UVOD U STUDIJE PERFORMANSA

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blog kursa “Uvod u studije performansa” na Interdisciplinarnim postdiplomskim studijama Univerziteta umetnosti, Beograd

JUriSTIFICATION OF PERFORMANCE – Aldo Milohnić

Poštovane koleginice i kolege, page

kad je aldo milohnić video naš blog i kako je živu diskusiju izazvao njegov tekst o artivizmu, viagra 100mg poslao mi je kao dodatak i svojevrsni “nastavak”. ovaj tekst (verzija koju postujem je ranija, anabolics iz časopisa maska, a nova je u njegovoj knjizi) sam pominjala kada smo radili performative i poslednji put kada smo diskutovali primere političnosti i artivizma… tako da može biti dobar materijal za razmišljanje o sve tri teme… i nastavak diskusije…

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JUriSTIFICATION OF PERFORMANCE

On artistic immunity, autonomy and servitude

Aldo Milohnić

At the beginning of the year, a heated discussion flared up in Slovenia on the special privilege which the constitution grants to deputies of the Slovene parliament, usually called “deputy (or parliamentary) immunity”. The local press published a great number of press reports, commentary as well as politicians’ and law-professionals’ opinions, on the subject of whether the scope of this privilege, defined by the 83rd article of the constitution[1], should be limited. “Hold them to their word!”, “For limitation of the privileges”, “The deputies’ tongues should be reined in”, “Bring back the intended role of deputy immunity”, “The immunity circus of the parliament”, “Immunity should be erased from the constitution” and “Protected bears in parliament” were just some of the headlines in the local media, mainly published in January and February 2005. We have already shown how the question of deputy immunity relates to contemporary activist and artistic practices in the conclusion of the article “Artivism”[2], published by this very magazine at about the same time that the verbal cannons of the parliament and media discussions were being fired off.

We stressed the fact that the law of the Republic of Slovenia enables artists (and in some cases, anyone else) to enjoy a certain degree of protection in public appearances, as guaranteed by the Constitution and other laws on the subject. “Artistic” immunity is in many ways incomparable to that of the deputies and judges[3], yet we may still claim that artists are guaranteed certain rights protecting freedom – of a specific, namely artistic – expression. The general provision is included in the 59th article of the Constitution (“The freedom of scientific and artistic endeavour shall be guaranteed”), with the broader context of the so-called freedom of speech, part of the 39th article, guaranteeing the freedom of “expression of thought, freedom of speech and public appearance, of the press and other forms of public communication and expression.”[4] Also important, article 169 of the Penal Code says that while insults are punishable by law, art is exempt (under certain terms).[5] This is the very article of the Penal Code quoted by the writer Matjaž Pikalo in his appeal lodged to the constitutional court, as he believed that the three previous rulings (by the local, high and supreme courts) were violations of his right to “free expression”.[6] We will return to the Pikalo case later, as the constitutional judges spelled out some remarkable thoughts about the difficult relationship between unrestrained artistic imagination and jurisprudence, dealing only with dry fact, in their commentary on the ruling. First, we should present a few key elements of the “uneasy encounter” between law and art that led to this article being written.

“THE MONOPOLY ON DEFINITION”

The difficulty of our attempt is in that we must begin at the very beginning, with a question many before us have tried to tackle, with only a very few managing to peel off more than the first layer of this bitter onion. Our own eyes, too, have begun to tear up, yet the question must be asked: what is art? This is because the law does not – or at least believes it does not – know how to operate with terms that cannot be defined unambiguously. Without definitions of the key terms used in a law, there is no law, and without law, no judgment, as the latter is only possible on the basis of an appropriate legal act. This is why the regulations pertaining to art are “a nightmare” to lawyers and lawmakers, as eloquently put by Paul Kearns,[7] or even the bad conscience of those among the jurists who believe in the exactness, impartiality and a-political nature of law, an arrogant and stubborn ruler of the contemporary Rechtsstaat, a state led by the “rule of law”. To Haimo Schack, for example, the author of one of the most recent books on law and art, which by the way begins with the question “Was ist Kunst?”, art is only a “relative legal term”, as its content is varied, often indefinable and elusive.[8] It is also historically determined, as shown by Tatarkiewicz in A History of Six Ideas:  “The arts that we eminently think of in speaking of ‘arts’ were treated as mechanical, and at that as so unimportant that they hardly deserved mention in the rosters.”[9] The scope and content of the term have changed many times since antiquity. The process was directed toward reducing the scope of the term, with paradoxical results, as, as Tatarkiewicz stresses, “something peculiar happened: the ancient-mediaeval concept of art – the point of evolutionary departure – had been rough, but clear, and had permitted of simple and correct definition. On the other hand, today’s concept, the terminal point in that evolution, narrower than the latter and, it would seem, better defined, is in fact undefined – eludes definition.”[10] No wonder that the term causes lawyers headaches, when even experts in the history of aesthetic theory have a hard time with it.

