10 - Co-Production and Populism

Summary

Production fulfils the making of a thing by bringing it to public scrutiny. Production is therefore the cutting edge of rhetorical performance in law, politics, media, and all aspects of civic and social life. The appeal to ‘making with’ has been a technique favoured by orators throughout the history of political rhetoric. Donald Trump employed it when he famously said, ‘we have to build a wall, folks’. Perhaps he borrowed the technique from his background in business and sales, for the appeal to ‘making with’ is also pervasive in modern marketing practices. Companies seeking to sell their goods and services become so beholden to the public that the public as co-Producer begins to market its demands to the supplier. When this dynamic operates in a political context, it can be a force for good and a model of democratic, devolved government, or it can amplify errors by forcing a political leader to pipe whatever tune the public pays for. In the case of Donald Trump, perhaps his more extreme and illogical utterances have less do to with his own manifesto than with maintaining the brand that his market demands.

Production fulfils the making of a thing by bringing it to public scrutiny. Production is therefore the cutting edge of rhetorical performance in law, politics, media, and all aspects of civic and social life. Its impact lies largely in the fact that the public – or ‘publics’ – are naturally most persuaded towards the positive reception of a thing where they perceive that they’ve had a hand in the co-Production of the thing. The appeal to ‘making with’ has been a technique favoured by orators throughout the history of political rhetoric. President John F. Kennedy employed it in his Inaugural Address on 20 January 1961, when he called on ‘both sides’ to ‘join in creating a new endeavor, not a new balance of power, but a new world of law, where the strong are just and the weak secure and the peace preserved’. With the very different motivation of seeking to divide one section of humanity from the rest, Donald Trump also appealed to collaborative construction when he famously said: ‘we have to build a wall, folks. We have to build a wall.’¹ Perhaps he borrowed the technique from his background in business and sales, for the appeal to ‘making with’ is also pervasive in modern marketing practices. Thus, in 2008, word-of-mouth or ‘viral’ marketing was called ‘the defining marketing trend of the decade’.² Analysing that trend, Jim Nail, chief strategy and marketing officer at media company Cymfony, emphasizes the public’s co-Productive influence on demand for the things that suppliers make: ‘To succeed in word-of-mouth marketing, you need to find that segment of real ardent fans and create special programs and tools that will empower them to share that enthusiasm.’³ The tactic of appealing to and empowering ‘that segment of real ardent fans’ sounds like something straight out of the Donald Trump playbook.

Making, Marketing, Meaning

So-called collaborative marketing and creative consumption have been called ‘the new marketing logic’.⁴ An example of collaborative marketing is the technique of engaging savvy consumers in product design on the assumption that the habits of today’s ‘lead users’ can predict the habits of general consumers tomorrow. Eric von Hippel notes that ‘since lead users often attempt to fill the need they experience, they can provide new product concept and design data’.⁵ From the mid-2000s, consumers considered to be ‘market partners’⁶ in the ‘co-creation of value’⁷ became a ‘new paradigm’⁸ and ‘the key process in the new marketing logic’.⁹ The terminology of marketing scholarship differs somewhat from my own. For example, marketing vernacular tends to apply the label ‘co-production’ to situations in which the consumer is a passive recipient of the provider’s values and the label ‘co-creation’ to contexts in which the consumer is more active in product development.¹⁰ Although our present definitions are drawn in different places, the marketing theorist’s distinction ‘between active involvement in the creative process’ and ‘decoding or meaning-making activities’ is potentially a useful one.¹¹

Owen Barfield found the distinction between primary thing-making and secondary meaning-making to be helpful in relation to making poetry, hence his suggestion that when a person, ‘having achieved self-consciousness, returns to the making of poetry, the secondary imagination is at work on the making (or, if you like, restoration) of meaning’.¹² Meaning-making in relation to poetry may be carried out by the same person who first uttered the poetic words, or it may be made collaboratively by and with other people as critical readers. Where I depart from Barfield is when (in his very next line) he goes on to state that, ‘as the secondary imagination makes meaning, so the primary imagination makes “things”’.¹³ It seems to me that interpretative co-Production through ‘meaning-making’ is just as much an essential part of making ‘things’ as the activity of poetic Production. Indeed, it is the engagement of a reader or audience that makes all the difference between a mere ‘object’ and a meaningful ‘thing’. Whereas an object is a matter that is in etymological terms ‘thrown against us’ (from the Latin ob- ‘against’ and iacere ‘to throw’), a thing, recalling Tim Ingold’s definition (see Chapter 4), is constituted by social connection, cooperation, and consent.

Popularity and Populism

Some will say that Trump’s rhetoric lacks elegance, nuance, and ethical virtue, but that is to judge him by the standards of traditional political oratory. Judged as a performer and businessman, it is hard to deny that he knows his audience, knows his market, and knows how to make his market and how to appeal to it. So it is with every ‘demagogue’ – a word that means people agitator or, as we usually put it, ‘rabble rouser’. There are serious consequences when the Production values of commercial marketing become the Production values of populist politics. Companies seeking to sell their goods and services become so beholden to the public that the public as co-Producer begins to market its demands to the supplier. When this dynamic operates in a political context it can be a force for good and a model of democratic, devolved government, or it can amplify errors by encouraging a political leader to pipe whatever tune the public pays for. In the case of Donald Trump, one senses sometimes that his more extreme and illogical utterances have less do to with his own manifesto than with maintaining the brand that his market demands. We sometimes say that Donald Trump ‘plays to his base’, which graphically expresses how demagoguery can produce a descent to the lowest common denominator. This mirrors commercial marketing practice in non-political contexts, where emphasis on manufacturer supply has shifted over time to emphasis on public demand.

