Image for The DarkMofo/Nitsch Debate ...

Hermann Nitsch ... and his art ...

First published May 14

[These comments are taken from an extended private email correspondence with a friend who has a background in legal and moral philosophy. I have been a little reluctant to publish them here because I fear the legal summary may be a bit dry and the philosophical argument a bit dense for some readers. However, I have decided to defer to the judgment of the editor and readers in this regard.

I also have a deeper concern about publishing this kind material. I fear that such an intellectual analysis - however valuable in its own way - does not help us get to the heart of the problem, which is a lack of care. This really calls for an original article written in a very different style, one which is more personal in tone and content.

In the meantime - given the nature of the dominant discourse - I offer the following comments to the many readers who I know do care. I hope this analysis will help clarify some of the legal and moral aspects involved and contribute to a better informed, more sharply focussed and more respectful public debate.

I have chosen Pisanello’s masterpiece The Vision of St Eustace as a reminder of a once very different understanding of our place in the natural order of things, one grounded in reverence and humility.]

The public controversy over the performance of Hermann Nitsch’s work raises a number of important issues concerning the relationship between law and morality and between private and public morality.

1. The Issue

150.Action is an intentionally shocking three hour live performance. It involves a humanely slaughtered bull being erected on a crucifix, with naked men and women engaged in a mock sacrificial ritual. It involves the beating of the dead bull’s carcass, the flaying of its flesh and the drinking, splashing and smearing of 500 litres of animal blood on the carcass and various human body parts (mouths, throats and vaginas) as part of some kind of pagan rite.

Assuming, without necessarily accepting, the accuracy of the above description, the issue of public concern is whether such a performance should be permitted on publicly owned premises, or indeed anywhere else?

2. The current legal context

There is no legal right to freedom of expression in Tasmania.

There are very limited laws in Tasmania that can be invoked to prohibit or regulate such a performance.

Prior to the performance, the Commissioner of Police, under Section 49B of Police Offences Act 1935, has the power to prohibit or regulate the holding of any public entertainment where he is of the opinion that it is fitting for the preservation of public morality, good manners, or decorum, or to prevent a breach of the peace or danger to anyone. However, he needs the consent of the Minister beforehand.

At or after the performance, the police could lay a charge of ‘Exhibiting Obscene Matter’ under Section 138 (1)(b)of the Tasmanian Criminal Code 1924.  This states that any person who ‘publicly exhibits any disgusting object or indecent show … is guilty of a crime’. It is a defence to prove that it ‘was done for the public good’.

There is no legal obligation on a Council or the Government to permit such a performance on premises they own and administer on behalf of the public.

The right to freedom of expression is not generally recognised in Australian law. While the Commonwealth is a signatory to the International Covenant on Civil and Political Rights, which guarantees such freedom, neither it nor any other jurisdiction, apart from the ACT and Victoria, have legislated to make it domestic law.

Section 15 of the Victorian Charter of Human Rights and Responsibilities Act 2006 provides a legal right to freedom of expression. However, ‘special duties and responsibilities’ are attached to the right and it may be subject to lawful restrictions. These must be ‘reasonably necessary: (a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality.’

Unlike other forms of artistic expression – books, films, television, radio, computer games, the internet etc. - live performances are not generally subject to classification by the various statutory boards set up for this purpose. These boards must act on community concerns about ‘depictions that portray people in a demeaning manner’. Broadly speaking, a film, computer game or publication may be refused classification (ie. banned) if it depicts sex, drug misuse, crime, cruelty, violence or revolting or abhorrent phenomena, in a way that offends the standards of morality, decency and propriety generally accepted by reasonable adults.

The only state that has addressed the regulation of live performances is South Australia. Under the Classification of Theatrical Performances Act 1978, the South Australian Classification Council (which classifies publications, films and computer games) may, of its own motion or at the request of any person, meet to consider whether a theatrical performance is offensive and what classification should be applied to it. The Council must have regard to standards of morality, decency and propriety that are generally accepted by reasonable adult persons. Where it is satisfied that a performance is likely to cause serious offence to reasonable adults, it can refuse to assign a classification, which effectively bans it. Breaches are prosecuted as offences.

What is clear from the above survey is that live performances have been largely ignored. There is no legal framework governing them. Moreover, it is clear that there will never be any absolute right to freedom of artistic expression. This is because it is universally accepted that such a right needs to be exercised responsibly and must be qualified by other considerations, based on other public values.

( See: )

3. Personal values and the need to distinguish moral values.

At a personal level, individuals may apply their own values, tastes, preferences and the like in deciding what they make of such a performance and whether or not they wish to attend or permit their children to attend. People can approve or disapprove of such a performance and make such decisions on any basis they like.

