Social Work: Politics, Police, and the Law in Art, Part 1January 14, 2010
In the Eyes and Ears of the Law: On Giving Voice to the Voiceless
Politics revolves around what is seen and what can be said about it, around who has the ability to see and the talent to speak. —Jacques Rancière 
The Limit of Law
In 1969, stand-up comedian and doctor of musicology Lou Gottleib deeded the 31 acres that comprised the Morning Star Ranch commune near Sebastapol, California, to God. Facing allegations that the commune was violating health and safety codes pertaining to organized camps, Gottleib claimed that the transfer of the deed was based on a “direct, wordless, heart-to-heart message” from God that “we all belong to the same planet and its name is The Open Earth.” Citing the God-given rights of anyone at all to use and share the land free and equally, Gottleib faced numerous charges stemming from building-code violations, tax evasion, unpaid fines, and a court injunction forbidding anyone but the owner to reside at the ranch. In 1970, after a series of legal battles and a defense that saw Gottleib arguing that failure to recognize the deed would violate his 1st and 14th amendment rights, a Sonoma County Superior Court ruled that the holder of the deed to the ranch “must be a person either natural or artificial in existence at the time of the compliance and capable of making title.”  Essentially ruling that, since God could not be proven to exist as either an individual or a corporation, God could not assume the responsibilities incumbent on a property owner as outlined by the state of California, the court rejected what amounted to an attempt to redefine legal concepts of ownership and property.
In 2003, in a spirit similar to that which motivated Gottleib’s failed experiment to open the land, San Francisco‑based artist Amy Balkin purchased 2.5 acres of land bounded on three sides by a wind farm near Tehachapi, California, with the intent to create a permanent international commons held in perpetuity for the people of the world. In contrast to Gottleib, however, Balkin’s attempts to open the land to everyone and no one are not through the transfer of ownership to an abstract or non-entity, but by artistically intervening in aspects of property law, copyright law, and licensing agreements with a specific focus on shared rights of use. This is the Public Domain seeks to ensure universal access and the right to share land among a potentially infinite community of users, effectively constructing a definition of “the commons” as a legally protected entity. Establishing a Public Land Trust, designed to conserve the commons as an endangered form of social space, and a Limited Common Property Regime framing the Public Domain as “a rare legal space for the collective holding of land” are two examples of the legal maneuvers Balkin is pursuing as part of this work. 
Likewise, the application to the land of laws governing the sale and reproduction of artwork provide the artist with another plausible means of circumventing the restrictions inherent in property law, which are constructed to uphold private ownership and rights of exclusion.  However, Balkin’s strategy to release the land into the public domain as a process-driven conceptual artwork cannot provide an adequate legal solution due to the fact that conceptual artworks cannot be copyrighted except through reproduction rights. A subsequent notion to open the land relies on an expanded reading of the term reproduction, whereby the land itself can be considered an extension of a sculptural object. In this case, the sculpture/land can be “reproduced” ad infinitum in the act of being given away. Yet this solution likewise falls short due to its dependence on an easement, in which case, the artist would still retain ownership of the property. However, before any potential attempt to hand over the land can take place, Balkin must first secure the mineral rights to the land, currently held by Bank of America—likely no easy task. Indeed, the various strategies that Balkin has developed in the past seven years have not been tested extensively in part due to the looming prospect of a drawn-out court case and the legal fees that would be associated with such an undertaking.
While This is the Public Domain is exemplary for the way it demonstrates a mode of creative resistance, it also highlights the limits of law and government in addressing our concepts of property, social space, and ecology (to name a few) at a fundamental or far-reaching level. Furthermore, the work problematizes notions of open access as a universalizing narrative, what Balkin describes as “a tool to wrest ... and deny historical and political claims to land.”  In complicating notions of what a public or community can make recognized claims to land, determine how it is understood and adjudicate its use, the work begins to engage our notions, at a structural level, of who can participate in politics and whose voice is considered in the arena of law and government in the first instance. After all, as Michael Warner tells us, some publics are more likely to stand in for "the public" than others.  As an example of artistic practice’s capacity to negotiate the tensions between the movement-based activities of social groups, publics, and political communities on the one hand, and the specificity of governing techniques and modes of subjectification on the other, This is the Public Domain points to a concept of politics that has little to do with the formal domain of government or law.
Understood in this sense, politics does not consist of the protracted negotiations between parties of mutual or differing interests within established arenas of conflict, nor as a series of administrative functions, public debates, and juridical strategies aimed at increased or limiting rights for populations. Rather, politics so conceived is nothing more or less than the unyielding expression of equality among subjects, the incessant demand to “count me in.”