What is our ideal of political behaviour in the people who seek our votes? Perhaps we imagine the ideal political candidate to be a person of principle who comes upon (Invents) a set of social concerns, then develops (Creates) a set of policies, and finally publishes (Produces) their policies in the form of a manifesto to be judged and voted upon by the electorate. If all this were done with integrity and transparency, we could find little to fault in such candidates – leaving aside disagreement with their particular choice of policies. In practice, though, our ideal politician may be unlikely to succeed if they simply offer the public prefabricated policies. By adapting our image of the political candidate and political office holder to that of a person seeking to involve the public in collaborative marketing, we see that the successful politician is one who gives the public not only what the public thinks it wants, but one who also encourages members of the public to believe that they had a hand in making the policies and a hand in making the politician. This appeals to the public’s proprietorial sense of ownership, but it also appeals to their Making Sense. One has to invite the voting and paying public into the entire making process, from Invention through Creation to Production, in order for them to experience the sense that their candidate and their candidate’s policies were tailor-made to the voters’ personal specifications.

Politics is not the only context in which performers appeal to their audience’s desire to be co-Producers of the show. It is, for example, highly prominent in the arts, as the authors of Getting in on the Act observe in relation to the trend among arts groups towards making opportunities for public participation.¹⁴ In his book Making Is Connecting, David Gauntlett attributes this trend to the possibility (or ‘hope’, as he puts it) ‘that we are seeing a shift away from a ‘sit back and be told’ culture towards more of a ‘making and doing’ culture’.¹⁵ For Gauntlett, one of the ways in which ‘making is connecting’ is through what I call ‘co-Production’. Gauntlett explains the merits of co-Production when he writes that, ‘through making things and sharing them in the world, we increase our engagement and connection with our social and physical environments’.¹⁶

What is true of commerce, politics, and cultural performance is also true of news marketing by news makers. In his book Making the News Popular, Anthony M. Nadler writes that:

By exploring the different strategies that news makers have pursued to popularize news, I suggest that making news popular is not only a matter of responding to an audience’s preexisting interests; it is also a matter of mobilizing publics and creating new forms of feedback between news outlets and their publics.¹⁷

That passage appears under the heading ‘Mobilizing Audiences’, but it is just as much about making audiences as mobilizing them. What Walter Dill Scott said about the orator seeking to move the political masses applies equally to the newsmaker seeking to produce popular mass media: ‘The difficult task is not to convince and sway the crowd, but to create it.’¹⁸

Popularity is, of course, a double-edged sword. The ‘public’ is never a perfectly homogenous mass, and from this it follows that any given gesture to meet a demand made by one segment of the public might prove unpopular with another segment. Take Procter & Gamble’s decision in October 2019 to repackage its Always brand sanitary products by removing the Venus symbol (♀) on the basis that ‘[a]fter hearing from many people, we recognized that not everyone who has a period and needs to use a pad, identifies as female’.¹⁹ The ‘we listened to you’ trope is now a trite gesture in co-Productive mode. In this instance, the co-Produced rebranding, which was popular with many transgender users of sanitary pads, proved to be unpopular with many other users. Unpopularity with opponents of the rebranding went to the extent of a Twitter movement to #BoycottAlways or, as one wag put it, #GirlcottAlways. This example begs the question whether Procter & Gamble’s decision to repackage Always was based on a calculation of net popularity gain, leading to the supplemental question, ‘if so, did it work?’ If it wasn’t calculated to be popular, was it simply a policy decided on as a matter of principle? If that were the case, we would have come upon a most unusual creature – a global, profit-driven company with more politically sincere motives than many actual politicians. There is another possibility, which is that the marketing changes were driven neither by the desire to make a statement of political principle or the desire to appeal to any particular segment of the populace but by a cynical desire to build brand awareness. In other words, not to make a political point, or to make friends, but simply to make an impact.

For some global companies, focused techniques of co-opting consumers in the performance of their brands have become a major part of what makes them distinctive in the marketplace. One of the best examples is the use of interaction between staff, consumers, and products in Apple Inc.’s famous retail venues: Apple Stores. It has been said of the participation of the public in such spaces that it is as if we, the public, are ‘actors in the theatre’, because ‘as consumers in branded spaces we loan the brand’s character the phenomenological resources of our bodies. We play out its fictions, making them appear in three dimensions, as if they were real.’²⁰ The Always controversy shows that the same effects can be achieved in the virtual theatre spaces of social media. Whether Procter & Gamble thought about it in these terms may be doubted, but the company effectively co-opted the collaborative, user-generated force of social media, and turned consumers into ‘improv’ actors, riffing on the provocative prop (the rebranded sanitary pad) that it had set up in physical and virtual space.

