computational (e.g., Seehuus et al., 2019) content analyses. Furthermore, content analyses can be complemented with qualitative interviews and quantitative surveys to investigate perceptions and evaluations of the portrayals of sexuality in pornography among pornography’s creators and performers (e.g., West, 2019) and audiences (e.g., Cowan & Dunn, 1994; Hardy et al., 2022; Paasoonen, 2021; Shor, 2022). Additionally, experimental studies are helpful to measure directly how different dimensions of pornographic portrayals of sexuality are perceived and evaluated by recipients, and if and how these portrayals can affect audiences’ sexuality-related thoughts, feelings, and behaviors (e.g., Kohut & Fisher, 2013; Miller et al., 2019). Example studies for manual quantitative content analyses: A common research hypothesis states that pornography displays sexuality – and even high-risk sex acts, such as penetrative sex – predominately without condoms. To test such hypotheses and code pornographic material accordingly, it is necessary to clarify the concept of “safer sex” and use valid and reliable measures for different types of safer sex practices. It is important to note that safer sex practices could be assessed at the sexual encounter level (e.g., Is a condom used during the sexual encounter?) or at the level of specific sexual acts (e.g., Is a condom used during anal sex?). It is also possible that a scene depicts a condom being used, but only for the purpose of it being removed (e.g., to highlight the unrestricted nature of the sex being shown or as part of an impregnation roleplay). Given that such scenarios would depict condom use while simultaneously presenting sex with a condom as being less pleasurable, researchers may need to consider these contextual factors when developing their coding schemes. In gay male pornography “barebacking” (deliberately forgoing condom use during anal sex) is its own sub-genre (Tollini, 2019), thus there is a possibility for indirect coding based on meta-information about whether material sits within this sub-genre. Coding Material Measure Operationalization (excerpt) Reliability Source Safer Sex Practices: Condom use during penetrative sex with a penis provides a high degree of protection against pregnancies and several types of STIs (Sexually Transmitted Infections) including HIV (Human Immunodeficiency Virus). While condom use is recommended for private sexual encounters (and demanded by some legislatures for porn performers), condoms can increase pain, risk of injury and risk of STI/HIV transmission among performers (particularly those engaging in receptive penetrative practices) because professional performances are typically much longer and more demanding than the average private sexual encounters. For this reason, some porn performers have challenged the idea that legal obligations for condom use on set effectively protect them (Shachner, 2015). Alternative protection measures are often preferred by professional performers (e.g., long acting contraception methods, regular STI/HIV testing, HIV-Pre-Exposure Prophylaxis). The availability of HIV-Pre-Exposure Prophylaxis has resulted in a trend toward condomless anal sex (“barebacking”) in gay male pornography (Tollini, 2019). Apart from issues of performer health protection, safer sex practices in pornography are also regarded as relevant in terms of modelling behaviors for audiences. N=50 scenes from 50 best-selling heterosexual adult films (1 scene per film) and N=50 scenes from 50 bestselling male homosexual films (1 scene per film) Condom use - Condom use during penile-oral contact (type of condom use) Penile-oral contact is shown and a condom is used at least some of the time during this act. Binary coding (1: yes; 2: no). Cohen’s Kappa across all four variables: .78 Grudzen et al. (2009) - Condom use during penile-vaginal contact (type of condom use) Penile-vaginal contact is shown and a condom is used at least some of the time during this act. Binary coding (1: yes; 2: no). - Condom use during penile-anal contact (type of condom use) Penile-anal contact is shown and a condom is used at least some of the time during this act. Binary coding (1: yes; 2: no). - Condom use during anal-to-oral penile insertion Anal-to-oral penile insertion (penile-oral insertion immediately following penile-anal insertion) is shown and a condom is used at least some of the time during this act. Binary coding (1: yes; 2: no). Apart from condom use, further safer sex practices can be measured (e.g., visible use of lube to prevent pain or injuries during penetrative sex; observable communication between characters about sexual health status, STI testing, or use of contraception). References Carrotte, E. R., Davis, A. C., & Lim, M. S. (2020). Sexual behaviors and violence in pornography: Systematic review and narrative synthesis of video content analyses. Journal of Medical Internet Research, 22(5), Article e16702. https://doi.org/10.2196/16702 Cowan, G., & Dunn, K. F. (1994). What themes in pornography lead to perceptions of the degradation of women? Journal of Sex Research, 31(1), 11–21. https://doi.org/10.1080/00224499409551726 Döring, N. (2009). The Internet’s impact on sexuality: A critical review of 15 years of research. Computers in Human Behavior, 25(5), 1089–1101. https://doi.org/10.1016/j.chb.2009.04.003 Grudzen, C. R., Elliott, M. N., Kerndt, P. R., Schuster, M. A., Brook, R. H., & Gelberg, L. (2009). Condom use and high-risk sexual acts in adult films: A comparison of heterosexual and homosexual films. American Journal of Public Health, 99(S1), S152-156. https://doi.org/10.2105/AJPH.2007.127035 Hardy, J., Kukkonen, T., & Milhausen, R. (2022). Examining sexually explicit material use in adults over the age of 65 years. The Canadian Journal of Human Sexuality, 31(1), 117–129. https://doi.org/10.3138/cjhs.2021-0047 Keft-Kennedy, V. (2008). Fantasising masculinity in Buffyverse slash fiction: Sexuality, violence, and the vampire. Nordic Journal of English Studies, 7(1), 49–80. Kohut, T., & Fisher, W. A. (2013). The impact of brief exposure to sexually explicit video clips on partnered female clitoral self-stimulation, orgasm and sexual satisfaction. The Canadian Journal of Human Sexuality, 22(1), 40–50. https://doi.org/10.3138/cjhs.935 McKee, A., Byron, P., Litsou, K., & Ingham, R. (2020). An interdisciplinary definition of pornography: Results from a global Delphi panel. Archives of Sexual Behavior, 49(3), 1085–1091. https://doi.org/10.1007/s10508-019-01554-4 Miller, D. J., & McBain, K. A. (2022). The content of contemporary, mainstream pornography: A literature review of content analytic studies. American Journal of Sexuality Education, 17(2), 219–256. https://doi.org/10.1080/15546128.2021.2019648 Miller, D. J., McBain, K. A., & Raggatt, P. T. F. (2019). An experimental investigation into pornography’s effect on men’s perceptions of the likelihood of women engaging in porn-like sex. Psychology of Popular Media Culture, 8(4), 365–375. https://doi.org/10.1037/ppm0000202 Miller, D. J., Raggatt, P. T. F., & McBain, K. (2020). A literature review of studies into the prevalence and frequency of men’s pornography use. American Journal of Sexuality Education, 15(4), 502–529. https://doi.org/10.1080/15546128.2020.1831676 Paasonen, S. (2021). “We watch porn for the fucking, not for romantic tiptoeing”: Extremity, fantasy and women’s porn use. Porn Studies, 1–14. https://doi.org/10.1080/23268743.2021.1956366 Shachner, J. (2015). Unwrapped: How the Los Angeles County Safer Sex in the Adult Film Industry Act's condom mandate hurts performers & violates the First Amendment. Health Matrix: The Journal of Law Medicine, 24(1), 345–375. Seehuus, M., Stanton, A. M., & Handy, A. B. (2019). On the content of "real-world" sexual fantasy: Results from an analysis of 250,000+ anonymous text-based erotic fantasies. Archives of Sexual Behavior, 48(3), 725–737. https://doi.org/10.1007/s10508-018-1334-0 Shor, E. (2022). Who seeks aggression in pornography? Findings from interviews with viewers. Archives of Sexual Behavior, 51(2), 1237–1255. https://doi.org/10.1007/s10508-021-02053-1 Tollini, C. (2019). How two holdouts went bareback: CockyBoys and Men. com's initial transition to producing videos without condoms. Porn Studies, 6(3), 282-300. https://doi.org/10.1080/23268743.2019.1602958 West, C. (2019). Pornography and ethics: An interview with porn performer Blath. Porn Studies, 6(2), 264–267. https://doi.org/10.1080/23268743.2018.1505540 Williams, L. (1989). Hard Core: Power, pleasure, and the frenzy of the visible. University of California Press.

IntroductionClowns can be seen as enacting catastrophe with a small “c.” They are experts in “failing better” who perhaps live on the cusp of turning catastrophe into a metaphorical whirlwind while ameliorating the devastation that lies therein. They also have the propensity to succumb to the devastation, masking their own sense of the void with the gestures of play. In this paper, knowledge about clowns emerges from my experience, working with circus clowns in Circus Knie (Switzerland) and Circo Tihany (South America), observing performances and films about clowns, and reading, primarily in European fiction, of clowns in multiple guises. The exposure to a diverse range of texts, visual media and performance, has led me to the possibility that clowning is not only a conceptual discipline but also a state of being that is yet to be fully recognised.Diminutive CatastropheI have an idea (probably a long held obsession) of the clown as a diminutive figure of catastrophe, of catastrophe with a very small “c.” In the context of this incisive academic dialogue on relationships between catastrophe and creativity where writers are challenged with the horrendous tragedies that nature and humans unleash on the planet, this inept character appears to be utterly insignificant and, moreover, unworthy of any claim to creativity. A clown does not solve problems in the grand scheme of society: if anything he/she simply highlights problems, arguably in a fatalistic manner where innovation may be an alien concept. Invariably, as Eric Weitz observes, when clowns depart from their moment on the stage, laughter evaporates and the world settles back into the relentless shades of oppression and injustice. In response to the natural forces of destruction—earthquakes, tsunamis, cyclones, and volcanic eruptions—as much as to the forces of rage in war and ethnic cleansing that humans inflict on one another, a clown makes but a tiny gesture. Curiously, though, those fingers brushing dust off a threadbare jacket may speak volumes.Paradox is the crux of this exploration. Clowns, the best of them, project the fragility of human value on a screen beyond measure and across many layers and scales of metaphorical understanding (Big Apple Circus; Stradda). Why do odd tramps and ordinary inept people seem to pivot against the immense flows of loss and outrage which tend to pervade our understanding of the global condition today? Can Samuel Beckett’s call to arms of "failing better” in the vein of Charles Chaplin, Oleg Popov, or James Thiérrée offer a creative avenue to pursue (Bala; Coover; Salisbury)? Do they reflect other ways of knowing in the face of big “C” Catastrophes? Creation and CatastropheTo wrestle with these questions, I wish to begin by proposing a big picture view of earth-life wherein, across inconceivable aeons, huge physical catastrophes have wrought unimaginable damage on the ecological “completeness” of the time. I am not a palaeontologist or an evolutionary scientist but I suspect that, if human life is taken out of the equation, the planet since time immemorial has been battered by “disaster” which changed but ultimately did not destroy the earth. Evolution is replete with narratives of species wiped out by ice-ages, volcanoes, earthquakes, and meteors and yet the organism of this planet has survived and even regenerated. In metaphorical territory, the Sanskrit philosophers have a wise take on this process. Indian concepts are always multiple, crowded with possibilities, but I find there is something intriguing in the premise (even if it is impossible to tie down) of Shiva’s dance:Shiva Nataraja destroys creation by his Tandava Dance, or the Dance of Eternity. As he dances, everything disintegrates, apparently into nothingness. Then, out of the thin vapours, matter and life are recreated again. Shiva also dances in the hearts of his devotees as the Great Soul. As he dances, one’s egotism is consumed and one is rendered pure in soul and without any spiritual blemish. (Ghosh 109–10)For a dancer, the central location of dance in life’s creation forces is a powerful idea but I am also interested in how this metaphysical perspective aligns with current scientific views. How could these ancient thinkers predict evolutionary processes? Somehow, in the mix of experiential observation and speculation, they foresaw the complexity of time and, moreover, appreciated the necessary interdependence of creation and destruction (creativity and catastrophe). In comparison to western thought which privileges progression—and here evolution is a prime example—Hindu conceptualisation appears to prefer fatalism or a cyclical system of understanding that negates the potential of change to make things better. However, delving more closely into scientific narratives on evolution, the progression of life forms to the human species has involved the decimation of an uncountable number of other living possibilities. Contrariwise, Shiva’s Dance of Eternity is premised on endless diachronic change crossed vertically by reincarnation, through which progression and regression are equally expressed. I offer this simplistic view of both accounts of creation merely to point out that the interdependency of destruction and creation is deeply embodied in human knowledge.To introduce the clown figure into this idea, I have to turn to the minutiae of destruction and creation; to examples in the everyday nature of regeneration through catastrophe. I have memories of touring in the Northern Territory of Australia amidst strident green shoots bursting out of a fire-tortured landscape or, earlier in Paris, of the snow-crusted earth being torn asunder by spring’s awakening. We all have countless memories of such small-scale transformations of pain and destruction into startling glimpses of beauty. It is at this scale of creative wrestling that I see the clown playing his/her role.In the tension between fatalism and, from a human point of view, projections of the right to progression, a clown occupying the stage vacated by Shiva might stamp out a slight rhythm of his/her own with little or no meaning in the action. The brush on the sleeve might be hard to detect in an evolutionary or Hindu time scale but zoom down to the here and now of performance exchange and the scene may be quite different?Turning the Lens onto the Small-ScaleSmall-scale, clowns tend to be tiny bundles or, sometimes, gangly unbundles of ineptitude, careering through the simplest tasks with preposterous incompetence or, alternatively, imbibing complexity with the virtuosic delicacy—take Charles Chaplin’s shoe-lace spaghetti twirling and nibbling on nail-bones as an example. Clowns disrupt normalcy in small eddies of activity which often wreak paths of destruction within the tightly ordered rage of social formations. The momentum is chaotic and, not dissimilar to storms, clownish enactment bears down not so much to threaten human life but to disrupt what we humans desire and formulate as the natural order of decorum and success. Instead of the terror driven to consciousness by cyclones and hurricanes, the clown’s chaos is superficially benign. When Chaplin’s generous but unrealistic gesture to save