TURNING POINTS
1-3 September 2016
BOOK OF PANELS AND ABSTRACTS
CONTENTS
OVERVIEW OF PANELS
3
STREAMS, PANELS AND ABSTRACTS
34
GENERAL STREAM
34
1. AFTER CHRISTIAN LAW? CONTESTING LAW'S CHRISTIANITY, CONTEMPLATING
ALTERNATIVES
54
2. BIOPOLITICS AND DECONSTRUCTION
63
3. BLOCKCHAIN LAW
75
4. THE CRISIS OF DEMOCRACY IN AN ANTIPOLITICAL AGE
79
5. A CRISIS OF THE LIBERAL VISION OF THE RULE OF LAW AND FUNDAMENTAL RIGHTS? 83
TURNING POINTS IN THE EAST AND WEST
6. FROM CRISIS TO RESILIENCE: SPATIAL JUSTICE IN AN AGE OF AUSTERITY
96
7. CRITICAL LEGAL STUDIES AND POLITICAL ECONOMY STREAM
101
8. CRITICAL PERSPECTIVES ON CULTURE AND PRESERVATION - PRECARITY IN OUR PAST, 109
PRESENT, AND FUTURE CULTURAL HERITAGES
9. CRITICAL PSYCHOLAWGY: DIALOGUE AT MODERN TIMES BETWEEN LEGAL AND 121
PSYCHOLOGICAL SCIENCES
10. FEMINIST TURNING POINTS
133
11. OCCUPATION & THE DAY AFTER: PROTEST, PREFIGURATION, REPRESENTATION
141
12. ON THE LEGAL PRODUCTION OF THE (NEW) COMMONS: LAW AS A LIVING PRACTICE
147
13. PARRHÊSIA AND THE LAW
152
14. RESPONSES TO THE LOSS OF THE POLITICAL: INTELLECTUALS, HUMANITARIANS AND THE
REVOLUTIONARIES
158
15. REVOLUTION, COUNTER-REVOLUTION AND THE LAW
163
16. THE TIME AND TEMPORALITY OF VULNERABILITY
170
1
CRITICAL LEGAL CONFERENCE 2016
Kent Law School
1st – 3rd September
TURNING POINTS
“…there are no witnesses to changes of epoch. The epochal turning is an imperceptible
frontier, bound to no crucial date or event.”
The present is notoriously difficult to diagnose. Are we living at a decisive turning point for
global and European history, politics and law? Are we witnesses to a new epoch? Or perhaps
we just have a bad case of “presentism”? The Critical Legal Conference 2016 will open a forum
for critical reflection on precarious political situations, particularly that of Europe in a global
context - an apposite theme for a critical conference at the University of Kent, ‘the UK’s
European University’ and a point of origin for the CLC.
Taking a global and historicised view of contemporary Europe and its intellectual and political
traditions (as well as an interrogative stance on their centrality), we anticipate that this year’s
CLC will enable a creative response to some of the many problems of our collective present.
The difficulty in thinking the present lies partly in its immediacy, and partly in the way in which
spaces for that thinking are themselves precarious, colonised, dis-placed, degraded, recast or
simply made untenable. From individuals’ housing, employment and migration experiences
to the broader question about the intensification or disintegration of the European political
project, are life’s very objects and experiences now peculiarly shaped by precarity?
Law forms part of the architecture of precarity, shaping both its production and governance,
whether through specific rules and regulations relating to welfare provision, housing law or
the structuring and regulation of financial markets; or through changing images and
enactments of justice, (fragmented) genealogies, and shifting understandings of modernity.
One approach within the critical legal tradition has been to expose these architectures: to
show how it produces inequity, to demonstrate its contingencies, to trace its genealogies, to
question law’s production of a normative order of life. In this sense it might be said that the
role of critique is to render law itself precarious. What is the contemporary nature, role and
position of academic work generally, in relation to political life and cultural and intellectual
history? Are we post-human? Post-Europe? Post-law? Post-critique? And what about the core
critical legal concerns: law, justice and ethics?
2
GENERAL STREAM
PREVENT Roundtable Discussion: Critical legal scholarship in times of PREVENT? Activist
explorations of the responsibility of the critic


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Alexandra König, School of Law, Birkbeck
Ceylan Begüm Yildiz, School of Law, Birkbeck
Paddy McDaid, School of Law, Birkbeck
Documentary Panel: The Failure of Dublin Agreements and Schengen
Aisling O’Regan, Birkbeck
Panel 1: Critical Subjectivity
Chair: TBC
Law and the Pleasure of Text
Mark Antaki, Faculty of Law, McGill University - [email protected]
Notes on the Black Notebooks: Thinking v Theory v Practice
Gilbert Leung, Independent Scholar – [email protected]
From Subject Crisis to Critical Subjectivity. A Theory of Discourse for The Man of the
Crowd
Marco Castagna, Università di Napoli "Federico II" - [email protected]
Genealogical Critique in Uncertain Times
Andreas Kotsakis, Oxford Brookes University - [email protected]
Panel 2: Alternative Critiques
Chair: TBC
The turning point potential of breaking dominant communication tools for the
purpose of expressing critique towards the legal system
Natalie Ohanathe, UCL - [email protected]
Formalism as Mishandling the Legal Map
Peter Brezina, University of Economics and Management in Prague [email protected]
Sleep’s Legal Form; An Anthropological Reading On The Normative Significance Of
Late Modern Sleep.
Ignacio Riquelme Espinosa, University of Bristol - [email protected]
3
Humiliation’s jurisdiction – the animation of the legal world and the creation of
political memory
Juliet Rogers, University of Melbourne/Griffith Law School, Queensland [email protected]
Panel 3: Regulation and technology
Chair: TBC
Measuring the ‘lawfulness’ of legal technologies: from speedbumps to smart
contracts
Jake Goldenfein, Swinburne Law School, Swinburne University of Technology [email protected]
The Right to Internet Access, ICCPR, and China: Legal and Practical Insights on
Chinese Internet Censorship
Artem Sergeev, University of Hong Kong - [email protected]
International Space Law and Legal Mechanism to protect Moon’s Environment
Amit Kumar Padhy, Hidayatullah National Law University, India [email protected]
Panel 4: Movement, Constraint and the Loss of ‘Home’
Chair: Suhraiya Jivraj
Repairing the Migrant ‘Crisis’: Counter-Solidarity and Friendship
Bal Sokhi-Bulley, University of Sussex - [email protected]
Nation, Home and the Body
Brigitte Nicole Grice, Independent Scholar - [email protected]
Mihaela Varzari, History and Philosophy of Art at the University of Kent [email protected]
Trafficking in Persons and the Rule of Law: Looking for a “Victim”
Anette Sikka, University of Illinois Springfield - [email protected]
Panel 5: Islamic Law: Contemporary Reconfigurations
Chair: TBC
The Colonial Crafting of Islamic Law: Anglo-Islamic Jurisprudence
John Strawson, University of East London, UK - [email protected]
Islamic Law and Gender Equality: A Critical Analysis
Qudsia Mirza, Birkbeck, University of London, UK - [email protected]
4
Against Public Policy: Dutch courts dealing with Islamic Family Law
Iris Sportel, Lichtenberg Kolleg, Georg-August University Göttingen, Germany [email protected]
The Position of the Organization of Islamic Cooperation on Abortion: Not Too Bad,
Yet (Mystifyingly) Non-Existent
Ioana Cismas, University of Stirling, UK - [email protected]
Panel 6: Re-sistance, Re-expropriation and Re-enclosure
Chair: Olivia Barr
Space, abstraction and appropriation
Chris Butler, Lecturer in law, Griffith Law School - [email protected]
Contesting Commoditisation: Property, Certainty and Emissions Trading
Bonnie Holligan, Lecturer in Property Law, University of Sussex
[email protected]
-
From Property to Territory – The Alchemy of State Formation
Henry Jones, Lecturer in Law, Durham Law School - [email protected]
Panel 7: Recasting Rights
Chair: TBC
A Right-Claim as a Political Challenge
Konstantine Eristavi, University of Edinburgh - [email protected]
Self-Determination of Indigenous Peoples under the Socialist Perspective
Chris Chu Cheng Huang, Institute of Law for Science and Technology, National Tsing
Hua University, Taiwan - [email protected]
Deconstructing the European Union’s present: a chronic solidarity disease,
domopolitics and the migrant crisis
Rachael Dickson Hillyard School of Law, Queen’s University Belfast [email protected]
Panel 8: Security, Securitization and Criminalisation
Chair: TBC
Organized criminal answer to State governance in Latin America: gang resistance in
motion
Vitor Stegemann-Dieter, University of Kent (UK) and Eötvös Loránd University
(Hungary) - [email protected]
5
Making a Case for Adopting a Human Rights Paradigm To Pandemic Preparation
Omowamiwa Kolawole, University of Cape Town(UCT), South Africa
[email protected]
Discretion, Framing, and the Single Legal Definition of Terrorism: One Size Fits All?