The lawyers’ predicaments as to how precisely to set the borders of the “artistic” are even greater than those of historians, sociologists or theorists of art. If to the latter few, a precise definition is only wishful thinking, lawyers see it as a definitive need. Those lawmakers who give in to despair and reach out for similar terms, do not get very far; if they go for substitutes, like “culture”, they are in for an unpleasant surprise – they need only to browse through Culture: a Critical Review of Concepts and Definitions to see how numerous the definitions of the term “culture” really are.[11] They also cannot help themselves much with value judgments about supposedly “good” or “bad” art, as this would cause judges to succumb to current fads and subjective preferences, with the nature of their profession calling for much more objective measures. On the other hand, when considering whether an object is a piece of art or not, or if its creator belongs to the system of art, a judge should not rely exclusively on the criteria of social recognition: art is not only that which is promoted by critics and other aesthetic jurors of artistic production as, according to Schack, a judge and a professor of legal sciences, “even provocative, often not yet understood ‘anti-art’ is art too.”[12]

DIVINE CREATION, ARTISTIC CREATION AND SELF-CREATION

The situation was additionally “entangled” by the artistic practices of the last century, persistently questioning – up to this day – their own media and the status of the artist, moving the set boundaries of the artistic field, often “dematerializing” artistic products by shifting the focus from product to process. Jurists have good reason for frustration after the modern artist acquired the right to proclaim “unilaterally” as art anything he designates as such. The “legal order” cannot accept what Schack calls “the monopoly on definition” of the artist, “subjectively designating what art is.”[13] This unusual power, which has become an important feature of the artist with the emergence of modern art, is reminiscent of the connection between the divine and the artistic, seen in the linguistic peculiarities of the word “creator”*. It was Tatarkiewicz who said that the Ancient Greeks did not have a word that would fit “creativity” or “creator”. Because the Greek word poíesis is derived from poieîn (to work), the poet, poietés, is actually he who works. Latin differentiates between facere (to work) and creare (to create), but both words were mainly used in the sense of “to work”. In the Christian period, we see a major development, as the word creatio begins to be used for the activity of God, creating from nothingness (creatio ex nihilo): “Stwórca is God, who creates from nothing; twórca is the artist or the poet. This is a Polish or a Slavic idiom. Other European languages – French, Italian, English, German – lack this duality, have only one expression for God and artist, and consequently apply it more sparingly to the artist.”[14]

The creator took a step further toward the Creator by no longer limiting himself to creating artistic objects, but began to do so with members of his own biological species. We need only remember Jeff Koons, who first married Ilona Staller, better known as Cicciolina, a porn star and ex-member of the Italian parliament, and then created a series of their, to put it euphemistically, “erotically explicit” photographs and glass sculptures Made in Heaven, while proclaiming their sun Ludwig, born in 1992, a work of art. Later on the couple divorced and Ludwig remained with his mother, even though the court assigned him to Koons. We can ask ourselves, whether Koons could sue Staller for theft of a work of art? If he sued for damages, would the court turn to a court-sanctioned appraiser of art to appraise the value of “Ludwig”, the artwork, on the artistic market? We might even have to ask whether Jeff Koons, Ludwig’s father and (co)author of “Ludwig”, the artwork, is entitled to damages as his/its biological “Creator” or as artistic “creator”. Even Koons’ lawyer might have had to decide whether to appeal to American legislation regarding minors in divorce cases or to the Copyright Act.[15]

There are cases where artists are no longer content to simply paint or sculpt self-portraits, declaring their own body a work of art. An example of this sort of self-creation is Ben Vautier, who exhibited himself in a London gallery in 1962, with something similar happening in Slovenia four years later, albeit to a different political background and motive. Among those invited to a group exhibition in the Slovene town of Kranj was Marko Pogačnik, later one of the founders of the conceptual art group OHO. Yet the very next day after the opening, his exhibits were removed from the gallery. Pogačnik then sent the following message to the director of the gallery:

“As of today, the 27th day of this month, from 4 p.m. onwards, I am exhibiting myself (my body) from 10 to 12 a.m. and from 4 to 7 p.m. in the basement (where I am not allowed to exhibit my works) with the following message: MARKO POGAČNIK (BECAUSE I AM NOT ALLOWED TO EXHIBIT MY WORKS OF ART, I AM EXHIBITING MY BODY).

First of all, I believe that, as a citizen, I have a right to be in the gallery when it is open. If I brought any other thing or work into the gallery, your workers could demand that I remove them.

Second, I see my body as a visual means of expression. That is also how I understand classical and Renaissance representation of the body, the only difference being that I am using [presenting] it for expression, while they represented it to express themselves.”[16]

Pogačnik’s performance is a good example of a simple, but exceptionally lucid project of artistic “disobedience”, derived from the artist’s “monopoly on definition”, concurrently achieving a strong aesthetic, political and legal effect. The message, with which he anticipated his artistic and protest action features two Pogačniks: “the citizen” and the (visual) artist. The former claims the right of every visitor to stay in the gallery for as long as this public institution is open to the public. Since every artist is a “citizen”, but not every “citizen” is an artist, Pogačnik adds the second – short, but effective – explanation of his action, introducing a method of using his own body as a mean of visual expression and at the same time positioning it within the system of art.

The legalistic foundation of the artistic event is in this case an integral, yet discrete, and undisturbing part of the concept itself. The letter to the gallery’s director – an instance of power and a potential threat to the artist’s action by legal and repressive means – is a declarative gesture, strengthening the message of the event and showing the artist’s determination to carry out the project as conceived, regardless of possible negative consequences.

‘SUSPENDED BELIEF’: EVERYBODY FOR BERLUSCONI

Almost forty years later, with political circumstances no longer those of one party centralism, but rather of a parliamentary democracy, a theatrical performance was created in which another letter to an instance of power is sent: one to media and political mogul Silvio Berlusconi. But now the letter is no longer an announcement of action, as it is temporally a part of the performance, it is no longer declarative, because in it, the artists are apologizing to the politician in order to avoid possible prosecution due to the supposed agitation toward the violation of his physical integrity, and it is no longer undisruptive, as it is forced.