the tightrope-act is thwarted by an escaped monkey, or when Thiérrée conducts a spirited debate with the wall of his abode in the midst of an identity crisis (Raoul), life is not threatened. Such incongruous and chaotic trajectories generate laughter and, sometimes, sadness. Moreover, as Weitz observes, “the clown-like imagination, unfettered by earthly logic, urges us to entertain unlikely avenues of thought and action” (87). While it may seem insensitive, I suggest that similar responses of laughter, sadness and unlikely avenues of thought and action emerge in the aftermath of cataclysmic events.Fear, unquestionably, saturates big states of catastrophe. Slide down the scale and intriguing parallels between fear and laughter emerge, one being a clown’s encapsulation of vulnerability and his/her stoic determination to continue, to persevere no matter what. There are many ways to express this continuity: Beckett’s characters are forever waiting, fearful that nothing will arrive, yet occupy themselves with variations of cruelty and amusement through the interminable passage of time. A reverse action occurs in Grock’s insistence that he can play his tiny violin, in spite of his ever-collapsing chair. It never occurs to him to find another chair or play standing up: that, in an incongruous way, would admit defeat because this chair and his playing constitute Grock’s compulsion to succeed. Fear of failure generates multiple innovations in his relationship with the chair and in his playing skills. Storm-like, the pursuit of a singular idea in both instances triggers chaotic consequences. Physical destruction may be slight in such ephemeral storms but the act, the being in the world, does leave its mark on those who witness its passage.I would like to offer a mark left in me by a slight gesture on the part of a clown. I choose this one among many because the singular idea played out in Circus Knie (Switzerland) back in the early 1970s does not conform to the usual parameters. This Knie season featured Dimitri, an Italian-Swiss clown, as the principal attraction. Following clown conventions, Dimitri appeared across the production as active glue between the various circus acts, his persona operating as an odd-jobs man to fix and clean. For instance, he intervened in the elephant act as a cleaner, scrubbing and polishing the elephant’s skin with little effect and tuned, with much difficulty, a tiny fiddle for the grand orchestration to come. But Dimitri was also given moments of his own and this is the one that has lodged in my memory.Dimitri enters the brightly lit and empty circus ring with a broom in hand. The audience at this point have accepted the signal that Dimitri’s interludes prepare the ring for the next attraction—to sweep, as it were, the sawdust back to neutrality. He surveys the circle for a moment and then takes a position on the periphery to begin what appears to be a regular clean-up. The initial brushes over the sawdust, however, produce an unexpected result—the light rather than the sawdust responds to his broom stokes. Bafflement swiftly passes as an idea takes hold: the diminutive figure trots off to the other side of the ring and, after a deep breath and a quick glance to see if anyone is looking (we all are), nudges the next edge of light. Triumphantly, the pattern is pursued with increasing nimbleness, until the figure with the broom stands before a pin-spot of light at the ring’s centre. He hesitates, checks again about unwanted surveillance, and then, in a single strike (poof), sweeps light and the world into darkness.This particular clown gesture contradicts usual commentaries of ineptitude and failure associated with clown figures but the incongruity of sweeping light and the narrative of the little man who scores a win lie thoroughly in the characteristic grounds of clownish behaviour. Moreover, the enactment of this simple idea illustrates for me today, as much as it did on its initial viewing, how powerful a slight clown gesture can be. This catastrophe with a very small “c:” the little man with nothing but a broom and an idea destroyed, like the great god Shiva, the world of light.Jesse McKnight’s discussion of the peculiar attraction of two little men of the 20th century, James Joyce’s Bloom and Charles Chaplin, could also apply to Dimitri:They are at sixes and sevens here on earth but in tune with the stars, buffoons of time, and heroes of eternity. In the petty cogs of the causal, they appear foolish; in the grand swirl of the universe, they are wise, outmaneuvering their assailants and winning the race or the girl against all odds or merely retaining their skins and their dignity by nightfall. (496) Clowning as a State of Mind/ConsciousnessAnother perspective on a clown’s relationship to ideas of catastrophe which I would like to examine is embedded in the discussion above but, at the same time, deviates by way of a harsh tangent from the beatitude and almost sacred qualities attributed by McKnight’s and my own visions of the rhythmic gestures of these diminutive figures. Beckett’s advice in Worstward Ho (1983) is a fruitful starting place wherein the directive is “to keep on trying even if the hope of success is dashed again and again by failure: ‘Ever tried. Ever failed. No matter. Try Again. Fail again. Fail better’” (Le Feuvre 13). True to the masterful wordsmith, these apparently simple words are not transparent; rather, they deflect a range of contradictory interpretations. Yes, failure can facilitate open, flexible and alternative thought which guards against fanatical and ultra-orthodox certitude: “Failure […] is free to honour other ways of knowing, other construals of power” (Werry & O’Gorman 107). On the other hand, failure can mask a horrifying realisation of the utter meaninglessness of human existence. It is as if catastrophe is etched lightly in external clown behaviour and scarred pitilessly deep in the psyches that drive the comic behaviour. Pupils of the pre-eminent clown teacher Jacques Lecoq suggest that theatrical clowning pivots on “finding that basic state of vulnerability and allowing the audience to exist in that state with you” (Butler 64). Butler argues that this “state of clowning” is “a state of anti-intellectualism, a kind of pure emotion” (ibid). From my perspective, there is also an emotional stratum in which the state or condition involves an adult anxiety desiring to protect the child’s view of the world with a fierceness equal to that of a mother hen protecting her brood. A clown knows the catastrophe of him/herself but refuses to let that knowledge (of failure) become an end. An obstinate resilience, even a frank acknowledgement of hopelessness, makes a clown not so much pure emotion or childlike but a kind of knowledgeable avenger of states of loss. Here I need to admit that I attribute the clowning state or consciousness to an intricate lineage inclusive of the named clowns, Grock, Chaplin, Popov, Dimitri, and Thiérrée, which extends to a whole host of others who never entered a circus or performance ring: Mikhail Dostoyevsky’s Mushkin (the holy Russian fool), Henry Miller’s Auguste, Salman Rushdie’s Saleem, Jacques Tati, Joan Miro, Marc Chagall, Jean Cocteau, Eric Satie’s sonic whimsy, and Pina Bausch’s choreography. In the following observation, the overlay of catastrophe and play is a crucial indication of this intricate lineage:Heiner Müller compared Pina Bausch's universe to the world of fairy tales. “History invades it like trouble, like summer flies [...] The territory is an unknown planet, an emerging island product of an ignored (forgotten or future) catastrophe [...] The whole is nothing but children's play”. (Biro 68)Bausch clearly recognises and is interested in the catastrophic moments or psychological wiring of life and her works are not exempt from comic (clownish) modulations in the play of violence and despair that often takes centre stage. In fact, Bausch probably plays on ambivalence between despair and play more explicitly than most artists. From one angle, this ambivalence is generational, as her adult performers bear the weight of oppression within the structures (and remembering of) childhood games. An artistic masterstroke in this regard is the tripling reproduction over many years of her work exploring gender negotiations at a social dance gathering: Kontakhof. Initially, the work was performed by Bausch’s regular company of mature, if diverse, dancers (Bausch 1977), then by an elderly ensemble, some of whom had appeared in the original production (Kontakhof), and, finally, by a group of adolescents in 2010. The latter version became the subject of a documentary film, Dancing Dreams (2010), which revealed the fidelity of the re-enactment, subtly transformed by the brashness and uncertainty of the teenage protagonists playing predetermined roles and moves. Viewing the three productions side-by-side reveals socialised relations of power and desire, resonant of Michel Foucault’s seminal observations (1997), and the catastrophe of gender relations subtly caught in generational change. The debility of each age group becomes apparent. None are able to engage in communication and free-play (dream) without negotiating an unyielding sexual terrain and, more often than not, the misinterpretation of one human to another within social conventions. Bausch’s affinity to the juxtaposition of childhood aspiration and adult despair places her in clown territory.Becoming “Inhuman” or SacrificialA variation on this condition of a relentless pursuit of failure is raised by Joshua Delpech-Ramey in an argument for the “inhuman” rights of clowns. His premise matches a “grotesque attachment to the world of things” to a clown’s existence that is “victimized by an excessive drive to exist in spite of all limitation. The clown is, in some sense, condemned to immortality” (133). In Delpech-Ramey’s terms:Chaplin is human not because his are the anxieties and frustrations of a man unable to realize his destiny, but because Chaplin—nearly starving, nearly homeless, a ghost in the machine—cannot not resist “the temptation to exist,” the giddiness of making something out of nothing, pancakes out of sawdust. In some sense the clown can survive every accident because s/he is an undead immortal, demiurge of a world without history. (ibid.)The play on a clown’s “undead” propensity, on his/her capacity to survive at all costs, provides a counterpoint to a tragic lens which has not been able, in human rights terms, to transcend "man’s inhumanity to man.” It might also be argued that this capacity to survive resists nature’s blindness to the plight of humankind (and visa versa). While I admire the skilful argument to place clowns as centrepieces in the formulation of alternative and possibly more potent human rights legislations, I’m not absolutely convinced that the clown condition, as I see it, provides a less mysterious and tragic state from which justice can be administered. Lear and his fool almost become interchangeable at the end of Shakespeare’s tragedy: both grapple with but cannot resolve the problem of justice.There is a little book written by Henry Miller, The Smile at the Foot of the Ladder (1948), which bears upon this aspect of a clown’s condition. In a postscript, Miller, more notorious for his sexually explicit fiction, states his belief in the unique status of clowns:Joy is like a river: it flows ceaselessly. It seems to me this is the message which the clown is trying to convey to us, that we should participate through ceaseless flow and movement, that we should not stop to reflect, compare, analyse, possess, but flow on and through, endlessly, like music. This is the gift of surrender, and the clown makes it symbolically. It is for us to make it real. (47)Miller’s fictional Auguste’s “special privilege [was] to re-enact the errors, the foibles, the stupidities, all the misunderstandings which plague human kind. To be ineptitude itself” (29). With overtones of a Christian resurrection, Auguste surrenders himself and, thereby, flows on through death, his eyes “wide open, gazing with a candour unbelievable at the thin sliver of a moon which had just become visible in the heavens” (40). It may be difficult to reconcile ineptitude with a Christ figure but those clowns who have made some sort of mark on human imagination tend to wander across territories designated as sacred and profane with a certain insouciance and privilege. They are individuals who become question marks: puzzles not meant to be solved. Maybe similar glimpses of the ineffable occur in tiny, miniscule shifts of consciousness, like the mark given to me by Dimitri and Chaplin and...—the unending list of clowns and clown conditions that have gifted their diminutive catastrophes to the problem of creativity, of rebirth after and in the face of destruction.With McKnight, I dedicate the last word to Chaplin, who speaks with final authority on the subject: “Be brave enough to face the veil and lift it, and see and know the void it hides, and stand before that void and know that within yourself is your world” (505).Thus poised, the diminutive clown figure may not carry the ferment of Shiva’s message of destruction and rebirth, he/she may not bear the strength to creatively reconstruct or re-birth normality after catastrophic devastation. But a clown, and all the humanity given to the collisions of laughter and tears, may provide an inept response to the powerlessness which, as humans, we face in catastrophe and death. Does this mean that creativity is inimical with catastrophe or that existing with catastrophe implies creativity? As noted at the beginning, these ruminations concern small “c” catastrophes. They are known otherwise as clowns.ReferencesBala, Michael. “The Clown.” Jung Journal: Culture & Psyche 4.1 (2010): 50–71.Bausch, Pina. Kontakthof. Wuppertal Dance Theatre, 1977.Big Apple Circus. Circopedia. 27 Feb. 2013 ‹http://www.circopedia.org/index.php/Main_Page›.Biro, Yvette. “Heartbreaking Fragments, Magnificent Whole: Pina Bausch’s New Minimyths.” PAJ: A Journal of Performance and Art 20.2 (1998): 68–72.Butler, Lauren. “Everything Seemed New: Clown as Embodied Critical Pedagogy.” Theatre Topics 22.1 (2012): 63–72.Coover, Robert. “Tears of a Clown.” Critique: Studies in Contemporary Fiction 42.1 (2000): 81–83.Dancing Dreams. Dirs. Anne Linsel and Rainer Hoffmann. First Run Features, 2010.Delpech-Ramey, Joshua. “Sublime Comedy: On the Inhuman Rights of Clowns.” SubStance 39.2 (2010): 131–41.Foucault, Michel. “The Ethics of the Concern for Self as Practice of Freedom.” Michel Foucault: Ethics: Subjectivity and Truth. Ed. Paul Rabinow. New York: The New Press, 1997. 281–302. Ghosh, Oroon. The Dance of Shiva and Other Tales from India. New York: New American Library, 1965.Kontakthof with Ladies and Gentlemen over ’65. Dir. Pina Bausch. Paris: L’Arche Editeur, 2007.Le Feuvre, Lisa. “Introduction.” Failure: Documents of Contemporary Art. Ed. Lisa Le Feuvre. London: Whitechapel Gallery, 2010. 12–21.McKnight, Jesse H. “Chaplin and Joyce: A Mutual Understanding of Gesture.” James Joyce Quarterly 45.3–4 (2008): 493–506.Miller, Henry. The Smile at the Foot of the Ladder. New York: New Directions Books, 1974.Raoul. Dir. James Thiérrée. Regal Theatre, Perth, 2012.Salisbury, Laura. “Beside Oneself Beckett, Comic Tremor and Solicitude.” Parallax 11.4 (2005): 81–92.Stradda. Stradda: Le Magazine de la Creation hors les Murs. 27 Feb. 2013 ‹http://www.horslesmurs.fr/-Decouvrez-le-magazine-.html›.Weitz, Eric. “Failure as Success: On Clowns and Laughing Bodies.” Performance Research: A Journal of the Performing Arts 17.1 (2012): 79–87.Werry, Margaret, and Róisín O'Gorman. “The Anatomy of Failure: An Inventory.” Performance Research: A Journal of the Performing Arts 17.1 (2012): 105–10.

