What is a "Legal Lag"? The co-production of Weapons
and Law
Panelists: Itamar Mann, Ioannis Kalpouzos, Gearold O’Cuinn, Delphine Dogot & Heidi
Matthews
The “cultural lag” argument, originally introduced by sociologist William Ogburn, is the claim
that developments in technology somehow precede cultural developments. This ostensibly
creates periods of crisis, in which culture must adjust or “catch up” with faster material
developments. A particular genre of this argument has in recent years emerged everywhere in the
context of the laws of war. New military technologies, so goes the story, require new doctrinal
developments that will somehow close a normative gap that threatens to render law obsolete or
indeed irrelevant. This panel aims to examine historically and theoretically the implicit
assumptions of this “legal lag” argument, and the kinds of political agendas it advances. We
hope to at least temporarily replace constant conversations about questions like how drones
require new laws, by their converse. For example, how do drones illuminate and help expose
fundamental characteristics of the legal conditions that allowed them to emerge in the first place?
Ioannis Kalpouzos - The co-production of technology and asymmetry: describing and
prescribing change in the legal regulation of war
The (legal) debate on the increased automaticity of weapons technology, and in anticipation of
their full automation, can be seen as almost seamlessly developing tensions and tendencies in the
regulation of conflict in the last century. Debates over the centrality of reciprocity, conceptions
of humanity, recognition of belligerent and individual status, and the requirement of (equally)
organised actors, were features of a theme: a legal system supposedly designed for classic
sovereigns, under pressure. From dum-dum bullets, to wars of national liberation, to the ‘new
wars’, different forms of ‘asymmetry’ are evoked to promote different functions of ‘humanity’ in
the regulation of conflict. Now, with the ‘new weapons’, these tensions/tendencies ask to be
released. The structure of the regulation of conflict is pre-viewed as a vertical regulation of “the
administration of death” (Kahn 2013) or, less passionately, the regulation of the exercise of
“discretion” (Lieblich & Benvenisti 2014). Technology allows the domination of asymmetry.
Scholarship provides the values (e.g. accountability) to manage it.
Gearold O’Cuinn - Legal technicalities and the enrollment of new weapons of war
“New” technologies of war, through stabilized re-configuration of affordances, implicate new
orderings both in the production and regulation of force. Within the international sphere this is a
process inevitably involving law and legal expertise (Leander 2012). Drones and automated
weapons, for example, suggest a deployment force in a manner that, at-once, re-configures
agency and unsettles legal binaries and categories. Law, portrayed out of step in terms of time,
also struggles with the introduction of new scales and space. This paper takes up Riles’ (2005)
challenge to keep one foot within the technicalities of law (e.g. ideologies, actors and form) to
understand how “they” are deployed to enroll new technologies while emerging as actors in their
own right in the social constitution of law and technology.
Delphine Dogot - Narratives of War Governance and the Appeal to the New
The discourse of international law about war governance shows a repeated appeal to the “new”.
Regularly international law rediscovers its own tools in order to “address” or “catch up” with
technological change. And the emphasis put on new weapons, new technologies or new methods
of warfare often comes along with a proposal for novel interpretations of legal categories or a
call for new rules. Embodied in humanitarian or pragmatic narratives calling for more regulation
of violence, these sets of moves often overshadow the political economy of the extension and
transformation of the legal institution of war. The way in which the cyberwar debate has very
rapidly been encompassed in a war governance narrative - the terminology itself testifying of its
authority- gives us here an example of the transformation of the legal boundaries of war, calling
for an analysis of the modes of production and distribution of legitimate violence by the war
governance regime.
Heidi Matthews - New Weapons Technologies, Spatiality and the New War Discourse
This paper argues that in the wake of 9/11 the dominant legal discourse around the law of war, or
international humanitarian law, has been one of crisis. Both so-called “humanitarians” and their
perceived opponents, who I will refer to as “neo-pragmatists,” are preoccupied with what I call
the “new war discourse.” The discourse is animated by a shared phenomenological experience
that the concept of “war” has been subjected to consistent erosion since the end of the Cold War,
but most distinctly in the aftermath of 9/11. Paradoxically, the new war discourse both implies
the end of an era of traditional war and the expansion of war far beyond the confines of the
traditional battlefield, potentially justifying war everywhere, all the time. New technologies of
waging war, in particular the use of unmanned armed drones, make it possible to prosecute war
on a truly global scale. Here, the US claims that it reserves the right to target and kill enemy
combatants, including American citizens, in any geographic location. Perhaps nowhere is the
debate between the two camps in the new war discourse more pronounced than with respect to
the question of drones. “Humanists” argue that drones are disproportionate in their effect, and
make war “too easy.” Neo-pragmatists counter with the exact opposite reaction, arguing that
drones make targeting more precise than ever before, which actually reduces the risk of all out or
total war. Humanists argue that enemy combatants not found on a ‘battlefield’ should be
captured, not killed; neo-pragmatists respond that there is no such thing, anymore, as a
battlefield, relying on the idea of a truly ‘global enemy.’ Where American citizens are
concerned, some neo-pragmatists have proposed a “targeted killing court” in order to provide a
degree of due process in the targeting decision. This paper will examine how the new war
discourse has, in tandem with new developments in technology, (re)created notions of 'home' and
'elsewhere'; the 'domestic' and the 'international.' It suggests that at the discourse has both
expanded and collapsed each side of the distinction, creating a spatial situation in which law is
asked to live simultaneously both 'everywhere' and 'nowhere,' and assesses the costs and benefits
of this move.