It is about Everybody for Berlusconi, a joint project by the groups Betontanc and Jonghollandia. The original title of the piece was Killing Berlusconi – the central motif of the performance, in which a part of the audience (the so-called members) are voting on whether or not to execute the Italian politician and media magnate Silvio Berlusconi – but then the authors,[17] after discussing it with their lawyer, decided to make the title less explicit. This was at about the time of the assassination of Theo Van Gogh took place in the Netherlands, thoroughly fouling the air in a country which had always been a synonym for tolerance and openness. At first glance, then, the situation is understandable: an unexpected “outbreak of reality” forced the authors into ’sober’ reflection on the possible consequences, ranging from “alarming the public” to lawsuits for inciting intolerance and violating the legally and constitutionally protected right to physical integrity. Besides considerably watering down the original title, Betontanc and Jonghollandia inserted another line of defense in the performance: the letter to Berlusconi, read by one of the actors and then handed to the nearest audience member along with an envelope to be sent off to Berlusconi’s address. The letter explicitly states that the authors of the performance do not wish him dead, are not trying to incite an assassination etc.; the letter, which was written as a result of consultations with a lawyer, has the clear goal of explicitly and indubitably annulling any chance of doubt about either the good intentions of the authors or the strictly set borders of fiction, which are the borders of a theatre performance as an exclusively imaginary, benevolent, benign, aestheticised, or in other words, traditionally understood artistic practice.

This retroactive gesture (the reading of the letter takes place almost at the end of the show) was used by the authors to state clearly their own position in the spectrum of contemporary art practices. At the levels of procedure and intention, the letter to Berlusconi leaves no doubt: Everybody for Berlusconi wants to be recognized as a conventional theatrical staging. Besides this, perhaps cursory, aesthetic discovery, the letter poses another, more important question: what does this gesture mean for the politics of theatre and for the relationship of politics to theatre? There can be no doubt that the letter is a needless and completely artificial object in the texture of the performance, that it was forcefully inserted into the dramatic structure, which in itself does not require this moment, as it is based on a relatively closed line of narration. If the intention of the letter was to prevent any doubt whatsoever that theatre is theatre and following the same tautological form, life is life, because otherwise someone, including Berlusconi, his horde of lawyers and prosecutors, might think that the authors of the play are playing with Berlusconi’s life, then at least two possible forms of belief should be analyzed: firstly, do the performers believe that their performing has some real power of suggestion, which can have material consequences, or could at least be recognized as such; and secondly, have we already reached the point of decay of artistic fiction as an untouchable reservoir of artistic immunity? In other words: has the general ambiance of the security panic after the American “9/11″ already produced an ideological effect of “the subject, who is supposed to believe”, where it is no longer important whether anyone (Berlusconi, his lawyers, the public prosecutors, the media) actually believes that artists are terrorist agitators, or whether no one at all believes this nonsense, because what suffices is the very existence of a minimal presupposition that there is a mere possibility that someone (from the aforementioned) might believe that it is being believed. If the post-9/11 anti-terrorist morbidity has not yet led to a total “self-regulative” panic – based on the principle sketched above and called (by Rastko Močnik[18]) “suspended belief” or “distanced naivety” – then we must answer the question (in some other discussion) of whether the authors of the performance are not already a step ahead of everyone else, who has not yet realized that artistic immunity is not what it used to be: automatic and unequivocally inherent to any practice showing (in this case even traditional) signs of the fictive dispositif; or whether they, by relaying on legal advice and by doubting the firmness of the concept of artistic immunity, made this already inconsistent traditional “protective mechanism” even more porous?

The boundary between the permitted and the forbidden is never completely clearly defined in democratic societies, and it is per definitionem artists who should persistently probe this “grey zone” to see how far it extends. It seems that in the case of Everybody for Berlusconi, its authors voluntarily abdicated and left to lawyers the decision as to how far their (artistic) freedom extends. Paradoxically, it is not so much the media and political imperator Berlusconi, who are responsible for this letter of “reconciliation”, but rather those who are supposed to protect artists from revenge. This important detail from the performance clearly shows how risky is the strategy of building aesthetic effect on explicitly political foundations when it is not ready to accept all the “collateral” (political, economic, legal) consequences. The episode with legal advisors is a key conceptual deficit of the performance, which, from a structural point of view, is comparable to the superficial, cursory message from the end of the performance, which could be summed up us: however we vote, the decision in our name will always be made by someone else, whether by manipulation or by election fraud. This is, of course, not a key problem in contemporary western democracies of the neo-liberal kind: the questionable vote-count of the first Bush Jr. election, for example, or rather infrequent outbursts at provincial polling stations in some European countries (disregarding the growing pains of “transitional” democracies, such as the supposed election fraud in the recent Ukraine parliamentary elections), cannot be regarded as the most urgent problem of the contemporary voting mechanism. What the key problem is, and what the performance does basically show – making the manipulated voting conclusion at the end of the performance all the less understandable, as it steers the basic line of narrative to the wrong point – is not the very act of voting, but the pre-election process (or, better to say, circus), manipulating the voter to the extent to which he or she voluntarily succumbs to the ideology of the most influential of the political and media moguls, circling their names on the voting sheets. The product of the manipulation of contemporary political and other social elites is not censorship in the traditional sense, but a voluntary “liberal servitude”.[19] Just as the letter to Berlusconi is not a product of censorship, but rather of self-censorship.

THE FICTIONAL DISPOSITIF AND THE SURPLUS REALITY OF THEATRE

In a newspaper article[20] Blaž Lukan asked himself why it was that at the Slovene premiere of Everybody for Berlusconi no one openly protested or left the show. Does this mean, Lukan considers, “that all the Slovene viewers understood the performance as a work of art, dealing with a current social (and political) problem by theatrically unequivocal, but actually ‘harmless’ means; or whether they only reacted in accordance with their Cankarian ‘peon’ character.” He leaves the question unanswered, but is convinced (“one thing is certain”), that the audience would react in protest, “if instead of Berlusconi, the Dutch and Slovene theatrical sharpshooter targeted a native politician, for instance our own (ex or current) prime minister.”

