The Back Foot

The current battles raging in the so-called knowledge commons are a form of biopolitics (Foucault’s term). The only problem is that it is all taking place in a de-materialized “zone” generally denoted hyperreality (Eco’s term), enhanced by the various revolutions in techno-determinism that have swept across the planet over the past twenty-something years. This includes the relentless march of Web 1.0, Web 2.0, and (now) Web 3.0. The fact that the battles are being fought in a type of simulacrum (Baudrillard’s term) is part of the illusion/delusion/hallucination. The illusion/delusion/hallucination concerns whether or not any of this is Real (Hegel’s capitalized term) or surrational (Bachelard’s term). We are all complicit insofar as we all accede to the debauched terms of engagement. The great irony is that battling this “beast” sometimes requires creatively playing by the rules to change the rules. Yet, the greater irony is that this mostly immaterial battle returns to Earth in the form of the savaging of subjects (citizens). Thus, the battle is epic – but also, much like past versions, it is also a rite of passage else-where.

Image – Crucifix. Ljubljana, Slovenia, 2015. Photo: Gavin Keeney.

I.

“If we maintain the separation between empirical and transcendental planes, we end up with a rather different image. If the state of exception always remains empirical and does not enter the quasi-transcendental realm, in which bare life functions as the presupposition of positive forms, the two concepts can never form an articulation, even if one postulates their movement towards each other. The vectors in question might well have opposite directions but, belonging to different planes, they remain antiparallel and do not intersect. Sovereign power may ceaselessly presuppose bare life but cannot actually produce it and remains resigned to regulating a plurality of positive forms of life. By stripping life of its form, it can only succeed in demonstrating that this form was there to begin with and some of it may even survive the effort of denuding […] Sovereign power has no access to life as such, because there is no such thing as sovereign power “as such”: there are only ever particular forms of power grappling with all kinds of forms of life except for bare life, which cannot itself enter the series of forms that it enables.”

–Sergei Prozorov (2021)

“Hence, interpreting dignity as a principle that merely epitomizes a battery of rights is, more or less, like confusing the source of the river with its mouth: the result is that the very bed of rights is doomed to dry up insofar as it is divorced from its origin. The use of dignity as a means of legitimizing one’s own claims against Others, as in a war of antagonistic ‘dignities’, is nothing but the hollowing out of dignity and its generative meaning. In short, ‘competing dignities’ implies the dismantling of the space of significance and coexistence in which human beings should be able, each for their own part, to make Others. But it is the death of the Thirdness that reciprocal responsiveness can otherwise engender. The same ‘thirdness’ inherent to the unfolding of charity and the spirit of the gift. The overall discourse developed so far, however, has not only theological relevance.”

–Mario Ricca (2024)

One of philosopher Giorgio Agamben’s great gifts, by way of his Homo Sacer project (1995-2016), was to define something called the “back foot,” or how subjects are often forced into battle to defend their rights. This includes being stripped of rights and becoming an “extra-legally determined” victim of sacrifice (and/or crucifixion). This can take all forms, even if Agamben was proceeding from historical examples dating to antiquity. Today what it means is not all that different, at least on the global stage, and it is up to the reader to provide his/her own examples. It runs the gamut, from massive, politically engendered slaughter (e.g., Gaza) to more subtle forms of what is sometimes called “subsummation” (e.g., neoliberal capitalism). The latter process involves having one’s rights overwritten by powerful forces that operate legally or semi-legally. Yet, the ability to subsume someone else’s rights is often determined by law and treaty, or by consensus at the cultural level, where the goalposts are constantly being moved around to prevent anyone other than the elect or elite to benefit. Subsummation famously proceeds by categorical means. Change the categories (forms of mediation and/or modalities) and you change the game. Plus ça change …

For an example of how such cultural rights are subsumed, requiring a spirited battle, see the games that First Nations Peoples must play to preserve their so-called cultural heritage – i.e., both material heritage (lands) and immaterial heritage (customs and rites). The role played by law in this particular caprice comes from quasi-governmental forces (e.g., UNESCO) or NGOs running the culture industry, and, in the case of First Nations Peoples, “heritage.” The latter is associated with cultural tourism as much as leveraging explicit value. Battles of this order usually end up in the courts, whereas the most subtle games of all (including moving the goalposts) are played out on the fields of what Bourdieu called cultural production.

The skirmishes emerging now, with the arrival of AI (regarding “transformational fair use”) and the privileging of techno-determinism, are an exquisite example of “being on the back foot.” How the emergent ravages of AI ever escaped the attention of the authorities is a question for another day. These skirmishes are, however, finally heading for the courts, and the lawsuits against AI’s readings or misreadings of “transformational fair use” in copyright law are multiplying rapidly. For that story, see Copyright Alliance or Authors Alliance, two quasi-CMO-type collectives monitoring the situation on behalf of authors, but, more critically, also on behalf of publishers.