Alan Greene, Durham Law School - [email protected]
Panel 9: Urbanity, Control and the Commons: Realising Possible Urban Futures
Chair: Harley Ronan
Walls of the city as palimpsests of the commons.
Francesco Salvini
Urban Protocols: An architectural commoning experimentation
Thanos Zartaloudis, Kent Law School, University of Kent
Control and Creativity
Nathan Moore, School of Law, Birkbeck College, London
Title TBC
Anne Bottomley
6
-
1. AFTER CHRISTIAN LAW? CONTESTING LAW'S CHRISTIANITY,
CONTEMPLATING ALTERNATIVES
Panel 1
Chair: John Ackerman
“A major attack on Jewish freedoms…”:A Socio-Legal History of Anti-shechita
Prosecutions in the English-speaking World, 1855-1913
David Fraser, Nottingham - [email protected]
Stigma and the Political Theology of the Ban on Torture
Michelle Farrell, Liverpool - [email protected]
Christian Israel
Didi Herman, Kent - [email protected]
Panel 2
Chair: Didi Herman
Queering International Law: Sodom and ‘sodomy’ in a foundational moment
Nan Seuffert, University of Wollongong - [email protected]
The Colonial Encounter and The Construction of a Sacrificial International
Kojo Koram, Birkbeck - [email protected]
Christian Identities of the Law: A Post-Colonial Perspective
Vishavjeet Chaudhary, Jindal Global University - [email protected]
Panel 3
Chair: John Ackerman
The vacillating ultimate name: glitches in disinstalling "Christianity"
Anton Schütz, Birkbeck - [email protected]
The Political Economy of Messianism
Harvey Shoolman, London Metropolitan University - [email protected]
When the Gods were born, what questions did they answer?
Thanos Zartaloudis, Kent - [email protected]
7
Panel 4
Chair: Thanos Zartaloudis
Possibilities of law making in alternative metaphysics
Elena Paris, University of Bucharest - [email protected]
Justice as Desire in Trans-Immanence
Jan Patrick Oppermann, Independent Scholar - [email protected]
The God Beneath: Towards a Trinitarian Political Theology?
Paddy McDaid, Birkbeck - [email protected]
8
2. BIOPOLITICS AND DECONSTRUCTION
Panel 1: Biopolitics, Deconstruction, Sovereignty
Chair: Chris Lloyd
Plasticity, Jurisdiction and the Interruption of Sovereignty
Daniel Matthews, University of Hong Kong, Hong Kong - [email protected]
Sovereign Iconography
Stacy Douglas, Carleton University, Canada - [email protected]
Archiving Bodies Through Forms of Life
Stewart Motha, Birkbeck College, University of London - [email protected]
Panel 2: Biopolitics, War, Terror
Chair: Chris Lloyd
A Metaphysical Reading of the Biopolitical Subject
Teagan-Jane Westendorf, Monash University, Australia - [email protected]
The interplay of Rights, Bio-politics and Necro-politics in the Regulation of Speech
Jen Higgins, Birkbeck College, University of London - [email protected]
Can the subaltern speak international criminal law? Authority, jurisdiction, and the
politics of international criminal justice
Roberto
Yamato,
Institute
of
Int.
Relations,
PUC-Rio,
Brazil
[email protected]
Panel 3: Sex, Gender, Bio-Deconstruction
Chair: Stacy Douglas
Legitimizing Legal Sexual Policies: Normalization as Affective Regime
Barbara Kraml, University of Vienna, Austria - [email protected]
The Biopolitics and Body Protests of Extreme Hindu Nationalism
Oieshi Saha, West Bengal National University of Juridical Sciences, India [email protected]
Queer Bioethics: What Is It, What Could It Be?
Tiia Sudenkaarne, University of Turku, Finland - [email protected]
9
Panel 4: Biopolitics Otherwise
Chair: Daniel Matthews
Resisting the Present: Biopolitics in the Face of the Event
Thomas Clément Mercier, Kings College, London - [email protected]
Legitimacy and Life: humanity discourse and biopower in global law and policy
Ukri I Soirila, University of Helsinki, Finland - [email protected]
The empowerment of human being through a micro-physics of power: elements for
an instrumentalization of human rights
Guadalupe Satiro, Independent Scholar - [email protected]
Panel 5: Postcolonialism, Justice, Biopolitics
Chair: TBC
Has Transitional Justice Reached a Critical Juncture?
Catherine Turner, Durham University, England - [email protected]
Intervention and Dispossession: Biopolitics and Indigenous governance in
(post)colonial Australia
Mark Harris, University of British Columbia, Canada - [email protected]
“Three great men sit in a room, a king, a priest and a rich man with his gold…” Or
How to
Answer a Riddle and use Biopolitics to deconstruct Private Law in the Post-colonial
context
Giacomo Capuzzo, University of Perugia, Italy - [email protected]
Panel 6. Bodies. Borders. Bio-Politics
Chair: Tiia Sudenkaarne
Women Instigating Conflict - Poetic Imperative versus Command Responsibility Civilians or Combatants in an NIAC
Lucy
Mathieson,
Glasgow
Caledonian
University,
Scotland
[email protected]
Healing the North Korean Skin: Somatechnics of Sovereignty in South Korea
Hea Sue Kim, Goldsmiths, University of London, England - [email protected]
From Worker to Entrepreneur of Himself; The Transformative Power of the Homo
Economicus and the Freedom of Movement
Dion Kramer, VU University Amsterdam - [email protected]
10
3. BLOCKCHAIN LAW
Panel 1
Chair: Rob Herian
The Blockchain and Contract Law
Claire Sumner, The Open University - [email protected]
The Blockchain and European Union Private International Law
Rhonson Salim, The Open University - [email protected]
Between Scylla and Charybdis: Lessons From A Comparative Analysis of the
Regulation of Bitcoin in the United States and the United Kingdom
Immaculate Dadiso Motsi-Omoijiade, Warwick University - [email protected]
Organic Digital Contracts – Organic Digital Things
Jannice Käll, Gothenburg University - [email protected]
Panel 2: Blockchain Roundtable
Chair: Rob Herian
Panelists:




Tatiana Cutts, Birmingham / LSE - [email protected]
Primavera De Filippi, Berkman Center for Internet & Society at Harvard University [email protected]
Daniele D’Alvia, Birkbec, [email protected]
Jake Goldenfein, Swinburne University of Technology - [email protected]
11
4. THE CRISIS OF DEMOCRACY IN AN ANTIPOLITICAL AGE
Panel 1
Chair: Louis Wolcher
The Fundamental Question
Louis E. Wolcher, University of Washington, Seattle USA - [email protected]
Democracy in an inhospitable world: On Kant and the moral law
Anél Marais, Aberystwyth University, Wales - [email protected]
The Crisis of Democracy in an Antipolitical Age
Albena Azmanova, Brussels School of International Studies, University of Kent,
Brussels - [email protected]
Steven L. Winter, Wayne State University Law School, USA - [email protected]
Panel 2
Chair: Steven Winter
The Problems and Perils of ‘Global Constitutionalism’
Tarik Kochi, Sussex Law School, University of Sussex - [email protected]
Is the largest democracy of the world becoming the largest dictatorship? – India
Position.