The Always controversy was not Procter & Gamble’s first brush with the double-edged blade of popularity. The year 2019 began with an advertising campaign in which its Gillette brand of shaving razors ditched its traditional slogan, ‘The Best a Man Can Get’, for ‘The Best a Man Can Be’, in a move apparently calculated to distance the brand from ‘toxic masculinity’ in response to the #MeToo movement. While many of Gillette’s male customers appreciated the gesture towards positive aspects of male social behaviour, many others objected to what they perceived to be politically correct virtue signalling. For some objectors, the root of their complaint was not that a politically correct signal had been sent, but that the entity sending it was an impersonal, commercial, corporate conglomerate. It is one thing for a faceless institution to promote ideals of face-shaving, but to promote ideals of human social behaviour was perceived by its detractors to be bare-faced cheek. For all the controversy generated by the new slogan, the irony is that the traditional slogan, ‘The Best a Man Can Get’, had always equivocated between a manifesto for masculinity in grabbing mode and a manifesto in growing mode – in other words, it was never clear whether ‘get’ meant ‘to acquire’ or ‘to become’. That had been the puzzle posed by the pun all along, and the puzzle had made the slogan intriguing, engaging, and memorable. Political concerns aside, the new slogan lacks the pun and lacks the puzzle and therefore lacks the impact of the original.

The two 2019 boycotts did no harm to Procter & Gamble’s financial bottom line. On 28 December 2018, Procter & Gamble’s share price as quoted on the New York Stock Exchange was $91.18 and on 27 December 2019 it had risen to $126.09, despite the two headline-grabbing Twitter boycotts, or perhaps because of the boycotts. Speaking about the Gillette advertisement to BBC Radio 1’s Newsbeat in January 2019, Rob Saunders, an account manager at UK advertising company the Media Agency Group, emphasized the potential for publicity to triumph over unpopularity, noting that the Gillette commercial ‘is getting them good publicity and good numbers and causing a debate – which they must have known when they put out this ad’.²¹ Procter & Gamble might have been less concerned to move consumers one way or another on the issues of the debate than to make consumers take interest in the performance of its brands. The implications for politics of this species of principle-neutral or principle-equivocal brand-building are serious. It is possible, for example, that a president might be voted into power, not on the basis of rigorous policies sincerely and consistently expressed, but on no better basis than the robust and attention-grabbing nature of their own personal brand. Donald Trump is just the latest, eye-catching example of the phenomenon.

Reader-Response as Co-Production

The relevance of co-Production to making things has received some of its most serious attention in relation to novels. The very name ‘novel’ suggests something new and original, and this, combined with the fact that the novelist nearly always works alone or publishes in their sole name, can give the misleading impression that a novel is crafted in the manner of an engraved stone – to be set up as a memorial monument to one person’s genius. The reality is very different when one considers the great variety of readers who engage with a novel and the great variation in what they make of it. As you read this book, you are almost certainly reading something that I didn’t write. Text might be set in type, or even in stone, but the meaning of words can never be fixed once and for all. Words are always more or less vague, and the accuracy of the author’s expression and the reader’s interpretation will vary with mindset and physical setting – even down to such factors as the time of day and whether the text is read in a doctor’s waiting room or on a sun lounger by a swimming pool. The author’s words and expressions Produce an inchoate meaning that only approaches solidity through the confirming co-Productive activity of a critical reader. In short, this book depends for its meaning upon what you, the reader, make of it.

This idea is familiar to us nowadays as ‘reader-response theory’, which is the idea that the reader’s interpretation plays an active part in making a literary work, in something like the way that an actor or director fulfils a script, or an instrumentalist or conductor fulfils a musical score. Composer Antony Pitts concedes that ‘[t]he life of the work over which I now slave so assiduously will have a shape free from its creator’s legal reach: I cannot say how it will be interpreted and received, however hard I try’.²² Quintilian said something similar when he opined that rhetoric depends more upon the impression made on the hearer than the thought formed in the speaker.²³ It has likewise been said of painting that ‘art is not what you see, but what you make others see’.²⁴ For an example of the radical way in which an image can be made to mean something that its originator did not intend, consider the famous Vietnam War photograph of a member of the Viet Cong being executed by a policeman in broad daylight on a Saigon street. In the USA and elsewhere, the photograph became an emblem for public opposition to the Vietnam War, but the photographer Eddie Adam, who was awarded the Pulitzer Prize for that image, is said to have been dismayed by this interpretation of his work. His New York Times obituary reported that he had believed the policeman’s claim ‘that the man he shot had just murdered a friend of his, a South Vietnamese army colonel, as well as the colonel’s wife and six children’, adding that Adams had later gone on to challenge viewers by asking: ‘How do you know you wouldn’t have pulled the trigger yourself?’²⁵

Ralph Waldo Emerson appreciated the dynamic of ‘reader-response’ before that label had been devised to describe it. In his speech ‘The American Scholar’, he observed that ‘[o]ne must be an inventor to read well … There is then creative reading as well as creative writing’.²⁶ To say that the reader plays a part as co-Producer of the work is not to disparage the distinctiveness of the instigator’s Productive activity. As Mary Louise Pratt writes: ‘To say that a text can be made to mean anything by readers does not require one to deny the text’s existence as a historically determined product.’²⁷ She approaches my sense of co-Production when she calls for the activities both of creating art and receiving art to be regarded as entailing ‘production of meaning according to socially constitutive signifying practices’.²⁸ In his book The Craft of Fiction, Percy Lubbock expressly acknowledges Emerson’s idea of ‘creative reading’ when he describes the task of a reader of a novel in terms of making a ‘compact fabric’ out of the impressions set forth by the novelist. This, he writes, ‘is a task which does not achieve itself without design and deliberation on the part of the reader’.²⁹ He elaborates the following expanded version of Emerson’s idea:

The reader of a novel – by which I mean the critical reader – is himself a novelist; he is the maker of a book which may or may not please his taste when it is finished, but of a book for which he must take his own share of the responsibility. The author does his part, but he cannot transfer his book like a bubble into the brain of the critic; he cannot make sure that the critic will possess his work. The reader must therefore become, for his part, a novelist, never permitting himself to suppose that the creation of the book is solely the affair of the author.³⁰

When Barthes announced the ‘death of the author’ with such assertions as his claim that ‘a text’s unity lies not in its origin but in its destination’,³¹ it was to some extent a repetition of the idea propounded by Emerson as developed by Lubbock. There were, however, certain differences of emphasis. For one thing, Barthes targeted the habit of attributing textual meanings to the author’s biographical attributes. For another, and as befits social evolution from 1920s optimism to 1960s pessimism, whereas Lubbock had talked in positive terms of the reader as a ‘maker of a book’, Barthes’ approach can be read as a continuation or application of the Nietzschean nihilistic project of killing off the ultimate author – God. In Barthes’ words, his mission is ‘to refuse God and his hypostases – reason, science, law’.³² Of course, to talk of Barthes’ mission is to fall headlong into his trap, for it is to talk of Barthes as if he were the ruling author of the piece. It makes sense to read Barthes’ entire argument as heavily satirical (as his assault on ‘reason, science, law’ amply betrays).³³ We should therefore engage with Barthes as if he were our own spectre of Barthes. That accepted, we must interpret the spectre as we see it. We will then appreciate that the gap left by ‘the Author-God’,³⁴ has been filled by Barthes’ idea of the text as ‘a tissue of quotations drawn from the innumerable centres of culture’.³⁵ This expresses well the sense of societal co-Production that I propose as ideal, except the idea I propose enjoys the possibility of working with the author, albeit an idea of the author that the reader has made up as if it were the author’s ghost. After all, to borrow the opening words of Charles Dickens’s A Christmas Carol, by the time the modern reader comes to a classical text there is no need to kill the author, for the author in the literal sense ‘was dead: to begin with’. From Barthes’ observation that ‘[t]he reader is the space on which all the quotations that make up a writing are inscribed without any of them being lost’,³⁶ it follows that the space of the reader’s imagination is haunted by the ghost of the author and to some degree inhabited by the resurrected author. Barthes concludes that ‘the birth of the reader must be at the cost of the death of the Author’, but a more hopeful vision is one in which the reader works co-Productively with the author (the idea of the author, the author’s ghost) to make something new. It is precisely this respect for tradition in the course of making something novel that characterizes all great works of craft and art, including both law and literature.

Lubbock’s preferred term for making is ‘creation’. This was also Emerson’s preferred word. A reader’s contribution to a novel is Creation in my sense of that word in so far as the critical reading of the work enacts an amplification, development, or enlargement of the text. Likewise, to talk of the reader as ‘Creator’ accurately informs us that reading develops the ‘original’ book into something larger, more expansive, more full of meanings. Emerson also referred to the reader of a book as ‘an inventor’ of the book. That is only accurate in my etymological definition of the word Invention to the extent that the book as read can be considered a new thing from the book as written. For the sake of distinguishing different modes of making, Invention is more usefully limited to the origination of the idea of the book rather than its subsequent Creation and Production (always admitting that these definitions, when considered as temporal stages, are bound to overlap). The reader, correspondingly, is best thought of as making in the mode of ‘co-Production’, for this emphasizes that the original was not fully made until the thing was read in critical mode by someone other than the writer. We are permitted through our readings to make something new. Some of the most brilliant effects and interpretations of Shakespeare’s texts, for example, are ones produced by scholars, directors, and actors engaging with his works in ways which the playwright surely did not foresee.

Made in Translation

‘The Theory of Production’ set out by G. Wilson Knight, in his book Shakespearean Production, proposes an idea of dramatic production that resembles Emerson’s idea of creative reading and chimes with my idea of participatory co-Production. Knight argues that ‘we must not start where Shakespeare left off, but rather start with Shakespeare and go with him’.³⁷ He writes that the theatrical producer ought not to present a play to the public as if merely communicating a thing completed by Shakespeare: ‘The producer’s business is not translation, but re-creation.’³⁸ While I approve of Knight’s understanding of co-operative Production, I do not agree that ‘translation’ should be contrasted with ‘re-creation’ as if translation were not itself a process of making. Translation is actually an exemplary instance of making and specifically in the mode of co-Production. Knight’s error of contrasting making with translation in the context of making theatre has also been committed by Isaiah Berlin in the context of making laws. Berlin writes:

Legislation is not the making of laws (that would be more properly called ‘legisfaction’). Legislation is the translation into legal terms of something which is to be found in nature: ends, purposes.³⁹

Translation, which is etymologically a ‘carrying across’, is a highly skilful process of making through which an original is remade into something new and even into something improved. Susan Bassnett, a pioneering scholar of translation studies, laments that ‘so much time should have been spent on discussing what is lost [in translation] whilst ignoring what can also be gained, for the translator can at times enrich or clarify the [source] text as a direct result of the translation process’.⁴⁰ Translation, on this view, is a species of Creation by which the original is enlarged, and it is a species of co-Production through which an expert, critical reader brings forward something new (and sometimes improved) out of the original published work.

