Category: Article

Agamben’s theory of the homo sacer has become a central theoretical perspective on sovereign violence especially after the 9/11 attacks in 2001. In his study Homo Sacer: Sovereign Power and Bare Life (1998), Agamben proposes the sovereign and the homo sacer as enduring and mutually constitutive poles of rule that can be identified throughout Western history. He understands the homo sacer (sacred man) as a carrier of bare life – a person who may be killed by all and sacrificed by none as ze is arrested at the threshold between the inside and the outside of the law. Because the sovereign, too, exists at the threshold of the inside and outside of the law, the sovereign and the homo sacer stand in an ‘ideal relationship’ (Vasilache 2007) as the inherently active sovereign constitutes hirself as sovereign through producing the inherently passive and all-enduring homo sacer. Agamben proposes this constellation in order to formulate a philosophical critique of Western understandings of life in general. He fundamentally attacks any understanding of life that is tied to political representation in order to be considered life in the first place. In order to formulate this larger point, he uses the example of totalitarianism (in Hannah Arendt’s sense) as the most suitable example to illustrate his argument. Arendt’s construction of a totalitarian sovereign is intimately linked to the Holocaust and thus to a disturbingly literal distinction of human life worthy or unworthy of living – a distinction that, in this particular case, is widely accepted as problematic to say the least. Agamben uses this impressive example to render the concentration camp a symptomatic syndrome of modernity and to conclude, essentially, that any political order based on the logic of political representation in a Hobbesian sense carries within itself a pronounced totalitarian element.

In the humanities of the United States and beyond, this argument has been especially fruitful in making sense of institutional torture scandals such as, for instance, those of Guantánamo Bay and Abu Ghraib. From the start, Agamben’s philosophical point has been read as a position from which a radical systemic critique could be formulated within Western modernity. However, this quite intentional interpretation of his theory raises the question of the critic’s own position in relation to the sovereign-homo sacer relationship. How is it that the critic can not only identify the ‘true’ nature of representative sovereignty as one that necessarily constitutes itself via homines sacri, but that ze can also formulate this critique from a position that successfully claims a detached outside perspective – despite the fact that the critic tends to operate from within this criticized structure? How can we bring together the critic who is inside of the law with an assumed perspective that stands without it, and how can we understand the particularities and problems of this position?

In this essay, I propose to complement the dual relation between the sovereign and the homo sacer with the relationship between pirate and privateer who also traditionally constitute each other at the threshold between the inside and the outside of the law, albeit in a different way. This ‘second’ threshold which is made visible by pirate and privateer is not one that constitutes sovereignty as sovereignty, but is one that renders certain forms of reference to sovereignty by violent actors within the state of exception potentially legitimate to the sovereign, and therefore worthy of re-inclusion in the law. This second threshold between the inside and the outside of the law indicated by pirate and privateer will be treated here as not one that contradicts, but rather complements the sovereign-homo sacer threshold suggested by Agamben. It helps pinpoint the critic’s own suggested legitimacy, and hir relationship to the representative sovereignty ze critiques but also speaks to, in an attempt to make hir criticism of the sovereign understood as ‘constructive.’

In order to pursue this argument, I will first elaborate on the properties of privateer and pirate that I will foreground (they, too, will be treated as if they existed in an ‘ideal relationship’ to each other as well as to the law), and then exemplarily re-read Agamben’s interpretation of a lay of Marie de France in his study Homo Sacer. In this reading, it will become evident that Agamben already implies this second distinction at the threshold of the law, but that he does so selectively. By this selection, he renders invisible a central aspect of the sovereign ban, the key concept by which the production of homines sacri is executed. I will conclude from my reading that Agamben’s criticism of totalitarianism does not undo the problem of the ban, but that it itself relies on a very specific naturalization of the ban – namely, the ban associated with an anticipated revolutionary ban of representative sovereignty itselfan. It is his naturalized treatment of the utopian revolutionary ban, I argue, which allows Agamben to pose as a Western critic who stands above and beyond the totalitarian logic of representative sovereignty without actually leaving the fold of the representative order. He does not, however, solve or even sufficiently address the philosophical problem of the ban itself.

The Pirate-Privateer-Divide and the Nature of the Sovereign

To use the pirate as the missing link to Agamben’s theory is not an altogether new idea. Daniel Heller-Roazen, Agamben’s English translator, has been the first to link the pirate to Agamben’s theory of the homo sacer in his study The Enemy of All of 2009. In Heller-Roazen’s argument, the figure of the pirate – the title-giving ‘enemy of all [humankind]’ – appears as a legalist vehicle to enable and facilitate the sovereign identification of homines sacri. Heller-Roazen addresses the question which persons or populations may in fact be most vulnerable to an identification as homines sacri, and by which standards they are made vulnerable to the ban. Theoretically speaking, his pirate is essentially a potential homo sacer rather than a separate entity in hir own right (2009: 17-18, 95, 160-161, 180, 187-189).

In pirate law, the status of the pirate as a potential homo sacer can be largely derived from the legal concept of universal jurisdiction, a notion which Heller-Roanzen refers back to concepts of piracy in Antiquity (2009: 17-22). The specifically modern notion of universal jurisdiction has been linked to piracy at least since 1705 and means that, because the pirate as an enemy of all humankind constitutes a universal threat, every sovereign may destroy hir anywhere and by any means necessary – that is to say, even if a foreign pirate has molested foreign subjects in a foreign territory (Rubin 1997: 103-104). In singular deviation from customary limitations of a sovereign’s control (especially over foreign territories and populations), universal jurisdiction against pirates allows sovereigns to intervene violently as well as legitimately against them anywhere. This pirate-specific legal situation indeed renders the pirate a figure that may be killed by all and sacrificed by none – and that is arrested at the threshold of the law by design.

Nevertheless, the pirate is distinct from the homo sacer in an important sense: namely, that the pirate chooses to stand between the inside and the outside of the law. This aspect requires some specification. In contrast to Antique models of piracy which are overwhelmingly explicit about the sovereign elements of piracy (largely because pre-modern pirates tend to be entities such as coastal clans and predatory city states), the modern notion of piracy is legally derived from the construction of the privateer. The institution of privateering fundamentally structures maritime warfare between the thirteenth and the nineteenth centuries, and is itself located in a legal realm that could be described, with Agamben, as a state of exception. The main idea behind the creation of the privateer has been to prevent any random assault on maritime shipping triggering fully-fledged warfare between sovereigns. The privateer, by hir very legal essence, stands both inside and outside the law so as to prevent the necessity of sovereign protection of both the privateer and hir victims at sea. In other words, the privateer, even more so than the pirate, is purposefully designed to be an entity whose position is impossible to pinpoint conclusively within the representative sovereign structures ze violently interferes with.

In contrast to the pirate, the privateer is not recognized as such after hir first attack at sea, but from the first time ze leaves port: the privateer is a privately equipped man-of-war that is tied to the sovereign by contract. The contract traditionally states that enemies of the sovereign and their allies may be molested by the privateer, whereas the subjects and specified allies of the sovereign hirself must be left unmolested. In return, the privateer finds safe haven in the ports of the sovereign, where ze can make repairs, recruit sailors, and sell hir plunder at a profit. When in port, the privateer must also pay a percentage of hir profits to the sovereign, and it is this gesture which actualizes the validity of the contract whenever the privateer comes to port. Correspondingly, the promise of protection by the sovereign is also limited to the port, where protection is conditioned by the previous existence of a contract as well as its renewed validation. When at sea, the privateer alone bears the risks of hir trade; if ze is captured, the early modern sovereign can (and more often than not, does) disavow the privateer and leave hir to hir captors, who then proceed to try hir as a pirate.

In this sense, the privateer may be killed by all as a pirate, but is sacrificed by none as the member of an official army – this is a notable difference to the professional navies that begin to emerge in the mid-eighteenth century as men-of-war permanently protected by the sovereign. The privateer can be understood, for the purposes of this essay, as a homo sacer who is endowed with the ability to use violence actively, and who strategically uses violence and its ends to re-enter the law repeatedly.

The privateering-derived pirate is very basically defined as one who ignores the privateering contract by not refraining from molesting the subjects and allies of any sovereign. Ze is an enemy of all humankind in the sense that all, rather than almost all, ships at sea are potential prey to hir. While the pirate at sea is arrested in the same state of exception as the privateer, hir decision to commit violence is not strategically geared towards perpetually re-entering the law. Instead, hir violence in the state of exception is sovereign in the sense that it constitutes hir as a third entity whose violence is exclusively a marker that identifies hir as pirate. Early modern thinkers have anticipated Agamben’s argument on the sovereign-homo sacer relationship insofar as they have recognized this constitutive dimension of violence at sea as quasi-sovereign. The pirate is legitimately destroyed by the sovereign because of hir active choice to exercise violence against populations that is to some extent indistinguishable from the sovereign production of homines sacri. For this reason, scholarship on ‘classic’ modern piracy (white, Christian, colonial, homosocial male, and privateering-derived in its core definition) has highlighted time and again that the pirate is both a potential homo sacer and a potential sovereign – and thus a more complex figure in relation to Agamben’s theory than Heller-Roazen, for example, allows. It is in this spirit that Montesquieu, for example, views the pirate band as the embryonic version of any representative sovereign order, and squarely identifies the pirate as a potential sovereign by hir very nature (1748 [2010, 362-364]).

In this sense, the threshold of the law opened up by pirate and privateer draws attention to the general theoretical problem that it is not only the Agambian sovereign who can reduce humans to bare life. In the case of pirates and privateers, sufficient philosophical and legal discursive tradition is in place to make these maritime cases theoretically relatable to Agamben. In the case of pirates and privateers who operate at sea, extra-sovereign violence in the state of exception is automatically committed; the state of exception is in place as soon as a committer is a privateer or a privateering-derived pirate because these entities are precariously bound to the sovereign by design. They are distinguished from each other, however, by their different position towards the sovereign while at sea and while in port. In Western privateering and pirate law, a distinction is made between legitimate violence that is geared towards re-entering the sovereign law, and illegitimate violence that occurs in the state of exception on the basis of choices not geared towards re-integration. The pirate, by not submitting to the law either in practice or in reference, rivals the very sovereign prerogative of constituting hirself by the reduction of others to bare life, and by hir threat to even reduce the sovereign hirself to bare life if possible. Accordingly, hir arrival in port may very well result in invasion rather than in a plea for sovereign protection.

Re-Reading the Sovereign Ban in Marie de France’s Bisclavret

So far, my argument about pirates and privateers may read like a theoretical intervention that has little to do with the position of the critic in Agamben’s Homo Sacer. However, I claim that Agamben constantly uses the theoretical premises of the pirate-privateer distinction to structure the overall perspective of his argument. As a case in point let me draw attention to the chapter ‘The Ban and the Wolf’, and a passage within it that is particularly illustrative of the link between the two thresholds in his argument. In this example, Agamben interprets a piece of literature to help illustrate central relationships postulated by him; he concretely identifies specific figures within this text as epitomes of sovereign and homo sacer. It is on the basis of the original literary text that I will more directly link the privateer-pirate relationship to Agamben’s theory of the sovereign-homo sacer relationship.