Parva Dubey, Hidayatullah National Law University, Raipur, Chhattisgarh India [email protected]
Brazillian Judiciary in The Focus For Democratic Demands
Rafael da Silva Menezes, Federal University of Minas Gerais (Brazil) and Federal
University of Amazonas (Brazil) - [email protected]
12
5. A CRISIS OF THE LIBERAL VISION OF THE RULE OF LAW AND FUNDAMENTAL
RIGHTS? TURNING POINTS IN THE EAST AND WEST
Panel 1
Chair: Rafał Mańko
Polish Constitutional Court and the Political: On the Consequences of the Fall of a
Certain Myth
Adam Sulikowski, University of Wrocław - [email protected]
The Constitutional Tribunal in Poland – From the Greatest Judiciary Authority to the
Guardian of Political Interests? (Polish Democracy at the Crossroads)
Grzegorz Pastuszko, University of Rzeszów - [email protected]
The Constitutionalisation of Austerity and the Economy of Sacrifice in the Colombian
jurisprudence on Social and Economic Rights
Johanna del Pilar Cortes Nieto, University of Warwick - [email protected]
Panel 2
Chair: Konrad Kobyliński
Rule of Law or Rule of Lawyers? Critical Reflections Inspired by a Symptomatic
Reading of Artur Kozak
Rafał Mańko, University of Amsterdam - [email protected]
Discovering the role of performativity within the right making and right taking
processes
Elif Ceylan, University of Exeter - [email protected]
Poststructuralist Critique of the Liberal Concepts of Legal Interpretation. Between
Interpretive Communities and the Political
Jakub Łakomy, University of Wrocław - [email protected]
Panel 3
Chair: Adam Sulikowski
Nomos Basileus - “the Reign of Law” According to Giorgio Agamben. A Critique
Commentary on Using the Ancients
Paulina Święcicka, Jagiellonian University, Kraków - [email protected]
13
Rule of law as a foundation of Polish constitutionalism and liberalism at the turn of
18th and 19th century
Michał Gałędek, University of Gdańsk
Rule of French Commercial Law in the Polish Territories
Anna Klimaszewska, University of Gdańsk - [email protected]
Panel 4
Chair: Kimberley Brayson
Judicial Politics and the Rule of Law
Konrad Kobyliński, University of Silesia - [email protected]
Decline of the Rechtsstaat in Turkey: An Analysis through Schmitt’s Articles at the
Dawn of Nazi Power
Berke Özenç, Turkish-German University in Istanbul - [email protected]
Liberties Under Siege: The Liberal Democratic Party's Draft Constitution for Japan
and the Regression of the Rule of Law
Keisuke Abe, Seikei Unviersty - [email protected]
Panel 5
Chair: Paulina Święcicka
‘Burqa Avenger’ and the paradoxes of the secular subject
Giorgia Baldi, Birkbeck - [email protected]
European Court of Human Rights and the Case of Turkey: A failure in the
enforcement of liberal ideals?
Esra Demir-Gürsel, Marmara University - [email protected]
Distorted Communication at the European Court of Human Rights
Kimberley Brayson, University of Sussex - [email protected]
Panel 6
Chair: Giorga Baldi (tbc)
History Against Rules: History against Rules: Is the Nationalistic Quest for Returning
the Cultural Properties of Ancient Kingdoms Dangerous to the Rule of Law?
Yoshiaki Sato Seikei University - [email protected]
14
The Precariousness of (Constitutional) Rights: Investigating the Charter-Interpreting
Process
Garrett Lecoq, Carleton University - [email protected]
Indonesia and the Challenge of Legal Pluralism and the Rule of Law
Hilaire Tegnan, The Center for Constitutional Study, Andalas University, Indonesia [email protected]
15
6. FROM CRISIS TO RESILIENCE: SPATIAL JUSTICE IN AN AGE OF AUSTERITY
Panel 1
Chair: Julia J.A. Shaw
The Walker
Olivia Barr, Melbourne Law School, Australia - [email protected]
Crisis, austerity and socio-spatial justice: reflections from Athens, Greece
Penny Koutrolikou, National Technical University of Athens, Greece
[email protected]
-
Paul and Spatial Justice: Critical Legal Readings of an (Non)Ecclesial Figure
Taylor Weaver, University of Kent - [email protected]
Panel 2
Chair: Hillary J. Shaw
CLOCK: Transforming Cultural, Material and Spatial Spheres of Justice
Jane Krishnadas, Keele University Law School - [email protected]
Being Illegal
Anette Sikke, University of Illinois, Springfield, USA - [email protected]
Offshore Processing, Spatial Imaginaries and the Sovereign Crisis: An Australian Case
Study
Emma Patchett, King’s College, London - [email protected]
16
7. CRITICAL LEGAL STUDIES AND POLITICAL ECONOMY STREAM
Panel 1: Financialization, speculation, short-termism
Chair: Iain Frame
A philosophical dialogue on financial risk towards a phenomenology of financial
markets
Daniele D’Alvia, Birkbeck - [email protected]
The Post-Crisis Reproduction of Financialization in the E.U. The Reconstitution of the
European Capital Market as a Medium of Governance. “A Constructive Effort
Towards Spontaneous Development”
Jasper van Dooren, Kent - [email protected]
Law, scale, anti-zooming, and corporate short-termism
Lilian Montcrieff, Glasgow - [email protected]
The company as subject
Stephen Connelly, Warwick - [email protected]
Panel 2: Accountability and its limits
Chair: Iain Frame
The Value of ‘Corporate Accountability’ in International Law: A Marxist Analysis
Grietje Baars, City University London - [email protected]
Instituting the capitalist State: the trials against German industrialists in post-war
Germany
Hannah Franzki, University of Bremen - [email protected]
The Language of Law and Trade
Yoriko Otomo, SOAS - [email protected]
Panel 3: Legal intersections and comparative law
Chair: Iain Frame
Responses to gender pay equality impediments: Deciphering the Equal
Remuneration cases and substantive equality in Australia.