For James Boyd White, participation in the Production of something new from the past, in something like the manner of Emerson’s creative reader, is an art of translation. In his book Justice as Translation, he identifies translation as the central work of an excellent judge when called upon to respond to new cases using the precedents of the past:

Authority … lies in a kind of respectful interaction between mind and material, past and present, in which each has its proper contribution to make: not simply in the tradition, then, but in the tradition as it is reconstituted in the present text.⁴¹

White adds that the participatory process of translation is central to the lawyer’s craft:

The art of the lawyer, like that of the judge, is to put together the prior texts that are the material of law in new compositions, which, while respecting the nature of each item, so order them as to create a new arrangement with a meaning of its own.⁴²

In the two preceding quotations, White uses the words ‘respectful’ and ‘respecting’ respectively. Respect is the key. Like any rhetorical craft, translation must respect the original materials, respect the community to whom it is communicated, and self-reflexively respect the craft of translation.

Public Participation in Judicial Production

This section brings in another important element in the judicial tradition, and one with powerful implications for the ‘court of popular opinion’. It is the idea that the public good is the sovereign consideration underlying the authority of the legislature and that the commonwealth of the people is the prime purpose to which the common law ought to be directed. What Cicero made the motto of judges in Republican Rome must apply as well to judges in all civilized systems of law: salus populi suprema lex esto (‘the safety of the people shall be their highest law’).⁴³ Writing in relation to legislation, Thomas Hobbes asserts that:

The Legislator in all Common-wealths, is only the Soveraign, be he one Man, as in a Monarchy, or one Assembly of men, as in a Democracy or Aristocracy. For the Legislator, is he that maketh the Law.⁴⁴

He then identifies an important additional prerequisite for the legitimacy of laws – that the laws as published ought to be demonstrably derived from an authoritative source:

Nor is it enough the Law be written, and published; but also that there be manifest signs, that it proceedeth from the will of the Soveraign … There is therefore requisite, not only a Declaration of the Law, but also sufficient signes of the Author, and Authority.⁴⁵

Hobbes’ demand for ‘manifest signs’ is a call for the legitimacy of law-making to be publicly performed, not only at the point of publication as if Production of law was the entire process of law-making, but also performed in such a way that the entire process of law-making will be manifest as an integrated practice progressing from Invention to Creation to Production. The sovereign will is the notional source or fountainhead of legislative law in every nation, so what Hobbes is saying here is that the integrity of law requires that the law as published must be demonstrably and directly the product of sovereign will. He was speaking to a different time and constitutional situation to ours, but the principle still holds good. To use the fluvial metaphor, we can say that when the law flows out to the wide public sea, it must be seen to derive in an unbroken stream from the sovereign source. In Rudyard Kipling’s poem ‘The Reeds of Runnymede’ (about the signing of Magna Carta at Runnymede on the river Thames in 1215), the river Thames is his symbol of a sovereign will that is of prince and people without being tyrannical or populist:

And still when mob or Monarch lays

Too rude a hand on English ways,

The whisper wakes, the shudder plays,

Across the reeds at Runnymede.

And Thames, that knows the moods of kings,

And crowds and priests and suchlike things,

Rolls deep and dreadful as he brings

Their warning down from Runnymede!

As the river runs to the sea and the sea supplies rain clouds to the river’s source, so the sovereign will of the people – represented in such communal concepts as the ‘commonwealth’ and the ‘common law’ – courses through a circle of authorship and accountability in law-making. Or, to use the horticultural metaphor, we can say that the law produced to market must be grown untainted and unmixed from the sovereign seed. This amounts to a demand for sincerity, for the etymology of ‘sincerity’ denotes integrity between seed, growth, and crop.⁴⁶ It also amounts to a demand for a manifest process that brings with it a considered pace in making decisions. Plants do not grow instantly from seed to crop and neither do waters run in a single moment to the sea from their mountain spring.

Creativity was a large theme for German legal philosopher Josef Kohler. One of his essays, published in 1887, is entitled ‘The Creative Force of Jurisprudence’ (‘Die schöpferische Kraft der Jurisprudenz’). Another is ‘On the Task of Jurisprudence in Industrial Law’ (‘Uber die Aufgabe der Jurisprudenz im Industrierechte’), where he writes eloquently, even poetically, about the Production of law by analogy to cycles of natural and industrial growth:

The strongest tree needs its period of growth, and industrial law also needs its time. Every right is sterile so long as it has not been absorbed by the circles of production; Law builds its place in the feeling of productive trade.⁴⁷

How perceptive it is to say that law ‘needs its time’. The same is true of justice and human judgment. Invention can occur in an instant – like a lightning flash sparked from the hand of God – but Creation takes time. Failure to appreciate the necessary factor of time is frequently a feature of popular impatience with the pace of parliamentary and judicial reaction to social change.