The lay Bisclavret, written by the poet Marie de France in the twelfth century, is the story of a baron (who is, in Agamben’s reading, the homo sacer) who is close to and loved by the king (the sovereign) but periodically leaves the realm to roam the forest as a werewolf. When he tells his secret to his wife, she conspires with another knight, soon to be her lover, to steal her husband’s clothes while he is in his transformed state. His clothes gone, the baron’s ban is complete as he has to permanently remain in animal form. One day the king goes hunting and comes across the werewolf. Since the wolf exhibits extraordinary servility, the king takes him in as a soon-beloved pet. When the deceitful baroness appears at court sometime afterwards, the wolf attacks her and bites off her nose. Because the wolf’s exhibition of violence is so uncharacteristic, the court proceeds to interpret it; the baroness’s treachery is discovered, the wolf is transformed back into a man, and the baroness and her lover are permanently banned by the king. The baroness’s ban is, in fact, so permanent that even her children inherit her lacking nose. Agamben himself, who omits this last piece of information about the lay, highlights two points about this story:

‘[First, w]hat is essential here is the detail […] of the temporary character of the metamorphosis, which is tied to the possibility of setting aside and secretly putting on clothes again. The transformation into a werewolf corresponds perfectly to the state of exception, during which (necessarily limited) time the city is dissolved and men enter into a zone in which they are no longer distinct from beasts. The story also shows the necessity of particular formalities marking the entry into – or the exit from – the zone of indistinction between the animal and the human (which corresponds to the clear proclamation of the state of exception as formally distinct from the rule). […]

[Second, t]he special proximity of werewolf and sovereign too is ultimately shown in the story. [When the werewolf sees the king in the forest,] he runs toward him and grabs hold of his stirrup, licking his legs and his feet as if he were imploring the king’s mercy. Amazed at the beast’s humanity […], the king brings him to live with him, and they become inseparable. The inevitable encounter with the ex-wife and the punishment of the woman follow. What is important, however, is that Bisclavret’s final transformation back into a human takes place on the very bed of the sovereign.’ (1998, 107-108)

When we read his interpretation in light of the pirate-privateer relationship that I have just sketched, we are immediately alterted to several particularities in the emphasis of Agamben’s analysis. First, he is only interested in one of the two bans presented in the lay, namely that of the baron, and is dismissive of the ‘inevitable’ ban of ‘the woman.’ Second, he focuses on that ban which is caused by the extra-sovereign ‘nature’ of the baron as a werewolf, whereas he refrains from discussing the ban that actually results from a sovereign decision. Third, the ban he focuses on is a ban which – and this is ‘essential’ here – inherently allows for a reintegration into the law because it is linked not to the sovereign decision but to the inherently limited sovereign control over the forest. Fourth, the lay, as well as Agamben, emphasizes the love that continues to inform the relationship between king and baron across the baron’s various incarnations as man-wolf, wolf, and as we may presume, fully restored man.

Especially the third and fourth points show that the properties of the homo sacer that Agamben carves out in this particular example share important characteristics of the privateer. The privateer is an extra-sovereign entity not by explicit sovereign verdict, but by design; this design is, moreover, linked to the nature of the sea as a space inherently beyond full sovereign control.

Also, the privateer’s ability to move in and out of the law is made possible by his constantly renewed actualization of allegiance to the sovereign both at sea, where he refrains from attacking the sovereign and hir allies (consider the first encounter of the werewolf with the king and his hunting party), and especially more particularly in port where the privateer actively and repeatedly proves hirself a loyal subject (consider the werewolf’s behavior in court that is characterized by docile gestures as well as the active exposure of the baroness). In other words, the love that exists between king and baron throughout the lay is the central premise for the possibility of re-transformation into a human being or, as it were, into a life that satisfies the principles of political, rather than bare, life.

But what about the baroness? Why is her ban omitted from the analysis, and why is the sovereign decision to ban her – which is permanent enough to reach across the noseless generations – not important to Agamben? Perhaps the problem is that in contrast to the baron, her relationship to the sovereign is not at all clear. It is she, not the king, who actually makes the decision to ban the baron into permanent animal form: other than the baron, she is not merely banned passively, but she both bans and is banned. Her position within the entire complex of the ban in the lay renders her both a potential sovereign (who constitutes hirself by hir ability to ban, however incompletely in the baroness’s case) and a potential homo sacer (who is in acute danger of being banned, a danger that also materializes itself in the lay). If the baron shares central features with the privateer as ze was defined here, the baroness shares central features with the pirate as an entity with a potential to sovereignty as well as an existence as a homo sacer.

Let me reformulate the story’s plot once more. Faced with the discovery of her husband’s transformative nature, the baroness trespasses on the king’s prerogative to ban, and sets the story in motion by arresting her husband in the state of exception (with the assistance of her lover, who is, and remains, her informal vassal just as the baron is, and remains, a formal vassal to the king). In relation to the baron, the baroness assumes the role of a sovereign because she permanently arrests him in the state of nature. This is precisely why the banned werewolf must now make an explicit effort to appeal to the king that involves her actions against him. When in wolf-man form, he had always been able to return to both wife and king; after his wife has actively banned him, he must now appeal to the king to actively lift her ban from him. The king readily accepts the wolf’s submissive gestures. The wolf’s submission to the king is described as total (as in the vivid example of feet-licking), but it does not in fact reduce the baron to helpless passivity: instead, siding with the king is the only option he has to avenge himself and to be returned to human form. Since the baroness has banned him in a gesture of sovereignty, to expose her means to alert the king to an encroachment on his own sovereignty. The king can only respond in one of two ways: either by banning her in her own right, or by officially endorsing the baroness’s claim that the sovereignty of the king over her and the baron, as well as her loyality vows to her husband, are meaningless. The werewolf’s need for re-transformation and revenge, and the king’s need to reconstitute himself as the only one who may actively arrest people in the state of exception, both require the baroness’s permanent transformation into a homo sacer. Indeed, the simultaneity of these desires is constitutive for the lay’s neat conclusion of a good order being fully restored.

Agamben postulates that the baron in his werewolf form is a homo sacer – and always only temporarily so, as he emphasizes – but it is worth noting that this figure is first and foremost identified as a baron in the lay, in other words, as a figure primarily defined by his service to the king. This is strongly indicated both by his constant servility towards the sovereign and by his violence on behalf of the sovereign. The aspect that allows the baron’s constant transition back and forth is based on the implicit assumption that both sovereign and privateer always remain invested in upholding and stabilizing the realm of the law in general principle, even though they act outside of the regulating reach of the law whenever they actualize themselves as sovereign and privateer. The privateer, in this sense, is an unrecognized representative of the sovereign wherever ze goes. All ze needs to be transformed back into a recognized representative of the sovereign is the renewed sovereign verdict that ze is in fact such a representative. The privateering character in this lay proves hir allegiance by exposing a piratical character who only pretends to be representative of the sovereign king but in fact does not have his interests in mind.

It is, indeed, the baron’s biting off the baroness’s nose that is the defining moment of the story, for two reasons. First, it is only his violence against her that exposes her as an illegitimate imposter to the king’s sovereignty. The docile werewolf in the lay shows uncharacteristic and surprisingly violent aggression against the invasive carrier of (concealed) piratical imposition. Only because this violence begs interpretation that explicitly takes into account the baron’s own unwavering loyality to the king, is the baroness’s piratical imposition on the prerogative to ban detected as such.

Second, it is this rather than any other act which begins his re-transformation. It does not in fact matter whether the transformation back to human form occurs on the king’s bed, the king’s floor, or in the king’s vegetable garden. Instead, what brings the baron back to human form is his offering of the baroness as the one who should take his place in the permament state of exception. What actually frees the privateering homo sacer in this lay is the exposure and subsequent offering of this pirate as someone who should be banned, and is in fact banned (without much comment from Agamben except that it was to be expected). The privateering character in this lay may change hir status not by servitude, but only by actively exposing a piratical imposter to sovereignty.

The transformation of the homo sacer lost at sea into a privateer returning to port and offering hir prey to the sovereign – the identified pirate, a genuine and manifest threat to the sovereign – is a grim and problematic passage because it makes clear that it is not in fact the proximity to the king which reverses the ban. This is not a story of a homo sacer who is rehabilitated out of mercy, gratitude, or the sovereign recognition of his allegiance. The baron spends considerable time as the king’s submissive pet without being re-transformed. It is instead the story of a rehabilitation brought about by the offer of an exchange. The baron is released from the state of exception only because he can offer the baroness as someone who can be banned in his stead. Because he was banned into permanent werewolf form by her personally, and is able to expose this act as an act of sovereign encroachment, the king rewards him by simply reversing their places in terms of the law.

As becomes obvious now, the ability to return comes at a price. The baron demonstrates – indeed, must demonstrate – throughout the lay that the violence of the ban he experiences does not change his attitude towards the sovereign ban as principally just. It does not seem to be problematic to him that his king constitutes his sovereignty by the very method of the ban that the baron himself has suffered and from which he desperately tries to free himself. Having access to a ‘port’ at least once offers the opportunity to escape a permament state of exception, but the price is to actively and continuously legitimate the existence of the state of exception as such. The privateering homo sacer has experienced firsthand what the ban means, and must still affirm it as unproblematic for the pirate ze delivers to the sovereign. The ban itself is not questioned or disabled as a notion at any moment. Instead, to accept the notion of the ban as legitimate in principle allows the homo sacer some leeway in renegotiating the violent consequences of the ban for hirself. The willingness to accept the ban as legitimate is proven by the baron’s plea to ban the baroness. Before he pleads this, he will not be re-transformed. It is this quid-pro-quo exchange of banning a pirate instead of the pirate-exposing privateer, this compromise which actively upholds the ban as a necessary aspect of re-transformation, which Agamben renders invisible by excluding the baroness from his analysis.

The Privateering Critic: Exposure on Whose Behalf?

Why is it problematic, then, that Agamben has not talked about the baroness? And what does this omission say about his own position as a critic, if it says anything? At this point, we come full circle to the philosophical argument with which we started, namely, that Agamben’s theory is a fundamental critique of representative sovereignty, and that the critique relies on the exposure of the totalitarian element inherent to it. This claim itself, I suggest, is a form of posing as a privateering homo sacer. As a gesture, it is quite comparable to the baron who bites off the nose of a secretly imposing baroness, and it, too, comes at a price.

Agamben, by attacking representative sovereignty through charging it with a totalitarian core, evokes the revolutionary removal of it – in other words, representative sovereignty’s own permanent ban. This tendency of the argument is best illustrated in a somewhat heavy-handed first sketch of Agamben’s approach to Arendt’s theory of totalitarianism, elaborated in the article ‘On the Limits of Violence’ of 1970. In this very early article, Agamben equates the notions of revolutionary and sacred violence; he claims that sacred violence is the only violence that can bring about an authentic revolution because it stands outside of history and can therefore truly end one time and bring about another one which follows different ontological premises. It may be somewhat unfair to compare the work of the Agamben of 1970 with the far more mature work of 1995, but what has certainly remained of his earlier work is the fascination with absolute relationships as a productive way to comment on the political present and the ways in which they have to be changed. In this sense, to identify these absolute relationships, such as the sovereign-homo sacer relationship, is in an important sense strategic – and if the theory of the homo sacer is the basis of a structural criticism, it too comes with a quid pro quo that precisely does not overcome the constitutive existence of the ban in any way. Instead, it obscures the continued existence of the ban as a constitutive factor even of the most fundamental critique.