Amanda Viriri, Kingston Law School - [email protected]
Recovery of pure economic losses under a comparative analysis
Renato Lovato Neto, Universidade do Porto/CAPES - [email protected]
17
About Law, Economics and Argumentation: The Forgotten Case of Labor Concerns
in Brazilian Competition Policy
Alberto Barbosa Jr., University of Hamburg and University of Vienna [email protected]
Panel 4: Law and capitalism
Chair: Iain Frame
An Uneven and Combined Development Theory of Law
Susan Dianne Brophy, St. Jerome’s University in the University of Waterloo [email protected]
Capitalism, Economy and Foreign Investment
Enrique Prieto-Ríos, Birkbeck and Universidad de los Andes [email protected]
Varieties of Capitalism and Market-Style Criminal Process
Darryl K. Brown, University of Virginia School of Law – [email protected]
18
8. CRITICAL PERSPECTIVES ON CULTURE AND PRESERVATION - PRECARITY IN
OUR PAST, PRESENT, AND FUTURE CULTURAL HERITAGES
Panel 1: Contemporary Issues in Cultural Heritage Law: Underwater Cultural Heritage and
Illegal Trafficking
Chair: Sara Ross
A Battle between Universality and Integrity: From the Point of View of the
Convention on the Protection of the Underwater Cultural Heritage
YinCheng Hsu, University of Glasgow (UK) - [email protected]
Bridge Over Troubled Waters? Underwater Cultural Heritage, The UNESCO
Convention, Past Doubts and Current Challenges
Eden Sarid, University of Toronto (Canada) - [email protected]
New Means in Fighting Against Illicit Traffic of Cultural Property
Raffaele Aveta, Seconda Università degli Studi di Napoli (Italy) - [email protected]
Panel 2: Cultural Property and Conflict
Chair: Kanwal DP Singh
Protection of Cultural Property in the Event of a Non-International Armed Conflict:
a case study of criminal prosecutions before international courts
Alice Lopes Fabris, Universidade Federal Minas Gerais (Brazil) [email protected]
ISIS: A Catalyst for Revisiting the Concept of Cultural Genocide?
Mary Kavita Dominic, The National University of Advanced Legal Studies (India) [email protected]
Iconoclasm, Cultural Politics and Resilience: The Protection of Cultural Heritage in
Post-Conflict Zones
Valentina Vadi, Lancaster University (UK) - [email protected]
Panel 3: Changing the Conversation in Cultural Heritage Law: Intangible Cultural Heritage,
Heritage Discourse, and Collective Memory
Chair: Valentina Vadi
Tension in the Cityscapes: Redevelopment, Intangible Cultural Heritage
Preservation, and Assets of Community Value
Sara Ross, Osgoode Hall Law School (Canada) – [email protected]
19
Authorised Heritage Discourse and Cultural Heritage Law
Sophie Vigneron. Kent University (UK) - [email protected]
Cultural Heritage and the City: Urban Conservation and Collective Memory in Hong
Kong and Macau
Mirosław M. Sadowski, University of Wroclaw (Poland) - [email protected]
Panel 4: Cultural Heritage Law in India
Chair: Zehra Betul Ayranci
A Novel Perspective on Cultural and Natural Heritage; Innovative Alterations to the
Existing System and Thoughtful Addendums for Future
Emil Sunil George, Symbiosis Law School, Pune (India) - [email protected]
Intellectual Property Rights Law: A Tool for Legal Protection of Cultural Heritage –
Indian Experience
Lisa P. Lukose, University School of Law and Legal Studies (India) [email protected]
Analysis of Law Relating to Protection of Heritage – Reconfiguring Corporate
Resources in Reference to India
Kanwal DP Singh, University School of Law and Legal Studies (India) [email protected]
Impact of Globalization, Westernization on Indian Culture: Good or Bad?
Ankit Bhandari and Srijan Mishra, National Law University (India)
[email protected]
-
Panel 5: Modernization of Cultural Heritage Law
Chair: Lisa P. Lukose
Transforming India’s Antiquated Antiquity Laws
Arkalgud Ramaprasad, Chetan J Dixit, Priyansha Rawat, Swati Singh, and Vijeth
Acharya, National Law School of India University, Bangalore (India) [email protected]
Internet and Popular Pakistani Literature
Muhammad Kamran, Oriential College (Pakistan) - [email protected]
Fear of Hollywoodzilla: Future Cultural Heritage, International Law and Call For Duty
to Preserve Diversity in Global Film Industry
Zehra Betul Ayranci, Istanbul Bilgi University School of Law (Turkey) [email protected]
20
Safeguarding Intangible Cultural Heritage: Challenges and Experiences
Ali
Aghahosseini
Dehaghani,
University
of
Nantes
(France)
[email protected]
21
-
9. CRITICAL PSYCHOLAWGY: DIALOGUE AT MODERN TIMES BETWEEN LEGAL
AND PSYCHOLOGICAL SCIENCES
Panel 1: Critical Psychology: Cross-Cultural and Clinical Perspectives
Chair: TBC
An introduction for a Critical debate in psychology
Patrick Denoux, University Toulouse Jean-Jaures - [email protected]
Sonia Harrati, University Toulouse Jean-Jaures - [email protected]
Emergency and its deadly politics
Yann Zoldan, University Toulouse Jean-Jaurès - [email protected]
From “sacrified youth” to radical fanaticism: Reflection on the phenomenon of
radicalisation
Lucie Rodrigues, University Toulouse Jean-Jaurès - [email protected]
Public and Police Perspectives on Conflict management and Resolution Strategies: Working
together for a Systemic Reform?
Garima Jain, Jindal Institute of Behavioural Sciences, O.P. Jindal Global University [email protected]
Sanjeev P. Sahni Jindal Institute of Behavioural Sciences, O.P. Jindal Global University [email protected]
Panel 2: Crime and Punishment
Chair: Rachid Oulahal
Criminality in modern times: A clinical study of the violent criminal act from the
author/victim couple
Mathilde Coulanges, University Toulouse Jean-Jaurès [email protected]
Death penalty: an empirical analysis of public opinion in India
Sanjeev P. Sahni Jindal Institute of Behavioural Sciences, O.P. Jindal Global University
- [email protected]
Garima Jain, Jindal Institute of Behavioural Sciences, O.P. Jindal Global University [email protected]
Issues to bullying: between psychical reparation and penal sanction.
Regior-Ferrat Fabienne, University Toulouse Jean-Jaurès [email protected]
Pirlot Gérard, University Toulouse Jean-Jaurès - [email protected]
22
Ambivalent sexism and moral values: A way to understand men’s rape proclivity in
Brazil and England
Arielle Sagrilla Scarpati, University of Kent - [email protected]
Afroditi Pina, University of Kent
Roger Giner-Sorolla, University of Kent
Panel 3: Human being Instrumentalization
Chairs: Yann Zoldan and Orane Hmana
Cyborg imaginaries in law
Mika Viljanen, University of Turku - [email protected]
Psychical filiation / legal filiation a dialectical relation in the heart of contemporary
families
Delphine Rambeaud-Collin, Psychology and Clinical Psychopathology, University
Toulouse Jean-Jaurès - [email protected]
Sylvie Bourdet-Loubere, Psychologue Clinicienne, Maître de Conférences HDR,
University Toulouse Jean-Jaurès
Anne-Valerie Mazoyer, Psychologue Clinicienne, Maître de Conférences HDR,
University Toulouse Jean-Jaurès
Jean-Philippe Raynaud, Professeur des Universités - Praticien Hospitalier. PU-PH La
Grave Hospital Toulouse
Social representations of homoparentality and their consequences in legal
psychologist practices (France and Brazil).
Fillipe Soto Galind, University Toulouse Jean-Jaurès - [email protected]
Allyne, Evellyn, Federal University of Pernambuco
Elaine Costa-Fernandez, Federal University of Pernambuco
Patrick Denoux, University Toulouse Jean-Jaurès
Panel 4: Critical Culture Contact: Memories, Trauma, Violence
Chairs: Mathilde Coulanges and Yann Zoldan
Growing old and experiencing memory disorders what perspectives for elderly
migrants
Rachid Oulahal, University Toulouse Jean-Jaurès - [email protected]
Patrick Denoux, University Toulouse Jean-Jaurès
Julien Teyssier, University Toulouse Jean-Jaurès
Psychical dynamics of resentment : the example of the S.T.O. (forced labour) during
WWII
Bérangère Pautrat, University Toulouse Jean-Jaurès [email protected]
23
The Care in prison in New-Caledonia : why take culture into account
Orane Hmana, University Toulouse Jean-Jaurès - [email protected]
Migration: between resistance and compromise
Clementine Resve, University of Lorraine - [email protected]
24
10. FEMINIST TURNING POINTS
Panel 1
Chair: Yvette Russell
Mobilisation, problem representation and silencing – paradoxes in Swedish policy
around stereotypes, gender equality and free speech.