It's the beginning of 2000 and the 21st century is all mapped out. Since we've just had that time at the end of a decade (not to mention the end of the century, as well as the Christian calendar "millennium"), when all the pundits came out to review where we had been and forecast where we are going, we should have expected a profundity of future-casting. But neither the familiar prognostications of the coming apocalypse spewing forth from the Religious Right, nor the usual statistical projections made by "experts" on such things as population growth, world politics, economic cycles, new products and shifting job markets, etc. will provide any help in reading the map we have already drawn up, or translating the directional signs. The future is now. It occupies the same domain as the past. Both are inhabitants of the present moment. History, memory, desire, imagination, the creative instinct, and the impetus to act, unfold and are realised as the future becomes the present. We cannot help but tinker with the universe. The future is what we make it and there are an infinite number of possible timelines. Or maybe not. It's the beginning of 2000 and the 21st century is all mapped out. The Human Genome Project1 is about to decode our physiology. We are preparing for the next evolution of the species. The battle between the cyberneticists and the geneticists for a new and improved version of homo sapiens version 3.0 has just begun. The question of where it will lead is open-ended. Will the insatiable quest for self-improvement lead to enlightenment -- a world with less suffering, hunger, disease, violence, and greed? Or, will we be the makers of our own extinction, and end up as a version of Star Trek's Borg -- the ultimate consumers, assimilating automatons devouring everything they encounter, and utterly devoid of the qualities that make us human? As an example of a hypothetical biological and social future the Borg are an interesting model -- a synthesis of a utopian socialist dream and the capitalist imperative of acquisition in the information age. As organic/cybernetic humanoid machines with one unified mind, equal and undifferentiated, untroubled by ego or id, individual ambitions, desires or passions, loneliness, alienation, or imagination they are the ultimate homogeneous collective. At the same time they are both the perfect corporate entity -- masters of the merger, the hostile takeover ("resistance is futile"), and a mindless population programmed to consume and continually upgrade each and every new technology and product. But the Borg don't invent; they only appropriate. Postmodern androids to the core! And we are presently very busy making new discoveries, creating and inventing, and transforming theories into things which tell us not only what is possible, but probable. One of the determining factors in the course of our future is whether or not our belief in technology over other values turns us into the puppets instead of the puppeteers, slaves to masters of our own invention -- be it HAL, Dr. Frankenstein's monster, or the Terminator. Let us consider some possible future scenarios, based not on fiction, but on what already exists, or is about to do so. Facts No one now disputes that the transformation of stem cells into new body parts, cloning technology, genetic engineering, nanotechnology, and microchip replacements not only could, but will dramatically change medicine and extend life in the coming century. In strictly medical terms, the implementation of all these technologies will bring about extraordinary relief of both the physical and psychological pain and suffering caused by debilitating, disabling, or disfiguring disease or injuries, not to mention the lives saved, and the genetic diseases prevented. Current research has found that not only stem cells taken from human embryos or fetuses could be directed to grow replacements for ailing hearts, livers or other organs, but that some stem cells taken from adult tissue could be converted into other types of cells -- brain cells becoming blood cells, or bone marrow becoming liver. The application of this technology is dazzling -- transformative biology, and it is just over the horizon2. Recently, scientists announced the creation of the first artificial cornea made from human cells. It could help restore the sight of those with certain kinds of eye damage. At the same time cybernetics is playing an equally important part. In development is a mini-computer that essentially takes over damaged visual functions and projects them onto a screen. One model expected to be ready for market within three years is a version of Geordie's visor in Star Trek: Next Generation. Another is a microchip that is inserted behind the eye3. In his newest book Fuzzy Future: From Society and Science to Heaven in a Chip, University of Southern California electrical engineering professor Bart Kosco, author of Fuzzy Thinking (1993), projects his theories onto everything from smart machines, the politics of genomes (who owns you, your genetic material, that is) and the environment (who owns the sea, or for that matter the air) to the problem of human mortality. Kosco foresees the day when we may be able to download our brains onto a microchip, thus achieving digital immortality via a gradual (fuzzy) transformation in which the brain's "meat" is replaced piece by piece with nanochips that work ever faster, better, and more creatively than old-fashioned neurons and synapses. The use of microchips to repair or replace damaged cells or portions of the brain is one thing, but as a means to greatly increase mental capacity, and gain everlasting life by "leaving your gray matter pickled in a jar" in favour of a computer in your skull is another. Would you still be you? While researchers have currently found new molecules in the brain that play a role in creating memories and learning, it does not ensure wisdom in how we put our knowledge to work. That great benefits await us, in the prevention and treatment of disease and the disintegration due to aging, is not in dispute. Nor is the enhanced capacity of a healthier society in body and mind. What constitutes the latter is. We are still left with ethical questions about the uses of technology, and spiritual and philosophical questions about what it means to be human. What are the political and social ramifications of biotechnology? British television playwright Dennis Potter's last work Cold Lazarus represents the ethical dilemmas of a future world capable of robbing a man's soul against his will. Scientists, whose funding is controlled by one or another governing media megalomaniac, seek to experience the 20th century through the genuine memories of the late Daniel Feeld, whose frozen head they have obtained. Their biochemical experiments are no less despicable than the CEO who wants to broadcast Feeld's "consciousness" worldwide twenty-four hours a day. Political opposition exists only in the form of a clandestine "terrorist" organization known as R.O.N. (Reality Or Nothing). If we were to base our forecasts on the patterns of history, just such a techno-fascist corporate future awaits us. If we are to judge by the dominant values of the present, the economic priorities of the marketplace will overpower the dissenting voices, placing not only the natural environment at risk, but our social environment as well. What will such a society do about the underclasses when smart machines have taken over their work, and they haven't the means to buy our goods, only consume precious resources; that is, when they are no longer "necessary" to the economic system. Will they be technologically phased out or upgraded? Fast Forward Let's not jump too far ahead. Maybe just to 2050. You can grow your own body part replacements, not just internal organs, but muscle, nerve tissue, skin. You can rejuvenate. Living to 120 or longer will not be unusual. The manufacture of body parts will be a big biotech business. Invest now! But will this technology be available to anyone and everyone, or only those who can afford it? Will we have parts kept in cold storage ready and waiting? Organs grown from extractions of our own foetal tissue perhaps. If it is a right not a privilege, how will our society deal with the problems of overpopulation? Will only those over a certain age -- say 80 -- who are viewed as "contributing" or "productive" members of society be eligible for new organs? Or will your lifestyle and health habits be a factor? No new livers for recalcitrant unreformed alcoholics? Will there be a ranking system of qualifications? Who will decide what they will be? Never mind arms and drugs. Consider this black market in the making! Subterranean high-tech operating rooms, organ factories, contraband stem cells, DNA, "smart" nanochips. Fast Forward And what about those microchips for brain functions? Not just for disease but for self-improvement. You might be able to improve your personality the way you can have a face-lift or breast implants. Then again, microchips could replace both pharmacology and psychotherapy in the treatment of mental disease, or merely antisocial or criminally aberrant behaviour, a new form of rehabilitation. As for sheer brain power, there would be no end to your capacity to absorb information, memorize and catalogue it, or to calculate stock market transactions. And just think of the lawsuits bound to jam up the courts, should someone have the misfortune to get a faulty chip, or even one that doesn't live up to expectations. Advertising is bound to promise you the answer to your dreams. The insertion of these parts by choice is one thing, but suppose it is forced on you by a government or a corporation. Or even by a parent while you are too young to fight back, the ones who want their offspring to be a math genius, Olympic athlete, or musical prodigy. Then again, genetic engineering may take care of some of that. Babies to order. By the end of this century you might not even have to have one the old messy way. Or you might not even be allowed to. Your genetically selected child might be grown in a computer-controlled organic womb. No more unwanted pregnancies. No more crack babies, or Downs Syndrome, or spina bifida4. We've been messing around for quite some time with a lot of things we don't know or haven't considered the consequences of in terms of the long term ecological balance of life and all its interdependent systems: cross-species genetic implants in plants and animals; plants altered to kill insects that are food for another creature on the food chain. And so on up the ladder: tomatoes that only look like tomatoes, but aren't really tomatoes any more. A perfect example of surface over substance. While we are so sure of our technological mastery, the actual "apocalypse" may well be of our own making when the forces of nature wreak havoc and pay us back for our abuses and arrogance. Or perhaps it will be nature's way of resetting the balance of things by greatly reducing the human population. Or it just might turn out this way. The newly evolved, genetically and cybernetically enhanced humanoids 3.0 survive and adapt (to 3.5), while the great mass of old humans become an endangered species like the Siberian tiger. Present Tense If you think this is all just science fiction, consider this. Already a number of young men in Silicon Valley or at M.I.T. walk around all day every day with one eye and ear always focused on the little headset computer screen that keeps them perpetually "on-line", plugged in. Do they look a little like the Borg? Well yes. Or, think about this. About a year ago a bill came up in the California state legislature proposing that a microchip be inserted in all newborn infants, like the ones you can put in your dog so you can track her if she gets lost or stolen. Same principle with babies. The bill was defeated. But very soon we will all be locatable, "on-line". No chance of disappearing in the 21st century when the wilderness is about to become another "theme" park, and when, at this very moment, you can be traced every time you use a plastic card or make a phone call. What a scary thought for dissidents, revolutionaries, battered women, or anyone who just wants to "get away from it all". In the 21st century, Huxley's "savages" would have as hard a time surviving or avoiding capture as a wolf in Arizona. How will our civil rights, our human rights be affected at the present rate of invasion into our privacy. Is your body your own? And what about your mind? What exactly will the "right to your life" mean? Will "smart" machines have that right? How will we define a sentient being? And so here we are. The 21st century is all mapped out. Maps can be misread. Maps can be wrong. The place that has been charted can be changed. By a force of nature, or an act of will. Or better still, by an act of conscience or consciousness, for it is an energy force with transformative powers. We could become better in our hearts and souls. We could use our knowledge with grace. Now go out and draw a new map(s). Happy New Century! Footnotes Huge advances in genomics, the science of deciphering the basic genetic pattern of life, were made in 1999, including the complete gene sequence for three microbes, a third of the base pairs in human DNA, along with one complete chromosome, number 22, and a rough draft of the entire human genome is expected by March 2000. For more about the Human Genome Project check out the following Website: http://www.ornl.gov/hgmis/ and all its links. Also http://www.turbulence.org/ for Bionet :: Recombinant by Eugene Thacker, an artist's "attempt to assemble a body of discourse surrounding contemporary molecular genetics and biotechnology at the end of the millenium". Science journal editor Floyd E. Bloom optimistically predicts that "although much remains to be done to convert today's results into tomorrow's treatments and tools, the likelihood of success seems high". Researchers in this field are: May Griffith, Research Scientist, University of Ottowa Eye Institute, Professor, Cellular and Molecular Medicine, University of Ottawa, Ottawa, Ontario Gislin Dagnelie, Researcher, Lions Vision Research and Rehabilitation Center, Wilmer Eye Institute, Johns Hopkins University, Baltimore, Maryland Dr. Thomas Friberg, Professor, Ophthalmology, Chairman, Department of Ophthalmology, Director of Retina and Vitreous Service, The Eye and Ear Institute of Pittsburgh, University of Pittsburgh, Pittsburgh, Pennsylvania Dr. Terry Ernest, Professor, Chairman, Ophthalmology and Visual Science, University of Chicago Medical Center, University of Chicago, Chicago, Illinois A congenital cleft of the vertebral column with hernial protrusion of the meninges (membranes that envelop the brain and spinal cord). Citation reference for this article MLA style: Jacki Apple. "Some Speculation on the Future of the Body and Soul." M/C: A Journal of Media and Culture 2.9 (2000). [your date of access] <http://www.uq.edu.au/mc/0001/body.php>. Chicago style: Jacki Apple, "Some Speculation on the Future of the Body and Soul," M/C: A Journal of Media and Culture 2, no. 9 (2000), <http://www.uq.edu.au/mc/0001/body.php> ([your date of access]). APA style: Jacki Apple. (2000) Some speculation on the future of the body and soul. M/C: A Journal of Media and Culture 2(9). <http://www.uq.edu.au/mc/0001/body.php> ([your date of access]).