Consider, for example, how Agamben’s theory has been made fruitful for analysis especially in U.S. American scholarship after 9/11. The breakthrough for the theory of the homo sacer in U. S. American scholarship came with an article by Donald E. Pease entitled ‘C. L. R. James, Moby-Dick, and the Emergence of Transnational American Studies’ (2002). In the article, Pease interprets C. L. R. James as a homo sacer who is detained on Ellis Island and is thus suspended in a state of exception by the Cold War security apparatus. Rather than raving about the injustice of his detainment, Pease relates, James writes a scholarly interpretation of Moby Dick which demonstrated that he, a homo sacer thrown into a state of exception by the Cold War security apparatus, in fact understands the essential American character better and is already more of an American than ‘they,’ who pose to act in the American interest, ever will be. The security apparatus, James’ critique and Pease’s interpretation likewise suggest, illegitimately pretends to speak in the name of that America on which it has imposed itself, whereas James appeals to the true American character, and pleads for his own release and recognition in exchange for exposing a totalitarian bureaucracy. The security apparatus, now glaringly exposed to the American people as a totalitarian imposter to national interest and character, is then suggested to be removed and overthrown (in other words: banned) instead of the literary scholar (Pease 2002), the immigrant (Kaplan 2005), the civilian caught in a Kafkaseque net of bureaucratic punishment (Butler 2004), or the foreigner randomly labelled terrorist (Heller-Roazen 2009). All of these interpretations constitute, in their more focused critique of U.S. American institutions, abbreviated versions of Agamben’s general suggestion that the only solution to the all-encompassing problem of representative sovereignty is a revolution that bans the system in its entirety.

Now, one could ask, what of it? Even if the fiction of a radical revolution that hurls representative sovereignty into the dustbin of history is a necessary theoretical vehicle, has it not on the other hand been fruitful in exposing a real theoretical problem in the concept of representative sovereignty? Did the baroness, in the incarnation of representative sovereignty, not have it coming to her by putting itself in the wrong in the first place? Do these critical exposures not finally allow us to think of ‘piratical’ systems as problems to be addressed since we have, after all, the welfare of our true king in mind – the overarching notion of non-objectified and non-excluded life? Do not these critics simply hope to be recognized as faithful privateers in the service of life itself, and can this possibly be called an ignoble cause?

I neither dispute the theoretical advantages of Agamben’s theory nor try to belittle the underlying concerns; to be invested in the cause of accepting life as unconditional is noble. However, to pose as a privateer in the service of life in the spirit of Agamben renders invisible, by the very premise of the theoretical construction, the fact that a massive ban of those piratical, illegitimate ‘totalitarians’ is naturalized as quite unproblematic within the critique. Such a ban seems ‘inevitable’ for a truly life-affirming utopian order, just like the lay’s removal of the unruly baroness is inevitable for arriving at a happy ending. There is an inner contradiction to be suspected in a theory that criticizes the sovereign ban as a totalitarian tool on the one hand, but does not address the ban as a condition of revolutionary critique on the other.

 

Lastly, there is another problem to be addressed which is, perhaps, more of a postscripted open question. If representative sovereignty is a general philosophical, as well as a political, problem that runs through Western history, and if it is a problem that requires urgent attention and perhaps even a solution, what can we make of the greater analytical problem that the Agambian critic remains a privateer in a pirate port? After all, do not all of the critics quoted in this essay, most prominently Agamben himself, profit from the benefits of, say, national representation? And do they not personally represent important and highly respected strands of academic scholarship, do they not represent their universities and their disciplines, and are their voices not heard much louder than others for that very reason? While these questions may be read as somewhat routine accusations of systemic hypocrisy, there is, I think, an important problem at the bottom of the slightly comical situation of the eloquent Western A-list scholar who attacks the notion of representative sovereignty as totalitarian.question returns us, ultimately, to the question of what qualitatively distinguishes the pirate from the privateer. The privateer always relies, in some way or another, on being understood as a beneficial entity for whomever ze addresses. Ze must communicate hir principal allegiance at any given moment; this is how ze ensures hir freedom to move in and out of the state of exception. Whenever the state of exception threatens to be permanent for hir, the privateer must resort to exposing a pirate who violates known and valued principles (in the examples used here: of sovereignty), hoping that the pirate instead of hirself will suffer the permanent ban. The privateer enjoys freedom only on the condition of hir basic affirmation of at least some of the principles that constitute sovereignty. The pirate, on the other hand, deviates and perverts; ze renders accepted norms and traditions insignificant by hir actions; ze eludes conclusive judgement. Instead of referencing a utopian revolution that will ban entire orders in the name of humankind, we might perhaps do well to take a step back and to ponder the puzzling perspective of the pirate. More specifically, one may raise the question of whether a theoretical perspective can be carved out here that can be integrated into academic language without resorting to the more troubling notions of representative frameworks that Agamben himself draws attention to, and also ultimately falls victim to.

The perspective of a pirate as a theoretical perspective – however it may look like in practice – might even help address some of the basic concerns brought forward by the privateering critic; after all, the pirate is privateering-derived. Also, one may add, as a philosophical entity ze is already the potential epitome of both bare life and political life.

 

 

Introduction

Many corporate actors do it: Coca Cola, H&M, Chiquita, Primark, G-Star, Starbucks, Apple, BMW, etc. They all publically proclaim that their marketed commodities are produced with a social responsibility, in accordance with ethical standards that respect humans and the natural world. Standard economic reasoning provides a clear-cut explanation for this phenomenon: market supply and demand tends to converge towards an equilibrium. The fact that ‘socially responsible products’ are increasingly marketed implies that everyday consumers purchase these products.

So once again, free-market reasoning seems to provide an effective solution for the organization of our societies! No need for government to regulate social concerns, the private sector can self-regulate, right? The ultimate win-win situation – private corporations profit whilst tackling eminent social concerns. In the academic management and development literature, as well as in de facto policies around the world, Corporate Social Responsibility (CSR) has emerged as a buzzing concept.

In this essay, I aim to critically assess the practice of CSR. In the process, I aim to contribute to the debate on strategizing counter-hegemonic resistances (Laclau and Mouffe, 2001). The main claim I make is that CSR can be a tactical medium for individuals and/or social groups to effectively voice political concerns, and that it can contribute to a strategic process of radical socio-economic transformation. The essay advances in three stages. In the first instance, I briefly describe CSR in the light of the global institutional arena wherein this practice is embedded. Secondly, I introduce the distinction that runs through this volume: privateers versus pirates, which I reframe as hegemonic vs counter-hegemonic. I claim that both privateers and pirates operate within the global institutional arena, and that both can claim ownership over CSR practices. Conceptualizing counter-hegemonic strategies in a realist manner implies taking explicitly tactical action within the prevailing institutional arena in a conscious attempt to change this arena. As a consequence, I claim that consuming (or not consuming) CSR products becomes a political act. The third section claims that CSR presents itself as a potentially powerful tactic in forging a unified counter-hegemonic movement, and speculates what role pirates can play in transforming the transnational production process.

The transglocal institutional arena and CSR

The present point of departure is the perception that politics is changing. The realm of political actions has shifted dramatically. Both institutions and individuals find new ways to be political, while classical methods are being eroded. The present section aims to sketch a perspective on the global institutional arena wherein political actors operate. I argue that CSR is a political practice operative in the present global institutional arena.

Before advancing, I need briefly to clarify how I use the notion of ‘institutions’.^[1] In first approximation, the notion of institution ties in to a vast body of literature in the social sciences that conceptualizes institutions as the formal and informal ‘rules of the game’; iterated structural incentives that inform individual behavior and consequential social interactions (North 1990). The analytic lens I apply is one that conceptualizes our social world as made up of institutions. In other words, I adopt a social ontology that analyzes human interactions in reaction to the institution wherein that behavior is embedded. Institutions are thus, generally taken, all explicit and implicit guides to human behavior. As such, they may be formal or informal, both organizationally structured or culturally implied, and everything in-between. In this sense, there is no escaping from institutions. All human actions occur, by definition, in relation to social institutions. This does not imply, however, that actors are wholly determined by their institutional embeddedness. Whilst institutional structures are both disciplining and enabling, individuals have degrees of agency to comply with, combine or defy institutional inductions. This usage of the concept of institutions has emerged in the analytic tradition and is, in my reading, similar to the continental usage of the concept of discourses.^[2] Like discourses, institutions are multi-leveled and ever-interacting with other institutions. The matrix of institutions, wherein human interactions are embedded, is in constant flux. This conceptualization of institutions provides leeway for analyzing and strategizing institutional change and, consequently, socio-economic transformations.

The all-encompassing usage of the notion of ever-evolving and intertwined institutions implies that, for reasons of analyzing and strategizing CSR, hypothetical lines could be drawn between institutional levels and governance mechanisms. An analytic framework could consist of three scales, i.e. the global level, the national level and the local level (Cox 1981); and three governance mechanisms, i.e. public (state) governance, private (market) governance and local (community) governance (Uphoff 1993). But these would be suppositional delineations, while de facto institutional levels and governance mechanisms constantly combine and interact. In effect, it seems appropriate to speak of hybrid governance mechanisms, as de facto governance is likely to be comprised of a complex mixture of governance mechanisms. By a similar token, ‘the glocal’ has become a focal point of analysis, whereby de facto practices are generated by interlocking actors operative at various levels (Hart 2006). In the remainder of this essay, I will use the term ‘transglocal’ to indicate that hybrid governance mechanisms operate simultaneously at various levels, interlocking actors at the global, national and local levels. The practice of CSR, the central topic in this essay, operates in this transglocal institutional order.

As a reading of history, qua politics, the nation-state has for centuries been the main organized institution in the ‘developed’ world. Individuals and groups could turn towards a given bureaucratic department of the state for their political actions. As a public institution, the state operated as a collective actor. The rule of the state is here conceptualized as a cluster of public-governance mechanisms. Public-governance mechanisms didn’t only dominate institutions at the national level; national governments also became the dominant entity at the global and local level. Although the state has never been devoid of influences of private sector actors, in recent decades these influences have augmented exponentially (Hessel 2010). Private-governance mechanisms, i.e. governance structures set up by private-sector actors, have hence gained significant importance in the de facto organization of the transglocal institutional order. Especially in the economic realm, the power of private-sector actors to organize the geographically dispersed production process is prevalent. It is important to note here that private-governance mechanisms are only possible within the structural grid of public-governance mechanisms. It is with this realization that the dichotomous distinction between market and government collapses: it is a specific conjuncture of public government that facilitates ‘free’ market interplay between private-sector actors. The term neoliberalism has become a widespread buzzword with contested meaning. That the term is widespread indicates a shift in global governance. In this essay, neoliberalism is conceptualized as a particular set of public-governance mechanisms that facilitates private governance to reign supreme, whereby the private-sector actors are presently primarily in the business of accumulating capital. The focus lies on minimal social responsibilities of public governance whilst enabling market forces to leave their mark on the everyday organization of our societies.