We do not see this as a dilemma. The so called “peon” character of the “imagined community” of Slovenes is an ideological construct, fuelled, on one hand, from supposed archetype characters, and, on the other, from the virtual unity and similarity, which gained value – speaking from a historical perspective – by the widespread use of printed media, mainly newspapers and literature in the native language.[21] The second question – whether the performance did not create protest among the home audience, because they “perceived the theatre performance as a work of art” – is much more interesting and deserves further discussion.

While it may not appear so at first glance, in key elements Everybody for Berlusconi does not deviate essentially from theatre productions which combine elements of classical dramaturgical, directing and acting techniques with the emphasized role of the audience as an integral, visible and relatively active part of the performance. What created the political context and probably defined a certain horizon of expectation for the Slovene audience were the media reports on the responses to the premiere and the first few performances in the Netherlands: the changed original title of the performance, concerned responses by Italian diplomats, the mention of the play in the European parliament, the assassination of the film director and radical right wing affiliate, Theo van Gogh in Amsterdam only three days before the premiere, etc. The combination of verified and unverified journalists’ stories in the Slovene media and the lobby talks, created an impression of some people in the Netherlands taking the performance very seriously, in terms that it supposedly provoked radical physical violence directed at the Italian politician, whom the authors had chosen as their main target. Under such circumstances, it was not hard for the Slovene audiences to activate the mechanism of “delegating the point of illusion to the other”: because someone else can believe that Everybody for Berlusconi is more than merely the naked fiction of a theatre performance, we do not have to believe in this surplus reality of theatre.[22] In a time of mass digital media, alongside which even the largest theatre audiences look like garden gnomes, it is actually quite hard to believe that a relatively conventional performance could mobilize hordes of assassin-fanatics.[23]

How one interprets a piece of information, a statement or a story, depends on many factors, among which the medium and its conventions are predominant. A theatre play, even if dubbed Killing Berlusconi, would still only be a theatre play to a great majority of its viewers. If, however, informative media were to publish a survey on who the respondents would kill – which actually happened when last year someone published on the internet a questionnaire on whether the Croatian ex-minister of internal affairs had to be killed[24] – it would be harder to determine, whether one is dealing with agitation or ordinary political satire. A case from the domain of the conventional informative media is described by Umberto Eco when he explains the difference between the so-called natural narrative and artificial narrative. Because the story is amusing, here is a longer quotation: “My friend Giorgio Celli, who is a writer and a professor of entomology [the study of insects], once wrote a story about the perfect crime. Both he and I were characters in this story. Celli (the fictional character) injected a tube of toothpaste with a chemical substance that sexually attracts wasps. Eco (the fictional character) brushed his teeth with this toothpaste before going to bed, and a small amount of it remained on his lips. Swarms of sexually aroused wasps were thus attracted to his face, and their stings were fatal to poor Eco. The story was published on the third page of the Bologna newspaper Il resto del carlino. As you may or may not know, Italian newspapers, at least until several years ago, generally devoted page three to arts and letters. The article called the ‘elzeviro’ in the left-hand column of the page could be a review, a short essay, or even a short story. Celli’s short story appeared as a literary feature entitled ‘How I Murdered Umberto Eco’. The editors evidently had confidence in their basic assumption: readers know that everything printed in a newspaper must be taken seriously except for items on the literary page, which must or can be considered examples of artificial narrative.”[25] Eco goes on to explain that that morning he was “greeted by the waiters with expressions of joy and relief” in a bar he frequently visits, for they thought he really had been murdered. Even his academic colleagues acted similarly, and they, Eco says, are able to discern between journalistic genres, especially in the case of a traditional column.

The specific circumstances of the medium were also what the constitutional court referred to when annulling the verdicts of the lesser courts in the Pikalo case. The constitutional judges found that the context or medium in which the statements in question are publicly proclaimed are crucial in deciding whether the author, due to collision between two constitutional rights, infringed the right of another: “The field of artistic creation is specific and permeated with its own characteristics, differing greatly from those of journalistic writing, which is why one cannot use the same criteria in deciding whether the author breached the honor and good name of another person.” The constitutional court also noted that in the case of the Pikalo book, it was a “narrative of a fictional character about another fictional character, and not public statement about the plaintiff by the defendant.”[26] When we are looking at a text published in the form of a book with exclusively literary content, the explanation that the incriminating act could not have taken place, if only because the subject of the statement are fictional and not real people, seems well founded. A much more complicated situation arises with borderline cases, such as the one explained by Eco, where it is no longer quite clear whether, despite the unchanged names, the “Eco character” and “Celli character” are real or fictional characters. The similarity in names of fictional and actual characters can be potentially misleading, as well as the media (newspaper) that published the story alongside many other reports on the real events of the day. As Eco stresses, even the ability to differentiate journalistic genres is no guarantee of a certain judgment about the realistic or fictional status of a text.

THE COLLISION OF INTENTS: INCASSO

We can also pose the question differently: does a character in a novel and an actress on stage have the same, as jurists would say, “legal capacity”? This question came to our mind when actress Katarina Stegnar offered to sell to the audience an object she had created during the Incasso performance, and which she claimed was her work of art.[27] Because the viewers are not certain whether they are expected to speak up and make their bid, like at an auction, or whether they should respect the invisible theatrical “fourth wall” – with the second interpretation usually prevailing – the actress lets us know at the end of the scene that we, the audience, will be given another chance: if we do not have enough cash at hand, we can sign a contract after the show, obliging us to pay the agreed amount into the account of the performance’s producer Via Negativa, while receiving the work of art immediately.[28]