How does artistic practice play a role in making this demand? How does artistic practice assert equality and make individuals who have been effectively excluded, overlooked, and uncounted in the realm of law and governance visible, countable, and heard in the realm of politics? While Michel Foucault suggested that aesthetic practices could institute moments of confrontation and struggle simply by keeping grievances “in the eyes and ears of politics,” writers as widely divergent as Claire Bishop and Grant Kester have taken up the implications of the idea that an artist and/or artwork can function as a conduit through which individuals and/or communities can acquire voice.  However, the question of whether artistic practices can, in fact, demonstrate the equality of individuals who have been systematically denied a voice in matters of governance, frequently takes a back seat to the critique that the expression of a grievance or the making of a claim to have a voice in matters of governance does not necessarily ensure its redress in the form of increased rights, social services or state/federal funding.
In his 2003 essay, “Liar’s Poker: Representation of Politics/Politics of Representation,” Brian Holmes cites the work of Gran Fury in the 1980s and Ne Pas Plier in the 1990s as examples of “the endless capacity of people who do not occupy positions of elite power ... to project their messages nonetheless, by means of signs, images and gestures.”  Yet he goes on to state that
[today] the greatest symbolic innovations are taking place in self-organization processes unfolding outside the artistic frame. And it is from the reference to such outside realms that the more concentrated, composed and self-reﬂective works in the museum take their meaning. The only way not to impoverish those works, or to reduce them to pure hypocrisy, is to let our highest admiration go out to the artists who call their own bluffs—and dissolve, at the crisis points, into the vortex of a social movement. 
Thus, it is not necessarily the “symbolic innovations” themselves that have political resonance, but rather, the social relations produced by them that constitute their politics. Going beyond assertions of equality in the politics of representation, Holmes privileges the “true” political content of artistic practices embedded within the context of social movements working to produce structural change.
Yet, as Wendy Brown and Janet Halley note in their book Left Legalism/Left Critique, even projects that seek increased rights or other forms of legal redress for populations run the risk of normalizing practices, reproducing exclusionary mechanisms, and founding new techniques of domination. For example, while This is the Public Domain could potentially set a legal precedent for the institution of the commons as a protected legal entity, it could also have the effect of diminishing historical and political claims to land. It is somewhat paradoxical, then, that politics (and by extension, the political in art) is most often conceived of as the negotiation of material interests or the struggle for rights and not as a narrowing and expanding of the political field itself. That is to say, as a narrowing or expanding not only of arenas of contestation, but who can participate in the contestation itself.
Voice to the Voiceless
Philosopher Jacques Rancière’s notion of the politics of aesthetics as the “distribution of the sensible” is a way of describing the ways that artistic/aesthetic practices can condition the field of politics precisely for the way that they can expand and narrow, include and exclude what is visible, sayable, and sensible, and by whom. The “distribution of the sensible” is the forms of sense perception in which an individual may be included or excluded, recognized or unrecognized, according to their position within the community. Aesthetics, here broadly considered as the different ways that the world is registered by/on bodies, simultaneously reveals the existence of a world held in common by a community, and the delimitation of roles, spaces, and times within the community itself. It is through this dual function of aesthetics that two processes can be described; namely, the aesthetics of politics and the politics of aesthetics.
The aesthetics of politics is such that the sensorium is organized according to who does or does not have a legitimate claim to a share of what is common to the community. While certain subjects are marginalized to the point that they do not count as individuals with a voice and a stake in that sharing, others only acquire personhood in relation to their illegality, according to their transgressions.
An articulation of that wrong can be seen in Untitled (Tenderloin, November 2009), a video by artist Alex Wang. This short video is a series of vignettes in which the artist, who recently moved to San Francisco’s Tenderloin district, dons a paper wolf mask while violating 30 state, federal, and city laws, including possession of a switchblade, playing ball in the street, public consumption of alcohol, and the possession of a flammable balloon. In the context of the Tenderloin—a district most frequently associated with sex work, ubiquitous drug use, and a transient population composed of homeless people as well as indigent and immigrant workers—the act of breaking these and other such laws measures the gap between
Amy Balkin. This is the Public Domain, 2003–present; documentation photo. Courtesy of the Artist.
the ways legitimacy and legality are assigned to populations. In addition to laws “which most of us transgress on a daily basis,” Wang chose to break those “explicitly directed at the disenfranchised ... laws so absurd as to question the basis of their existence.”  Indeed, public urination laws disproportionately apply to individuals who, to use a turn of phrase, don’t have a pot to piss in. Similarly, obstructing a sidewalk and the illegal disposal of “residential trash” are relatively easy to do for those individuals who are forced to constantly carry all of their possessions on their person.
