Last week archaeologists discovered the oldest yet cave painting in Sulawesi, Indonesia. Dating from more than 51 000 years ago, it pictures a pig surrounded by three figures.

While the article that discussed the discovery lamented the “poor condition” of the painting because much of the pigment had chipped away, that conclusion assumes that art works are fast frozen in time and not material objects which bear the traces of the forces of natural and social history. If we treat artworks as what they really are, material interventions into the natural order of things still subject to the forces that erode mountain ranges and carve canyons, there is no reason to lament its state. The erosion is part of the painting as it is right now. Just as the cracks in the varnish of Albert Pinkham Ryder’s paintings have ceased to be mistakes and become integral to their aesthetic power:

or the faded and chipped appearance of the frescoes in Tatlarin constitute rather than detract from their beauty

so too the effect of natural forces on our ancestor’s creation. Whatever the painting looked like when it was completed 51 000 years ago, today it looks precociously abstract: the art work continues to develop and evolve long after the artist(s) and their original intentions have died.

Something similar must be said about the content of the work. The anthropologists who have been studying it have been concerned to decode the story that the painting is telling. Perhaps it served some ritual function: did it celebrate a successful hunt? try to summon spirits that would ensure a successful hunt? Those are legitimate questions, but the answers to them are quite beside the point when it comes to appreciating the picture as a painting. I am sure that it tells a story and it probably had some ritual function, but paintings are not stories or religious rites: they are the visible irruption of the activity of human imagination into natural space.

What we think of as art today— the studied creation of pieces by a distinct class of producers whose products are intended for a consumable performance, sale, or display in a museum– had its origins in the Renaissance. But art work at the deepest level is the reconfiguration of the material content of the human sensorium by its imaginative organization. The surface of the cave is just rock…. until someone thinks of its as an empty space on which something which exists as yet no where in the universe save the imagination of the painter could be inscribed. As soon as that surface appeared to them as a possibility-space for a potential painting, it ceased to be limestone (or whatever) of such and such dimensions. Its being as a possibility-space for possible inscription confronts the painter with a new set of problems. Not: what is the chemistry of limestone, but: how will this pigment appear when it is applied to this substance? Not: what is the surface area of this stretch of cave, but: how can I distribute the figures that I imagine in the most pleasing way? Not: will anthropologists 51 000 years from now be able to see that I (we) am (are) painting a pig and three figures? but: how can I transcribe my idea into material markings that have effects on those who will see it?

The art work consists in imagining how that possibility-space can be filled. Where should the representation of the pig be placed relative to the figures? How should the activity of the figures be depicted? What colours should be used, and how much of the space should be painted and how much left blank? Whatever else the painter(s) thought about, the re-organization of the possibility-space of the painting surface had to be the fundamental problem. Maybe they were invoking spirits or giving thanks (or maybe they were just having fun at the expense of future anthropologists who will attribute all sorts of meanings to these marks which for them had none). Whatever else they thought that they were doing, they had to relate to material and space as it was given by geological forces and geometry as a set of constraints within which whatever they imagined in mind could be brought to life.

Art is not first and foremost story-telling or ritual, it is the doubling of physical reality in imagination. Art operates in the possibility-space that arises in and from natural space when artists relate to its giveness as an invitation to make something out of it. Even when paintings are made to look “just like” real objects, they are not the same (as Rene Magritte’s “ceci ce n’est pas une pipe,” painted beneath his panting of a pipe reminds everyone who sees it).

A flute played so as to sound like a bird call is not a bird call, and– as beautiful as some bird calls might be– they are not songs, properly speaking, because they were not conceived in imagination first by the bird. Although some birds may mimic other birds and there might be individuality in the expression of their songs, they cannot decide to break with tradition and invent a new mode of singing beyond their instinctual repertoire.

But I do not come to criticize birds, but to celebrate human creativity …

which goes all the way back to when we first became human beings. We carry music in our chests, in the rhythmic life-beat of our hearts. We carry painting and sculpture and poetry in our eyes, which are pleased by shape, texture, colour, and resemblance, and world-making power in our minds, which are free to re-arrange everything that can appear in a visual field or as a meaningful thought according to a formal order it alone can imagine.

When budgetary pushes come to shoves, as they inevitably do, art is usually classified as a luxury that can be cut without causing real damage to those who are deprived of the fruits of works that will not be created or shared. But this magnificent gift of our ancestors should remind us that art-making is as human a need and practice as hunting or growing food. Who knows how the painter(s) fellow cave-dwellers thought about the piece, but its existence tells us that they did not stop them from painting it. They did not say “get off your arse and go out and hunt pigs rather than waste your time painting them.” Even if some of them thought that, the thought was not translated into practice. Happily, “Pig with Circling Figures” now speaks to us beyond the grave of the creator(s).