Soon after seeing the show, the author of these lines sent an e-mail to director Bojan Jablanovec, with the question of what would happen to the contract, signed for example during an artistic event, if the parties came to a legal disagreement and, consequently, litigation? We even considered a “lab test” of this hypothetical situation, presented to the director Jablanovec as follows: “If our courts worked faster (and we didn’t need to wait for years for a verdict), I would even try it out. I considered it seriously after seeing the show. I would first sign the contract with Via Negativa about buying Katarina’s peace and would then refuse to pay. Via Negativa would sue and we would then “stage” a performance at the court house, discussing, whether a contract signed by a member of the audience in the theatre is in any way binding? Is his/her signature part of the performance, part of fiction, which is a dominant theatrical convention, whether you like it or not; whether the signature is only a part of the ‘play’, or in other words without any material (legal, judicial) consequences to the signatory after he leaves the theatre. Or does this signature have the burden of consequence, ‘actually existing’ even after the performance ends, and thus equal in material consequences to any other signature, signed for example when buying a car or something?”[29]

There was no need to carry out the experimental  ‘performance’ in court, as it soon became clear that the court would consider such a contract null and void, as determined by article 50 of the Code of Obligations (“A pretended contract has no effect between the parties”). In the commented edition of the code there is even an explanation that a statement “made on stage during a play” is “not a seriously meant statement”, and therefore has no legal consequences.[30] This situation may lead us to a complication we could call a collision of intents: it could very well happen that one of the parties to the contract was deadly serious, the other believing that they’re making a joking statement, leading to a collision of expectations and thereby to a problematic situation. In the art-piece selling scene, the actress herself clearly states that she is very serious, but also explicitly states that the context of her statement is a theatrical situation. A statement, even if the sender explicitly states that it is meant in all seriousness, does not have to be taken seriously by the receiver if it was stated in circumstances deemed “non-serious” by a widely accepted convention. Why should we then believe that Katarina Stegnar is serious about selling her art-piece if she decided to sell it during a performance in which she is acting?[31] The situation does not change even if the ‘purchase’ of the work of art took place based on a contract which we intended to sign on stage during the performance itself. It is also important that Špela Trošt, the signatory of the contract in the name of Via Negativa, is both producer and one of the performers, which is explicitly stated in the accompanying and promotional material. Even in this case a buyer could be mistaken when signing the contract, in thinking that his or her signature is only a part of a performance, that it is a “joking statement” or “pretended contract”, non-binding on either party.[32]

AUTONOMY AND SERVITUDE

Incasso and Everybody for Berlusconi are in many ways very different performances, yet both share a key characteristic: the attempt to critically face the perverse core of some of the key pillars of contemporary capitalist structures. In the case of Incasso, this is money, the commodity of all commodities, the general equivalent and elixir of life of the contemporary market economy. Silivio Berlusconi, the title character of the other show is a point of condensation in which politics, economy and media come together. However, we did not really pay much attention to these thematic areas, as we were deliberately more concerned with how, at what points and with what consequences, the law enters the stage in each show and takes its quiet, implicit place in the structure of events.

Economics and law, already controlling the contemporary political “scene”, are gradually taking leading roles on the theatrical stage and in art production in general.[33] Contemporary art finds itself in the hysterical situation of having to worship law as the guarantor of its own “autonomy” in relation to politics (freedom of artistic expression etc.) and to the economy (copyright and the material gains implied thereby), while at the same time always having to fight for “autonomy” in relation to the legal sphere (resistance to juristification) and within the legal sphere itself (the struggle for recognition of the “monopoly on definition”). From today’s point of view, when we can comfortably interpret retroactively, it seems quite expected that the “modernistic autonomous moment”, demarked already 20 years ago by Rastko Močnik as a “transitional phase”[34] to the (voluntary) subordination of art to contemporary capitalist economy, has been transformed into a quiet acceptance of the rules of a contemporary Rechtsstaat’s game. Under political pressure and threatened by civil suits, art is running for the patronage of legal regulations, where it can exercise its specific privilege of “artistic freedom”. To enjoy this freedom, however, art must pay a certain price.

How this price is ‘fixed’ can be seen in the example of ‘anti-artistic’ and ‘avant-garde’ practices, i.e. artistic production which is directed against the authority of traditional institutions as well as the system of art in general. If art is to be radical, it must not only be critical of ’society’, but also of its own ontological predispositions, bringing it to a point where it has to cross the boundary between art and non-art. In this situation, the subject must choose between two alternative strategies. One can say: what I am doing is not art, but this is not an important distinctive feature, as the non-artistic nature of the product is only a by-product of my “libertarian”, “emancipatory” decision to distance myself from my own position of “artist”; and one can then move (in an anti-manner) from this position of radical otherness to holy war against the oppressive art system. Or one can choose differently and derive from the avant-garde tradition of equating art with life and vice-versa: what I do is art, but this is not a pertinent distinctive feature, because everything is art anyway, so I’m fighting “from within” – as an artist against the closed, exclusive art system. What are the legal consequences of one or the other decision for the artist and the anti- (or no-longer-) artist? In the first case, the institutions of relative artistic immunity and author’s rights will be abolished – since both terms are tied to a legally acceptable definition of art.[35] In the second, the artists will keep their legally recognized rights, but at the same time will have to take a risk to be accused by art critics, or at least moralists among them, for vanity and hypocrisy.

At this point it would seem that any choice is split in an internal paradox, that it is in contradiction with itself. The dilemma is an old one, known since antiquity. In more recent times it was dealt with by Moses I. Finley, trying to shed some light on the paradox of Athenian democracy: “Aristophanes and the other comic poets were free with irreverent jokes about the gods in a way that, in the mouth of philosophers or Sophists, could lead to an indictment for impiety.”[36] And from today’s perspective it seems inconceivable for Socrates to have been killed for something that is – again from our own perspective – a lesser offence in comparison to Aristophanes’ open and merciless scoffing at everything he could think of.[37] We simply cannot avoid pondering these dilemmas, because as Finley says: “the Athenian problem remains our problem.”