Eva-Maria Svensson, University of Gothenburg - [email protected]
Maria Edström, University of Gothenburg
Criminalising violence against women: feminism, penality and rights-based
discourses in post-neoliberal Ecuador
Silvana Tapia Tapia, University of Kent - [email protected]
Gay Governance: A Queer Critique
Aeyal Gross, Tel-Aviv University - [email protected]
Panel 2
Chair: Sarah Keenan
‘Governance Feminism’ and the Neoliberal Academy
Katie Cruz, University of Bristol - [email protected]
Yvette Russell, University of Bristol - [email protected]
International Criminal Law, Gender and Governance Feminism: An Examination of
Halley’s ‘Rape at Rome’
Valerie Oosterveld, University of Western Ontario - [email protected]
Medea and the Tragedy of the Stranger: Feminist turning points
Nayeli Urquiza, University of Kent - [email protected]
Panel 3
Chair: Katie Cruz
Sex/Gender is Fluid: What Now For Feminist Engagements with International
Human Rights?
Kathryn Mcneilly, Queen’s University Belfast - [email protected]
On Gender and Justice: Interrogating Equality, Difference and Discrimination
Marjo Rantala, University of Helsinki - [email protected]
Tiia Sudenkaarn, University of Turku - [email protected]
25
The legal recognition of same-sex couples as a political demand: Biopolitical
classifications and the aporia of the “married” subject
Athina Papanagiotou, Panteion University of Social and Political Sciences [email protected]
Panel 4
Chair: TBC
Killed because she is a woman – so what? Law´s (lacking) response to femicides
Marjo Rantala, University of Helsinki
The Gendered-Nature of Criminal Law Defences: An African Historical Perspective
Caroline Smart, University of the Western Cape - [email protected]
Gender Equality and the IPC: The Judicial Response
Sanskriti Singh, Indian Institute of Technology Kharagpur [email protected]
Feminist Turning Point of Nepal
Renuka Devi Sitaula, Norvic International Hospital Kathmandu - [email protected]
26
11. OCCUPATION
REPRESENTATION
&
THE
DAY
AFTER:
PROTEST,
PREFIGURATION,
Panel 1: Constitutionalism beyond Representation
Chair: Illan Wall
Anarchism and Republicanism
Ruth Kinna, Loughborough - [email protected]
Alex Prichard, Exeter - [email protected]
Negri beyond Negri: Constituting the Constituent Process
Simon Thorpe, University of Warwick - [email protected]
Reconceptualising representation: Schmitt and Derrida
Jacques de Ville, University of the Western Cape, South Africa [email protected]
Panel 2: Subjective Politics After the Occupation
Chair: Simon Thorpe
Experimenting, nothing but experimenting: mapping the (im)possibilities of
political ruptures.
Leticia da Costa Paes, Birkbeck College, University of London, Law and Humanities
Department - [email protected]
Looking for Love in All the Wrong Places: Thinking after Squares and Parks or from
Pubs and Working Men’s Clubs?
Jayan Nayar, School of Law, University of Warwick - [email protected]
Under the Sight of Justice
Ceylan Begüm YILDIZ, School of Law (PhD), Birkbeck College, University of London [email protected]
Panel 3: (Dis)order and (In)justice in Atmospheres of Protest
Chair: Andreas Kotsakis
The Long Range Acoustic Device and the Jurisprudence of Sonic Violence
James Parker, Melbourne Law School - [email protected]
Atmotechnics: Policing Crowds in Occupation
Illan rua Wall, School of Law, University of Warwick - [email protected]
The Disabled People’s Protest: the counter-conduct of the benefit scroungers? A
Foucauldian perspective on disability resistance in the context of a welfare reform
Ivanka Antova, Queen’s University Belfast - [email protected]
27
12. ON THE LEGAL PRODUCTION OF THE (NEW) COMMONS: LAW AS A LIVING
PRACTICE
Panel 1
Chair: Vito De Lucia
Of Commons, Heterolegalities and Alter-Temporalities
Vito De Lucia, Arctic University of Norway - [email protected]
The juridical production of reality: towards a theory of legal performativity
Riccardo Baldissone, Westminster University - [email protected]
Radical Sovereignty, Law’s Potential
Angus McDonald, Staffordshire University - [email protected]
Panel 2
Chair: Margherita Pieraccini
We as the problem – has it already happened?
Kristina Cufar, European University Institute - [email protected]
Legal personhood – singular plural?
Susanna Lindroos-Hovinheimo, University of Helsinki - [email protected]
Panel 3
Chair: Riccardo Baldissone
Law's Imaginary Life on the Ground: Liberia and the Rule of Law
Shane Chalmers, Australian National University - [email protected]
Joining legal pluralism with legal consciousness in the study of Italian new commons
Margherita Pieraccini, University of Bristol - [email protected]
Politico-legal dynamics of global constitutionalism and the possibility of commons
through law
Ekaterina Yahyaoui Krivenko, National University of Ireland [email protected]
28
13. PARRHÊSIA AND THE LAW
Panel 1
Chair: Kati Nieminen
The mimesis of free speech: Reading Athenian parrhesia with/against Michel
Foucault
Jan R. Stenger, University of Glasgow, Helsinki Collegium for Advanced Studies [email protected]
Milton, Parrhesia, and Derrida's Force of Law
Louise Mabille, University of Hull - [email protected]
Ethopoiesis and the law
Samuli Hurri, University of Helsinki - [email protected]
Panel 2
Chair: Samuli Hurri
Hate speech
Eliska Pirkova, University of Helsinki - [email protected]
Inquiring the truth, misstating facts: Law, history and the holocaust denial
prohibition
Daniela Bifulco, Seconda Università degli Studi di Napoli - [email protected]
The Taboo in Law & the Law as a Taboo
Kati Nieminen, University of Helsinki - [email protected]
Panel 3
Chair: Samuli Hurri
Counter-community and rights as friendship
Bal Sokhi-Bulley, Queen's University Belfast - [email protected]
Parrhesia and history
David Thomas, Birkbeck School of Law - [email protected]
Parrhesia as Challenge to the Symbolic Order in Political Trials
Karen Richmond, University of Strathclyde - [email protected]
29
14. RESPONSES TO THE LOSS OF THE POLITICAL: INTELLECTUALS,
HUMANITARIANS AND THE REVOLUTIONARIES
Panel 1
Chair: Ozan Kamiloglu
Co-operation and the Possibility of the Political
Tara Mulqueen, Warwick School of Law
From anti-capitalist struggles to poverty alleviation policies: situating post-Marxist
theories
Moniza Rizzini Ansari, Birkbeck School of Law, University of London
How to picture sovereignty: from image theory to image-nation
Marcus V. A. B. de Matos, Birkbeck School of Law
Panel 2
Chair: Tara Mulqueen
Mapping the political: Spaces of collective action after the retreat of emancipatory
projectsin Turkey
Zeynel Gül, Department of Sociology, Koç University, Birkbeck
Politics of Human Rights Discourses and the ethics of violence
Ozan Kamiloglu, Birkbeck, University of London
How to lose friends and alienate people: being a critical theorist
Adam Gearey, Birkbeck – [email protected]
30
15. REVOLUTION, COUNTER-REVOLUTION AND THE LAW
Panel 1: Thresholds: Revolution and the State of Exception
Chair: Cosmin Cercel
Agamben and Marxism on the State and Civil War
Daniel McLoughlin, University of New South Wales [email protected]
Hamburg’s danger zones as a state of exception – A critical analysis drawing on Carl
Schmitt and Walter Benjamin
Thomas Hirschlein, New School for Social Research, New York City [email protected]
On Exception, Fiction and the Performativity of Law
Gian Giacomo Fusco, University of Kent - [email protected]
Panel 2: The Other Side: Revolution, Law and Marxism
Chair: Simon Lavis
Revolution Under Siege: Law, Violence and Marxist Legal Theory
Cosmin Cercel, University of Nottingham - [email protected]
Marx against Schmitt: Democratic Dictatorship and Dictatorial Democracy
Dimitrios Kivotidis, Birkbeck School of Law - [email protected]
Towards a Revolutionary Jurisprudence
Tormod Johansen, University of Gothenburg - [email protected]
Panel 3: Revolution and Beyond: Law, Reaction and Transition
Chair: Daniel McLoughlin
Apparatuses of Neoliberal Transition: Transitional justice as Omnus et Singulatem
Josh Bowsher, University of Nottingham - [email protected]
Precarity and Cumulative Radicalisation: Nazi Law as Revolution and Reaction
Simon Lavis, Open University - [email protected]
Law’s Monsters: The Reductive Framing of Enemies in International Discourse
Lynsey Mitchell, University of Strathclyde - [email protected]
31
16. THE TIME AND TEMPORALITY OF VULNERABILITY
Panel 1. Framing the Temporality of Law and Vulnerability
Chair: Nayeli Urquiza
Law’s Time: the temporal dimensions of responsibility and vulnerability in law.