In the early twenty-first century, therefore, we experience the birth of a new political arena: a transglocal institutional order that is dominated by private-sector actors in a complex hybrid governance mechanism. As the traditional responsibilities of the nation-state erode, private actors now govern issues that used to fall under the jurisdiction of the state. National democratic governments, and by extension the democratic citizenry, used to be a powerful entity that carried primary responsibility for the social organization of our societies. Yet as there is a shift of power, so there is also a shift of responsibility. Political power is not confined any longer to the classical medium of the nation-state. Rather, the transglocal cluster of public, private and local governance mechanisms makes the political, the economic and the social increasingly intertwine. The question at hand is how, as particular individuals and/or as social groups, can we effectively voice our political concerns within this transglocal institutional arena?

Corporate Social Responsibility (CSR) is a striking example of the type of practices that emerge within the transglocal political arena. CSR is a practice that operates within global value chains. Global value chains are a particular mode of production that is geographically dispersed, where generally low-cost production process are outsourced by ‘developed’ private sector actors to geographic entities where cheap labor, low-standard environmental legislation and accessible natural resources provide a comparative advantage. This is not the place to develop an in-depth genealogy on the emergence of CSR within global value chains, nor on its immanent particularities. In short, it suffices to say that CSR is a generic term for a set of social practices that private actors adopt in the present transglocal institutional order. The most inclusive definition characterizes CSR as the voluntary adoption of extra-legal social responsibilities by private-sector actors. At the same time, however, the emergence of CSR implies that national governments (of the states where the production process is located) refrain from upholding certain social standards. In other words: only as public-governance mechanisms become eroded, private-governance mechanisms fill that void and commit to production in a socially responsible manner.

At this point we arrive at the central controversy about CSR; how to interpret it? It is marketed as an extra-legal commitment of corporate-sector actors, but only at a time that the legal framework is being eroded. So is it a beneficial development that merits applause and support, or is it merely a hegemonic justification of a privateering practice? Is it, as it is depicted, truly a win-win practice – i.e. generating private profit while responsibly restructuring society to uphold its common goods? – or is it, as its critics proclaim, a mere marketing strategy to ‘greenwash’ structurally flawed global-production practices?

The interesting question is not whether all for-profit CSR corporations currently consciously produce with utmost respect for fellow humans and their common natural environment; this is probably not the case. One should be wary about high-profile marketing strategies of big corporate actors proclaiming to produce in ‘a socially responsible manner’, whilst codifying this with a dubiously vague corporate standard and marketing it as a corporate fairytale.

Rather, the interesting question is whether CSR could be instrumental to a type of corporate flourishing that is connected to a socially-responsible production process? Or, more fundamentally, whether CSR can be instrumental to radical political protests that aim to transform the present institutional context and its immanent corporate structures? The answer to these questions is, to a large extent, open. It depends on whether those consuming products are willing to pay a higher monetary price for a more valuable – or ‘socially responsible’ – economic production process.

Privateers vs Pirates

The present Krisis issue focusses on the distinction between privateers and pirates. In the approach outlined in this essay, both privateers and pirates operate within the transglocal institutional order. The privateer – pirate distinction is here interpreted as antagonistic, whereby privateers are conceptualized as hegemonic and pirates as counter-hegemonic actors. Hegemony is a state of affairs in which a particular discourse is dominant. This implies that the discourse presents itself as self-evident, generating and legitimizing de facto practices, but that oppositional forces remain active in the margins. From the discussion above, it is clear that in the present global institutional order the neoliberal dictum is hegemonic. Privateers are hegemonic actors in that they drive, legitimize and benefit from neoliberal governance practices. Privateers are here conceptualized as those private sector actors who are primarily in the business of accumulating capital. The eminence of private-governance mechanisms in the transglocal institutional order enables privateers to profit from the particular reorganization of the production process in our globalizing world.

The widespread presence of the neoliberal governmental logic doesn’t imply, however, that this logic is accepted by all. Logics that defy the hegemonic discourse are conceptualized as counter-hegemonic. In this essay, pirates are portrayed as counter-hegemonic actors within the transglocal institutional order. This implies that their practices counter-act the dominant logic of that order. Whereas hegemonic privateers are concerned in the accumulation of capital, counter-hegemonic pirates are here conceptualized as engaged in a radical project of socio-economic transformation. Pirates are hence characterized by their willingness to contribute to the process of transforming the private economy into a socially responsible economy.

Counter-hegemonic actors are often fragmented. Consequently, dispersed groups of pirates fail to augment pressures to effectively challenge the hegemonic discourse. Following Laclau and Mouffe (2001), I believe it is important that the political antagonism between hegemonic and counter-hegemonic practices is both explicated and cultivated, emphasizing the need to foster a unified counter-hegemonic movement that can develop effective pressures to defy the dominant logic. It is in this light that the essay is titled On Counter-Hegemonic Realism. I share the belief that unifying counter-hegemonic resistances need to be forged in reaction to the prevailing institutional configuration. As a realist tactic, I call on pirates to consciously and consistently purchase commodities that are socially-responsibly produced.

Some will renounce my call for counter-hegemonic consumer activism as weak reformism. I want to clarify my realist position by introducing the distinction between tactics and strategy. A tactic refers to a short-term, goal-related practice that can be applied in the present institutional configuration. A tactic considers the next move in a competitive game-situation. A strategy, on the other hand, is goal-related practice that entails a long-term plan and objective. The objective of counter-hegemonic strategizing is to bring about a deep transformation in the prevailing institutional configuration. A realistic counter-hegemonic tactic can then be adopted today whilst fitting a more radical and idealist strategy that attempts such a future transformation. A realist take on counter-hegemonic strategizing entails tactically considering how to actively deal with the present configuration of institutions. In this essay, CSR is considered a potential present-day tactic in a more fundamental transformational strategy; it is a short-term political tactic in a long-term strategic effort to forge a ‘socially responsible’ economy.

That pirates defy the prevailing hegemonic norm does not imply that they operate outside the transglocal institutional order: conceive of the transglocal institutional order as the playing-field whereon actors can generate practices in reaction to existing rules. That certain rules are dominant need not imply that those rules are not prone to change. This institutional order is not an essential set of institutions that are fixed in time; rather it is an existentially discursive field that fluctuates – i.e. a discursive field that evolves in relation to practices of the players acting on the field at differential levels.

The distinction institutional essentialism vs. institutional existentialism is crucial to my claim that pirates should consciously engage with CSR as to generate socially responsible production practices. To exemplify the distinction, consider a board game with multiple players at the table. In situation A, the rules of the game are set at the beginning of the game. As the game goes on, one player might win while the others lose (this might happen because of pure luck, pure skill, and everything in between), but the entire game is played according to the fixed set of rules. The institution in situation A is an essentialist institution in that its rules do not change in the process of engaging with the institution. The game of chess is an example of an essentialist institution; its rules are fixed, the institution does not change. Situation B, however, is different. The board game starts with a set of rules, but this time the players can alter the rules of the game as they are playing. An initial winning position, a good bargaining hand, or strategic alliances, they all become important as the game evolves and the players change the rules of the game while playing. The institution in situation B is an existentialist institution in that its rules can change in the process of engaging with the institution. The global institutional order is, as a whole, an existentialist institution: its rules are not fixed in time, the cluster of institutions is prone to change.

 

Let’s turn to the central topic of controversy and assess it in the light of the aforementioned distinction. If CSR were an essentialist institution, it could be discarded as a hegemonic project that legitimizes privateering exploitation of human, natural and environmental ‘resources’ or ‘capital’. The legitimation is derived from the win-win narrative, i.e. that privateers can generate profit while yielding optimal social organization by implementing minimally regulated ‘free’ markets. With this type of win-win CSR would be a mere Pyrrhic victory for those concerned with social justice, even if it yields the sporadic social benefits it claims to generate, as structural power asymmetries don’t alter and the associated institutional rules do not change. CSR would then be a mere euphemism for a neoliberal type of market colonization. Yet if CSR is regarded as an existentialist institution, it presents itself as a tactical opportunity for a strategic counter-hegemonic movement. So here it becomes possible to hypothetically move from privately owned to shared means of production networks by means of augmenting market pressures. By demanding that privateers adopt increasing social regulation in the transnational production process, pirates may be able to change the rules of the globalization game. CSR would then function as a lever to get counter-hegemonic concerns into de facto governance mechanisms. The proposed tactical method would be to explicitly politicize CSR and tie it to everyday consumption patterns.

CSR is a practice that has emerged within the contours of the transglocal institutional arena. Despite a healthy sense of skepticism about its transformational capacity (Blowfield and Frynas 2005), I argue that CSR might become an initial vehicle to foster a more socially responsible production process. Yet it is necessary to wage a discursive battle over whether any given CSR initiative is driven by privateers (hegemonic CSR) or pirate (counter-hegemonic CSR). The question then becomes whether the normative discourse that underpins CSR is merely instrumental in legitimizing the neoliberal political project of privateers, or whether it articulates an actual commitment to change the anti-social premises that characterize privateering projects.

Before addressing the particular tactics that pirates can employ in waging a discursive battle over the meaning of CSR, we need to address the question of how CSR occurs in the first place. Although the literature generally characterizes CSR as shareholder-driven, it is counter-intuitive that privateers – who are in the business of accumulating capital – voluntarily adopt extra-legal regulations to produce in a more socially responsible manner. Why would hegemonic privateers commit to CSR?

It seems evident that CSR is, at its root, triggered by market trends (McWilliams and Siegel 2001). When conscious consumer choices threaten shareholder viability, corporate opportunity costs are raised, pushing private actors to increase their CSR commitment. Behind the marketing rhetoric of privateering CSR thus lie market fluctuations caused by purchasing acts. In other words, if a critical mass of consumers opts to purchase CSR commodities, privateers will match their supply to this market demand. For privateers, then, CSR is a corporate tactic to differentiate commodities on saturated markets. Yet the crucial realization for pirates is that consumers have leverage in steering corporate practices. As such, if a critical mass of consumers consciously and consistently opt to purchase goods with a genuine socially responsible character, then it is likely that they uplift (part of) the transglocal production process to more socially responsible levels. If CSR is triggered by market trends, consumers can push private CSR commitments to a higher platform. Given that consumers have the institutional leverage to steer private-governance mechanisms, consumption and non-consumption are political acts; it consists of, respectively, endorsing or refusing a particular mode of production. If indignados would put their money where their mouth is, they could augment market pressures on corporate actors at a transglocal level.

I stress again that my claim is that political consumer agency can be a tactic in the strategic endeavor to foster radical socio-economic transformation. Although the tactic focusses on the immanent practice of Corporate SR, this does not imply that its strategic outlook needs to be confined to corporate private-sector actors. In other words, a counter-hegemonic pirate movement and its aspirations for social transformation need not (and arguably should not) confine itself to changes within corporate production structures. Although I believe that pirates should operate realistically within the prevailing institutional framework, I do render it vital that they simultaneously self-organize in order to radically confront and transform the transglocal institutional arena. The tactic of political consumer agency is then conceived as compatible with grassroots initiatives that are not mediated through corporate structures and multi-levelled institutions.