Translated by Jure Novak

Aldo Milohnić holds an MA in sociology of culture, he is a researcher at the Peace Institute and the editor of the book series Politike.

First published in:

Maska (Ljubljana), Vol. XX, No. 92-93, Summer 2005, pp. 18-25.


[1] “No deputy of the National Assembly shall be criminally liable for any opinion expressed or vote cast at sessions of the National Assembly or its working bodies. – No deputy may be detained nor, where such deputy claims immunity, may criminal proceedings be initiated against him without the permission of the National Assembly, except where such deputy has been apprehended committing a criminal offence for which a prison sentence of over five years is prescribed. – The National Assembly may also grant immunity to a deputy who has not claimed such immunity or who has been apprehended committing such criminal offence as referred to in the preceding paragraph.” (Official translation, source: http://www.us-rs.si/en/index.php?sv_path=6,17&itlang=_L1)

[2] Aldo Milohnić. “Artivism”. Maska, Ljubljana, spring 2005, no. 1-2 (90-91), p. 15-25.

[3] Immunity is guaranteed to judges by the Slovene Constitution, paragraphs 134 and 167.

[4] Also in article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocol No. 11). Slovenia ratified the convention in 1994.

[5] “Whoever expresses words offensive to another in a scientific, literary or artistic work, in a serious piece of criticism or in the exercise of official duty, in a piece of journalism, in the course of political or other public activity or in the defence of justified benefits, shall not be punished, provided that the manner of expressing such words or the other circumstances of the case indicate that this expression was not meant to be derogatory” (Penal Code of the Republic of Slovenia, article 169, paragraph 3, unofficial translation, source: http://www.oecd.org/dataoecd/50/18/34287694.pdf)

[6] Quoted from the constitutional court’s decision Up-422/02-18 on March 10th 2005, Official Gazette RS, no. 29, 22.03.2005. Matjaž Pikalo was sued by a retired police officer, recognizing himself in a book character in the novel Modri e (Blue E) by Pikalo, claiming that the writer defamed his honour and good name. The courts ordered Pikalo to pay compensation to the plaintiff in the amount of 2.5 million tolars (approx. 10,000 euros).

[7] “‘Artistic’ does not possess a clear enough definitional core to be practical as a legal criterion. Its definition is nearly entirely penumbra, though, in terms of description, art has some recognised classes. There are traditional classifications of art – painting, drawing, sculpture… – but there is no definitive definition of the artistic per se. Art is a collective noun but we do not know the ambit of its collection. Artistic is an adjective connoting the quality of this collection but its requires clarity, of itself and of language, and law as institution strives to make as its tests terms it can know as unambiguously as possible so that their legal application is as certain as possible.” (Paul Kearns. The Legal Concept of Art. Hart Publishing, Oxford, 1998, p. 66.)

[8] Haimo Schack. Kunst und Recht: Bildende Kunst, Arhitektur, Design und Fotografie im deutschen und internationalen Recht. Carl Heymanns Verlag, Köln, 2004; p. 2.

[9] Władysław Tatarkiewicz. A History of Six Ideas. Martinus Nijhoff, The Hague-Boston-London / PWN – Polish Scientific Publishers, Warszawa, 1980 [1975], p. 15.

[10] Ibid., p. 22.

[11] A.L. Kroeber and C. Kluckhohn. Culture: a Critical Review of Concepts and Definitions. Papers of the Peabody Museum of American Archaeology and Ethnology, vol. 47, Harvard, 1952. A similar effect would be caused by Raymond Williams’ Keywords. A vocabulary of culture and society from 1976.

[12] Schack, ibid., p. 5.

[13] Schack, ibid., p. 4.

* In this text we use the word “Creator” in meaning of the Christian god and “creator” in meaning of an artist. Although capitalization is neither necessary nor does it really differentiate between the meanings, we could not find a better solution to maintain the difference between Polish idioms for Creator (god, stwórca) and creator (artist, twórca). Also in Slovenian, “creator” is used to mean “artist” (ustvarjalec), while the Christian god is sometimes called stvarnik, but more usually bog (translator’s and author’s note).

[14] Tatarkiewicz, ibid., p. 249. According to the author, the term creativity is also connected with “the wave of veneration for creativity”, particularly typical of the 2nd half of the 20th century: “The point is not to have works of art: we have enough of those – are saturated and supersaturated with them; the object is to have artists, those incarnations of imagination and freedom. [...] The concern is not with art, but with creativity: it is impossible to go farther in the worship of creativity.” In other words: “it does not matter [...] what is created – so long as creation proceeds.” (Ibid. p. 260.)

[15] Schack (Ibid., p. 3) also quotes Dadaist Kurt Schwitters, who says that “art is anything the artist spits on”. This would signify that touching of an artist’s bodily fluids grants objects, and even humans and animals, the status of works of art. If we were to follow Schwitters’ idea, we should also count the Slovene philosophy pop-icon Slavoj Žižek as a work of art since March 26th, 2005. His inauguration can be attributed to Russian artist Aleksander Brener who spit on him several times in front of an audience gathered at a lecture by Giorgio Agamben in Cankarjev dom, Ljubljana. But since Brener has recently been insisting on his not being an artist (any more), it is of course, questionable whether the art theory, especially the one inspired by Dadaism, really confers on Žižek the status of a work of art. It is also doubtful whether Žižek, should he decide to litigate, would appear at the trial as a public personality or a public work of art. It would also be interesting to see whether Brener would defend himself as a member of Agamben’s audience, irritated by Žižek’s verbal incursion to the point of Brener’s bodily fluids getting out of control, or whether he would use the “artistic freedom” clause to evade paying damages. If he were to go for the second option, it would also – to keep in line with Kurt Schwitters’ idea – affirm the existence of the “Gesamtkunstwerk Žižek”. On the other hand, we would have a unique opportunity to witness a precedent case of an art-work suing its own author.