However, it is useful and important to distinguish moral objections from all other reasons. Moral objections must be based on moral values, which can only be defended through a process of moral reasoning. Moral values are those objective, prescriptive, shared standards we appeal to when arguing about what’s the right thing to do in any given situation, as distinct from personal subjective feelings, preferences, beliefs, opinions, etc.

The process of moral reasoning is governed by certain principles that distinguish it from other forms of discourse, including most commentary. This may surprise some people. For example, there is no place for public opinion or the monetary value of such a performance to the tourist industry in deciding whether it can be morally justified. Nor does the fact that some people may find the performance disgusting or offensive have any intrinsic moral significance.

In relation to the current controversy, there would appear to be at least three moral values that are being appealed to. Charles Wooley eloquently extols the value of freedom of expression. For many advocates of individual freedom of choice, there are no other moral values in play and no limits except those that cause physical harm to others. Substituting a pet horse or dog for the bull would not make any difference. Nor would substituting a chimpanzee, with whom we share 98.4% of our genes and similar emotional and family lives. To take an even more telling example, the artist Hermann Nitsch could direct that upon his death his body and blood be substituted for the bull’s as part of a grand finale posthumous performance!  According to the prevailing ethos of individual autonomy and freedom, pretty well everything is permitted in the service of art.

Yvette Watt, who is also an artist, is just as passionate about the value of freedom of artistic expression but also recognizes another moral value she cares about deeply. She believes there is a dignity we share with fellow living sentient creatures, which may be violated by killing them for such a purpose or by treating them in the manner the performance does after their death. It is not just human corpses that deserve to be treated with respect. The moral dilemma she finds herself confronted with is how to simultaneously reconcile respect for these two important moral values, both of which she takes seriously.

Sue Hickey appeals to a more generalized moral value, to which she is no less deeply committed. It is based ultimately on a broader sense of human dignity, which is difficult to define but which refers to the upholding and preserving of shared community standards of decency, propriety and public morality for the common good. This is a value parents intuitively seek to foster in their children. Most schools and many social organisations regard the promotion of these values as part of their community responsibility.

The abovementioned individuals are all clearly engaged in a genuine moral debate, the outcome of which depends on how they reconcile the competing moral values that they care about. It would be reasonable for each of them to arrive, after a process of moral discernment, at different defensible moral positions.  This would depend on the relative weight each accords to a restriction on freedom of speech, to the violation of a dignity we share with the animal and/or to the affront to human dignity more broadly defined.

The position of David Walsh, evidenced from his blog post, seems to me to be of a somewhat different order. While I am left in no doubt that Yvette really cares about this issue and has a personal stake in the moral enterprise, I am not at all sure that David does. Despite his impressive range of moral hypotheticals, he never states precisely what (if any) moral values he is personally committed to and willing to act upon. He maintains an air of detached neutrality throughout his post. He presumes to comment on the moral convictions of others from the position of an amused outsider observer. Although he has a quite impressive knowledge of the many ‘nice’ intellectual moral dilemmas involved, he has no real personal stake in the outcome.  Where Yvette’s is a serious moral concern, his “couldn’t care less” attitude suggests that for him this is no more than some kind of intellectual game. In the end, it is just another display of self-indulgent cleverness, like so much commentary these days. [I apologise to David if he feels I have misread him or done him any injustice here. Even if this is a caricature, it remains useful for the purpose of illustrating a crucial point about the one absolute precondition of morality: the need to care.]

Given that many people do care, however, there remains a further issue: whether this moral debate, which is occurring in the community, must also be addressed at the political level, in order that our elected representatives discharge a duty they owe to the public to ensure that the performance is in accord with community values. 

4. The responsibility of our elected representatives

Hobart City Council Mayor Sue Hickey and Tasmanian Premier Will Hodgman both seem to agree in their disapproval of such a performance on the basis of their own personal values. However, they differ widely in their views about their duty as elected representatives to act on behalf of the community. Sue Hickey believes the Council has a responsibility to ensure that Council premises are used in accordance community standards of decency, propriety and public morality. Will Hodgman does not believe government should intervene in relation to its public buildings. He sees no role for elected representatives in such debates – individuals should be left entirely free to make their own choices.

A distinction can be drawn between banning such a performance outright and refusing to permit what is otherwise a legal performance on public premises. The latter does not involve any penal sanctions and does not prevent its performance elsewhere eg. at Mona.

Some people would draw a distinction between simply permitting the use of premises for performances and endorsing performances through sponsorship. Others believe that mere permission necessarily endorses the performance’s acceptability for public consumption.