I was born illegitimate. Born on an existential precipice. My unwed mother was 36 years old when she relinquished me. I was the fourth baby she was required to give away. After I emerged blood stained and blue tinged – abject, liminal – not only did the nurses refuse me my mother’s touch, I also lost the sound of her voice. Her smell. Her heart beat. Her taste. Her gaze. The silence was multi-sensory. When they told her I was dead, I also lost, within her memory and imagination, my life. I was adopted soon after but not told for over four decades. It was too shameful for even me to know. Imprinted at birth with a psychological ‘death’, I fell, as a Late Discovery Adoptee (LDA), into a socio-cultural and psychological abyss, frozen at birth at the bottom of a parturitive void from where, invisible within family, society, and self I was unable to form an undamaged sense of being.Throughout the 20th century (and for centuries before) this kind of ‘social abortion’ was the dominant script. An adoptee was regarded as a bastard, born of sin, the mother blamed, the father exonerated, and silence demanded (Lynch 28-74). My adoptive mother also sinned. She was infertile. But, in taking me on, she assumed the role of a womb worthy woman, good wife, and, in her case, reluctant mother (she secretly didn’t want children and was privately overwhelmed by the task). In this way, my mother, my adoptive mother, and myself are all the daughters of bereavement, all of us sacrificed on the altar of prejudice and fear that infertility, sex outside of marriage, and illegitimacy were unspeakable crimes for which a price must be paid and against which redemptive protection must be arranged. If, as Thomas Keneally (5) writes, “original sin is the mother fluid of history” then perhaps all three of us all lie in its abject waters. Grotevant, Dunbar, Kohler and Lash Esau (379) point out that adoption was used to ‘shield’ children from their illegitimacy, women from their ‘sexual indiscretions’, and adoptive parents from their infertility in the belief that “severing ties with birth family members would promote attachment between adopted children and parents”. For the adoptee in the closed record system, the socio/political/economic vortex that orchestrated their illegitimacy is born out of a deeply, self incriminating primal fear that reaches right back into the recesses of survival – the act of procreation is infested with easily transgressed life and death taboos within the ‘troop’ that require silence and the burial of many bodies (see Amanda Gardiner’s “Sex, Death and Desperation: Infanticide, Neonaticide, and Concealment of Birth in Colonial Western Australia” for a palpable, moving, and comprehensive exposition on the links between 'illegitimacy', the unmarried mother and child murder). As Nancy Verrier (24) states in Coming Home to Self, “what has to be understood is that separation trauma is an insidious experience, because, as a society, we fail to see this experience as a trauma”. Indeed, relinquishment/adoption for the baby and subsequent adult can be acutely and chronically painful. While I was never told the truth of my origins, of course, my body knew. It had been there. Sentient, aware, sane, sensually, organically articulate, it messaged me (and anyone who may have been interested) over the decades via the language of trauma, its lexicon and grammar cellular, hormonal, muscular (Howard & Crandall, 1-17; Pert, 72), the truth of my birth, of who I was an “unthought known” (Bollas 4). I have lived out my secret fatality in a miasmic nebula of what I know now to be the sequelae of adoption psychopathology: nausea, physical and psychological pain, agoraphobia, panic attacks, shame, internalised anger, depression, self-harm, genetic bewilderment, and generalised anxiety (Brodzinsky 25-47; Brodzinsky, Smith, & Brodzinsky 74; Kenny, Higgins, Soloff, & Sweid xiv; Levy-Shiff 97-98; Lifton 210-212; Verrier The Primal Wound 42-44; Wierzbicki 447-451) – including an all pervading sense of unreality experienced as dissociation (the experience of depersonalisation – where the self feels unreal – and derealisation – where the world feels unreal), disembodiment, and existential elision – all characteristics of Post Traumatic Stress Disorder (PTSD). In these ways, my body intervened, acted out, groaned in answer to the social overlay, and from beyond “the dermal veil” tried to procure access, as Vicky Kirby (77) writes, to “the body’s opaque ocean depths” through its illnesses, its eloquent, and incessantly aching and silent verbosities deepened and made impossibly fraught because I was not told. The aim of this paper is to discuss one aspect of how my body tried to channel the trauma of my secret fatality and liminality: my pre-disclosure art work (the cellular memory of my trauma also expressed itself, pre-disclosure, through my writings – poetry, journal entries – and also through post-coital glossolalia, all discussed at length in my Honours research “Womb Tongues” and my Doctoral Dissertation “The Womb Artist – A Novel: Translating Pre-verbal Late Discovery Adoption Trauma into Narrative”). From the age of thirty onwards I spent twelve years in therapy where the cause of my childhood and adult psychopathology remained a mystery. During this time, my embodied grief and memories found their way into my art work, a series of 5’ x 3’ acrylic paintings, some of which I offer now for discussion (figures 1-4). These paintings map and express what my body knew but could not verbalise (without language to express my grief, my body found other ways to vent). They are symptom and sign of my pre-verbal adoption trauma, evidence that my body ‘knew’ and laboured ceaselessly and silently to find creative ways to express the incarcerated trauma. Post disclosure, I have used my paintings as artefacts to inform, underpin, and nourish the writing of a collection of poetry “Womb Tongues” and a literary novel/memoir “The Womb Artist” (TWA) in an ongoing autoethnographical, performative, and critical inquiry. My practice-led research as a now conscious and creative witness, fashions the recontextualisation of my ‘self’ into my ‘self’ and society, this time with cognisant and reparative knowledge and facilitates the translation of my body’s psychopathology and memory (explicit and implicit) into a healing testimony that explores the traumatised body as text and politicizes the issues surrounding LDAs (Riley 205). If I use these paintings as a memoirist, I use them second hand, after the fact, after they have served their initial purpose, as the tangible art works of a baby buried beneath a culture’s prejudice, shame, and judgement and the personal cries from the illegitimate body/self. I use them now to explore and explain my subclinical and subterranean life as a LDA.My pre-disclosure paintings (Figures 1-4) – filled with vaginal, fetal, uterine, and umbilical references – provide some kind of ‘evidence’ that my body knew what had happened to me as if, with the tenacity of a poltergeist, my ‘spectral self’ found ways to communicate. Not simply clues, but the body’s translation of the intra-psychic landscape, a pictorial and artistic séance into the world, as if my amygdala – as quasar and signal, homing device and history lesson (a measure, container, and memoir) – knew how to paint a snap shot or an x-ray of the psyche, of my cellular marrow memories (a term formulated from fellow LDA Sandy McCutcheon’s (76) memoir, The Magician’s Son when he says, “What I really wanted was the history of my marrow”). If, as Salveet Talwar suggests, “trauma is processed from the body up”, then for the LDA pre-discovery, non-verbal somatic signage is one’s ‘mother tongue’(25). Talwar writes, “non-verbal expressive therapies such as art, dance, music, poetry and drama all activate the sub-cortical regions of the brain and access pre-verbal memories” (26). In these paintings, eerily divinatory and pointed traumatic, memories are made visible and access, as Gussie Klorer (213) explains in regard to brain function and art therapy, the limbic (emotional) system and the prefrontal cortex in sensorimotor integration. In this way, as Marie Angel and Anna Gibbs (168) suggest, “the visual image may serve as a kind of transitional mode in thought”. Ruth Skilbeck in her paper First Things: Reflections on Single-lens Reflex Digital Photography with a Wide-angled Lens, also discusses (with reference to her photographic record and artistic expression of her mother’s death) what she calls the “dark matter” – what has been overlooked, “left out”, and/or is inexplicable (55) – and the idea of art work as the “transitional object” as “a means that some artists use, conceptually and yet also viscerally, in response to the extreme ‘separation anxiety’ of losing a loved one, to the void of the Unknown” (57). In my case, non-disclosure prevented my literacy and the evolution of the image into language, prevented me from fully understanding the coded messages left for me in my art work. However, each of my paintings is now, with the benefit of full disclosure, a powerful, penetrating, and comprehensible intra and extra sensory cry from the body in kinaesthetic translation (Lusebrink, 125; Klorer, 217). In Figure 1, ‘Embrace’, the reference to the umbilical is palpable, described in my novel “The Womb Artist” (184) this way; “two ropes tightly entwine as one, like a dark and dirty umbilical cord snaking its way across a nether world of smudged umbers”. There is an ‘abject’ void surrounding it. The cord sapped of its colour, its blood, nutrients – the baby starved of oxygen, breath; the LDA starved of words and conscious understanding. It has two parts entwined that may be seen in many ways (without wanting to reduce these to static binaries): mother/baby; conscious/unconscious; first person/third person; child/adult; semiotic/symbolic – numerous dualities could be spun from this embrace – but in terms of my novel and of the adoptive experience, it reeks of need, life and death, a text choking on the poetic while at the same time nourished by it; a text made ‘available’ to the reader while at the same narrowing, limiting, and obscuring the indefinable nature of pre-verbal trauma. Figure 1. Embrace. 1993. Acrylic on canvas.The painting ‘Womb Tongues’ (Figure 2) is perhaps the last (and, obviously, lasting) memory of the infinite inchoate universe within the womb, the umbilical this time wrapped around in a phallic/clitorial embrace as the baby-self emerges into the constrictions of a Foucauldian world, where the adoptive script smothers the ‘body’ encased beneath the ‘coils’ of Judeo-Christian prejudice and centuries old taboo. In this way, the reassigned adoptee is an acute example of power (authority) controlling and defining the self and what knowledge of the self may be allowed. The baby in this painting is now a suffocated clitoris, a bound subject, a phallic representation, a gagged ‘tongue’ in the shape of the personally absent (but socially imposing) omni-present and punitive patriarchy. Figure 2. Womb Tongues. 1997. Acrylic on canvas.‘Germination’ (Figure 3) depicts an umbilical again, but this time as emerging from a seething underworld and is present in TWA (174) this way, “a colony of night crawlers that writhe and slither on the canvas, moving as one, dozens of them as thin as a finger, as long as a dream”. The rhizomic nature of this painting (and Figure 4), becomes a heaving horde of psychosomatic and psychopathological influences and experiences, a multitude of closely packed, intense, and dendridic compulsions and symptoms, a mass of interconnected (and by nature of the silence and lie) subterranean knowledges that force the germination of a ‘ghost baby/child/adult’ indicated by the pale and ashen seedling that emerges above ground. The umbilical is ghosted, pale and devoid of life. It is in the air now, reaching up, as if in germination to a psychological photosynthesis. There is the knot and swarm within the unconscious; something has, in true alien fashion, been incubated and is now emerging. In some ways, these paintings are hardly cryptic.Figure 3. Germination.1993. Acrylic on canvas.In Figure 4 ‘The Birthing Tree’, the overt symbolism reaches ‘clairvoyant status’. This could be read as the family ‘tree’ with its four faces screaming out of the ‘branches’. Do these represent the four babies relinquished by our mother (the larger of these ‘beings’ as myself, giving birth to the illegitimate, silenced, and abject self)? Are we all depicted in anguish and as wraithlike, grotesquely simplified into pure affect? This illegitimate self is painted as gestating a ‘blue’ baby, near full-term in a meld of tree and ‘self’, a blue umbilical cord, again, devoid of blood, ghosted, lifeless and yet still living, once again suffocated by the representation of the umbilical in the ‘bowels’ of the self, the abject part of the body, where refuse is stored and eliminated: The duodenum of the damned. The Devil may be seen as Christopher Bollas’s “shadow of the object”, or the Jungian archetypal shadow, not simply a Judeo-Christian fear-based spectre and curmudgeon, but a site of unprocessed and, therefore, feared psychological material, material that must be brought to consciousness and integrated. Perhaps the Devil also is the antithesis to ‘God’ as mother. The hell of ‘not mother’, no mother, not the right mother, the reluctant adoptive mother – the Devil as icon for the rich underbelly of the psyche and apophatic to the adopted/artificial/socially scripted self.Figure 4. The Birthing Tree. 1995. Acrylic on canvas.These paintings ache with the trauma of my relinquishment and LDA experience. They ache with my body’s truth, where the cellular and psychological, flesh and blood and feeling, leak from my wounds in unspeakable confluence (the two genital lips as the site of relinquishment, my speaking lips that have been sealed through non-disclosure and shame, the psychological trauma as Verrier’s ‘primal wound’) just as I leaked from my mother (and society) at birth, as blood and muck, and ooze and pus and death (Grosz 195) only to be quickly and silently mopped up and cleansed through adoption and life-long secrecy. Where I, as translator, fluent in both silence and signs, disclose the baby’s trauma, asking for legitimacy. My experience as a LDA sets up an interesting experiment, one that allows an examination of the pre-verbal/pre-disclosure body as a fleshed and breathing Rosetta Stone, as an interface between the language of the body and of the verbalised, painted, and written text. As a constructed body, written upon and invented legally, socially, and psychologically, I am, in Hélène Cixous’s (“To Live the Orange” 83) words, “un-forgetting”, “un-silencing” and “unearthing” my ‘self’ – I am re-writing, re-inventing and, under public scrutiny, legitimising my ‘self’. I am a site of inquiry, discovery, extrapolation, and becoming (Metta 492; Poulus 475) and, as Grosz (vii) suggests, a body with “all the explanatory power” of the mind. I am, as I embroider myself and my LDA experience into literary and critical texts, authoring myself into existence, referencing with particular relevance Peter Carnochan’s (361) suggestion that “analysis...acts as midwife to the birth of being”. I am, as I swim forever amorphous, invisible, and unspoken in my mother’s womb, fashioning a shore, landscaping my mind against the constant wet, my chronic liminality (Rambo 629) providing social landfall for other LDAs and silenced minorities. As Catherine Lynch (3) writes regarding LDAs, “Through the creation of text and theory I can formulate an intimate space for a family of adoptive subjects I might never know via our participation in a new discourse in Australian academia.” I participate through my creative, self-reflexive, process fuelled (Durey 22), practice-led enquiry. I use the intimacy (and also universality and multiplicity) and illegitimacy of my body as an alterative text, as a site of academic and creative augmentation in the understanding of LDA issues. The relinquished and silenced baby and LDA adult needs a voice, a ‘body’, and a ‘tender’ place in the consciousness of society, as Helen Riley (“Confronting the Conspiracy of Silence” 11) suggests, “voice, validation, and vindication”. Judith Herman (3) argues that, “Survivors challenge us to reconnect fragments, to reconstruct history, to make meaning of their present symptoms in the light of past events”. I seek to use the example of my experience – as Judith Durey (31) suggests, in “support of evocative, creative modes of representation as valid forms of research in their own right” – to unfurl the whole, to give impetus and precedence for other researchers into adoption and advocate for future babies who may be bought, sold, arranged, and/or created by various means. The recent controversy over Gammy, the baby boy born with Down Syndrome in Thailand, highlights the urgent and moral need for legislation with regard to surrogacy (see Kajsa Ekis Ekman’s Being and Being Bought: Prostitution, Surrogacy and the Split Self for a comprehensive examination of surrogacy issues). Indeed, Catherine Lynch in her paper Doubting Adoption Legislation links the experiences of LDAs and the children of born of surrogacy, most effectively arguing that, “if the fate that closed record adoptees suffered was a misplaced solution to the question of what to do with children already conceived how can you justify the deliberate conception of a child with the intention even before its creation of cruelly removing that child from their mother?” (6). Cixous (xxii) confesses, “All I want is to illustrate, depict fragments, events of human life and death...each unique and yet at the same time exchangeable. Not the law, the exception”. I, too, am a fragment, an illustration (a painting), and, as every individual always is – paradoxically – a communal and, therefore, deeply recognisable and generally applicable minority and exception. In my illegitimacy, I am some kind of evidence. Evidence of cellular memory. Evidence of embodiment. Evidence that silenced illegitimacies will manifest in symptom and non-verbal narratives, that they will ooze out and await translation, verification, and witness. This paper is offered with reverence and with feminist intention, as a revenant mouthpiece for other LDAs, babies born of surrogacy, and donor assisted offspring (and, indeed, any) who are marginalised, silenced, and obscured. It is also intended to promote discussion in the psychological and psychoanalytic fields and, as Helen Riley (202-207) advocates regarding late discovery offspring, more research within the social sciences and the bio-medical field that may encourage legislators to better understand what the ‘best interests of the child’ are in terms of late discovery of origins and the complexity of adoption/conception practices available today. As I write now (and always) the umbilical from my paintings curve and writhe across my soul, twist and morph into the swollen and throbbing organ of tongues, my throat aching to utter, my hands ready to craft latent affect into language in translation of, and in obedience to, my body’s knowledges. It is the art of mute witness that reverses genesis, that keeps the umbilical fat and supple and full of blood, and allows my conscious conception and creation. 