Jill Stauffer, Assoc. Haverford College, Haverford
The Precarity of Judgment: Temporal Spectrality and the Legal Subject
Thomas Giddens, St Mary’s University.
Locating the temporalities of vulnerability
Tiffany Page, Goldsmiths University
Panel 2. Time Disjunctions and Temporalizing Regulations
Chair: Thomas Giddens
The Times of Ort des Erinnerns: Walter Benjamin, Memorials, and the Nuremberg
Race Laws
Tiffany MacLellan, Carleton University in Ottawa, Canada
Against and with all odds: Foucauldian perspectives on time and temporality in
family migration.
Alexandra König, Birkbeck School of Law, London; MA in Gender Studies and Political
Science, University of Vienna.
Multiple Parents and the Temporality of the Family
Haim Abraham, University of Toronto
Panel 3. Spaces of precarity: race, belonging and temporality
Chair: Arturo Sanchez Garcia
From Land to Futures: Are Title Registries like Time Machines?
Sarah Keenan, Birkbeck School of Law
Cashless Welfare Transfers for ‘Vulnerable’ Welfare Recipients – Law, Ethics and
Vulnerability
Shelley Bielefeld, School of Regulation and Global Governance (RegNet), Australian
National University.
“The body that loses its chair”: ‘New’ legal temporalities and the racialised subject
Nadine El-Enany, Birkbeck College, University of London.
32
Panel 4. Courts and the multiple temporalities of vulnerable bodies
Chair: Carolina Y. Farusho
The court as the narrator: narrative strategies in the construction of children as legal
subjects
Kristina Hultegård, University of Gothenburg, Sweden.
The (In)Vulnerable Female Asylum Seeker in Strasbourg
Lourdes Peroni, Human Rights Center, Ghent University, Belgium.
Childhood and vulnerability in ECtHR immigration cases
Ellen Nissen, Centre for Migration Law/ Institute for Sociology of Law.
Panel 5. Vulnerable subjects: timely construct against persistently unequal relations?
Chair: Lourdes Peroni
How do intimate relationships make us vulnerable and why should the law respond?
Ellen Gordon-Bouvier, University of Birmingham
Future Generations as Vulnerable Subjects: Out of Sight, Not Out of Mind
Michael Monterossi, University of Venice.
The subject or object of law: a trap of civil law equality.
Katarzyna Wojtkowiak, Gdańsk University.
33
GENERAL STREAM
PREVENT Roundtable Discussion: Critical legal scholarship in times of PREVENT? Activist
explorations of the responsibility of the critic
Alexandra König, Ceylan Begüm Yildiz, and Paddy McDaid (all from the School of Law,
Birkbeck)
Thirty years ago, the Critical Legal Conference argued that 'critical thought' must insist on the
inseparability of the theoretical from the practical. However, when it comes to questions of
critical practice today, how does this legacy reflect upon the matters we are subjected to as
students, managers, educators, academics, authors, and activists embedded in specific
societal contexts? This session proposes to discuss the 'PREVENT duty' being imposed on UK
universities by the Counter-Terrorism and Security Act 2015. The session is committed to the
idea of critical practice and will therefore focus on identifying strategies to build resistance
against this toxic body of laws and policies. It is intended that, after a short introduction to
PREVENT and its implementation at universities, the session will take on a more participatory
format dealing with practical questions of building resistance jointly as critical legal scholars
around the UK. We hope that you will join us for this important conversation. Further reading:
http://criticallegalthinking.com/2016/04/01/open-letter-resist-prevent-duty/
Documentary Panel: The Failure of Dublin Agreements and Schengen
Aisling O’Regan, Birkbeck
Panel 1: Critical Subjectivity
Chair: TBC
Law and the Pleasure of Text
Mark Antaki, Faculty of Law, McGill University - [email protected]>
This paper is part of my preparation for a colloquium on Roland Barthes and law. I focus on
his “The pleasure of the text”/Le plaisir du texte.” I use this text as an entry point into
questions of the the corporeality of (legal) language and texts and that an erotic relation to
and experience of (legal) texts. In doing so, I also consider and bring Barthes into conversation
with the likes of Susan Sontag (Against Interpretation), Hans-Georg Gadamer (Truth and
Method among others), Denis J. Schmitdt (Between Word And Image: Heidegger, Klee, and
Gadamer on Gesture and Genesis) and some legal scholars who consider these same
questions.
Notes on the Black Notebooks: Thinking v Theory v Practice
Gilbert Leung, Independent Scholar – [email protected]
Since the publication of Heidegger’s black notebooks in 2014, there has been much debate
over the significance of the indubitable antisemitism contained therein. Should we now, once
and for all, stop reading Heidegger? My short answer to this question is no, but with this arises
34
further questions I wish to focus on, namely the relation between theory and practice and
the somewhat more obscure question of the relation of thinking to theory. Could it be that
theory is the hypostatization of thinking? Is it the case that while theory may inform or guide
practice, thinking only connects to practice insofar as it interrupts theory? What is thinking?
— Heidegger’s question par excellence. And does his antisemitism mean that at some point
he actually stopped thinking? What are the implications for critical legal scholars who, selfconsciously or not, engage in ‘theory’?
From Subject Crisis to Critical Subjectivity. A Theory of Discourse for The Man of the Crowd
Marco Castagna, Università di Napoli "Federico II" - [email protected]
As happens in the pages of the well-known tale by Edgar A. Poe “The Man of the Crowd”, the
unveiling of the void hidden under each presumption of “clear consciousness”- or “absolute
meaning” (that is the “essence of all crime” in Poe’s work) - seems to determine the only
possible existence for the “subject” in an unsolvable dichotomy between “autism” of the
individual and “anomie” of the multitude.
However, we can observe that it is the semiotic nature of the human “being” that denies
every certainty of Subject; and so it is in the pragmatics of languages that we have to look for
resources of any attestation of a Self with the Others inthe World.