Art and science should not be counterposed and set in competition with each other. Both have the same root: the human capacity to experience the world as patterned and meaningful. However, we humans suffer from a peculiar affliction of valuing ourselves too lowly. We have projected our own powers first onto the gods (as Feuerbach diagnosed) and now to our own creations. No doubt word and image assembly machines like Chat-GPT are extraordinary confirmations of the creative intelligence of human beings. But they themselves are not creative. They have never seen anything in their mind’s eye that was so compelling that they felt forced to rub pigment into a cave wall. To create is first of all to initiate action in response to an imagined possibility of such power that one feels — is moved by–the need to risk the judgements of those with whom one shares it. Chat-GPT has never felt anything, and if people ceased to prompt it, it would have nothing to say.

One of the things that I missed most when I was confined to quarters and teaching from home during the pandemic were chance encounters with colleagues. One of the best things about working as an academic are the brilliant people from other disciplines with whom one works. What other job let’s you talk to a chemist on one pathway, an artist around the corner, and a historian in the quad? The university concentrates the historical and systematic development of the human intellect in a few city blocks.

Learning is not confined to classrooms on campus: the entire space is an opportunity for pedagogical path-crossings. A conversation with a student as we walk together after class is just as philosophically important as what I said during the lecture. The university, indoors and out, is a learning commons.

Learning happens in lectures, seminars, labs, and chance encounters, but it also occurs at demonstrations and protests. The university has long been a space for political education, too. There have been dozens of rallies during my time at Windsor, including quite loud demonstrations earlier this year during the early days of Israel’s invasion of Gaza. Those demonstrations included the “From the River to the Sea, Palestine will be free,” chant that has become notorious, but I do not recall anyone lodging a formal complaint with the administration or the media even bothering to cover the campus marches.

But the student encampment movement was not so ephemeral as a march and attracted mainstream and social media attention across North America. Unlike other universities, Windsor’s administration decided to negotiate in good faith with the small band of student occupiers and recently reached an agreement to end the occupation. The language of the agreement is mostly promissory and platitudinous, but it does contain commitments to expand its Scholars at Risk program to Palestinian colleagues and students, to review the University’s investment policy, and to ensure that its academic relationships conform to its own existing ethical guidelines.

The condemnation was as swift as it was predictable. Jewish students, the B’nai Brith, the Simon Wiesenthal Centre, and local Jewish leaders have claimed that the University gave in to intimidation, an illegal occupation, indulged in one-sided and unfounded condemnation of Israel, and capitulated to a distorted understanding of that history of the Israeli-Palestinian conflict.

Critics are free to criticize and the University will have to answer for its commitments, but I had not heard any complaints until the agreement was signed that the encampment was viewed as intimidating to Jewish students or anyone else. I do not know what law the protestors were violating. I would argue that the encampment was a form of political argument and therefore a legitimate action if we view– as we should– the whole campus as a learning commons. Even if one does not adopt that view and argues, like other universities have, that the campus is private property, the law of trespass only applies if the property owner files a complaint. It is a dubious application of the law to claim that the administration is like a private property owner vis-a-vis campus space, but in Windsor’s case the administration never made that move, so the encampment violated no law.

Moreover, the existence of the encampment in no way impeded critics from organizing counter-protests, criticizing the protestor’s claims, or even setting up their own encampments. Classes continued as usual, people came and went to their offices and the library, no buildings were occupied, campus life continued without interruption. The students behaved as students should behave: engaged, putting their learning to work in the “real world” that everyone loves to say university students ignore, trying to make a difference by demanding an end to a horrific conflict.

The Preamble to the Universal Declaration of Human Rights protests against the actions that “shocked the conscience of mankind” during the Second World War. The suffering of the Jewish people during the Holocaust was the centrepiece of a six year slaughter that killed 60 million people. The agreement that the University signed with the students includes a commitment to add a clause to their ethical investment policy that ensures that companies whose stock the University buys are not human rights violators. Is it contrary to the interests of the Jewish community, here, in Israel, or anywhere, to demand that corporations comply with human rights? The University also agreed not to enter into any partnerships with Israeli universities, unless the partnership was agreed to by the Senate. All major inter-university agreements have always been voted on at Senate, so there is really no departure from past practice here. Moreover, Senate has turned down partnerships before– most recently, with an Egyptian school, about 10 years ago, because there were concerns about the human rights situation and academic freedom. Viewed in light of the historical practice of the University, Israel is not being singled out. Finally, the agreement notes that individual academics remain free (as they must) to work with Israeli colleagues.