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On the morning of Thursday, 4 May 2006, the United States House Permanent Select Committee on Intelligence held an open hearing entitled “Terrorist Use of the Internet.” The Intelligence committee meeting was scheduled to take place in Room 1302 of the Longworth Office Building, a Depression-era structure with a neoclassical façade. Because of a dysfunctional elevator, some of the congressional representatives were late to the meeting. During the testimony about the newest political applications for cutting-edge digital technology, the microphones periodically malfunctioned, and witnesses complained of “technical problems” several times. By the end of the day it seemed that what was to be remembered about the hearing was the shocking revelation that terrorists were using videogames to recruit young jihadists. The Associated Press wrote a short, restrained article about the hearing that only mentioned “computer games and recruitment videos” in passing. Eager to have their version of the news item picked up, Reuters made videogames the focus of their coverage with a headline that announced, “Islamists Using US Videogames in Youth Appeal.” Like a game of telephone, as the Reuters videogame story was quickly re-run by several Internet news services, each iteration of the title seemed less true to the exact language of the original. One Internet news service changed the headline to “Islamic militants recruit using U.S. video games.” Fox News re-titled the story again to emphasise that this alert about technological manipulation was coming from recognised specialists in the anti-terrorism surveillance field: “Experts: Islamic Militants Customizing Violent Video Games.” As the story circulated, the body of the article remained largely unchanged, in which the Reuters reporter described the digital materials from Islamic extremists that were shown at the congressional hearing. During the segment that apparently most captured the attention of the wire service reporters, eerie music played as an English-speaking narrator condemned the “infidel” and declared that he had “put a jihad” on them, as aerial shots moved over 3D computer-generated images of flaming oil facilities and mosques covered with geometric designs. Suddenly, this menacing voice-over was interrupted by an explosion, as a virtual rocket was launched into a simulated military helicopter. The Reuters reporter shared this dystopian vision from cyberspace with Western audiences by quoting directly from the chilling commentary and describing a dissonant montage of images and remixed sound. “I was just a boy when the infidels came to my village in Blackhawk helicopters,” a narrator’s voice said as the screen flashed between images of street-level gunfights, explosions and helicopter assaults. Then came a recording of President George W. Bush’s September 16, 2001, statement: “This crusade, this war on terrorism, is going to take a while.” It was edited to repeat the word “crusade,” which Muslims often define as an attack on Islam by Christianity. According to the news reports, the key piece of evidence before Congress seemed to be a film by “SonicJihad” of recorded videogame play, which – according to the experts – was widely distributed online. Much of the clip takes place from the point of view of a first-person shooter, seen as if through the eyes of an armed insurgent, but the viewer also periodically sees third-person action in which the player appears as a running figure wearing a red-and-white checked keffiyeh, who dashes toward the screen with a rocket launcher balanced on his shoulder. Significantly, another of the player’s hand-held weapons is a detonator that triggers remote blasts. As jaunty music plays, helicopters, tanks, and armoured vehicles burst into smoke and flame. Finally, at the triumphant ending of the video, a green and white flag bearing a crescent is hoisted aloft into the sky to signify victory by Islamic forces. To explain the existence of this digital alternative history in which jihadists could be conquerors, the Reuters story described the deviousness of the country’s terrorist opponents, who were now apparently modifying popular videogames through their wizardry and inserting anti-American, pro-insurgency content into U.S.-made consumer technology. One of the latest video games modified by militants is the popular “Battlefield 2” from leading video game publisher, Electronic Arts Inc of Redwood City, California. Jeff Brown, a spokesman for Electronic Arts, said enthusiasts often write software modifications, known as “mods,” to video games. “Millions of people create mods on games around the world,” he said. “We have absolutely no control over them. It’s like drawing a mustache on a picture.” Although the Electronic Arts executive dismissed the activities of modders as a “mustache on a picture” that could only be considered little more than childish vandalism of their off-the-shelf corporate product, others saw a more serious form of criminality at work. Testifying experts and the legislators listening on the committee used the video to call for greater Internet surveillance efforts and electronic counter-measures. Within twenty-four hours of the sensationalistic news breaking, however, a group of Battlefield 2 fans was crowing about the idiocy of reporters. The game play footage wasn’t from a high-tech modification of the software by Islamic extremists; it had been posted on a Planet Battlefield forum the previous December of 2005 by a game fan who had cut together regular game play with a Bush remix and a parody snippet of the soundtrack from the 2004 hit comedy film Team America. The voice describing the Black Hawk helicopters was the voice of Trey Parker of South Park cartoon fame, and – much to Parker’s amusement – even the mention of “goats screaming” did not clue spectators in to the fact of a comic source. Ironically, the moment in the movie from which the sound clip is excerpted is one about intelligence gathering. As an agent of Team America, a fictional elite U.S. commando squad, the hero of the film’s all-puppet cast, Gary Johnston, is impersonating a jihadist radical inside a hostile Egyptian tavern that is modelled on the cantina scene from Star Wars. Additional laughs come from the fact that agent Johnston is accepted by the menacing terrorist cell as “Hakmed,” despite the fact that he utters a series of improbable clichés made up of incoherent stereotypes about life in the Middle East while dressed up in a disguise made up of shoe polish and a turban from a bathroom towel. The man behind the “SonicJihad” pseudonym turned out to be a twenty-five-year-old hospital administrator named Samir, and what reporters and representatives saw was nothing more exotic than game play from an add-on expansion pack of Battlefield 2, which – like other versions of the game – allows first-person shooter play from the position of the opponent as a standard feature. While SonicJihad initially joined his fellow gamers in ridiculing the mainstream media, he also expressed astonishment and outrage about a larger politics of reception. In one interview he argued that the media illiteracy of Reuters potentially enabled a whole series of category errors, in which harmless gamers could be demonised as terrorists. It wasn’t intended for the purpose what it was portrayed to be by the media. So no I don’t regret making a funny video . . . why should I? The only thing I regret is thinking that news from Reuters was objective and always right. The least they could do is some online research before publishing this. If they label me al-Qaeda just for making this silly video, that makes you think, what is this al-Qaeda? And is everything al-Qaeda? Although Sonic Jihad dismissed his own work as “silly” or “funny,” he expected considerably more from a credible news agency like Reuters: “objective” reporting, “online research,” and fact-checking before “publishing.” Within the week, almost all of the salient details in the Reuters story were revealed to be incorrect. SonicJihad’s film was not made by terrorists or for terrorists: it was not created by “Islamic militants” for “Muslim youths.” The videogame it depicted had not been modified by a “tech-savvy militant” with advanced programming skills. Of course, what is most extraordinary about this story isn’t just that Reuters merely got its facts wrong; it is that a self-identified “parody” video was shown to the august House Intelligence Committee by a team of well-paid “experts” from the Science Applications International Corporation (SAIC), a major contractor with the federal government, as key evidence of terrorist recruitment techniques and abuse of digital networks. Moreover, this story of media illiteracy unfolded in the context of a fundamental Constitutional debate about domestic surveillance via communications technology and the further regulation of digital content by lawmakers. Furthermore, the transcripts of the actual hearing showed that much more than simple gullibility or technological ignorance was in play. Based on their exchanges in the public record, elected representatives and government experts appear to be keenly aware that the digital discourses of an emerging information culture might be challenging their authority and that of the longstanding institutions of knowledge and power with which they are affiliated. These hearings can be seen as representative of a larger historical moment in which emphatic declarations about prohibiting specific practices in digital culture have come to occupy a prominent place at the podium, news desk, or official Web portal. This environment of cultural reaction can be used to explain why policy makers’ reaction to terrorists’ use of networked communication and digital media actually tells us more about our own American ideologies about technology and rhetoric in a contemporary information environment. When the experts come forward at the Sonic Jihad hearing to “walk us through the media and some of the products,” they present digital artefacts of an information economy that mirrors many of the features of our own consumption of objects of electronic discourse, which seem dangerously easy to copy and distribute and thus also create confusion about their intended meanings, audiences, and purposes. From this one hearing we can see how the reception of many new digital genres plays out in the public sphere of legislative discourse. Web pages, videogames, and Weblogs are mentioned specifically in the transcript. The main architecture of the witnesses’ presentation to the committee is organised according to the rhetorical conventions of a PowerPoint presentation. Moreover, the arguments made by expert witnesses about the relationship of orality to literacy or of public to private communications in new media are highly relevant to how we might understand other important digital genres, such as electronic mail or text messaging. The hearing also invites consideration of privacy, intellectual property, and digital “rights,” because moral values about freedom and ownership are alluded to by many of the elected representatives present, albeit often through the looking glass of user behaviours imagined as radically Other. For example, terrorists are described as “modders” and “hackers” who subvert those who properly create, own, legitimate, and regulate intellectual property. To explain embarrassing leaks of infinitely replicable digital files, witness Ron Roughead says, “We’re not even sure that they don’t even hack into the kinds of spaces that hold photographs in order to get pictures that our forces have taken.” Another witness, Undersecretary of Defense for Policy and International Affairs, Peter Rodman claims that “any video game that comes out, as soon as the code is released, they will modify it and change the game for their needs.” Thus, the implication of these witnesses’ testimony is that the release of code into the public domain can contribute to political subversion, much as covert intrusion into computer networks by stealthy hackers can. However, the witnesses from the Pentagon and from the government contractor SAIC often present a contradictory image of the supposed terrorists in the hearing transcripts. Sometimes the enemy is depicted as an organisation of technological masterminds, capable of manipulating the computer code of unwitting Americans and snatching their rightful intellectual property away; sometimes those from the opposing forces are depicted as pre-modern and even sub-literate political innocents. In contrast, the congressional representatives seem to focus on similarities when comparing the work of “terrorists” to the everyday digital practices of their constituents and even of themselves. According to the transcripts of this open hearing, legislators on both sides of the aisle express anxiety about domestic patterns of Internet reception. Even the legislators’ own Web pages are potentially disruptive electronic artefacts, particularly when the demands of digital labour interfere with their duties as lawmakers. Although the subject of the hearing is ostensibly terrorist Websites, Representative Anna Eshoo (D-California) bemoans the difficulty of maintaining her own official congressional site. As she observes, “So we are – as members, I think we’re very sensitive about what’s on our Website, and if I retained what I had on my Website three years ago, I’d be out of business. So we know that they have to be renewed. They go up, they go down, they’re rebuilt, they’re – you know, the message is targeted to the future.” In their questions, lawmakers identify Weblogs (blogs) as a particular area of concern as a destabilising alternative to authoritative print sources of information from established institutions. Representative Alcee Hastings (D-Florida) compares the polluting power of insurgent bloggers to that of influential online muckrakers from the American political Right. Hastings complains of “garbage on our regular mainstream news that comes from blog sites.” Representative Heather Wilson (R-New Mexico) attempts to project a media-savvy persona by bringing up the “phenomenon of blogging” in conjunction with her questions about jihadist Websites in which she notes how Internet traffic can be magnified by cooperative ventures among groups of ideologically like-minded content-providers: “These Websites, and particularly the most active ones, are they cross-linked? And do they have kind of hot links to your other favorite sites on them?” At one point Representative Wilson asks witness Rodman if he knows “of your 100 hottest sites where the Webmasters are educated? What nationality they are? Where they’re getting their money from?” In her questions, Wilson implicitly acknowledges that Web work reflects influences from pedagogical communities, economic networks of the exchange of capital, and even potentially the specific ideologies of nation-states. It is perhaps indicative of the government contractors’ anachronistic worldview that the witness is unable to answer Wilson’s question. He explains that his agency focuses on the physical location of the server or ISP rather than the social backgrounds of the individuals who might be manufacturing objectionable digital texts. The premise behind the contractors’ working method – surveilling the technical apparatus not the social network – may be related to other beliefs expressed by government witnesses, such as the