[16] Translated by Suzana Stančič and published in: Aldo Milohnić. “Body in Slovene Neo Avant-garde Theatre”. Frakcija, Zagreb, no. 14, July 1999, str. 64-69. We continued: “This was one of the first public performances of the OHO multimedia group, which, like Pupilija Ferkeverk, was born in the sphere of literature and gradually expanded into a blend of various other visual and body arts. [...] Although, in the opinion of critics of that time and present-day critics, some later happenings of the OHO group reached beyond Pogačnik’s unusual walk through a Carniolan gallery in an old, borrowed resistance movement uniform with the sign … I’m exhibiting my body hanging around his neck (like hostages in World War II), precisely this happening from the early OHO phase marked the beginning of the awakening of corporeality and introduced a different attitude toward one’s own body in the sixties.” (Ibid., str. 65.) On this and other performances by the OHO group, cf. also Maja Breznik. “Urbani teatr: happeningi skupine OHO 1966-1969 (Urban Theatre: happenings of the OHO group 1966-1969)”. Maska, 1-3/1995, p. 70-74.

[17] The authorship of the performance is collective; along all the performers, director Matjaž Pograjc is listed as co-author.

[18] Rastko Močnik. Beseda… besedo. Založba ŠKUC, Ljubljana, 1985; p. 22.

[19] La Boéti’s concept, acquired by Jean-Léon Beauvois; cf. his book Razprava o liberalni sužnosti. Analiza podrejanja (Traité de la servitude libérale. Analyse de la soumission, 1994). Krtina, Ljubljana, 2000. Beauvois’ discussion derives from social and psychological experiments showing how a manipulated individual will always find sufficient reasons to attribute his or her decision to a rational decision as opposed to one taken under the influence of careful manipulation: “One would expect citizens, who place high value on freedom, to be very sensitive to what circumstance, roles, various formalism we all move in, rules of social exchange etc. force onto them as pressures, that can limit their freedom of expression and deed. One would even expect them to lean toward overestimating these pressures. But in liberal democracies, we see the exact opposite phenomenon: we’re inclined to deny these pressures, even when they are entirely obvious and even when denying causes very strange thought constructs.” (Ibid., p. 12-13 of the Slovene edition.) The careful reader might notice that the attitude of the creators of the performance is in line with the behavioural pattern described by Beauvois: they first succumbed to the outside pressure on their own decision, and then retroactively exculpated this decision as their own “rational” choice.

[20] “Koga ubiti?” (Who is to be killed?), Delo, Ljubljana, 13. December 2004, p. 9.

[21] More in: Benedict Anderson. Imagined Communities. Verso, London-New York, 1995 [1983].

[22] “Why is, for example, theatre (or any form of artistic spectacle) only a ‘virtual’ reality, only quasi-reality? – Because we can say: ‘It’s no true, it’s only theatre.’ But what is the presumption behind this hygienic mental operation? That the point of illusion can be delegated onto another. That is the symptomatic value of the jokes about Montenegrins shooting at the silver screen, about the spectator who once warned (Shakespeare’s) Caesar that he is about to be killed, and finally about the actor who got into the role of Hamlet to the extent of actually killing Polonius: all of these are malicious fictions, but precisely as fictions they have their own raison d’être, their mere possibility found the ontological status of a work of art. When someone else believes, I don’t have to.” (Močnik, ibid. p.124.)

[23] In fact, an attempt to harm Berlusconi was made only a few weeks after the Ljubljana premiere; when he was walking around Rome on New Year’s Eve, a builder from Mantova, who was in Rome to celebrate the New Year, threw a photographer’s tripod at him. But according to media reports, (for example cf. Delo, January 2nd 2005, p. 7), this was a case of a spontaneous reaction of an ideological opponent from the working class, who is hardly expected to be regularly visiting theatre performances in Amsterdam or Ljubljana.

[24] “Tužiteljstvo traži istragu o anketi ‘biste li ubili Lučina’ (Public Prosecutor’s Office Insists on Investigation in the Case of the Survey ‘Would you kill Lučin’)”, Vjesnik, Zagreb, 14. January 2004; p. 28.

[25] Umberto Eco. “Fictional Protocols”. In: Six Walks in the Fictional Woods. Harvard University Press, Cambridge, Mass., 1994; p. 121.

[26] Quoted from the constitutional court’s order, ibid.

[27] “I bring a box with a banknote, smeared in my blood. Your money became a work of art, entitled You know exactly what you want. You can buy it. It goes to the highest bidder. Interested? It’s not a painting or a print or a statuette. It’s an art-piece that was created during the performance. It bears the vestige of the story we experienced together, same time, same space. It’s the manifestation of the 10 unrepeatable minutes we had together. That is why you and I value it and now you can buy it. Interested? Let’s start at 20,000. Can someone offer 21,000 tolars? I understand that what happens on stage sometimes comes across as false, with a scent of metaphor. If someone is killed on stage, you probably don’t believe them dead. You believe in the idea of death. Forget it. That’s not what’s happening now. This is for real. This isn’t a scene…  OK, it is a scene in which I, Katarina Stegnar, the author, am selling my work of art and you can buy it. Anyone interested? The offer lasts ’till the end of the show. Thank you.” (Katarina Stegnar: “Auction”; thanks go to director Bojan Jablanovec, who kindly gave us this excerpt from the text.)