In this perspective, the proposed speech will be focused on the Theory of Discourse, and how
this was systematized by French linguist Émile Benveniste (and re-reading by some of the
most important thinkers of the last Century, such as Foucault, Lacan or Ricoeur).
In fact, in the Discourse, the subject-speaker is called to an act of telling that is never only
“individual” but also and always “social”, because every Discourse requires the use of one or
more shared code systems - mainly linguistic; and, vice versa, what determines each system
is not only “social”, since it exists only in the act of the individuals who use it.
Thus, Discourse does not obtain its regularity a priori, but it defines a space of meaning that
can be subjected to stability and to heterogeneity of the possible at the same time. In this
(utopian) space, the static Absolute Subject of Modernity has no reasons to exist, and it is
replaced by a dynamic Critical Subjectivity, fully responsible for the continuity and coherence
of its position.
Genealogical Critique in Uncertain Times
Andreas Kotsakis, Oxford Brookes University - [email protected]
Genealogy is most commonly understood as a critical ‘history of the present’, i.e. as a critical
method that uses historical sources to disrupt and destabilise the established and self-evident
knowledge, assumptions and practices of our contemporary condition. The continued
popularity of this function of genealogy as a form of subversive critique, belonging to the
Nietzschean philosophical tradition and reworked primarily by Michel Foucault, is faced with
two significant challenges today, when both the reality of our contemporary condition and
35
our perception of it becomes ever more fragmented, unequal and unstable. The first
challenge relates to the elements of the genealogical method; while for Foucault and other
genealogists working within the Western philosophical tradition it was relatively easy to posit
a common present to be problematised, the extension of the genealogical approach to global
and/or non-Western institutions and practices has not been accompanied with a critical
reflection on what constructing a notion of ‘our’ contemporary condition entails. Foucault
himself discussed the task of rendering visible subjugated knowledges and voices in the
construction of the present and this has been productively taken up by postcolonial studies,
and in fields such as critical international law. But what happens when atavist, imperialist or
racist voices regard themselves as ‘subjugated’? The second challenge is wider and relates to
the social function of critique; given how our present is experienced, what is the purpose of
critical scholarship adding more disruption to something already tittering on the edge of the
collapse? As Bruno Latour has said, ‘is it really our duty to add fresh ruins to fields of ruins?’
The paper examines these two sets of challenges using examples from legal studies, and
argues that in a world where politicians of ‘conviction’ openly call for the public to disregard
all experts and intellectuals, there should be more attention to the structure, objects and aims
of critical methods; as well as profound concern regarding how and by whom the findings of
genealogical or other forms of critique are welcomed and encouraged.
Panel 2: Alternative Critiques
Chair: TBC
The turning point potential of breaking dominant communication tools for the purpose of
expressing critique towards the legal system
Natalie Ohanathe, UCL - [email protected]
My paper will examine the turning point potential of an art and dialogue workshop I
conducted in a refuge for women fleeing domestic violence in London exploring women’s
critique of their encounters with the legal system in the context of trauma.
By engaging with Deleuze and Guatari’s minor literature theory I will explore the effects of
abandoning a dominant medium for expression – language and particularly the legal language
– and using instead a non-disciplinary art form as an alternative, for the purpose of expressing
critique towards the legal system.
I will present the question whether the workshop represented a turning point that shifted the
effectiveness of people subjected to legal proceedings in platforms for legal change - from
outsiders perceived as lacking entitlement and skills to participate to leading, central and
effective actors.
Formalism as Mishandling the Legal Map
Peter Brezina, University of Economics and Management in Prague - [email protected]
Formality and formalism of law has been discussed in scholarship for centuries and in focus
of attention of legal scholars for decades. Even some of the greatest debates in modern
36
jurisprudence can be seen as debates on formalism. Most of these endeavours, however, only
deal with the inherent and proper formalism of law, while in practice the term is mainly used
to denote specific failures of legal enterprise. In his seminal paper “Law: A Map of Misreading”
(dating back to 1987) Bonaventura De Sousa Santos proposed metaphors from cartography
to explain various legal issues. To my mind this approach can very well be also used to study
(excessive) formalism in law – that is, as a specific mishandling of legal space, mainly
manifested by mishandling the formal legal map of rules and principles. In this paper I try to
demonstrate it.
Sleep’s Legal Form; An Anthropological Reading On The Normative Significance Of Late
Modern Sleep.
Ignacio Riquelme Espinosa, University of Bristol - [email protected]
Over the last decades sleep has appeared as a new topic for the law, calling for discussion,
dedicated regulation, and growing social concern. Though sleep has been a topic of social and
intellectual interest way beyond late modern culture, it’s political and legal appearance point
to a crucial change in the event´s social signification. This paper inquiries about the social
conditions that have enabled and propelled the appearance of sleep as a matter of legal
concern, as well as the possible implications of that specific social articulation. By linking
anthropological work the “sleep problem” and social temporality the paper focuses on the
way in which sleep has become an element under law’s explicit consideration. In a more
general view, this essay seeks to provide an insight to the way in which law, in identifying and
defining a new element of regulation, engages with several other social discourses and
arrangements, which in turn enable the object’s legal relevance.
The paper presents a progressive argument in three parts. First it unpacks the late modern
sleep conflict by presenting the discursive articulations that have permitted its redefined
public appearance. Then, it situates sleep conflict in relation with modern-western social time
structures. By discussing the anthropological literature on social articulations of time I show
that one of the most relevant aspects of sleep’s new political discussion is a redefined
normative temporality. Finally it returns to sleep conflict’s political and legal resonances,
proposing that a legal articulation of sleep reveals central aspects of the way in which law
engages with temporal conflicts and divergent discourses.
Humiliation’s jurisdiction – the animation of the legal world and the creation of political
memory
Juliet Rogers, University of Melbourne/Griffith Law School, Queensland [email protected]
Stories of humiliation at the hands of police, military and other official personnel permeate
the narratives of those who live under occupation; either militarily, such as in Palestine, or
Northern Ireland under British rule, or politically, such as Indigenous people in Australia. For
those subject to humiliation the world is animated, at the point of encountering, in the image
of the soldier, the police or the beaurocrat, as the worker of the regime. This animation, even
37
for a short time, can produce a profound, and memorable effect, and in this sense, it realizes
the legal world in the flesh.
Whereas torture leaves a scar, and certainly has some of the properties of humiliation, it is
viewable in the flesh. Legal judgment too is experienced, in Cover’s terms, ‘in the field of pain
and death’,1 the jurisdiction of humiliation is identity. Humiliation, unlike most forms of
torture, works to make those subject to it complicit in their own subjugation, it pretends to
choices and choices are the terrain of identity. Thus, the experience of humiliation can be as
lingering as the life of the subject, and it can produce a legal world that reflects the lived
experience of humiliation.
In this paper I discuss selected moments of humiliation in Northern Ireland and Australia and
consider, with the help of psychoanalysis, how the lived memory creates practices of legal
and political affiliation in the one humiliated.
Panel 3: Regulation and technology
Chair: TBC
Measuring the ‘lawfulness’ of legal technologies: from speedbumps to smart contracts
Jake Goldenfein, Swinburne Law School, Swinburne University of Technology [email protected]
Is there a difference between a technological artefact designed to implement legal
normativity – what has been called ‘techno-regulation’ (such as a speedbump) – and a
technical ‘expression’ of law? Law is, of course, already an information-technological system,
however increasingly, arguments are being made that the format or medium for the
transmission of legal rights and relations requires rethinking for law to retain its identity and
efficacy. Some have even argued for technical expressions of law that are capable of being
articulated into the telecommunications infrastructure itself. These could be legal artefacts
that carry both the architectural force of technology and the compulsion of legal legitimacy.