Nowadays we take it for granted that the public gives legitimacy to legislation, not only as co-Productive receiver of published law, but also in so far as public consent is implied at the point of the law’s origin as a condition of the social contract by which governmental authority is legitimated. In short, the people are understood to be the ultimate source of sovereignty in a democratic state. Which, of course, is the etymological meaning of the word ‘demos-cracy’. Josef Kohler argued that the will of the law-maker must be considered sociologically as being itself a construct of the culture in which the law-maker lives:

[R]ules of law are not to be interpreted according to the thought and will of the law-maker, but they are to be interpreted sociologically, they are to be interpreted as products of the whole people, whose organ the law-maker has become.⁴⁸

Even in a monarchy it is the people, not the princes, that are supposed to embody the sovereign will, and it is the implied consent or inferred well-being of the people that is understood to put the ‘common’ in ‘commonwealth’ and in ‘common law’ so as to turn the law from a set of rules into a legitimate scheme for the maintenance of social welfare. The monarch, as chief of the tribe, is not the whole body of national sovereignty but merely its symbolic head. The animating spirit of the whole body politic – the urge that drives the entire dramatic play of state – is the sovereign will of the people. An old maxim of English law recorded in Henry de Bracton’s De Legibus et Consuetudinibus Angliae (c. 1235) asserts ‘lex facit regem’ – ‘law makes the king’.⁴⁹ The early modern legal antiquarian John Selden doubtless had the maxim in mind when he wrote that ‘KING is a thing Men have made for their own Sakes’.⁵⁰ As law makes the monarch, so law is made by the people or by the interests of the people (the safety of the people being the highest law – salus populi suprema lex esto). There is even a sense in which the legitimacy of a new monarch depends directly upon popular consent, a fact that is recognized in the collective acclamation (the collauditio) ‘God save the Queen/King!’ which is proclaimed three times in the coronation ceremony of the British monarch. Every time the British national anthem is sung, its first three lines (‘God save our gracious King! / Long live our noble King! / God save the King!’) perform an echo of the threefold collaudatio and serve to confirm the people’s coronation consent. The monarch is of course made by birth and by blood, but this is merely to say that the monarch is made in the Inventive sense that he or she ‘comes into’ the crown. The monarch is not fully made until the accession and coronation ceremonials (complete with the collaudatio consent of the Commons and the clergy) confirm the making of the monarch in the developmental or Creative sense and the making of the monarch in the publicized or Productive sense. Blood ‘Invents’ the monarch, but the consent of the Commons ‘Creates’ and ‘Produces’ the monarch. The collaudatio is an element in the Creative process and also serves to perform the Production of the monarch to public scrutiny and approval. Thus, by the light of the three Etymologies of Making, we can elucidate the seemingly paradoxical fact that a monarch is made by inheritance but not made until coronation.

A. W. Dicey, the respected historian and theorist of UK constitutional law, once observed that ‘[l]aw and opinion are … so intermixed that it is difficult to say whether opinion has done most to produce legislation or laws to create a state of legislative opinion’.⁵¹ Dicey was talking about nineteenth-century reforming legislation on the status of married women in England. Gravitating to the same quotation from Dicey, Gary Slapper notes that ‘[i]n calculating why the population in the UK has become less racist and sexist since the 1960s, one factor clearly of some relevance and weight is the fact that such discrimination was declared unlawful in many circumstances by Parliament’.⁵² Slapper’s theory is supported by Dicey’s opinion that:

Laws foster or create law-making opinion … Every law or rule of conduct must, whether its author perceives the fact or not, lay down or rest upon some general principle, and must therefore, if it succeeds in attaining its end, commend this principle to public attention.⁵³

Dicey adds as an extremely important further observation that public acceptance of particular legislative provisions is not necessary for the legislature to succeed in implementing its original statutory intention. It will suffice for the success of the law-making project that the legislature generates in the public a sentiment of participation in the Production of the law. Indeed, it is surely more desirable that the legislation should be successful because the process has broad social acceptance than that it should be successful in a technical sense. In relation to this, Dicey writes expressly of the ‘production’ of popular affirmation:

Nor is the success of a law necessary for the production of this effect. A principle derives prestige from its mere recognition by Parliament … The true importance, indeed, of laws lies far less in their direct result than in their effect upon the sentiment or convictions of the public.⁵⁴

This is an admission, or acknowledgement, that Parliament is concerned with pure performance. Like the judicial law-maker, the parliamentary law-maker is not so much determined that justice should be done as concerned that justice should be seen to be done. To illustrate this phenomenon, Dicey cites the example of the Reform Act 1832 (which, while still limited to males, and to only one in five adult males, greatly expanded the range and social status of eligible voters):

[T]he transcendent importance of the Act lay in its effect upon public opinion. Reform thus regarded was revolution. It altered the way in which people thought of the constitution, and taught Englishmen, once and for all, that venerable institutions which custom had made unchangeable could easily, and without the use of violence, be changed.⁵⁵

A more recent illustration of the phenomenon is the radical reform enacted by the New Zealand Parliament when it legislated to recognize the legal personality of the Whanganui River.⁵⁶ Just as the Reform Act 1832 struck a previously inconceivable blow for parliamentary representation of the people (and opened the way for universal suffrage), the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 struck a revolutionary blow for the parliamentary representation of First Nations people and for the natural environment as they relate to it. As with the 1832 Act, the importance of the 2017 Act arguably resides more in its performed response to public opinion and its potential to reform public opinion than in any technical effects of its provisions in practice.