A further distinction needs also to be made between the role of the government in its executive capacity and the role of elected representatives in their deliberative capacity (ie. legislating or passing motions). The executive cannot ban such a performance without passing legislation but can legally refuse permission to use public premises for such purposes. Both Council and Parliament could pass motions or legislation to limit access to public premises for such purposes, and Parliament could legislate to regulate or ban such performances generally.

The question is: should they? Do our elected representatives have any responsibility to involve themselves in such moral debates?

There are two bases of justification for intervention: protection from harm and the preservation of standards of public morality.

The former justification is widely accepted. The latter is more controversial and has been the subject of an ongoing debate between moral and political philosophers. This has been most clearly articulated by Michael Sandel in his critique of John Rawls’ liberal conception of neutrality.

Rawls argues, on the basis of liberal principles of individual autonomy, that the state must remain neutral on moral issues and not get involved.  His view appeals to libertarians on the basis that the free market should decide and to liberals on the basis that individuals should be free to make their own choices without government interference.  Rawls goes further to argue that when debating justice and rights, we should set aside our personal moral convictions in order to respect the ‘the fact of reasonable pluralism’ in the modern world about what constitutes the good life. It is not for government to endorse a particular conception of the public good. This is the prevailing view in public discourse today.

Sandel argues that such neutrality is a fiction. He cites many examples which clearly demonstrate the practical impossibility of government and the legislature adopting such a stance when considering many moral issues, eg. abortion, stem-cell research etc.  In such cases, neutrality in effect perpetuates the status quo and thereby endorses a particular moral position. This would also clearly be the case here. To take another example, in the gay marriage debate, the real issue is not freedom of individual choice but whether same-sex unions are worthy of honour and recognition by the community – ie. whether they fulfil the purpose of the social institution of marriage and the virtues it honours. This depends on an evaluation of the meaning of the good life and the public good. For Sandel, who is often described as a communitarian, ‘the good’ is prior to ‘the right’ – individual rights are dependent on the goods they serve. If a decent and just society requires a strong sense of community, then our elected representatives must be willing to engage with the moral convictions of their constituents in order to make principled judgments about how to promote the public good. There is no other way.

One can clearly see signs of the tension between these competing views in the current discourse. These are further exacerbated by a pervasive post-modern moral scepticism that no longer believes in the existence of any objective prescriptive moral values or standards. Although Rawls took such values seriously, his theory has been corrupted by the common misconception that all moral values are relative and subjective. Thus ‘we choose our own values’ - which are indistinguishable from personal preferences, beliefs and opinions - and we then argue for their exclusivity or superiority. If you believe this then you are likely to be even more enraged by the thought that your politicians are entitled to impose their own subjective values on you. This is what happens when there are no longer any discernable shared moral standards to ground our moral discourse.

However, if you believe in shared community moral standards then it is difficult to accept that our elected representatives have no duty to uphold them. And the only way they can do so is by accepting a personal responsibility to engage in the same process of moral reasoning and arrive at decisions based on their own best judgment and conscience, in accordance with Edmund Burke’s classic dictum. Anything less is an abdication of their responsibility to the community which they are duty bound to serve.

5. A way forward

I have been particularly struck by two aspects of this controversy. Firstly, the seriousness of the public concern. Secondly, the lack of any reasonable process to deal with it. Indeed, unlike all other forms of expression, practically no attention has been paid to issues arising out of live performances.

While it might be feasible for individual cases to be determined as they arise by special Council resolutions, this is never going to be an option for Parliament, because the government has control of the agenda. And in any event, such an approach is reactive rather than proactive.

In these circumstances, I believe the best way forward would be for our government to ask the Law Reform Commission to enquire into the matter. It could make recommendations concerning the merits of introducing comprehensive legislation guaranteeing and regulating a legal right to freedom of expression, along the lines of the Victorian legislation. Alternatively, it could make narrower recommendations to provide a framework to deal with live performances, along the lines of the South Australian legislation.

In the meantime, the public debate needs to be refocussed. The challenge is to identify, evaluate, weigh and reconcile the competing shared moral values that people are committed to. These typically lie beneath their instinctive responses of shock and revulsion towards such a performance. This deeper exploration would fundamentally change the nature, quality and effectiveness of our public discourse towards the greater common good.

*Scott MacInnes has a background in teaching, law and conflict resolution. He is now retired and lives in Tasmania.

• David Walsh in Comments: … I do have a strong position - I’m a long term vegetarian because I prefer to minimise my taking of sentient life, but I’m conflicted in this case because I see an opportunity to beef up debate about the morality of meat, but at the cost of a sentient being (an end-justifies-means) argument - a system of resolution that I despise, as I attempted to make clear in my blog post ... HERE

• Scott MacInnes in Comments: Dear David ...

The Conversation: Ordering the vegetarian meal? There’s more animal blood on your hands