supposition that jihadist Websites are collectively produced and spontaneously emerge from the indigenous, traditional, tribal culture, instead of assuming that Iraqi insurgents have analogous beliefs, practices, and technological awareness to those in first-world countries. The residual subtexts in the witnesses’ conjectures about competing cultures of orality and literacy may tell us something about a reactionary rhetoric around videogames and digital culture more generally. According to the experts before Congress, the Middle Eastern audience for these videogames and Websites is limited by its membership in a pre-literate society that is only capable of abortive cultural production without access to knowledge that is archived in printed codices. Sometimes the witnesses before Congress seem to be unintentionally channelling the ideas of the late literacy theorist Walter Ong about the “secondary orality” associated with talky electronic media such as television, radio, audio recording, or telephone communication. Later followers of Ong extend this concept of secondary orality to hypertext, hypermedia, e-mail, and blogs, because they similarly share features of both speech and written discourse. Although Ong’s disciples celebrate this vibrant reconnection to a mythic, communal past of what Kathleen Welch calls “electric rhetoric,” the defence industry consultants express their profound state of alarm at the potentially dangerous and subversive character of this hybrid form of communication. The concept of an “oral tradition” is first introduced by the expert witnesses in the context of modern marketing and product distribution: “The Internet is used for a variety of things – command and control,” one witness states. “One of the things that’s missed frequently is how and – how effective the adversary is at using the Internet to distribute product. They’re using that distribution network as a modern form of oral tradition, if you will.” Thus, although the Internet can be deployed for hierarchical “command and control” activities, it also functions as a highly efficient peer-to-peer distributed network for disseminating the commodity of information. Throughout the hearings, the witnesses imply that unregulated lateral communication among social actors who are not authorised to speak for nation-states or to produce legitimated expert discourses is potentially destabilising to political order. Witness Eric Michael describes the “oral tradition” and the conventions of communal life in the Middle East to emphasise the primacy of speech in the collective discursive practices of this alien population: “I’d like to point your attention to the media types and the fact that the oral tradition is listed as most important. The other media listed support that. And the significance of the oral tradition is more than just – it’s the medium by which, once it comes off the Internet, it is transferred.” The experts go on to claim that this “oral tradition” can contaminate other media because it functions as “rumor,” the traditional bane of the stately discourse of military leaders since the classical era. The oral tradition now also has an aspect of rumor. A[n] event takes place. There is an explosion in a city. Rumor is that the United States Air Force dropped a bomb and is doing indiscriminate killing. This ends up being discussed on the street. It ends up showing up in a Friday sermon in a mosque or in another religious institution. It then gets recycled into written materials. Media picks up the story and broadcasts it, at which point it’s now a fact. In this particular case that we were telling you about, it showed up on a network television, and their propaganda continues to go back to this false initial report on network television and continue to reiterate that it’s a fact, even though the United States government has proven that it was not a fact, even though the network has since recanted the broadcast. In this example, many-to-many discussion on the “street” is formalised into a one-to many “sermon” and then further stylised using technology in a one-to-many broadcast on “network television” in which “propaganda” that is “false” can no longer be disputed. This “oral tradition” is like digital media, because elements of discourse can be infinitely copied or “recycled,” and it is designed to “reiterate” content. In this hearing, the word “rhetoric” is associated with destructive counter-cultural forces by the witnesses who reiterate cultural truisms dating back to Plato and the Gorgias. For example, witness Eric Michael initially presents “rhetoric” as the use of culturally specific and hence untranslatable figures of speech, but he quickly moves to an outright castigation of the entire communicative mode. “Rhetoric,” he tells us, is designed to “distort the truth,” because it is a “selective” assembly or a “distortion.” Rhetoric is also at odds with reason, because it appeals to “emotion” and a romanticised Weltanschauung oriented around discourses of “struggle.” The film by SonicJihad is chosen as the final clip by the witnesses before Congress, because it allegedly combines many different types of emotional appeal, and thus it conveniently ties together all of the themes that the witnesses present to the legislators about unreliable oral or rhetorical sources in the Middle East: And there you see how all these products are linked together. And you can see where the games are set to psychologically condition you to go kill coalition forces. You can see how they use humor. You can see how the entire campaign is carefully crafted to first evoke an emotion and then to evoke a response and to direct that response in the direction that they want. Jihadist digital products, especially videogames, are effective means of manipulation, the witnesses argue, because they employ multiple channels of persuasion and carefully sequenced and integrated subliminal messages. To understand the larger cultural conversation of the hearing, it is important to keep in mind that the related argument that “games” can “psychologically condition” players to be predisposed to violence is one that was important in other congressional hearings of the period, as well one that played a role in bills and resolutions that were passed by the full body of the legislative branch. In the witness’s testimony an appeal to anti-game sympathies at home is combined with a critique of a closed anti-democratic system abroad in which the circuits of rhetorical production and their composite metonymic chains are described as those that command specific, unvarying, robotic responses. This sharp criticism of the artful use of a presentation style that is “crafted” is ironic, given that the witnesses’ “compilation” of jihadist digital material is staged in the form of a carefully structured PowerPoint presentation, one that is paced to a well-rehearsed rhythm of “slide, please” or “next slide” in the transcript. The transcript also reveals that the members of the House Intelligence Committee were not the original audience for the witnesses’ PowerPoint presentation. Rather, when it was first created by SAIC, this “expert” presentation was designed for training purposes for the troops on the ground, who would be facing the challenges of deployment in hostile terrain. According to the witnesses, having the slide show showcased before Congress was something of an afterthought. Nonetheless, Congressman Tiahrt (R-KN) is so impressed with the rhetorical mastery of the consultants that he tries to appropriate it. As Tiarht puts it, “I’d like to get a copy of that slide sometime.” From the hearing we also learn that the terrorists’ Websites are threatening precisely because they manifest a polymorphously perverse geometry of expansion. For example, one SAIC witness before the House Committee compares the replication and elaboration of digital material online to a “spiderweb.” Like Representative Eshoo’s site, he also notes that the terrorists’ sites go “up” and “down,” but the consultant is left to speculate about whether or not there is any “central coordination” to serve as an organising principle and to explain the persistence and consistency of messages despite the apparent lack of a single authorial ethos to offer a stable, humanised, point of reference. In the hearing, the oft-cited solution to the problem created by the hybridity and iterability of digital rhetoric appears to be “public diplomacy.” Both consultants and lawmakers seem to agree that the damaging messages of the insurgents must be countered with U.S. sanctioned information, and thus the phrase “public diplomacy” appears in the hearing seven times. However, witness Roughhead complains that the protean “oral tradition” and what Henry Jenkins has called the “transmedia” character of digital culture, which often crosses several platforms of traditional print, projection, or broadcast media, stymies their best rhetorical efforts: “I think the point that we’ve tried to make in the briefing is that wherever there’s Internet availability at all, they can then download these – these programs and put them onto compact discs, DVDs, or post them into posters, and provide them to a greater range of people in the oral tradition that they’ve grown up in. And so they only need a few Internet sites in order to distribute and disseminate the message.” Of course, to maintain their share of the government market, the Science Applications International Corporation also employs practices of publicity and promotion through the Internet and digital media. They use HTML Web pages for these purposes, as well as PowerPoint presentations and online video. The rhetoric of the Website of SAIC emphasises their motto “From Science to Solutions.” After a short Flash film about how SAIC scientists and engineers solve “complex technical problems,” the visitor is taken to the home page of the firm that re-emphasises their central message about expertise. The maps, uniforms, and specialised tools and equipment that are depicted in these opening Web pages reinforce an ethos of professional specialisation that is able to respond to multiple threats posed by the “global war on terror.” By 26 June 2006, the incident finally was being described as a “Pentagon Snafu” by ABC News. From the opening of reporter Jake Tapper’s investigative Webcast, established government institutions were put on the spot: “So, how much does the Pentagon know about videogames? Well, when it came to a recent appearance before Congress, apparently not enough.” Indeed, the very language about “experts” that was highlighted in the earlier coverage is repeated by Tapper in mockery, with the significant exception of “independent expert” Ian Bogost of the Georgia Institute of Technology. If the Pentagon and SAIC deride the legitimacy of rhetoric as a cultural practice, Bogost occupies himself with its defence. In his recent book Persuasive Games: The Expressive Power of Videogames, Bogost draws upon the authority of the “2,500 year history of rhetoric” to argue that videogames represent a significant development in that cultural narrative. Given that Bogost and his Watercooler Games Weblog co-editor Gonzalo Frasca were actively involved in the detective work that exposed the depth of professional incompetence involved in the government’s line-up of witnesses, it is appropriate that Bogost is given the final words in the ABC exposé. As Bogost says, “We should be deeply bothered by this. We should really be questioning the kind of advice that Congress is getting.” Bogost may be right that Congress received terrible counsel on that day, but a close reading of the transcript reveals that elected officials were much more than passive listeners: in fact they were lively participants in a cultural conversation about regulating digital media. After looking at the actual language of these exchanges, it seems that the persuasiveness of the misinformation from the Pentagon and SAIC had as much to do with lawmakers’ preconceived anxieties about practices of computer-mediated communication close to home as it did with the contradictory stereotypes that were presented to them about Internet practices abroad. In other words, lawmakers found themselves looking into a fun house mirror that distorted what should have been familiar artefacts of American popular culture because it was precisely what they wanted to see. References ABC News. “Terrorist Videogame?” Nightline Online. 21 June 2006. 22 June 2006 http://abcnews.go.com/Video/playerIndex?id=2105341>. Bogost, Ian. Persuasive Games: Videogames and Procedural Rhetoric. Cambridge, MA: MIT Press, 2007. Game Politics. “Was Congress Misled by ‘Terrorist’ Game Video? We Talk to Gamer Who Created the Footage.” 11 May 2006. http://gamepolitics.livejournal.com/285129.html#cutid1>. Jenkins, Henry. Convergence Culture: Where Old and New Media Collide. New York: New York UP, 2006. julieb. “David Morgan Is a Horrible Writer and Should Be Fired.” Online posting. 5 May 2006. Dvorak Uncensored Cage Match Forums. http://cagematch.dvorak.org/index.php/topic,130.0.html>. Mahmood. “Terrorists Don’t Recruit with Battlefield 2.” GGL Global Gaming. 16 May 2006 http://www.ggl.com/news.php?NewsId=3090>. Morgan, David. “Islamists Using U.S. Video Games in Youth Appeal.” Reuters online news service. 4 May 2006 http://today.reuters.com/news/ArticleNews.aspx?type=topNews &storyID=2006-05-04T215543Z_01_N04305973_RTRUKOC_0_US-SECURITY- VIDEOGAMES.xml&pageNumber=0&imageid=&cap=&sz=13&WTModLoc= NewsArt-C1-ArticlePage2>. Ong, Walter J. Orality and Literacy: The Technologizing of the Word. London/New York: Methuen, 1982. Parker, Trey. Online posting. 7 May 2006. 9 May 2006 http://www.treyparker.com>. Plato. “Gorgias.” Plato: Collected Dialogues. Princeton: Princeton UP, 1961. Shrader, Katherine. “Pentagon Surfing Thousands of Jihad Sites.” Associated Press 4 May 2006. SonicJihad. “SonicJihad: A Day in the Life of a Resistance Fighter.” Online posting. 26 Dec. 2005. Planet Battlefield Forums. 9 May 2006 http://www.forumplanet.com/planetbattlefield/topic.asp?fid=13670&tid=1806909&p=1>. Tapper, Jake, and Audery Taylor. “Terrorist Video Game or Pentagon Snafu?” ABC News Nightline 21 June 2006. 30 June 2006 http://abcnews.go.com/Nightline/Technology/story?id=2105128&page=1>. U.S. Congressional Record. Panel I of the Hearing of the House Select Intelligence Committee, Subject: “Terrorist Use of the Internet for Communications.” Federal News Service. 4 May 2006. Welch, Kathleen E. Electric Rhetoric: Classical Rhetoric, Oralism, and the New Literacy. Cambridge, MA: MIT Press, 1999. Citation reference for this article MLA Style Losh, Elizabeth. "Artificial Intelligence: Media Illiteracy and the SonicJihad Debacle in Congress." M/C Journal 10.5 (2007). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0710/08-losh.php>. APA Style Losh, E. (Oct. 2007) "Artificial Intelligence: Media Illiteracy and the SonicJihad Debacle in Congress," M/C Journal, 10(5). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0710/08-losh.php>.