People who are committed to peaceful resolution of conflicts should celebrate the peaceful resolution of this conflict. Other universities have disgraced themselves by letting the police loose against peaceful protestors. The Windsor encampment was far less militant than the anti-Netanyahu protests organized by the families of hostages in Israel have been. Opposition to the policies of a particular government is not a racist attack on a whole people; defending the internationally recognized rights of Palestinians to national self-determination– the same right Jewish people acted on in 1948 to establish Israel– is not to support Hamas’s murderous methods. Political arguments are always polarizing. One cannot win an argument by deciding that the other side’s position is illegitimate from the get go. Educators must listen and respond to the reasons and evidence presented. The agreement that the University reached is in keeping with the vocation of members of an institution of “higher education.”

Instead of condemning the University and trying to mobilize the power of the federal and provincial governments to undermine it (would that not be a gross violation of the academic freedom critics claim to be upholding?) critics should demonstrate, carefully, and with evidence, not with sweeping dismissal, exactly what institutional principles the university has violated in the agreement. If there has been actual, illegal intimidation, there is a legal system to deal with such complaints. But mere feelings of discomfort cannot be grounds to silence campus movements. If discomfort were grounds for silencing, all universities would have to close, since where there is learning there is growth and where there is growth there are growing pains.

Sadly, this agreement will not solve the real problem, the war in Gaza. However, it should serve as a source of minor inspiration that argument and negotiation can produce agreements. The key is to talk, not fight.

When asked by a British journalist what he thought about Western Civilization, Gandhi responded “I think it would be a good idea.” Might we not say something analogous about the rule of law? It would be a good idea if societies really were governed by a set of universally agreed to, impersonal rules that defined a framework that “kept fair play” (William Blake, “Blindman’s Bluff”).

But that is just an idea: in reality law does not “keep fair play” but is a partisan tool to advance the interests of the groups with the power to write and enforce it. Ruling classes change as social systems change, different factions of the same ruling class assume power, through democratic or violent means, but the one constant, as Glaucon, developing Thrasymachus’ cynical conception of justice in The Republic, tells Socrates, is that justice (law) is just “the right of the stronger” dressed up in universal language.

The recent decision of the US Supreme Court that Presidents enjoy absolute legal immunity for actions undertaken as part of the official duties of the office seems to confirm the cynical view. Liberals have responded that the decision in effect makes the President an absolute monarch. The concern expressed by the dissent of the liberal judges and the commentocracy is understandable, but I think a better analogy would be with the Pope. Absolute monarchy was an attempt to identify the state with the body of the monarch (“L’etat, c’est moi,” said Louis XIV ). But the Supreme Court did not decide that Presidents have personal immunity for any act whatsoever, but only those undertaken as part of their official duties. The Pope is infallible in matters of theological dispute, but not absolutely infallible. The question that the decision poses is thus: what is the scope of the official duties of the President?

That is the problem posed in a rhetorically arresting way by Sonya Sotomayor’s argument that the decision opens the door for Presidents to order the assassination of their opponents by the military in their role as commander in chief of the armed forces. I am assuming that she intended the argument as a reductio ad absurdum to expose the problem that the scope of “official duties” is unclear. The President really is the commander in chief of the US armed forces, and thus, in principle, could issue commands which, while illegal in other respects, fall within the scope of official duties. I will leave it to experts in US constitutional law to parse the details of the decision. My interest lies in assessing its implications of for the interpretation of the value of the idea of the rule of law.

The nakedly partisan division in the current US supreme court supports the Marxist argument that behind the appearance of legal neutrality lies the reality of class power. Almost every decision that this court has made has split along conservative-liberal lines. But that division is only the surface expression of a deeper structural problem. Liberals and conservatives in the US and elsewhere represent two factions of the same ruling class: no matter which one exercises political power, they are both representatives of the class that owns and controls the resources and wealth that everyone needs to access in order to survive and live full, meaningful, valued and valuable lives. Law is thus– as Glaucon warned– class interest expressed in abstractly universal form.

Fair enough. It would be difficult to dispute that the ultimate power protected by law is private property. Think back a few summers to the Wet’suwet’en blockade against the passage of the Transmountain pipeline through their territory. Despite the fact that the Canadian Constitution recognizes the validity of Indigenous law, when push came to shove, and the exercise of Indigenous law was going to impede a project deemed of paramount economic significance, the courts sided with the Liberal government and helped force the pipeline through Wet’suwet’en territory. But it was not “the law” that enforced itself, but the RCMP armed with military grade weapons. One could multiply examples but the point should be clear: historically, the idea of the rule of law was a progressive check against the ambitions of absolute monarchs, but in reality it only expressed in abstractly universal form the partial, private interest of the rising bourgeoisie.