Agamben told the long story of the abuse of subjects at the hands of Power. Rights have always been mutable, and there is a red thread in jurisprudence regarding how all rights are ultimately transactional and, therefore, translational (Ricca’s term). They are not written in stone, and law is only ever a temporal manifestation of existing biases and/or ideologies – meaning, law is quite often a matter of cooked categories. The battles in the courts, when having devolved to language games (e.g., the meaning of “fair use”), generally ignore the semantic valences present in law, which can be turned in either direction – for or against a shift in law. The US Supreme Court’s current splitting of hairs perfectly illustrates this. For AI to be disciplined, however, the courts will have to re-define “fair use” to, ironically, make its use “fair” – to all involved. The problem here is that fair use has a storied past, having come into play, for example, when access to copyrighted material was at risk for those in academia and those in the arts. Publishers, always looking to advance their market share, did not look too kindly on the emergence of fair use. The simple example of using a text in a classroom illustrates what is at play. Fair use, once upon a time not so long ago, permitted this practice, thereby saving students having to buy every book or every text consulted across a course. (Putting a copy of a book on the hold shelf in the library was one way around this, but in large classes it hardly worked for obvious reasons. Constructing a dossier or “reader” by xeroxing the works on the reading list was tolerated, for a while, until that eventually timed out.) Publishers mostly looked the other way until the great copyright robbery (Hugenholtz’s term) of the early 2000s, when the game shifted to locking down everything possible to maximize profit. This was mostly an outcome of the explosion of Web 2.0 and online publishing, and an explosion of interest in academic bureaucracies to maximize its game through exponential growth across key profitable disciplines and the recruitment of students from around the world. (This is also when MBAs became Provosts or Chancellors.) How could the publishing industry not see an opportunity for a windfall? That game has more or less played out now, with schools shrinking programs and consolidating their wares under the most marketable disciplines. The Arts and Humanities is, as one might have guessed, not such a discipline. Education 4.0 is here to re-discipline disciplines.

II.

Image – Stations of the Cross. Trsat, Rijeka, Croatia, 2013. Photo: Gavin Keeney.

“What happens when we now separate the means from the end and expose its mediality freed from any relation to it? Does not this freedom from any external end suggest that this means now has its end in itself? Agamben insists that gesture cannot be ‘conceived as end in itself’, which is the only reason why “in gesture, each member, once liberated from its functional relation to an end – organic or social – can for the first time explore, sound out and show forth all the possibilities of which it is capable, without ever exhausting them.”

–Sergei Prozorov (2021)

“Inoperativity is not inert; on the contrary, it allows the very potentiality that has manifested itself in the act to appear. It is not potentiality that is deactivated in inoperativity but only the aims and modalities into which its exercise has been inscribed and separated. And it is this potentiality that can now become the organ of a new possible use.”

–Giorgio Agamben (2010)

Therefore, in the Arts and Humanities, what is the latest version of “the back foot” other than the impending wholesale slaughter of the Arts and Humanities by the creative industries. This shift goes hand-in-hand with other slightly shady undertakings in the artworld (Danto’s term) and academia. One such move is the subtle but programmatic anti-intellectualism of major universities. This sounds absurd, but it is present. Marketable wares do not necessarily require intellectual credibility. They can be propped up with all manner of pseudo-objective justifications. The main justification is marketability – for school and for product. How knowledge became “product development” is a complex story, but it arrived with the culture industry, a term going all the way back to Adorno, and, then, all of the way forward to Buchloh. (Prior to Adorno we had such savants as Veblen.) For Buchloh, it involved the pseudo-chic production of art as spectacle, leading to the pseudo-avantgarde of the late 1960s and 1970s. Buchloh’s indebtedness to Adorno might be said to be matched by his indebtedness to Debord. These names all come and go, of course, and their disappearance often has to do with the fact that the operative critique has timed out, becoming inoperative (and not in the manner valorized by Agamben). Yet, operative inoperativity is one of the secrets of the Arts and Humanities. What gives here also takes. Sometimes it stings. The arts move in mysterious ways, and there need be no worry that academia can kill the arts. The crime is that people will have to school themselves to find the meaning of operative inoperativity (operative inoperativity). It will not be on the menu at your next registration for graduate school courses. And it will only be present when you enter post-graduate school if you bring it along with you. More than likely, very few people have ever heard of Veblen, Adorno, Buchloh, and Debord due to the fact that so-called critical theory has timed out – and it is studies of the order of critical theory that are being exterminated in academia. They are still there, however marginalized, but the discourse is shrinking and the potency of the critique has often failed because it was never updated. Many, many programs of such types have actually become “historical,” in the sense that the same sources are trotted out and studied without ever being updated. Figures such as Agamben are then incredibly important, insofar as he sets his net widely in the seas of “historical inquiry” and then spins everything he catches toward wholly new ends. He is actually Benjaminian in this regard. But such figures are increasingly rare. And such figures are increasingly marginalized through the twin aegises of the culture wars and the commodification of culture.

There is nonetheless something glorious waiting in the wings – offstage, as it were. Given that the cultural commons and the knowledge commons have morphed into the creative industries, we now have a real chance for a new avant-garde. Why this is possible now, versus since the emergence of the pseudo-avantgarde in the late-1960s, is because Debord’s society of the spectacle is about to (finally) implode. In losing all credibility, this hyper-commodified and spectacularly self-important conglomeration of forces and cabals behind the creative industries and cultural production, tout court, is clearly the emperor with no clothes. Danto’s artworld is, notably, lost at sea. It is, historically, when things reach such a state that something marvelous might occur as if out of no-where.

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