The convergence of suburban homes and digital media and communications technologies is set to undergo a major shift as next-generation broadband infrastructures are installed. Embodied in the Australian Government’s National Broadband Network (NBN) and the delivery of fibre-optic cable to the front door of every suburban home, is an anticipated future of digital living that will transform the landscape and experience of suburban life. Drawing from our research, and from industry, policy and media documents, we map some scenarios of the NBN rollout in its early stages to show that this imaginary of seamless broadband in the suburbs and the transformation of digital homes it anticipates is challenged by local cultural and material geographies, which we describe as a politics of spectrum. The universal implementation of policy across Australia faces a considerable challenge in dealing with Australia’s physical environment. Geography has always had a major impact on communications technologies and services in Australia, and a major impetus of building a national broadband network has been to overcome the “tyranny of distance” experienced by people in many remote, regional and suburban areas. In 2009 the minister for Broadband, Communications and the Digital Economy (DBCDE), Stephen Conroy, announced that with the Government’s NBN policy “every person and business in Australia, no-matter where they are located, will have access to affordable, fast broadband at their fingertips” (Conroy). This ambition to digitally connect and include imagines the NBN as the solution to the current patchwork of connectivity and Internet speeds experienced across the country (ACCAN). Overcoming geographic difference and providing fast, universal and equitable digital access is to be realised through an open access broadband network built by the newly established NBN Co. Limited, jointly owned by the Government and the private sector at a cost estimated at $43 billion over eight years. In the main this network will depend upon fibre-optics reaching over 90% of the population, and achieving download speeds of up to 100 Mbit/s. The remaining population, mostly living in rural and remote areas, will receive wireless and satellite connections providing speeds of 12 Mbit/s (Conroy). Differential implementation in relation to comparisons of urban and remote populations is thus already embedded in the policy, yet distance is not the only characteristic of Australia’s material geographies that will shape the physical implementation of the NBN and create a varied spectrum of the experience of broadband. Instead, in this article we examine the uneven experience of broadband we may see occurring within suburban regions; places in which enhanced and collective participation in the digital economy relies upon the provision of faster transmission speeds and the delivery of fibre “the last mile” to each and every premise. The crucial platform for delivering broadband to the ’burbs is the digital home. The notion of the connected or smart or digital home has been around in different guises for a number of decades (e.g. Edwards et al.), and received wide press coverage in the 1990s (e.g. Howard). It has since been concretised in the wake of the NBN as telecommunications companies struggle to envision a viable “next step” in broadband consumption. Novel to the NBN imaginary of the digital home is a shift from thinking about the digital home in terms of consumer electronics and interoperable or automatic devices, based on shared standards or home networking, to addressing the home as a platform embedded within the economy. The digital home is imagined as an integral part of a network of digital living with seamless transitions between home, office, supermarket, school, and hospital. In the imaginary of the NBN, the digital home becomes a vital connection in the growing digital economy. Communications Patchwork, NBN Roll-Out and Infrastructure Despite this imagined future of seamless connectivity and universal integration of suburban life with the digital economy, there has been an uneven take-up of fibre connections. We argue that this suggests that the particularities of place and the materialities of geography are relevant for understanding the differential uptake of the NBN across the test sites. Furthermore, we maintain that these issues provide a useful model for understanding the ongoing process and challenges that the rollout of the NBN will face in providing even access to the imagined future of the digital home to all Australians. As of June 2011 an average of 70 per cent of homes in the five first release NBN sites have agreed to have the fibre cables installed (Grubb). However, there is a dramatic variation between these sites: in Armidale, NSW, and Willunga, SA, the percentage of properties consenting to fibre connections on their house is between 80-90 per cent; whereas in Brunswick, Victoria, and Midway Point, Tasmania, the take-up rate is closer to 50 per cent (Grubb). We suggest that these variations are created by a differential geography of connectivity that will continue to grow in significance as the NBN is rolled out to more locations around Australia. These can be seen to emerge as a consequence of localised conditions relating to, for example, installation policy, a focus on cost, and installation logistics. Another significant factor, unable to be addressed within the scope of this paper, is the integration of the NBN with each household’s domestic network of hardware devices, internal connections, software, and of course skill and interest. Installation Policy The opt-in policy of the NBN Co requires that owners of properties agree to become connected—as opposed to being automatically connected unless they opt-out. This makes getting connected a far simpler task for owner-occupiers over renters, because the latter group were required to triangulate with their landlords in order to get connected. This was considered to be a factor that impacted on the relatively low uptake of the NBN in Brunswick and Midway Point, and is reflected in media reports (Grubb) and our research: There was a bit of a problem with Midway Point, because I think it is about fifty percent of the houses here are rentals, and you needed signatures from the owners for the box to be put onto the building (anon. “Broadband in the Home” project). …a lot of people rent here, so unless their landlord filled it in they wouldn’t know (anon. “Broadband in the Home” project). The issue is exacerbated by the concentration of rental properties in particular suburbs and complicated rental arrangements mediated through agents, which prevent effective communication between the occupiers and owners of a property. In order to increase take-up in Tasmania, former State Premier, David Bartlett, successfully introduced legislation to the Tasmanian state legislature in late 2010 to make the NBN opt-out rather than opt-in. This reversed the onus of responsibility and meant that in Tasmania all houses and businesses would be automatically connected unless otherwise requested, and in order to effect this simple policy change, the government had to change trespass laws. However, other state legislatures are hesitant to follow the opt-out model (Grubb). Differentials in owner-occupied and rental properties within urban centres, combined with opt-in policies, are likely to see a continuation of the connectivity patchwork that that has thus far characterised Australian communications experience. A Focus on Cost Despite a great deal of public debate about the NBN, there is relatively little discussion of its proposed benefits. The fibre-to-the-home structure of the NBN is also subject to fierce partisan political debate between Australia’s major political parties, particularly around the form and cost of its implementation. As a consequence of this preoccupation with cost, many Australian consumers cannot see a “value proposition” in connecting, and are not convinced of the benefits of the NBN (Brown). The NBN is often reduced to an increased minimum download rate, and to increased ISP fees associated with high speeds, rather than a broader discussion of how the infrastructure can impact on commerce, education, entertainment, healthcare, and work (Barr). Moreover, this lack of balance in the discussion of costs and benefits extends in some instances to outright misunderstandings about the difference between infrastructure and service provision: …my neighbour across the road did not understand what that letter meant, and she would have to have been one of dozens if not hundreds in the exactly the same situation, who thought they were signing up for a broadband plan rather than just access to the infrastructure (anon. “Broadband in the Home” project) Lastly, the advent of the NBN in the first release areas does not override the costs of existing contracts for broadband delivered over the current copper network. Australians are often required to sign long-term contracts that prevent them from switching immediately to the new HSB infrastructure. Installation Logistics Local variations in fibre installation were evident prior to the rollout of the NBN, when the increased provision of HSB was already being used as a marketing device for greenfield (newly developed) estates in suburban Australia. In the wake of the NBN rollouts, some housing developers have begun to lay “NBN-ready” optic fibre in greenfield estates. While this is a positive development for those who a purchasing a newly-developed property, those that invest in brownfield “re-developments,” may have to pay over twice the amount for the installation of the NBN (Neales). These varying local conditions of installation are reflected in the contractual arrangements for installing the fibre, the installers’ policies for installation, and the processes of installation (Darling): They’re gonna have to do 4000 houses a day … and it was a solid six months to get about 800 houses hooked up here. So, logistically I just can’t see it happening. (anon. “Broadband in the Home” project) Finally, for those who do not take-up the free initial installation offer, for whatever reason, there will be costs to have contractors return and connect the fibre (Grubb; Neales). Spectrum Politics, Fibre in the Neighbourhood The promise that the NBN will provide fast, universal and equitable digital access realised through a fibre-optic network is challenged by the experience of first release sites such as Midway Point. As evident above, and due to a number of factors, there is a likelihood in supposedly NBN-connected places of varied connectivity in which service will range from dial-up to DSL and ADSL to fibre and wireless, all within a single location. The varied connectivity in the early NBN rollout stages suggests that the patchwork of Internet connections commonly experienced in Australian suburbs will continue rather than disappear. This varied patchwork can be understood as a politics of spectrum. Rod Tucker (13-14) emphasises that the crucial element of spectrum is its bandwidth, or information carrying capacity. In light of this the politics of spectrum reframes the key issue of access to participation in the digital economy to examine stakes of the varying quality of connection (particularly download speeds), through the available medium (wireless, copper, coaxial cable, optical fibre), connection (modem, antenna, gateway) and service type (DSL, WiFi, Satellite, FTTP). This technical emphasis follows in the wake of debates about digital inclusion (e.g., Warschauer) to re-introduce the importance of connection quality—embedded in older “digital divide” discourse—into approaches that look beyond technical infrastructure to the social conditions of their use. This is a shift that takes account of the various and intertwined socio-technical factors influencing the quality of access and use. This spectrum politics also has important implications for the Universal Service Obligation (USO). Telstra (the former Telecom) continues to have the responsibility to provide every premise in Australia with a standard telephone service, that is at least a single copper line—or equivalent service—connection. However, the creation of the NBN Co. relieves Telstra of this obligation in the areas which have coverage from the fibre network. This agreement means that Telstra will gradually shut down its ageing copper network, following the pattern of the NBN rollout and transfer customers to the newly developed broadband fibre network (Hepworth and Wilson). Consequently, every individual phone service in those areas will be required to move onto the NBN to maintain the USO. This means that premises not connected to the NBN because the owners of the property opted out—by default or by choice—are faced with an uncertain future vis-à-vis the meaning and provision of the USO because they will not have access to either copper or fibre networks. At this extreme of spectrum politics, the current policy setting may result in households that have no possibility of a broadband connection. This potential problem can be resolved by a retro-rollout, in which NBN fibre connection is installed at some point in the future to every premises regardless of whether they originally agreed or not. Currently, however, the cost of a retrospective connection is expected to be borne by the consumer: “those who decline to allow NBN Co on to their property will need to pay up to $300 to connect to the NBN at a later date” (Grubb) Smaller, often brownfield development estates also face particular difficulties in the current long-term switch of responsibilities from Telstra to the NBN Co. This is because Telstra is reluctant to install new copper networks knowing that they will soon become obsolete. Instead, “in housing estates of fewer than 100 houses, Telstra is often providing residents with wireless phones that are unable to connect to the Internet” (Thompson). Thus a limbo is created, where new residents will not have access to either copper or fibre fixed line connections. Rather, they will have to use whatever wireless Internet is available in the area. Particularly concerning is that the period of the rollout is projected to last for eight years. As a result: “Thousands of Australians—many of them in regional areas—can expect years of worse, rather than better, Internet services as the National Broadband Network rolls out across the country” (Thompson). And, given different take-up rates and costs of retro-fitting, this situation could continue for many people and for many years after the initial rollout is completed. Implications of Spectrum Politics for the Digital Home What does this uncertain and patchwork future of connectivity imply for digital living and the next-generation broadband suburb? In contrast to the imagined post-NBN geography of the seamless digital home, local material and cultural factors will still create varied levels of service. This predicament challenges the ideals of organisations such as the Digital Living Network, an industry body comprised of corporate members, “based on principles of open standards and home networking interoperability [which] will unleash a rich digital media environment of interconnected devices that enable us all to experience our favorite content and services wherever and whenever we want” (Vohringer). Such a vision of convergence takes a domestic approach to the “Internet of things” by imagining a user-friendly network of personal computing, consumer electronics, mobile technologies, utilities, and other domestic technologies. The NBN anticipates a digital home that is integrated into the digital economy as a node of production and consumption. But this future is challenged by the patchwork of connectivity. Bruno Latour famously remarked that even the most extensive and powerful networks are local at every point. Although he was speaking of actor-networks, not broadband networks, analysis of the Australian experience of high-speed broadband would do well to look beyond its national characteristics to include its local characteristics, and the constellations between them. It is at the local level, importantly, at the level of the household and suburb, that the NBN will be experienced in daily life. As we have argued here, we have reason to expect that this experience will be as disparate as the network is distributed, and we have reason to believe that local cultural and material factors such as installation policies, discussions around costs and benefits, the household’s own internal digital infrastructure, and installation logistics at the level of the house and the neighbourhood, will continue to shape a patchworked geography of media and communications experiences for digital homes. References Australian Communications Consumer Action Network (ACCAN). National Broadband Network: A Guide for Consumers. Internet Society of Australia (ISOC-AU) and ACCAN, 2011. Barr, Trevor. “A Broadband Services Typology.” The Australian Economic Review 43.2 (2010): 187-193. Brown, Damien. “NBN Now 10 Times Faster.” The Mercury 13 Aug. 2010. ‹http://www.themercury.com.au/article/2010/08/13/165435_todays-news.html›. Conroy, Stephen (Minister for Broadband, Communications and the Digital Economy). “New National Broadband Network”. Canberra: Australian Government, 7 April 2009. ‹http://www.minister.dbcde.gov.au/media/media_releases/2009/022›. Darling, Peter. “Building the National Broadband Network.” Telecommunications Journal of Australia 60.3 (2010): 42.1-12. Department of Broadband, Communications and the Digital Economy (DBCDE). “Impacts of Teleworking under the NBN.” Report prepared by Access Economics. Canberra, 2010. Edwards, Keith, Rebecca Grinter, Ratul Mahajan, and David Wetherall. “Advancing the State of Home Networking.” Communications of the ACM 54.6 (2010): 62-71. Grubb, Ben. “Connect to NBN Now or Pay Up to $300 for Phone Line.” The Sydney Morning Herald 15 Oct. 2010. ‹http://www.smh.com.au/technology/technology-news/connect-to-nbn-now-or-pay-up-to-300-for-phone-line-20101015-16ms3.html›. Hepworth, Annabel, and Lauren Wilson. “Customers May Be Forced on to NBN to Keep Phones.” The Australian 12 Oct. 2010. ‹http://www.theaustralian.com.au/national-affairs/customers-may-be-forced-on-to-nbn-to-keep-phones/story-fn59niix-1225937394605›. Howard, Sandy. “How Your Home Will Operate.” Business Review Weekly 25 April 1994: 100. Intel Corporation. “Intel and the Digital Home.” ‹http://www.intel.com/standards/case/case_dh.htm›. Latour, Bruno. Reassembling the Social: An Introduction to Actor-Network-Theory. Oxford: Oxford University Press, 2005. Neales, Sue. “Bartlett Looks at ‘Opt-out’ NBN.” The Mercury 28 July 2010. ‹http://www.themercury.com.au/article/2010/07/28/161721_tasmania-news.html›. Spigel, Lynn. “Media Homes: Then and Now.” International Journal of Cultural Studies 4.4 (2001): 385–411. Thompson, Geoff. “Thousands to Be Stuck in NBN ‘Limbo’.” ABC Online 26 April 2011. ‹http://www.abc.net.au/news/stories/2011/04/26/3200127.htm›. Tietze, S., and G. Musson. “Recasting the Home—Work Relationship: A Case of Mutual Adjustment?” Organization Studies 26.9 (2005): 1331–1352. Trulove, James Grayson (ed.). The Smart House. New York: HDI, 2003. Tucker, Rodney S. “Broadband Facts, Fiction and Urban Myths.” Telecommunications Journal of Australia 60.3 (2010): 43.1 to 43.15. Vohringer, Cesar. CTO of Philips Consumer Electronics (from June 2003 DLNA press release) cited on the Intel Corporation website. ‹http://www.intel.com/standards/case/case_dh.htm›. Warschauer, Mark. Technology and Social Inclusion: Rethinking the Digital Divide. Cambridge: MIT Press, 2003. Wilken, Rowan, Michael Arnold, and Bjorn Nansen. “Broadband in the Home Pilot Study: Suburban Hobart.” Telecommunications Journal of Australia 61.1 (2011): 5.1-16.