Towards a counter-hegemonic strategy

So far I have asserted that: 1) the political arena has changed significantly, and is now a transglocal cluster of public, private and local governance mechanisms; 2) that pirates should foster an explicitly antagonistic identity, opposing hegemonic privateers, within the contours of the present institutional arena; and 3) that, within those institutional contours, political consumer agency is a valuable tactic in strategizing socio-economic transformations.

Although I have claimed that I render it important that pirates foster an explicit counter-hegemonic identity, I have not explicated what that identity entails beyond the claim that they aspire for socio-economic transformations. The clue is that I am not planning to define that identity any further. It is not the task of a philosopher-king to designate what ‘pirates’ are; rather it requires active articulation of various social groups and individuals to foster and claim that counter-hegemonic identity. It is important that such an identity is symbolically powerful so as to be able to overcome fragmentation and unify heterogeneous struggles into a common narrative that is strong enough to challenge the hegemonic discourse. As such, in the language of Laclau and Mouffe (2001), ‘pirates’ is an empty signifier with quite strong symbolic power. What the actual identity of ‘pirates’ is to be is open for deliberation and dependent on the voices that claim this identity. The identity and long-term strategy of pirates is to be forged through a democratic ‘chain of equivalence’. Although I hold that the identity of pirates should be open for the articulation of interests by various actors, and I thus explicitly refrain from discursively closing the counter-hegemonic identity, I do believe that market-activism is a potentially powerful short-term tactic.

The remainder of this section focusses on three issues. The first opposes the counter-hegemonic identity of pirates to the widespread symbol of the 99%. The second argues for consumer activism as a potentially powerful tactic in forging a unified counter-hegemonic movement. The third introduces the Internet as a valuable instrument in both the general counter-hegemonic struggle and the particular scheme of consumer activism.

Recently, the notion of ‘99%’ has emerged as popular symbol of widespread socio-politico-economic protest. Given my previous argument in defense of the use of political antagonism, it might be suspected that I endorse the notion of 99%, as it is constructed in clear political opposition to the 1%. Yet I believe that this symbolism is flawed. It is flawed in that it misconceives the role of many people that are allegedly part of the 99%. It suggests that the 99% are ‘victims’ of the present socio-economic organization and demand a redistribution of wealth from the 1% to the 99%. Rather than being victims, though, many (Western) 99%-ers are, as consumers, actively upholding and benefitting from the present global institutional order and its hybrid governance mechanism. The characterization of the 1%, although effective political symbolism creating an oppositional antagonism, is not nuanced enough. It is too easy to solely blame the greed of bankers, the biased valuation schemes of economic experts and/or the technocratic attitude of policy-makers for the crisis, when everyday consuming citizens of developed countries continue to reap disproportional benefits from the current mode of glocalization. It is contradictory to oppose the present wars in the Middle East and condemn foreign fighters in Syria if one continues to consume oil for the car to take the kids to school around the corner, so to speak. It is for this reason that, as counter-hegemonic symbolism, I prefer the notion of ‘pirates’ over and above the notion of ‘99%’. An oppositional logic is required for the activation and unification of counter-hegemonic forces, but the logic shouldn’t be confined to finger-pointing without incorporating counter-hegemonic demands into one’s own behavior.

It is said that the duty of non-maleficence – i.e. to not impose preventable harm – is the most minimal of liberal duties (Pogge 2002). In the act of everyday consumption, this duty is faced regularly; if I buy a smart-phone produced with blood-minerals and child-labor, am I, as consumer, not fueling socially irresponsible practices? Who is responsible for the production process – only those at the top of business and government? Or can we speak about a societal responsibility for perpetuating the harmful production process by indulging in and benefiting from it? Can we speak of institutional harm imposed by a type of market neocolonialism of which many societal actors are part?

If one is discontent with the present configuration and its associated practices, it would only be a partial and limited strategy to voice that discontent as civilians towards the state. It is not that citizens shouldn’t voice their concerns towards their democratically elected governments; it is only that, as a result of the above trend, the political voice of democratic citizens would be a lot more powerful if it was harmoniously combined with the act of political consumption. If individuals or social groups intend to voice their concern, they should not restrict themselves to either the market or the state, but wage a struggle on various institutional layers. 

I do not render consumer activism to be a final tactic; given that the larger institutional order doesn’t change, CSR upgrading by means of consumer agency would be a mere Pyrrhic victory. For one, it is evident that this is not a democratic tactic: consumer power can be characterized as ‘one dollar, one vote’, leaving it to be a tactic that can mainly be employed by the upper segment of our societies. Yet it can be a powerful lever in a larger transformational strategy. A profound change in the prevailing corporate structures is unlikely to come from corporate shareholders; such change is likely to be triggered by the ultimate arbiters of corporate success – i.e. those who consume the products and determine the viability of the production process. The underlying reasoning is straightforward: if well-off consumers are powerful agents in prolonging the present state of affairs, then they can also be powerful agents in changing this state of affairs. As such, it could bring various actors together, make a critical mass of people realize their collective power in steering socio-politico-economic organization and motivate them to actively continue setting up alternative transglocal governance structures.

Given that consumption has a definite cultural aspect, pirates could cultivate their identity whilst tying that identity to a mode of economic production that stands in contradiction with the dominant privateering one. In Gramscian terminology (1996): the art of an effective counter-hegemonic movement is to tie a ‘war of movement’ to a ‘war of position’. There is no point in waging political pressures if there is no popular basis for those pressures. Therefore, a counter-hegemony must foster an identity that serves as a basis for actions. In this particular instance: to consume politically has to be explicitly connected to a socio-cultural project of co-developing alternative modes of production and related socio-politico-economic organization. In political consumer agency, both a war of movement and a war of position are waged in that a strategic consumer identity is built while tactical political pressures are augmented in an attempt to change prevailing governance mechanisms.

The hypothesis that CSR is a tactical platform for social transformation is underpinned by the assumption that conscious consumers would actively purchase commodities that are produced in a socially responsible manner. The question then becomes: how to foster those socio-cultural institutions that generate political consumer agency? The trend of argument I uphold is that the possibility of effective consumer activism is dependent on socio-cultural institutions that articulate alternative modes of socio-economic organization whilst practical alternatives are developed. The consuming citizen then becomes a potentially powerful actor playing the present institutional field in an attempt to steer de facto hybrid governance mechanisms to a more socially responsible level.

It is at this junction of my argument that I want to stress the transformational potential of the Internet as a tool for communication, identity-formation, and social, political & economic self-organization. Both within the particular tactic of political consumer agency and the broader strategy of social transformation, the Internet is likely to be a crucial instrument. Given that economic production is geographically dispersed, CSR as a practice lacks genuine transparency. It is easy for a corporate actor to claim that they are producing in a socially responsible manner; it is a lot harder for the consumer to verify that commitment. The Internet is here a medium for transmitting economic information and consequential coordination between actors at various levels. Only when local stakeholders are connected with groups of conscious consumers can CSR become a genuine vehicle towards a socially responsible economy, rather than a marketing tool for corporate brands who intend to differentiate themselves in saturated markets and opt for a strategy of corporate greenwashing.

As an instrument for strategizing a counter-hegemonic movement, the potential of the Internet is vast. For one, I genuinely believe it can foster not only a counter-hegemonic identity, but also modes of interconnected grassroots organization in synergy with that identity. Likeminded activists could develop and maintain a collective online network with the intent to function as a vehicle for socio-economic self-organization and related political pressures. Such a counter-hegemonic movement would stand in relation to the present transglocal institutional arena in an existential attempt to change it.

 

 

Introduction

This paper explores the disorganised political order (‘pirarchy’) generated by so-called digital pirates, arguing that pirarchy appears in swarms. Swarms are not necessarily revolutionary, but they can be disruptive. They are a social formation, growing out of reaction to, and enabled within, the systems of information capitalism, which do not form a harmonious, self-reinforcing whole. We examine ‘swarms’ of pirarchy responding to the legal attack on the Demonoid BitTorrent tracker, and the court cases around the Sony PlayStation 3. In the Demonoid example, the imposition of legal order through internationally coordinated server raids, shutdowns, and arrests, temporarily disordered the affective ties and sense of social obligation around the site, sending exchange elsewhere. Swarms flux, appearing both fragile and robust. In the Sony case, even with the coordination of corporate and juridical systems, the incoherent and uncoordinated pirarchs significantly disrupted Sony’s capability, even though ultimately the situation may have continued as normal. Disorder was restored as much as order. We analyse these events using anarchist theory about the relations between theft and property, the repressions arising from work and the cultural necessity for play. Freedom of exchange is required for cultural creativity and is challenged by the total orders of capitalism and wage labour.

Resisting Neoliberalism, Resisting Enclosure

Neoliberalism represents the attempted hyper-capitalist/corporate takeover of the State. It enforces markets for all, with governmental support primarily remaining for those successful in such markets and able to buy or influence State representation (Subcomandante Marcos 2002: 107-115; Harvey 2005). As increasing numbers of people directly experience the psychological, social and economic impacts of privatisation, dispossession, and destruction of freedoms under neoliberalism, they sporadically take to the streets in a spontaneously collective and largely uncoordinated ‘Ya basta!’ (Enough is enough!). Such events perhaps mark a protest against turning affects, relational and linguistic skills, and social connections into wage-work; a collective refusal of ‘work time and life time […] effectively becoming indistinguishable’ (Tiqqun 2011: 19). Simultaneously, millions of people worldwide enter online circuits of free exchange defying the appropriation and commodification of culture. The success of neoliberalism with its ‘free-market’ austerity measures, applying to all but the wealthy, generates a social discipline in which nothing, not ‘nature’, nor childcare, nor emotions, nor linguistic capacity, nor personal photographs, are to be left unenclosed as commodities (Virno 2004: 56, 59; Arvanitakis 2007). This links to earlier forms of dispossession and enclosure. The proletariat’s genesis in Europe and America demanded ‘enclosure’ of not only communal land but also of social relations’ (Federici 2004: 9). In sixteenth-century England, a systematic process of enclosures paved the way for the ‘proletarianization of the common people, subjecting them to multifaceted labour discipline’ (Linebaugh 2008: 51). Enclosure destroyed livelihoods dependent on commoners’ practices, and stripped people of traditionally shared socio-cultural freedoms and leisure. Alongside this destruction came ‘the elimination of cakes and ale, the elimination of sports, the shunning of dance, the abolition of festivals, and the strict discipline over the male and female bodies’ to the extent that the ‘land and the body lost their magics’ and aliveness (ibid: 51-5).  The growth of capitalism was, and remains, hostile to noncommercialised or non-commodified enjoyment and liberty. Contemporary enclosures (and extensions of enclosures) of cultural commons likewise act as an attack on leisure, freedom, joy and non-commercial selfexpression in the name of profit and production. In the sixteenth century, many engaged in ‘armed rebellion for the preservation of their material commons’ (Linebaugh 2008: 53). Tens of thousands of rebels set up ‘planned and coordinated’ campsites in the English lowlands demanding the end to Enclosures and, albeit implicitly, a return to a more empowered commons-based sufficiency, and existence in which culture (joy, magic, cakes, ale and dancing) had its times and places (ibid: 54). They were clearly unsuccessful. As industrialisation took root in the early nineteenth century, loosely organised groupings whose members were later identified as Luddites protested against discipline by machines, and the disruption of self-directed labour, craft-skills, leisure and culture. The State responded with troops, upholding new Combination and Conspiracy Acts which criminalised communication and association amongst workers (Sale 1995).