[28] A sample contract: “Association Via Negativa, Gruberjevo nabrežje 14, Account no: 05100-8010573865, Tax no.: 71858253. Buyer: —-. Contract of sale of an art work. Contract no.: INC-04/04. Date: 22.dec.2004. I hereby affirm the acquisition of the work of art entitled: VI VESTE, KAJ HOČETE (You know exactly what you want), by Katarina Stegnar, carried out during Via Negativa’s performance: INCASSO, on 22.12.2004 at Glej theatre and oblige to pay the agreed upon price to the account below in the amount of SIT —-. VAT not accounted in accordance with article 45 of the VAT Code. Please pay the full amount in eight days from signing to: 05100-8010573865, Abanka d.d., Ljubljana. Buyer: —-. Seller: Via Negativa, Ljubljana, producer: Špela Trošt. (Thanks go to director Bojan Jablanovec, who kindly gave us this sample contract.)

[29] The author’s personal correspondence with director Bojan Jablanovec, January 13th, 2005.

[30] “A statement not meant seriously, often referred to as a joking statement, is made without serious intent and not expected to be believed. The motive behind uttering such a statement plays no role. The presumption behind such a non-serious statement is that at a cursory glance it can be understood as a statement of will. If it is very clear that it is intended to have no legal consequences (such as a statement made on stage during a play or one ex cathedra during a lecture), then there is no doubt it has no legal consequences.” Obligacijski zakonik s komentarjem. Splošni del, 1. knjiga. (Code of Obligations: commented edition, general part, vol. 1) M. Juhart and N. Plavšak. Založba GV, Ljubljana, 2003; p. 362; author of commentary to article 50: M. Dolenc. The author is grateful to Neža Kogovšek for pointing out this important reference.

[31] Further complications could arise from the question of authorship. Is the actress the only owner of author’s rights if the work of art was created during a co-authored performance (by the actors and other collaborators, for example Bojan Jablanovec as director and author of the concept)? There is also the question of how both moral and material rights are distributed between actress, other collaborators, the producer and the buyer.

[32] “The Code of Obligations does not clearly state whether a statement meant non-seriously and understood by the receiver as serious, has any legal consequence. That the seriousness of the statement is a presumption to its legal effect could be derived from the 2nd paragraph of article 18, wherein the statement of will must be made freely and seriously. Cigoj believes [Stojan Cigoj. Komentar obligacijskih razmerij (Relationships of Obligation: a commented edition). ČZ Uradni list SRS, Ljubljana, 1984-1986; p. 272] that, according to our law, such a statement should not be binding. A non-serious statement of will might, however, imply an inadmissible act, the misleading of another party due to negligence, creating legal responsibility. Such a notion can be agreed with.” (Obligacijski zakonik s komentarjem, ibid., p. 362.)

[33] In his article “Politicisation of Law” Jean-Louis Genard states that “the legal system is dominant to the spheres connected with it, but fighting for their autonomy. Because the power relationships are very asymmetrical, these spheres are in danger of getting their own logic suppressed by legal logic.” In: Pravo in politika (Law and Politics). Edited by: Jelica Šumič Riha. Liberalna akademija, Ljubljana, 2001, p. 134.)

[34] “When art gains autonomy, it cannot take any (dominant) ideology as its ideological basis; it founds itself on itself as its own ideology. But since the prevailing ideology of capitalism is the exchange of commodities, the modernistic autonomous moment is only a transitional phase: when art takes itself as its own ideological base, the inevitable next step is for it to found itself on the artistic ideology as the ideology of exchange. Art begins to understand itself as commodity…” (Rastko Močnik. Raziskave za sociologijo književnosti [Researches for the Sociology of Literature]. DZS, Ljubljana, 1983, p. 204.) A more detailed derivation of this early thesis supplemented by the concept of artistic “secondary elaboration” is to be found in Močnik’s recent article ‘EastWest’, published in Maska, Ljubljana, summer 2004, no. 3-4/86-87, p. 10-19.

[35] The Slovene language differentiates between two adjectives, “umetniško” (meaning artistic in reference to a person, “the artist”) and “umetnostno” (meaning artistic in reference to the institution or the system of art). It is therefore possible to claim that according to the legal code of the Republic of Slovenia, the key question in answering whether someone might be entitled to artistic immunity would be whether or not he or she can claim to be an “artist”. Such a conclusion might be deduced from idioms like “artistic freedom”, “the freedom of artistic creation”, etc.

[36] Moses I. Finley. Democracy Ancient and Modern. Revised Edition.Rutgers University Press, New Brunswick/London, 1985 [1973]; p. 136. – We are grateful for this reference to Maja Breznik. Cf. her Obrt in učenost: topografija renesančne gledališke prakse (Artisanry and Erudition: topography of the Renaissance theatre practice). Zgodovinsko društvo za južno Primorsko in ZRC RS, Koper, 2002; p. 13.

[37] “Comedy in particular was a phenomenon without parallel to my knowledge: at major public religious festivals, managed and financed by the state, the playwrights were expected to ridicule and abuse ordinary Athenians and their leaders, the war effort and any piece of legislation that came to mind, as well as to treat the gods with an irreverence that few Sophists would have risked.” (Finley, ibid., p. 171.)

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"Uvod u studije performansa" je izborni kurs na prvoj godini doktorskih studija na grupi za Teoriju umetnosti i medija. Koordinatorka kursa je prof. dr Aleksandra Jovićević. Predavači na kursu su dr Aleksandra Jovićević i dr Ana Vujanović. Cilj kursa je upoznavanje sa aktuelnim temama studija izvođenja (performansa), aktiviranje stečenih znanja i njihova praktična primena u radu, stimulacija samostalnog teorijskog rada, kao i podrška kritičkom mišljenju, saradnji i otvorenosti za (samo-)problematizaciju.