For seven months in 1999/2000, six-year old Cuban Elián González was embroiled in a family feud plotted along rival national and ideological lines, and relayed televisually as soap opera across the planet. In Miami, apparitions of the Virgin Mary were reported after Elián’s arrival; adherents of Afro-Cuban santería similarly regarded Elián as divinely touched. In Cuba, Elián’s “kidnapping” briefly reinvigorated a torpid revolutionary project. He was hailed by Fidel Castro as the symbolic descendant of José Martí and Che Guevara, and of the patriotic rigour they embodied. Cubans massed to demand his return. In the U.S.A., Elián’s case was arbitrated at every level of the juridical system. The “Save Elián” campaign generated widespread debate about godless versus godly family values, the contours of the American Dream, and consumerist excess. By the end of 2000 Elián had generated the second largest volume of TV news coverage to that date in U.S. history, surpassed only by the O. J. Simpson case (Fasulo). After Fidel Castro, and perhaps the geriatric music ensemble manufactured by Ry Cooder, the Buena Vista Social Club, Elián became the most famous Cuban of our era. Elián also emerged as the unlikeliest of popular-cultural icons, the focus and subject of cyber-sites, books, films, talk-back radio programs, art exhibits, murals, statues, documentaries, a South Park episode, poetry, songs, t-shirts, posters, newspaper editorials in dozens of languages, demonstrations, speeches, political cartoons, letters, legal writs, U.S. Congress records, opinion polls, prayers, and, on both sides of the Florida Strait, museums consecrated in his memory. Confronted by Elián’s extraordinary renown and historical impact, John Carlos Rowe suggests that the Elián story confirms the need for a post-national and transdisciplinary American Studies, one whose practitioners “will have to be attentive to the strange intersections of politics, law, mass media, popular folklore, literary rhetoric, history, and economics that allow such events to be understood.” (204). I share Rowe’s reading of Elián’s story and the clear challenges it presents to analysis of “America,” to which I would add “Cuba” as well. But Elián’s story is also significant for the ways it challenges critical understandings of fame and its construction. No longer, to paraphrase Leo Braudy (566), definable as an accidental hostage of the mass-mediated eye, Elián’s fame has no certain relation to the child at its discursive centre. Elián’s story is not about an individuated, conscious, performing, desiring, and ambivalently rewarded ego. Elián was never what P. David Marshall calls “part of the public sphere, essentially an actor or, … a player” in it (19). The living/breathing Elián is absent from what I call the virtualizing drives that famously reproduced him. As a result of this virtualization, while one Elián now attends school in Cuba, many other Eliáns continue to populate myriad popular-cultural texts and to proliferate away from the states that tried to contain him. According to Jerry Everard, “States are above all cultural artefacts” that emerge, virtually, “as information produced by and through practices of signification,” as bits, bites, networks, and flows (7). All of us, he claims, reside in “virtual states,” in “legal fictions” based on the elusive and contested capacity to generate national identities in an imaginary bounded space (152). Cuba, the origin of Elián, is a virtual case in point. To augment Nicole Stenger’s definition of cyberspace, Cuba, like “Cyberspace, is like Oz — it is, we get there, but it has no location” (53). As a no-place, Cuba emerges in signifying terms as an illusion with the potential to produce and host Cubanness, as well as rival ideals of nation that can be accessed intact, at will, and ready for ideological deployment. Crude dichotomies of antagonism — Cuba/U.S.A., home/exile, democracy/communism, freedom/tyranny, North/South, godlessness/blessedness, consumption/want — characterize the hegemonic struggle over the Cuban nowhere. Split and splintered, hypersensitive and labyrinthine, guarded and hysterical, and always active elsewhere, the Cuban cultural artefact — an “atmospheric depression in history” (Stenger 56) — very much conforms to the logics that guide the appeal, and danger, of cyberspace. Cuba occupies an inexhaustible “ontological time … that can be reintegrated at any time” (Stenger 55), but it is always haunted by the prospect of ontological stalling and proliferation. The cyber-like struggle over reintegration, of course, evokes the Elián González affair, which began on 25 November 1999, when five-year old Elián set foot on U.S. soil, and ended on 28 June 2000, when Elián, age six, returned to Cuba with his father. Elián left one Cuba and found himself in another Cuba, in the U.S.A., each national claimant asserting virtuously that its other was a no-place and therefore illegitimate. For many exiles, Elián’s arrival in Miami confirmed that Castro’s Cuba is on the point of collapse and hence on the virtual verge of reintegration into the democratic fold as determined by the true upholders of the nation, the exile community. It was also argued that Elián’s biological father could never be the boy’s true father because he was a mere emasculated puppet of Castro himself. The Cuban state, then, had forfeited its claims to generate and host Cubanness. Succoured by this logic, the “Save Elián” campaign began, with organizations like the Cuban American National Foundation (CANF) bankrolling protests, leaflet and poster production, and official “Elián” websites, providing financial assistance to and arranging employment for some of Elián’s Miami relatives, lobbying the U.S. Congress and the Florida legislature, and contributing funds to the legal challenges on behalf of Elián at state and federal levels. (Founded in 1981, the CANF is the largest and most powerful Cuban exile organization, and one that regards itself as the virtual government-in-waiting. CANF emerged with the backing of the Reagan administration and the C.I.A. as a “private sector initiative” to support U.S. efforts against its long-time ideological adversary across the Florida Strait [Arboleya 224-5].) While the “Save Elián” campaign failed, the result of a Cuban American misreading of public opinion and overestimation of the community’s lobbying power with the Clinton administration, the struggle continues in cyberspace. CANF.net.org registers its central role in this intense period with silence; but many of the “Save Elián” websites constructed after November 1999 continue to function as sad memento moris of Elián’s shipwreck in U.S. virtual space. (The CANF website does provide links to articles and opinion pieces about Elián from the U.S. media, but its own editorializing on the Elián affair has disappeared. Two keys to this silence were the election of George W. Bush, and the events of 11 Sep. 2001, which have enabled a revision of the Elián saga as a mere temporary setback on the Cuban-exile historical horizon. Indeed, since 9/11, the CANF website has altered the terms of its campaign against Castro, posting photos of Castro with Arab leaders and implicating him in a world-wide web of terrorism. Elián’s return to Cuba may thus be viewed retrospectively as an act that galvanized Cuban-exile support for the Republican Party and their disdain for the Democratic rival, and this support became pivotal in the Republican electoral victory in Florida and in the U.S.A. as a whole.) For many months after Elián’s return to Cuba, the official Liberty for Elián site, established in April 2000, was urging visitors to make a donation, volunteer for the Save Elián taskforce, send email petitions, and “invite a friend to help Elián.” (Since I last accessed “Liberty for Elián” in March 2004 it has become a gambling site.) Another site, Elian’s Home Page, still implores visitors to pray for Elián. Some of the links no longer function, and imperatives to “Click here” lead to that dead zone called “URL not found on this server.” A similar stalling of the exile aspirations invested in Elián is evident on most remaining Elián websites, official and unofficial, the latter including The Sad Saga of Elian Gonzalez, which exhorts “Cuban Exiles! Now You Can Save Elián!” In these sites, a U.S. resident Elián lives on as an archival curiosity, a sign of pathos, and a reminder of what was, for a time, a Cuban-exile PR disaster. If such cybersites confirm the shipwrecked coordinates of Elián’s fame, the “Save Elián” campaign also provided a focus for unrestrained criticism of the Cuban exile community’s imbrication in U.S. foreign policy initiatives and its embrace of American Dream logics. Within weeks of Elián’s arrival in Florida, cyberspace was hosting myriad Eliáns on sites unbeholden to Cuban-U.S. antagonisms, thus consolidating Elián’s function as a disputed icon of virtualized celebrity and focus for parody. A sense of this carnivalesque proliferation can be gained from the many doctored versions of the now iconic photograph of Elián’s seizure by the INS. Still posted, the jpegs and flashes — Elián and Michael Jackson, Elián and Homer Simpson, Elián and Darth Vader, among others (these and other doctored versions are archived on Hypercenter.com) — confirm the extraordinary domestication of Elián in local pop-cultural terms that also resonate as parodies of U.S. consumerist and voyeuristic excess. Indeed, the parodic responses to Elián’s fame set the virtual tone in cyberspace where ostensibly serious sites can themselves be approached as send ups. One example is Lois Rodden’s Astrodatabank, which, since early 2000, has asked visitors to assist in interpreting Elián’s astrological chart in order to confirm whether or not he will remain in the U.S.A. To this end the site provides Elián’s astro-biography and birth chart — a Sagittarius with a Virgo moon, Elián’s planetary alignments form a bucket — and conveys such information as “To the people of Little Havana [Miami], Elian has achieved mystical status as a ‘miracle child.’” (An aside: Elián and I share the same birthday.) Elián’s virtual reputation for divinely sanctioned “blessedness” within a Cuban exile-meets-American Dream typology provided Tom Tomorrow with the target in his 31 January 2000, cartoon, This Modern World, on Salon.com. Here, six-year old Arkansas resident Allen Consalis loses his mother on the New York subway. His relatives decide to take care of him since “New York has much more to offer him than Arkansas! I mean get real!” A custody battle ensues in which Allan’s heavily Arkansas-accented father requires translation, and the case inspires heated debate: “can we really condemn him to a life in Arkansas?” The cartoon ends with the relatives tempting Allan with the delights offered by the Disney Store, a sign of Elián’s contested insertion into an American Dreamscape that not only promises an endless supply of consumer goods but provides a purportedly safe venue for the alternative Cuban nation. The illusory virtuality of that nation also animates a futuristic scenario, written in Spanish by Camilo Hernández, and circulated via email in May 2000. In this text, Elián sparks a corporate battle between Firestone and Goodyear to claim credit for his inner-tubed survival. Cuban Americans regard Elián as the Messiah come to lead them to the promised land. His ability to walk on water is scientifically tested: he sinks and has to be rescued again. In the ensuing custody battle, Cuban state-run demonstrations allow mothers of lesbians and of children who fail maths to have their say on Elián. Andrew Lloyd Weber wins awards for “Elián the Musical,” and for the film version, Madonna plays the role of the dolphin that saved Elián. Laws are enacted to punish people who mispronounce “Elián” but these do not help Elián’s family. All legal avenues exhausted, the entire exile community moves to Canada, and then to North Dakota where a full-scale replica of Cuba has been built. Visa problems spark another migration; the exiles are welcomed by Israel, thus inspiring a new Intifada that impels their return to the U.S.A. Things settle down by 2014, when Elián, his wife and daughter celebrate his 21st birthday as guests of the Kennedys. The text ends in 2062, when the great-great-grandson of Ry Cooder encounters an elderly Elián in Wyoming, thus providing Elián with his second fifteen minutes of fame. Hernández’s text confirms the impatience with which the Cuban-exile community was regarded by other U.S. Latino sectors, and exemplifies the loss of control over Elián experienced by both sides in the righteous Cuban “moral crusade” to save or repatriate Elián (Fernández xv). (Many Chicanos, for example, were angered at Cuban-exile arguments that Elián should remain in the U.S.A. when, in 1999 alone, 8,000 Mexican children were repatriated to Mexico (Ramos 126), statistical confirmation of the favored status that Cubans enjoy, and Mexicans do not, vis-à-vis U.S. immigration policy. Tom Tomorrow’s cartoon and Camilo Hernández’s email text are part of what I call the “What-if?” sub-genre of Elián representations. Another example is “If Elián Gonzalez was Jewish,” archived on Lori’s Mishmash Humor page, in which Eliat Ginsburg is rescued after floating on a giant matzoh in the Florida Strait, and his Florida relatives fight to prevent his return to Israel, where “he had no freedom, no rights, no tennis lessons”.) Nonetheless, that “moral crusade” has continued in the Cuban state. During the custody battle, Elián was virtualized into a hero of national sovereignty, an embodied fix for a revolutionary project in strain due to the U.S. embargo, the collapse of Soviet socialism, and the symbolic threat posed by the virtual Cuban nation-in-waiting in Florida. Indeed, for the Castro regime, the exile wing of the national family is virtual precisely because it conveniently overlooks two facts: the continued survival of the Cuban state itself; and the exile community’s forty-plus-year slide into permanent U.S. residency as one migrant sector among many. Such rhetoric has not faded since Elián’s return. On December 5, 2003, Castro visited Cárdenas for Elián’s tenth birthday celebration and a quick tour of the Museo a la batalla de ideas (Museum for the Battle of Ideas), the museum dedicated to Elián’s “victory” over U.S. imperialism and opened by Castro on July 14, 2001. At Elián’s school Castro gave a speech in which he recalled the struggle to save “that little boy, whose absence caused everyone, and the whole people of Cuba, so much sorrow and such determination to struggle.” The conflation of Cuban state rhetoric and an Elián mnemonic in Cárdenas is repeated in Havana’s “Plaza de Elián,” or more formally Tribuna Anti-imperialista José Martí, where a statue of José Martí, the nineteenth-century Cuban nationalist, holds Elián in his arms while pointing to Florida. Meanwhile, in Little Havana, Miami, a sun-faded set of photographs and hand-painted signs, which insist God will save Elián yet, hang along the front fence of the house — now also a museum and site of pilgrimage — where Elián once lived in a state of siege. While Elián’s centrality in a struggle between virtuality and virtue continues on both sides of the Florida Strait, the Cuban nowhere could not contain Elián. During his U.S. sojourn many commentators noted that his travails were relayed in serial fashion to an international audience that also claimed intimate knowledge of the boy. Coming after the O.J. Simpson saga and the Clinton-Lewinsky affair, the Elián story confirmed journalist Rick Kushman’s identification of a ceaseless, restless U.S. media attention shift from one story to the next, generating an “übercoverage” that engulfs the country “in mini-hysteria” (Calvert 107). But In Elián’s case, the voyeuristic media-machine attained unprecedented intensity because it met and worked with the virtualities of the Cuban nowhere, part of it in the U.S.A. Thus, a transnational surfeit of Elián-narrative options was guaranteed for participants, audiences and commentators alike, wherever they resided. In Cuba, Elián was hailed as the child-hero of the Revolution. In Miami he was a savior sent by God, the proof supplied by the dolphins that saved him from sharks, and the Virgins who appeared in Little Havana after his arrival (De La Torre 3-5). Along the U.S.A.-Mexico border in 2000, Elián’s name was given to hundreds of Mexican babies whose parents thought the gesture would guarantee their sons a U.S. future. Day by day, Elián’s story was propelled across the globe by melodramatic plot devices familiar to viewers of soap opera: doubtful paternities; familial crimes; identity secrets and their revelation; conflicts of good over evil; the reuniting of long-lost relatives; and the operations of chance and its attendant “hand of Destiny, arcane and vaguely supernatural, transcending probability of doubt” (Welsh 22). Those devices were also favored by the amateur author, whose narratives confirm that the delirious parameters of cyberspace are easily matched in the worldly text. In Michael John’s self-published “history,” Betrayal of Elian Gonzalez, Elián is cast as the victim of a conspiracy traceable back to the hydra-headed monster of Castro-Clinton and the world media: “Elian’s case was MANIPULATED to achieve THEIR OVER-ALL AGENDA. Only time will bear that out” (143). His book is now out of print, and the last time I looked (August 2004) one copy was being offered on Amazon.com for US$186.30 (original price, $9.95). Guyana-born, Canadian-resident Frank Senauth’s eccentric novel, A Cry for Help: The Fantastic Adventures of Elian Gonzalez, joins his other ventures into vanity publishing: To Save the Titanic from Disaster I and II; To Save Flight 608 From Disaster; A Wish to Die – A Will to Live; A Time to Live, A Time to Die; and A Day of Terror: The Sagas of 11th September, 2001. In A Cry for Help, Rachel, a white witch and student of writing, travels back in time in order to save Elián’s mother and her fellow travelers from drowning in the Florida Strait. As Senauth says, “I was only able to write this dramatic story because of my gift for seeing things as they really are and sharing my mystic imagination with you the public” (25). As such texts confirm, Elián González is an aberrant addition to the traditional U.S.-sponsored celebrity roll-call. He had no ontological capacity to take advantage of, intervene in, comment on, or be known outside, the parallel narrative universe into which he was cast and remade. He was cast adrift as a mere proper name that impelled numerous authors to supply the boy with the biography he purportedly lacked. Resident of an “atmospheric depression in history” (Stenger 56), Elián was battled over by virtualized national rivals, mass-mediated, and laid bare for endless signification. Even before his return to Cuba, one commentator noted that Elián had been consumed, denied corporeality, and condemned to “live out his life in hyper-space” (Buzachero). That space includes the infamous episode of South Park from May 2000, in which Kenny, simulating Elián, is killed off as per the show’s episodic protocols. Symptomatic of Elián’s narrative dispersal, the Kenny-Elián simulation keeps on living and dying whenever the episode is re-broadcast on TV sets across the world. 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