Swarms of Pirarchy

Today, peer-to-peer (P2P) file exchange, or ‘digital piracy’, mounts a similar resistance, targeting the kinds of cultural enclosure and commodification informational capitalism depends on to sustain and expand its ordering regimes. As Adrian John (2009) points out, piracy of intellectual property has a long history, usually focused on competition and success in markets, claiming others’ work as one’s own, or espionage/warfare between States. However, contemporary piracy of the kind we are discussing does not usually involve selling ‘stolen’ goods for profit, or State vs State conflict; it involves relatively free exchange between non-commercial actors. In particular, contemporary piracy subverts the technological, legal, and social locks and exclusions around the popular narrative forms of today, which form part of our cultural conversations: the song, the film, the television programme, the book, and the computer game. File-exchangers are not necessarily definite or organised revolutionaries, or challenging the institutions of property themselves, but their practices emphasise the incoherencies of capitalist property and commodity (Marshall & da Rimini 2015). They challenge the orthodox regimes of distribution and the ‘distribution industries’, which Cubitt (2006) describes, that help turn culture into a restricted commodity. These ‘unauthorised’ practices, perhaps unintentionally, generate some new cultural challenges, political formations and actors, which we label ‘pirarchy’ and ‘pirarchs’ respectively. It may well be important to ‘create new circuits, new economies alongside the new technologies and techniques that are such a hallmark of the contemporary mediascape’ (ibid: 209).

Pirarchs consider their exchange practices as mundane, unremarkable or even boring, and the gulf between social norms and capitalist State-based legal norms becomes increasingly apparent (da Rimini & Marshall 2014). However, this proto-movement can only happen because people are prepared (however subliminally) to risk their personal liberty, financial resources and social reputation to reclaim what their actions imply rightfully belongs to them.

Pirarchs move in culturally diverse and ideologically uncoordinated ‘swarms’ with only accidental unity; their actions have implications rather than direction. There is no necessity to posit a unity or a conscious ‘swarm intelligence’, but simply a social effect. These swarms build particular habits and attitudes, but they are not the only active swarms around, and people move (often silently) from one to another, perhaps even without realising. Swarms don’t have stability, they exploit fragmentation. Hacktivist researcher Tatiana Bazzichelli (2013: 138) claims participants in Anonymous actions (who generally support pirarchs), ‘pop up in pursuit of the most diverse of causes, or not following any of them, just for fun, or for the lulz [laughs]’. The fundamental characteristic of Anonymous is that it is ‘not one, but many […] not a group or a network, but a swarm, or to be correct, multiple swarms that feed off each other’, as Felix Stalder says (2012). Stalder claims that Anonymous is a self-consciously leaderless organization. But it appears that ad hoc leaders arise, especially those with specific technical or rhetorical skills, as with the press and video releases. Christopher Kelty (in Coleman 2014: 100) points to the ‘superaltern’; the cadre of ‘highly educated geeks’ prominent in the free software movement, as such ad hoc leaders, although as we shall see this leadership is not always welcome or able to exert formal control.

The term ‘swarms’ may have implications of over-ordering for the social formations we are discussing. Swarms arise in networks of communication and response, traditionally in off-line places, fading before repression as with the Luddites. On-line, the networks of communication are ever ready to be taken up. Unlike insect swarms or bird flocks, on-line swarms are not necessarily genetically, ideologically or purposefully related, they don’t last for long periods of time, and membership may change continually and rapidly. Swarm participants do not necessarily have a sustained sense of belonging, although they may. The swarm has the potential to be both ‘localised’ and distributed at the same time. As Eugene Thacker remarks, this is not unusual: ‘Organisms are never just individuals, and never just groups; the ‘behaviour’ of an organism is at the intersection of individual, group, and environment […] the locale of agency is never clear-cut’ (Thacker 2004b). However, there is a tendency for analysts to find too much order to justify their interests in swarms. For example, Vehlken writes ‘the collective as a whole is able to adapt nearly flawlessly to the changing conditions of its surroundings’ (2103: 111). ‘Nearly flawlessly’ is an over-claim. The swarm may function well enough for most practical purposes, or may undermine itself, or be dislocating for participants. The power of the swarm depends on contingent decisions; people drop out or accumulate. Swarming techniques ‘can be applied wherever there are ‘disturbed conditions’, wherever imprecisely defined problems present themselves, wherever system parameters are constantly in flux, and wherever solution strategies become blindingly complex’ (ibid: 111). Again this could be over-ordering by implication. Swarms may not give the ‘right’ solutions, and may disrupt some participants’ aims. The analytic importance of swarms is that they focus our attention on unintentional effects; the effect of the swarm may not be intended (or anticipated) by any, or many, members. In this sense swarms could be revolutionary in their effects, without constituting a self-conscious party or vanguard of revolution; their action does not necessarily resolve into a new established order; it can be an indication of ongoing unresolvable disorder, or flux.

While swarms may be radical and transformative, they can also be ‘reactionary’, self-disruptive, or destructive. ‘The fact that a movement is organized as a network or swarm does not guarantee that it is peaceful or democratic’ (Hardt & Negri 2005: 93). Swarms can also result from capitalist attempts at control as with viral marketing, or through top-down generation of swarms of ‘flexibilised’ workers. Boltanski and Chiapello suggest that the temporary order around ‘projects’, is at the heart of mainstream work in contemporary capitalism (2005: 168), while mobile communication means that workers are constantly available for swarmed work; the networks of communication and organisation work both ways to produce order and disorder.

Similarly, swarms of pirates and hackers can be useful to capitalists as pointing to markets, maintaining conversations which promote sales, driving technical and organisational innovation, and some ISPs allegedly profit from providing services which enable pirarchy (Marshall et al forthcoming; da Rimini 2013: 320). Pirarchs are still likely to be dependent on wage labour (or State welfare regimes) and the products of wage labour, as they cannot survive on free exchange. As Thacker states: ‘mutations in the contemporary body politic [are] structurally innovative, but politically ambivalent’ (2004a). We suggest pirarchical swarms eventuate around ambiguous relations to, and problems about, ‘cultural property’. They grow out of networked informational capitalism, and can both promote informational capitalism and attempt to reclaim aspects of life which are disrupted by that form of capitalism. Indeed, many of the justifications for their pirarchical practices that file-exchangers express on leading copyright and file-sharing news site TorrentFreak (2015) appear to be a desire for a ‘better’ capitalism (in the form of fairly-priced goods in open formats) rather than an end to capitalism per se. As we shall see pirarchs do not necessarily posit the end of property, but rather the desire to have their rights to exchange, use and modify their own property unobstructed by sellers or producers, demonstrating the incoherence of capitalist property-relations.

Anarchism: property, co-operation and play

Anarchism has, at least since the time of French anarchist Pierre-Joseph Proudhon (1809-65), argued that forms of property and labour are intimately tied to oppression and/or liberty, and that contemporary arrangements favour oppression. Anarchists highlight the inherently cooperative social processes underlying the production of knowledge and culture, arguing that these material expressions of human thought and invention are made in common and must be held in common, or social creativity and freedom will die. This theory not only gives us a framework to think about the spontaneous pirarchy emerging in on-line peer-to-peer swarms and exchange, but also merges with pirarchical actions.
Anarchists and some socialists argue there is no coherent justification for private property of the kind praised in capitalism: that is, property which is alienable, disposable at will, and belongs only to one person (or corporation) with the right to prevent others accessing it. Exclusion and appropriation is the hallmark of this kind of property. As the English artist and socialist William Morris (1834-1896) stated, under capitalism, property is conceived as ‘something which you can prevent other people from using’ (Morris 1886). Traditionally, defences of capitalist property depend on a refusal to acknowledge property’s collective origins in nature (the world), in collective labour and in collective ideas, building a rupture to justify exclusion and profit. This rupture is built by force, law and threat.

In reality, all property depends on labour, which depends on collaboration with others, and upon technology developed and built by others. ‘No one can say that he produces alone. The blacksmith, the tailor, the cobbler, etc., etc., cooperate with the cultivator in plowing the earth, just as the cultivator cooperates in the manufacture of their products’ (Proudhon nd). Ideas and art likewise depend on access to previous ideas and discourse. ‘There is not even a thought, or an invention, which is not common property, born of the past and the present’ (Kropotkin 1906: 7). We borrow, exchange, and cooperate constantly, whether for spontaneous play or purposeful endeavour. This is vital to human lives.

In anarchist theory, the boundaries around property in its capitalist sense are enforced by business, the State, by laws and by violence; by ‘legitimised’ robbery, extortion and exploitation. Legitimacy comes from dominance, not from ‘justice’ or any principle other than power. Capitalists are rarely prosecuted for destroying land in mining or development, or for taking from the commons, but the State does prosecute those who try to reclaim what the capitalist removes or destroys. Property is theft, as Proudhon famously declared, because it is enclosed from, or taken from, the labour of all. Similarly, theft cannot exist without the existence of property and exclusion. French Anarchist Élisée Reclus (1830-1905) argued that ‘we are all, without exception, forced by the conditions of existence into a life of outright theft’ (Reclus 2013: 60). He suggested that as capitalism is built on theft, so property should be stolen back (Fleming 1988: 142). Reclus recognised there is ambiguity because it is possible for thieves to aspire to be bourgeois and keep the property for themselves or use it to lord it over others. So the political virtue of theft may depend on motives (ibid: 150). The legitimacy of ‘taking back’ is a source of dispute and contention amongst anarchists (ibid: 143-52). Anarchism emphasises the ambiguities of property as force, property as theft, and theft as activism, which are central to pirarchy.

Most anarchists recognise that the capitalist property system forces people into wage labour, and to find a master/employer. In general the products of people’s labour, time and life are ‘paid for’ in a form of unequal exchange, with power relations determining the rewards of work. Would people really continue their work, if they were guaranteed a liveable prosperity free of it? As Bob Black (1991: np) suggests: ‘In order to stop suffering, we have to stop working. That doesn’t mean we have to stop doing things. It does mean creating a new way of life based on play; in other words, a ludic revolution. By ‘play’ I mean also festivity, creativity, conviviality, commensality, and maybe even art’.

As in the origins of capitalism, free play is suppressed to meet the demands of consumption and wage labour. In contemporary wage labour systems, workers have to postpone ‘rest and leisure’ to the distant future, be available and amenable at all times. Their time is commodified and neoliberalism reinforces ideas that unemployed freedom should be punished. Revolt grows from a desire for a more human reality of ludic expression (which exists however precariously in capitalism), of intrinsic reward and free exchange. To quote Black again: ‘Playing and giving are closely related, they are the behavioral and transactional facets of the same impulse, the play-instinct. They share an aristocratic disdain for results. The player gets something out of playing; that’s why he plays’ (ibid.).