In her book The Mind of the Maker, Dorothy L. Sayers acknowledges the people to be the ultimate source of sovereignty where she writes that ‘opinion is the authority’:

An arbitrary law unsupported by a consensus of opinion will not be properly enforced and will in the end fall into disrepute and have to be rescinded or altered. This happened to the Prohibition Laws in America.⁵⁷

America should have seen it coming. After all, the opening three words of the US Constitution are ‘We the people’, for it is expressly of the essence of a non-monarchical republic that it is re publica – a thing of the people.⁵⁸ In a modern constitutional monarchy the principle is the same, albeit performed through different symbols. In the USA, the chief is the president, in the UK it is the monarch. It might fairly be said that in practice the USA and many other republics founded in the eighteenth and nineteenth centuries are a good deal more monarchical than the UK, for younger republics are still at the stage in which the symbolic head wields real executive power. In the UK, the power of the monarch is the pure power of symbolic performance rather than the executive power of a democratically elected official. This is not to deny the significance of purely symbolic power. As Prince Philip said in 1977, the year of Queen Elizabeth II’s Silver Jubilee: ‘People still respond more easily to symbolism than to reason’, adding, ‘[t]he idea of chieftainship in its representative rather than its governing function is still just as clearly and even instinctively understood’.⁵⁹ Whereas the UK has stripped all real governmental power from its prince, modern republics elevate their presidents to princely status and endow them with all the mystique and magic of royalty, with this crucial limitation – that their power is temporary and does not descend to the incumbent’s blood relations. The USA has monarchs for the day. Chapter 4 of this book began with President Joe Biden’s Inaugural Address, in which he called upon the people to ‘reject a culture in which facts themselves are manipulated and even manufactured’. The irony is that the first and founding fact that the people make when they make their electoral choice at the ballot box is nothing other than the artefact of their chief.

The Co-Productive Influence of the Mob: Going with the Flow

We will conclude this chapter on populism and introduce the next chapter on ‘fake news’ with some thoughts on mob dynamics in mass movements and their implications for mass media. The word ‘mob’ is an abbreviation of the Latin mobile vulgus, which translates as the moveable mass of common people. The authors of the chapter ‘Persuasion and Ballot Propositions’ have this sense of the moveable mob in mind where they write that, ‘when it comes to ballot propositions, voter opinions are like balloons in the wind, easily blown about’.⁶⁰ The first appearance of the Latin phrase mobile vulgus in an English text was in 1602 when the recusant Roman Catholic priest William Watson, an advocate of secular priests and in that matter an opponent of the Jesuits, referred to the ‘mobile vulgus in England’.⁶¹ The fickleness of the populace and fear of the mob was a pervading theme in the period surrounding the death of Queen Elizabeth I in 1603. Indeed, the same William Watson was executed that year for plotting to kidnap the new Protestant king of England, James I. Further plots followed, culminating in the Jesuits’ infamous ‘Gunpowder Plot’ to assassinate the king in Parliament in 1605. Around 1607, against this backdrop of priestly plotting and the ever present fear of rumour and revolt, Shakespeare expressed the fickleness of the common populace poetically in Octavius’ powerful metaphor of a ‘flag’ (an iris or other rootless water plant) that sways and eventually decays in the motion of a river:

… This common body,

Like to a vagabond flag upon the stream,

Goes to and back, lackeying the varying tide,

To rot itself with motion.

(Antony and Cleopatra, 1.4.44–47)

What a striking image this is for the recently coined idea of the mobile vulgus as a rootless, moving mass. The movement of the river sways, dislodges, sways, carries, sways, corrupts, and eventually, we can suppose, swirls the broken stems into a stagnant side-water where they spin among themselves. Movement moves the mass, but, crucially, movement also makes the mass. Anyone who has ever watched vegetation floating on a river will attest to the dynamic by which the activity of going with the flow gathers the detritus together into a new mass – Shakespeare’s ‘common body’ – matted together by the motion of the flow. The orator who wishes to manipulate the people must likewise both make and move. As Walter Dill Scott wrote in his 1907 study The Psychology of Public Speaking: ‘The orator who is able to weld his audience into a homogeneous crowd has already won his hardest fight. The difficult task is not to convince and sway the crowd, but to create it’.⁶² President Donald Trump showed himself adept at creating a crowd in the form of the ‘Make America Great Again’ movement (and through reciprocal co-Production it is also true that the crowd made him after the model of Bourdieu’s ‘group made man’),⁶³ but he learned to his shame and to the cost of civil peace that a crowd once created is easily moved but much less easily steered. On 6 January 2021, Donald Trump’s supporters violently stormed the US Capitol Building in an attempt to thwart the Senate’s confirmation of Joe Biden’s election as US president. Writing in The Atlantic, Joan Donovan echoed Shakespeare’s aquatic analogy for the mob, when she observed that ‘[t]he moment at which the “Make America great again” movement became completely unmoored from the democratic process arrived at around 1 p.m. on January 6’.⁶⁴