As with so much of Marxism, one must grant that its criticisms expose real contradictions in capitalist society. The problem arises when one then asks: but what will you put in its place? Anarchists argue that human beings are capable of spontaneous self-organization and do not require the state form and its legal structures to govern their affairs. Marxists have been more ambivalent. Marx himself was brutal in his criticisms of Bakunin, but also taught that, under a fully developed capitalist society, that the state would “wither away.” Does that mean that law would wither away too? Marxists have been divided. In the early days of the Soviet Union the majority argued that bourgeois law would give way to proletarian law. Evgeny Pashukanis, the most important Soviet legal theorist, disagreed. He argued that law was by its nature capitalist and that it would eventually disappear once communism matured. There would be pragmatic regulations (like traffic conventions that enforce driving on the right or left side of the road) but no principles that claim the right to govern human affairs because they are abstractly rational and in everyone’s interests.

History was not kind to Pashukanis’ positive argument. Communism did not mature in the Soviet Union but rapidly degenerated into a totalitarian state. The abject failure to build a democratic socialist society has served liberal defences of the rule of law as the rule of abstract principles over private and partial interests well ever since. As E.P. Thompson noted wryly, the experience of Stalinist totalitarianism ought to make even the most committed Marxist wary of “cutting down the hedgerows” (Hobbes’ metaphor for the function of law) on the naive assumption that after the revolution we will all be equal as comrades. Historically speaking– and historical materialists should only ever speak historically– some animals have made themselves more equal than others.

True true. But but ….

it is clear that the actual function of law is to enforce the rule of capital over human life. We thus seem to be caught between two abstractions: the rule of law as the rule of abstractly rational principle over human partiality to their own case, a bulwark against totalitarianism and the guarantor of civic equality, and a promise of a future classless society in which laws will no longer be necessary because social institutions explicitly serve everyone’s material interests, ensure need-satisfaction, enable all-round capacity development, and provide fora for the democratic resolution of disputes. Were such a society to be constructed then of course we would no longer have to worry about the rule of law. But an idea for a perfect society is not a program to create one. The idea of fully developed communism undermines the idea of the rule of law by abstracting from the social conditions that make law necessary. But Marxism is not supposed to be abstract criticism but, as the young Marx said, practical criticism, criticism which immediately translates itself into practice.

Practically speaking, there are no revolutionary movements of any consequence. So the question is: what does one do right now: abstractly condemn the rule of law as a bourgeois subterfuge? Or criticise the reality of the exercise of law on the basis of a defence of the value of the idea of the rule of law and work to realise that idea as far as possible in a given moment, and then work to push it further the next?

If one rejects the value of the idea of the rule of law it seems to me that one cuts oneself off from being a participant in the actual political arguments of the day. It cannot be a matter of political indifference to democrats of any persuasion, liberal or socialist, whether officers of the government of a society of legal equals are granted immunity from the very laws they are supposed to serve. Whatever the constitutional realities of the United States, the idea of the rule of law surely counts against any immunity of government officers for the acts they commit in office. Political office in a liberal-capitalist society is not supposed to be a sinecure but a position conferred by consent of the governed. The historically progressive value of the rule of law was that it undermined the claims to natural superiority that feudal aristocracies and monarchs claimed. Henceforth the law, not the body of the monarch, would rule. Power could be criticised and controlled by objective standards that frame the boundary of legitimate and illegitimate behavior. Legal equals can look each other in the eye; no one is owed deferential treatment.

In this vision the law is not oppressive but the objective form that the human capacity for self-determination takes. To be autonomous is to be capable, literally, of giving oneself (auto) the law (nomos) that one willingly obeys. In the liberal tradition law is therefore freedom preserving– a principle that socialists should themselves preserve. The problem with the liberal rule of law is that it is not yet the law that rules, but ultimately the class interests of the owners and controllers of capital. But few could be so historically naive as to trust that a post-revolutionary society could rely on the commitments of its leaders to recognise and respect boundaries to their power. The idea of the rule of law cannot on its own constrain power, but the fact that it imposes regulatory principles whose validity does not depend upon their being recognized by governments of the day was a vital step towards democratic society.

The Conservative justices may not have transformed Donald Trump into Louis the XIV, but it is impossible to read their decision as anything but a step backward away from democracy and towards autocracy. But if we criticise the judgment because it re-introduces an aristocratic distinction between those subject to the law and those superior to it, it must be on the basis of accepting the value of the idea of the rule of law itself. How far the affairs of human beings can be determined by spontaneous deliberations is an open question. But as we work towards a more democratic future we must not trust anyone’s good political intentions. Anyone- business person or politician, state functionary or revolutionary– who argues that the law is superfluous because they can be trusted to govern themselves– absolutely should not be trusted.