Echoes of Black’s ‘ludic revolution’ resonate in the writings of those French anarchists who, as The Invisible Committee, published L’insurrection qui vient (The Coming Insurrection). They argue that under capitalism, ‘becoming independent’ means finding a boss (The Invisible Committee 2009: 41), that the ‘horror of work is less a part of work itself than of the methodical devastation, over centuries, of everything that is not [work]’ (ibid: 38), including: the familiarities of one’s neighbourhood and trade, of kinship, our attachment to places, to beings, to the seasons, to ways of doing and speaking. To survive the horror we must reject the demands of (neoliberal) flexibility and mobility, and instead ‘organize beyond and against work, to collectively desert the regime of mobility, to demonstrate the existence of a vitality and a discipline precisely in demobilization’ (ibid: 51, emphasis in original). That is, refuse to be mobilised to work. In the village of Tarnac these anarchists ‘planted carrots without bosses or leaders. Because they naively think that life, intelligence and decisions are more joyous when they are collective’ (the parents of Bertrand et al 2008). The State suppressed them, as if there was something inherently subversive in collective happiness outside of the capitalist grid of consumer behaviours.

When capitalist hierarchy requires labour to be always available, the ludic Self retaliates, by being prepared and technologically able to satisfy multiple desires for play, entertainment, relaxation, stimulation, creation and distraction. These desires are not external to capitalism, and may be generated by capitalism as an engine of consumption (da Rimini & Marshall 2014: 326-7). We are not arguing that pirarchy is external to capitalism, but that it challenges it. Similarly, the tools enabling computer labour and exclusion also allow people to subvert, copy and distribute its results easily, in pirarchical subversion, production and exchange. We shall now proceed to show how these anarchist theories elucidate events in the contemporary world by looking at the attack on the Demonoid tracker site, and a fight against Sony.

Commercial Repression of the Demons

Demonoid is part of the ‘digital piracy’ ecosystem. Like its more infamous cousin The Pirate Bay it is a kind of specialist search engine that helps people find digitised goods they want to download, regardless of whether or not these goods originally were enclosed by copyright restrictions or technological barriers. Specifically, Demonoid is a semi-private peer-to-peer (P2P) ‘tracker’ site using the BitTorrent internet communications protocol to facilitate file exchange. Participants often proclaim it to be a community. Launched in 2003, it hosts an on-line searchable index of links to Internet Protocol (IP) addresses of digital devices holding copies, or partial copies, of media files (films, music tracks, e-books, etc) categorised by genre and sub-genre. Users click on a link to enter a file-sharing ‘swarm’ for a specific item.

A swarm is comprised of ‘seeders’ (peers who have a completed copy of the media file and continue to ‘seed’ it back), and ‘downloaders’ (peers who are downloading the file in segments) (da Rimini 2013: 315-6). The BitTorrent protocol enforces technological cooperation (sharing via uploading) during downloading, although people have no obligation to further seed a file after completing a download. The term ‘swarm’ in the file-sharing context probably originated with the Swarmcast P2P content distribution system, released in 2001, just prior to the development of the BitTorrent P2P protocol (Koman 2001).

Demonoid members frequently report the sense of ‘camaraderie’ arising from belonging to a community passionate about ‘many niche subjects’. One described Demonoid as being inhabited by ‘small groups of people sharing content they all loved’ (comment on Andy 8 May 2013). For ‘Carl’, an interviewee in our research project investigating Australian artists’ and cultural producers’ social norms around file-sharing (da Rimini & Marshall 2014), the ‘giant Alexandrian library’ is propelling an ideological shift: ‘Generosity is really one of the most radical concepts that you could dream up and being generous with bandwidth and with content and ideas’ (‘Carl’ interview). Another artist and Demonoid member was ‘fascinated’ by how file-sharing had ‘changed the ownership of information and the ownership of immaterial things…and how that’s changed the whole landscape of exchange between people’ (‘Ti’ interview).
The sharing on Demonoid not only involved commercially available items, but items of purely local interest, self-produced items, and generally unavailable material. In that sense, file-sharing sites can rescue cultural works from obscurity, making the hard to get ‘gettable’, and revitalising culture in the process as people engage with new (often ‘old’) works. One interviewee felt obliged to share obscure items from his extensive archive of (purchased) films and vinyl albums because the on-line community would not be able to get them elsewhere (da Rimini & Marshall 2014). Furthermore, creative artists can access new concepts, artistic trends and material elements to play with, remix and upload. ‘Everything I watch actually goes into something I write really’ (‘Mel’ interview). ‘Theft’ is, in these cases, opening. Pirarchy, explicitly and practically, emphasises the sharing aspect of culture, and cultural production, described by anarchists, and suggest new paradigms, even if it does not resolve problems of survival.
It seems that many pirarchs are ‘incidental activists’. If an activist is ‘someone who takes part in activities that are intended to achieve political or social change’ (MacMillan Dictionary, nd), then an ‘incidental activist’ is someone who can be apolitical, but ‘accidentally’ contributes to social and cultural change by their presence and activities. Torrenting is ‘becoming so mainstream it’s not so much community but just society’ (‘EKA’ interview). Nevertheless EKA’s attitude implies culture should be non-commodified. Others are aware of swarms’ social and political potential. ‘It’s a very visual kind of metaphor, that idea of the swarming and the seeding and it’s egalitarian… It’s not just people leeching off the products of capitalism – it’s also people who are creating and distributing, producing and distributing stuff from scratch totally outside of all available systems’ (‘Toxic honey’ interview).

As these alternative practices proliferate and become normalised, they further threaten existing ordering regimes. Just as the State sought to suppress those struggling to reclaim the commons, so too neoliberal power attempts to contain, constrain and punish those prising open informational flows to build a digital commons. In terms of repression of pirarchy as spectacle, we need look no further than the 2009 trial of The Pirate Bay founders (Ӧzdemirci 2014), and the 2012 arrest and requested extradition of New Zealand-based Megaupload cyberlocker founder/owner Kim Dotcom involving simultaneous multi-country raids (Palmer & Warren 2013). The less dramatic Demonoid raid in 2012 also involved a determined effort by what, following Critical Art Ensemble (1994: 11-30), we call the ‘nomadic power’ of authority.

Anticipating attack, Demonoid also became nomadic, tactically changing its TLD (Top Level Domain) to thwart US authorities’ ability to terminate its domain-name registration, and shifting its server from Canada to Ukraine. Neverthess, in August 2012 a swarm of power flowing through INTERPOL, the Ukrainian police, the Mexican Attorney General, the International Federation of the Phonographic Industry, and the US government, launched a joint criminal investigation, resulting in the site’s shutdown, a reported arrest in Mexico, and assets seizures (Jacob 2012; Ernesto 2013). Property rights were asserted by acts of power and threat.

This act against a much-loved platform generated a swarmed retaliation response, with Anonymous launching an electronic disturbance called ‘OpDemonoid’. Cultural anthropologist Gabriella Coleman describes Anonymous as: ‘part digital direct action, part human rights technology activism, and part performance spectacle, [that] while quite organizationally flexible, is perhaps one of the most extensive movements to have arisen almost directly from certain quarters of the Internet’ (2012: 210). This movement of ‘hackers, pranksters, and activists’ is anarchic, and both seriously ludic and deadly serious. Each operation announces ‘Game on!’ to the targeted opponents and those interested in participating. In this case, OpDemonoid participants launched Distributed Denial of Service (DDoS) attacks, crashing three Ukrainian websites (BBC 2012). A video clip entitled OP Demonoid will not be televised exhorted supporters to replicate the clip through their social networks (Anonymous 2012). Pirarchy is a Hydra, as Anonymous warned: ‘where one has fallen, many will rise to take their place….For most of us Demonoid and other public trackers have been about much more than music or movies. They are an incredibly powerful educational tool, facilitating much more than just open piracy[…] [they] provide a model for distribution… Corporations and governments fear them. Anonymous will not tolerate a world without them’ (Ragan 2012).

After some false starts, a resurrected Demonoid made a ‘glorious comeback’ in March 2014 (Ernesto 2014a). However, the site felt different to some. ‘It feels like walking into your old childhood home. The memories are there, but other folks live there now’ (comment on Andy 2013). Some jumped to alternative sites, believing that Demonoid ‘should just stay dead… Our community was at a loss that day, but it’s time to look towards the future of other public and private trackers’ (fratdaddyZC 2013).
Whilst on-line swarms escape easy documentation, a similar sentiment ‘to move on’ was expressed by some users of The Pirate Bay (TPB), following its shutdown by Swedish authorities in December 2014. Even TPB co-founder Peter Sunde predicted that a better platform, one with more soul and ‘no ads for porn and Viagra’, would emerge out of the ‘immense void’ TPB’s demise left (Ernesto 2014b). Indeed, within a fortnight open-source activists had released TPB’s source code to the global torrent community via GitHub to enable ‘individuals with minimal IT skills, and basic server equipment to create a Pirate Bay clone on their own domain’ (‘isohuntto/openbay’ 2014), perhaps even generating a shifting swarm of Pirate Bays.

With Demonoid, it appears that the swarms around its files and forums may be rebuilding. A Demonoid forum moderator reports that there ‘are [still] somewhere upwards of 9 million registered accounts’ (schatuk 2014). Domain statistics for 30 December 2014 identify 308,586 daily visitors and 2,468,688 page views (demonoid.ph Domain Analysis 2014). It is hard to be precise. As Vehlken states ‘swarms are problematic objects of knowledge: they disrupt the scientific processes of objectification’ (2013: 112). However, these anarchic and ludic swarms, while growing out of communicative capitalism, seem to be difficult for that capitalism to completely suppress, or ignore, especially when those capitalists try to enforce or extend their own property rights into what was seen as commons, or as cultural autonomy.

Swarms versus Sony

The law cases and actions around the Sony PlayStation3 (PS3) reinforce these points. Sony was perceived to be extending its copyright and property claims over people’s gaming machines, disrupting owner’s previous capacities or usage (‘thieving’) to an unprecedented extent, and was faced by mass protests, attempting to steal back the ‘property space’, in favour of play and personal usage. Since 2000 Sony promoted its PlayStation hardware as able to run computer software and non-inbuilt operating systems (the Other O/S option). The PlayStation up to the PlayStation 3 (PS3) was a computer as well as a games machine, and reputedly secure.

In December 2009, George Hotz, a hacker who gained fame by freeing the iPhone from compulsory attachment to the AT&T network, was given a PS3 along with a challenge. Just over a month later he announced that he had opened the processor and memory to programming (NZHawk nd).
Fearing that this would allow piracy, Sony issued an ‘upgrade’ in March 2010, which destroyed the machine’s ability to run other operating systems, and if not installed meant loss of the PlayStation network, playback of games, access to new games, and ability to play Blu-ray movies etc (Reisinger 2010). Next month a class action court case was initiated asserting that Sony had deprived people of functions of the property they owned.