Demonstrating the ways in which subjects are integrated into the social order only according to their capacity to break the law, Wang’s video recalls what Rancière calls the “police,” or the distribution of legitimacy and illegitimacy among a population. This naturalized and legitimating order, whereby bodies appear either as valid, speaking political subjects or invalid, illegal, and speechless animals, constitutes the fundamental exclusion of democracy: the division of populations into those that count and those that do not. In contradistinction to the mandate forwarded by Claire Bishop that a critical art becomes political or democratic according to its expression of social antagonisms, this notion of politics posits a fundamental antagonism—that of the aesthetic exclusion of certain individuals from politics at all—as the condition both for political speech and the (aesthetic) reconfiguration of the police order.
While Untitled (Tenderloin, November 2009) acquires its humor from a deadpan, almost mechanical performance coupled with the romantic myths of the “lone wolf” and “living outside the law,” it gains force by demonstrating the contingency of the various subject positions articulated through police claims to membership within a community. For Wang to appear as integrated or a member of the community of the Tenderloin is at once based in a specific way of not counting, a position defined by criminality and the denial of speech by being made “animal.” In order to count, he had to make himself not count.
Appearing equal in the eyes of the law, yet unequal everywhere else, the Tenderloin’s community of "criminals, degenerates, and illegals" that have been denied a voice, a stake, or a share in the world cannot, by its very existence, correspond to any concept of human equality. To claim otherwise would reinforce the notion that an inequitable hierarchy of speaking beings occurs naturally, and would destroy any "legitimate" claim to community. In demonstrating the arbitrariness of the social order and the laws governing when an individual counts and when they do not, Untitled (Tenderloin, November 2009) does not reinforce the marginalization and/or vilification of these subject positions; rather, it points to the wrong instituted by their exclusion from the community of speaking beings in the first instance.
This is what Rancière has described as the politics of aesthetics: making the positions of multiple subjectivities, visible and sensible as “members who have a part in the sharing of what’s common.”  It is in this sense that aesthetics can restructure police-order claims to legitimacy; it is the assertion of a position in the community apart from any naturalized or police ordering, the process of making any given subject position non-identical to itself and the misidentification with received concepts of what one can or cannot do or be. It is thus that politics is always a politics of the subject. And this is precisely the reason why the politics of aesthetic/artistic practices can be considered apart from their overtly political content. The politics, for example, of Untitled (Tenderloin, November 2009) is not that of breaking the law and whether that is good or bad, ethical or unethical. Rather, it is the temporary suspension of the police ordering of bodies that it enacts and makes visible. It is the wholesale rejection of the ways in which criminality is applied to certain bodies as way of reinforcing inequality.
As ways of disrupting the formal and operational logic of the law, the two projects by Balkin and Wang refuse the very order on which the activities of government and "politics" are based. As articulations of the exclusions at the core of democratic practice, they voice, on behalf of the community of speaking subjects who have been denied full entry into the political arena, a grievance. As a way of negotiating the appearance and forced disappearance of roles, spaces and times within the context of a naturalized and legitimized order, artistic practice can thus be considered a means of giving voice to the voiceless: a way of saying “count me in.”
 Rancière, Jacques. The Politics of Aesthetics, Gabriel Rockhill, Trans. (London: Continuum, 2004).
 A full list of pros and cons for each strategy can be found on the project website.
 Amy Balkin in conversation with the author, San Francisco, January 7, 2010.
 Warner, Michael. Publics and Counterpublics (New York: Zone Books, 2005).
 Foucault, Michel. “Confronting Governments, Human Rights” in Essential Works of Foucault 1954-1984: Power, James Faubion, Ed. (New York: The New Press, 2000).
 Holmes, Brian. “Liar’s Poker: Representation of Politics/Politics of Representation” Springeren 1 (2003).
 Alex Wang in conversation with the author, January 2, 2010.
 Rancière, Jacques. The Politics of Aesthetics.
Top, Cover: Alex Wang. Untitled (Tenderloin, November 2009), 2009 (video still). Courtesy of the Artist.
Matthew David Rana is an artist and writer based in Oakland. His recent projects are a form of social documentary and reportage. Part of a broader investigation into counter-narratives, his comics, newspapers, videos and ’zines deal with issues surrounding economic participation and involvement in public life. His most recent project, “The Autobiography of Ernest Patrick Butler: His Battles with God, Life and Self,” is a comic book co-authored with Rick Butler, a man who sells crocheted hats at the MacArthur BART station, where he lives. He is currently pursuing a dual MFA/MA in Social Practice and Visual & Critical Studies at the California College of the Arts.