Gustave Le Bon’s 1895 treatise Psychologie des Foules was extremely significant in establishing crowd psychology as a subject of scholarly inquiry.⁶⁵ It has been called ‘one of the best-selling scientific books in history’,⁶⁶ and ‘[p]erhaps the most influential book ever written in social psychology’.⁶⁷ It is not without its detractors, and it has not always been an influence for the good. It is thought, for instance, that Hitler’s techniques of propaganda and performance oratory were inspired in part by Le Bon’s theories.⁶⁸ Le Bon’s key analogy for explaining crowd psychology was his idea that an individual is mesmerized through immersion in a crowd and will go with the (magnetic) flow. He endeavoured to provide a scientific account for the observed phenomenon of the mass mind:

The most careful observations seem to prove that an individual immerged for some length of time in a crowd in action soon finds himself – either in consequence of the magnetic influence given out by the crowd, or from some other cause of which we are ignorant – in a special state, which much resembles the state of fascination in which the hypnotised individual finds himself in the hands of the hypnotiser.⁶⁹

When Adolf Hitler observed the same phenomenon of the mass mind, he resorted to spiritual and mystical explanations, including notions of ‘enthusiasm’ and ‘magic influence’ by which the crowd is ‘swept away’.⁷⁰ What their preferred analogies have in common – Le Bon’s scientific and Hitler’s mystical (and, for that matter, Shakespeare’s metaphor of the floating iris) – is the sense of going with the flow that is inherent in the idea of ‘influence’. It is sobering to think that for today’s social media demagogue – the online ‘influencer’ – the flow of the mob has become their very badge.

The ground had been laid for Le Bon’s thinking by the theories of earlier political theorists, not least John Stuart Mill. Writing in the mid-nineteenth century, Mill had warned that democracy might produce a ‘tyranny of the majority’, observing that:

At present individuals are lost in the crowd. The only power deserving the name is that of masses, and of governments while they make themselves the organ of the tendencies and instincts of masses.⁷¹

When Le Bon observed that it is ‘terrible at times to think of the power that strong conviction combined with extreme narrowness of mind gives a man possessing prestige’,⁷² he doubtless had in mind the examples of tyrants, despots, and demagogues throughout history and in his own time. He also anticipated the demagogues of the twentieth and twenty-first centuries. The protagonists vary from time to time, but the story never changes.

What is the relationship between ‘fake news’ and processes of creating and moving crowds? An answer suggests itself when we take seriously the fluvial metaphor that is the root of our word ‘influence’, and which pervades our language of ‘mainstream’ media, the ‘flow’ of news, internet ‘streaming’, and even the ‘current’ in ‘current affairs’. Le Bon understood crowd mentality by means of a fluvial metaphor. When the individual’s psychology is submerged in the mass mind (as opposed to being merely one among a ‘number of individuals finding themselves accidentally side by side’), it is submerged, he says, by some ‘influence’ of ‘certain predisposing causes’. Recalling Shakespeare’s image of the flowing stream which creates, carries, and corrupts the crowd, we can conceive of the mainstream media as the current or flow of news within which the popular mass of people is congregated and carried along. Baudrillard’s view was that information streaming from the media did not inform the masses, but that it merely ‘produces even more mass’.⁷³ Putting his own spin on Marshall McLuhan’s famous assertion that ‘the medium is the message’, Baudrillard writes that ‘[t]he mass and the media are one single process. Mass(age) is the message.’⁷⁴

What was Le Bon’s wisdom on the activity of crowds, and in what ways did Hitler apply similar thinking to his own propaganda and performative oratory? Christian Borch suggests a number of possibilities.⁷⁵ One is that ‘Le Bon pinned his faith neither on education nor on enlightenment’ but advised rather that ‘one should apply seductive measures and try to appeal affectively to the crowd through rhetorical techniques’.⁷⁶ Hitler believed similarly that effective political propaganda must be emotionally affective rather than intellectual and ought to be levelled as directly as possible at the mob (‘addressed always and exclusively to the masses’, and not to the ‘scientifically trained intelligentsia’).⁷⁷ Another rhetorical technique recommended by Le Bon was the device of repetitio. Hitler held that ‘all effective propaganda must be limited to a very few points and must harp on these in slogans until the last member of the public understands what you want him to understand by your slogan’.⁷⁸ He advised, as Borch summarizes it, that one ‘should make blunt, simple statements and repeat them over and over again; this would gradually mould the mind of the crowd’.⁷⁹ According to this moulding metaphor, the mind of the crowd is made up by repeated impressions, as clay is moulded through the repetitive manipulative printing and pressing of fingers. Today such repeated pressing home of a single point or short slogan is a staple of modern news reporting that goes by the name of the ‘sound bite’. It is also a staple of bite-sized social media platforms, of which Twitter is exemplary. So it was that Donald Trump’s election slogan ‘Make America Great Again’ was able, through repetition in various media, to mould a mass in its own image. When that mass moved on the Capitol Building on 6 January 2021, it may be that Trump did not foresee that this would be the outcome of his manipulations, but his was undoubtedly the influence – the flow – which made and moved the mob.