In December 2010 the hacker group fail0verflow, protesting the compulsory removal of the Other O/S option, demonstrated they had a way to get around the block. One member asserted their rights to personal and cultural property, stating: ‘I haven’t stolen anything… It’s my own hardware, I can run whatever I like on it’ (Fildes 2011). Shortly afterwards Hotz released an encryption key, which allowed people to sign whatever software they liked and have the PS3 run it. Hotz’s code supposedly disabled the ability to run pirated software (Kushner 2012). Sony then launched a court case in California against Hotz and one hundred unspecified John Does (thus potentially generating their own imagined and potentially compelled swarms), alleging the defendants were bypassing ‘effective technological protective measures’ and violating ‘the Digital Millennium Copyright Act and the Computer Fraud Abuse Act’ (Reisinger 2011). Sony argued that California should have jurisdiction, despite Hotz residing on the other side of the US in New Jersey, because Hotz had a PayPal account, and used Twitter and YouTube. The judge was disturbed by this, saying that ‘would mean the entire universe is subject to my jurisdiction, and that’s a really hard concept for me to accept’. Hotz would clearly be disadvantaged by such proceedings.

Rather incoherently, the judge eventually allowed Sony to sue in California, claiming that Hotz’s website was aimed at California. However, his website was aimed at anyone who spoke English, there was no specific mention of California; so this ruling potentially made anyone with a website subject to the judge’s jurisdiction. Sony was also allowed to obtain the IP addresses of people who visited Hotz’s website. These rulings extended Sony’s legal power. The case also extended definitions of intellectual property, increasing enclosure or legitimating corporate theft. George Washington University Professor of Law, Orin Kerr, wrote (2011) ‘this is the first case I know of claiming that you can commit an unauthorized access of your own computer’. The Electronic Frontier Foundation also protested that Sony claimed rights which prevented people ‘tinkering with’ their own property (Kushner 2012). Even established property boundaries are vague and depend on power contests, and can potentially be appropriated at any time.

As with the legal attacks on Demonoid, these extensions of property and power attracted the attention of Anonymous swarms who began attacking Sony’s internet sites. Some members of the hacker swarm stated their objections in press releases, pointing out as that Sony attacked people’s property rights because they did not like people’s actions, so now Anonymous was similarly violating Sony’s property (Tangled Web 2011). Again the ambiguities of property are central.

A DDoS attack caused the PlayStation network to crash repeatedly, although Sony denied Anonymous were responsible (Tangled Web 2011). Lack of certainty can be tactically useful to both sides. Anonymous soon abandoned the attack after angering gamers who had paid to play and who are important legitimisers of its actions (Olson 2012: 227-8).

Soon after, Sony settled with Hotz, requiring him to promise that he would never hack any other Sony product without facing stiff penalties (Groklaw 2011). A week later Sony revealed that the PlayStation network’s problems were greater than previously announced, with 75 million people’s personal account details taken (Tangled Web 2011). Sony claimed before Congress it had evidence of a signature being left in its files showing Anonymous was behind the attack, but anyone can leave a text behind (Albanesius 2011). A possible Anonymous spokesperson pointed out that Sony’s claim allowed Sony ‘to shift attention away from its own failure to protect client data’ (Brown 2011). Blame is easy in this environment, however, there are obvious problems with distributed swarm action as it is always possible that some affiliated people will act in ways other ‘members’ do not like: ‘their leaderless, decentralized structure means that they are all essentially rogue elements’ (Tangled Web 2011). While there are supposedly official announcements speaking on behalf of Anonymous, this is protest as dis-coordinated play; there is no one to make agreements with, or to hold back the fringes.

Hotz seemed keen to distance himself and his kind of hacking from breaking into servers, saying: ‘You make the hacking community look bad, even if it is aimed at douches like Sony’ (Kushner 2012). While some Anonymous members may identify with Hotz as ‘superaltern’ (Olson 2012: 227), the identification may not be reciprocated, or perhaps Hotz feared Sony would sue him again; this is not a politics of clarity. Swarms that form around Hotz and his case may not reference his desires or positions. However, various people did launch orthodox court cases against Sony for damages (BBC 2011). These (swarmed?) cases eventually resulted in a US$15 million settlement by Sony and fines in the UK for failure to keep its systems safe (Lien 2014). In this way play melds with the formal.

Anonymous swarms display a degree of playful and vindictive wit, and the hackers affiliated take actions because they can, because they enjoy it, because of the technical challenge, and to some extent for something to do. Alluding to the group’s ludic motivations and its ‘ongoing embrace of lulzy mischief’, where lulz are laughs at other people’s expense (perhaps expressing a sense of superiority as there is no necessity for swarm action to be egalitarian), Gabriella Coleman notes that ‘Lulz are unmistakably imbued with danger and mystery, and thus speak foremost to the pleasures of transgression’ (2014: 33). Moreover, one of the principles that participants adhere to is ‘a spirit of humorous deviance’ (ibid: 23). Anonymous’ play can be seen not only as a reclamation of ‘fun’ as politics, but a response to uncertain political problems, and the difficulties of formal action.

Hotz, while clearly not afraid of boring repetitive work on his own behalf, also demonstrates this ludic sense of power and motivation. ‘I don’t hack because of some ideology […] I hack because I’m bored’, and ‘I’m not a cause. I just like messing with shit’. He got bored with an internship at Google, and left Facebook wondering ‘how people stay employed for so long’ (Kushner 2012). Despite his negative reaction, this could show an ambiguous circulation between rebellion and co-operation. However, Hotz clearly reacts negatively to corporate power/exclusion being built into devices, wanting to allow people to own their equipment and use ‘homebrew software’ as developed by anyone (The Loop 2011). ‘I don’t like when companies tell me what to do with products that I have purchased’ (Hotz 2012).

While Hotz and fail0verflow both deny any piratical intentions, their relationship to intellectual property laws and extension of those laws is very similar. Along with Anonymous members and Demonoid users they do not want their particular culture to be locked away or restricted by corporate enclosures, copyright and lawsuits that reduce their play or capacity. They want to be able to construct and view software as culture, as much as others want to view films, books or games, to participate in conversation or make their own cultures.

Conclusion

Pirarchy emerges out of the convergence of the technological structure of communication networks, tools and social forms deployed by contemporary capitalism. As such, pirarchy is not an outside alterity, but an internal disorder within capitalist orderings. The pirarchical swarm uses a generalisable social formation with variable content and effects. That it can be seen as ambiguous, or as incidental activism, does not mean it can have no effect. Pirarchs expose and exploit informational capitalism’s inherent self-disorderings and vulnerabilities, counterposing free exchange, cultural freedom, play and ludicity against neoliberalism’s demands for complete wage-labour dependency and total private ownership of culture and ideas. As such they illustrate anarchist concerns about the nature of property and the vital necessity of free exchange and co-operation for cultural vitality and individual freedom, without needing any particular ideological unity.

In keeping with this anarchistic tendency, rather than being unified or institutionalised, the swarm formations of pirarchy are disorderly, temporary, and contingent. They have no existence other than in the moment. Unlike swarms of insects, schools of fish, or flocks of birds, they have no kin or long-term relation. They appear and fade, as people log in and log out, plan ‘ops’ and campaigns via Internet Relay Chat channels, or form a swarm elsewhere. They build a force without a centre or formal organisation. Arrests or disappearances may not unsettle the swarm: the participants just go elsewhere and a new swarm appears. Swarms arise from, and are built into, the habits of exchange and receipt found throughout the internet and daily life. They can reclaim a non-commercial, non-work mode of living, based in cultural creativity, cultural demand, and entertainment.

The Demonoid story illustrates how control and liberation processes occur on a global level. As nomadic-neoliberal power flows across national borders, so does resistance. The growing participation in pirarchical power, from the mass of ludic subjects in P2P swarms to the masked bodies in street protests around the world against the US-driven and subsequently failed Anti-Counterfeiting Trade Agreement, strongly suggests that the fight to defend and extend the cultural and knowledge commons is generating new political actors, whether playful, politicised, or both. With Demonoid the internationally coordinated attacks temporarily destroyed the ‘community’ around the site, and it is unclear both how many people moved on for good and how many subsequently returned, and also whether ‘community’ even matters for swarm-life to have effect. Similar forces seem displayed in the swarmed protests that arose around Sony’s attempts to extend its legal and proprietorial rights. While there may have been figureheads, and while Sony clearly exploited the vagueness of network society, the protests significantly changed the field, caused damage to Sony and were conducted in a ludic and uncontrolled manner, with potentially harmful effects for ‘innocent bystanders’. Swarm formations don’t have clear boundaries for attack, and they distribute risk and provide potential anonymity, and perceived safety, in numbers. Eventually it is hard to tell whether the situation was changed or not. Disorder was restored as much as order, and the potential for continuing and commercially damaging wars over property ‘rights’ was demonstrated.

If there is to be a ludic revolution, or more realistically a ludic disruption, then it may tend to take a swarm form, by its nature. Ludicity resists organisation and discipline, which is both a weakness and a strength as it does not sacrifice its means to its ends, ends and means can harmonise. Such revolt is not normally sustained and thus ineffective when faced with organised opposition. However, in informational capitalism swarms become a normal, easily and instantaneously activated social formation and, while disorganised with unstable membership, can be continual in their effects. Disorder becomes the swarms’ strength.

The classic argument Marxists make against anarchism is that anarchists can never organise to overthrow anything and fail at the last moment. Anarchists argue that Marxists institutionalise repression and never move beyond the State. Both have a point. Pirarchy forms and supports accidental rebellion, while providing support for institutionalised moves. In its habits, it recognises that property always comes from a collective commons; the origin of all property is the natural world, cultural ideas, social labour, individual effort and contingency. In pirarchy people attempt to rule themselves through informal exchange, conversation, collaboration and fragmentation. They resent attempts to stop the exchange. By taking back the cultural into their own lives, they challenge the appropriation at the heart of capitalism using the tools and formations of capitalism, while capitalism, in turn, attempts to reappropriate and extend property claims.

This is significant, as Reclus argued, because evolution and revolution are not alternate modes of social change, but rather are operating together. Evolution builds up pressures and preparation for change while the resolutions to the pressures come in the shocks of revolution (Fleming 1988: 123; Reclus 2013: 138). Pirarchy builds up habits which do not recognise some property types as exclusionary. If enough people act, and the habit becomes daily life, then the practices build up into a revolution of sorts. Historically, capitalism disrupts ludicity, and attempts to reclaim ludicity can be radical or disruptive of capital, even if accidentally. As Tiqqun argue, there ‘is in no way a necessity to “rise up”, but a necessity to raise, to refine, to spur our pleasure, to intensify our enjoyment’ (2011 p 167, emphasis in original), and out of this… who knows?

Acknowledgements

Research work towards producing this paper was funded by the Australian Research Council Discovery Grant DP0880853 ‘Chaos, Information Technology, Global Administration and Daily Life’. The views expressed in it are not necessarily the views of the funding organisation. We thank the editors and peer reviewers for their generous input into earlier drafts of this paper.