Indeed, the take-up of legal expert systems in administrative law is leading to the creation of
fully automated technological systems that produce binding legal outcomes, and there has
been significant research into translating legal instruments (like legislation) into formalised
logic languages. However, the idea that, for example, legislation itself could be created in
formal programming languages is relatively new. These ideas provoke various criticisms on
legal, technical and political registers. However, this paper focuses on claims that formalised
automated technological expressions of law risk undermining the ‘nature’ of law, and even
bringing about the ‘end of law’.
These questions acquire new relevance in the context of distributed ledger technologies and
the protocols that facilitate automated action (such as smart contracts) on blockchain
infrastructure. Some have claimed that, in the same way as BitCoin avoids the necessity (to a
certain extent) of financial intermediaries, new blockchains (and automated transactions) will
avoid the necessity of legal intermediaries to enforce agreements between parties or
1
Cover, “Violence and the Word,” 1601.
38
administer governance structures. But what is the ‘legal’ character of these environments and
how might they interrelate with traditional regulatory categories, structures and exercises?
This paper accordingly seeks to identify a framework for thinking through questions of
technical legal nature in relation to the possibility of digital, and automated expressions of
law. This requires addressing questions such as whether there is a material difference
between the regulatory characters of law and technology? That is, whether artefacts of
techno-regulation are simply a delegation of law into technology – a juridification of technical
modes of existence? Or whether there a point on the spectrum between ‘weakly legal’ and
‘definitively legal’ (legal per se) that satisfies the jurisprudential character of ‘legality’,
‘lawfulness’ and legal ‘legitimacy’? This implicates questions around the essentiality of
informality in legal nature (and its relationship particular political rationalities like liberalism),
or whether it will become necessary to acknowledge some plurality in legal nature or plural
legal natures?
The Right to Internet Access, ICCPR, and China: Legal and Practical Insights on Chinese
Internet Censorship
Artem Sergeev, University of Hong Kong - [email protected]
Following the effect of the internet on the different aspects of human lives, it was argued that
the internet is currently protected by international law. The present research assesses the
validity of this legal assumption with conjunction to the internet policy in China. The first part
of the article argues that the internet is currently protected under the international Human
Rights law, and, in particular, under the freedom of expression. Accordingly, the internet is
not the right per se, but a tool to exercise the freedom of expression. The second part of the
research argues that the vast Chinese internet censorship goes contrary to the internet’s
protection under the freedom of expression. Furthermore, the argument explores if China
breaches the ICCPR’s object and purpose as it disproportionality limits the means of the
freedom of expression, namely, the internet. Lastly, the research examines the practical
contribution of the internet to the democracy building and domestic liberalization. The
research argues that the internet is not a reason for political changes, but, it is a convenient
tool of the latter. Accordingly, the internet is an outcome of a free society, but it is not the
cause of the existence of such society.
International Space Law and Legal Mechanism to protect Moon’s Environment
Amit Kumar Padhy, Hidayatullah National Law University, India [email protected]
With both advances in technology and increasing demand for constrained crude resources
(limited raw materials which primarily emphasises on natural resources) on earth, the issue
of private property rights and protecting the ecosystem of the moon has again assumed
prominence. While it is widely believed that many parts of the Moon Agreement are
unworkable, until recently there has been no impetus for a new system, simply because it
seemed unnecessary. This paper will argue that a new system is necessary, and that the way
to ease into it to set up a provisional system, under the aegis of the Outer Space Treaty, that
39
will allow the first few enterprises to work on the moon real legal certainty for their activities.
This provisional system will allow the pioneers legal certainty for their activities while
preserving the rights of the citizens of the world as the system develops, so that even as the
resources of the moon are used to help mankind, the environment of the moon is protected.
The implementation of plans for intensive activities on the Moon seem to become ever more
probable: On January 14, 2004, the U.S. President George W. Bush announced plans for space
travel in the coming decades which involve extended human missions to the Moon as early
as 2015, with the goal of living and working there for increasingly extended periods of time.
Only three years later, in September 2007, plans to establish a Russian Moon station suitable
for permanent settlement on the Moon’s surface in the period between 2028 and 2032 have
been published2. This way, the space law community can see what problems will arise in this
experimental atmosphere, enabling them to perfect, when the activities on the moon become
so widespread that a permanent system is needed, a legal framework that both encourages
commercial activity and protects space from pointless environmental damage3.
Panel 4: Movement, Constraint and the Loss of ‘Home’
Chair: Suhraiya Jivraj
Repairing the Migrant ‘Crisis’: Counter-Solidarity and Friendship
Bal Sokhi-Bulley, University of Sussex - [email protected]
Friendship. A new ethical relation that respects alternative modes of being and counters the
narrative of solidarity (between states) – can this be the ‘solution’ to the EU’s chronic migrant
crisis? ‘Crisis’ is a seductive term and creates an imperative to ‘do something’. The aesthetic
of the so-called ‘migrant crisis’ in the EU has seen increased participation by expert actors
promoting good governance using the language of rights discourse. This focus on rights allows
the EU to present itself, and to be seen as, a virtuous, even right-eous actor in the ‘migrant
crisis’. But rights are increasingly insufficient and being supplemented by other values,
notably solidarity. The aesthetic of crisis demands a common response where states fairly
share responsibility and are in solidarity – and here is the point: the EU can only see solidarity
as between states; it can do solidarity between states. But this way of conceptualizing
solidarity as a tool to respond to the crisis is not the only way to use this tool – in fact, it is not
the most effective, promising, friendly or right-eous way. The EU cannot do solidarity with
migrants – solidarity human to human; it cannot calibrate this. I want to highlight in this paper
that the migrant crisis is a crisis in solidarity and to ‘repair’ it call for a new ethics of solidarity,
what I call a counter-solidarity. A counter-solidarity celebrates the human to human affective
relation and represents something we might even call friendship, and so counters the
negative impact that solidarity (between states) can have on the migrant as a legitimate rights
claimant. The idea of friendship here is an ethical relation – and a reading I take from Michel
Foucault’s later work on the thematic of friendship and relational rights.
2
Interfax, according to Süddeutsche Zeitung, 1./2. September 2007, p.12.
N.M. Matte, Outer Space Treaty; In: R. Bernhard (ed.), Encyclopedia of Public International
Law, Installment 11, p. 252.
3
40
Nation, Home and the Body
Brigitte Nicole Grice, Independent Scholar - [email protected]
Mihaela Varzari, History and Philosophy of Art at the University of Kent [email protected]
From the starting point of the privileged entity of the house, Gaston Bachelard in Poetics of
Space provides a phenomenological account of felicitous space and argues an enclosed
dwelling is necessary for the human's imaginary, interior life, and hence critical for the
augmentation of reality. The concept of the house in its either symbolic, imaginary or real
quality can be expanded to comment on the home in relation to a constructed narrative as
the creation of the nation.
Homi Bhabha’s, by now influential quotation ‘Nation is narration’, which implies the so-called
unity of nation is a construct realized as a result of discursive and literary strategies leads us
back to the risks in the rise of essentialism within contemporary Europe. The question arisen
here makes use of narration but in relation to the architectural and embodied space through
a historical interrogation of the pharmacology of the ‘castle’ as subverted and employed by
the surrealists as a re-claimed trope of self-mastery, imagination and freedom. The castle for
as a living space also becomes a home, a space where the body is subjected to regulatory
regimes, unpaid labor being only one of the many.
Nation, home and the body will explore the vulnerabilities and precarious existence
presented to life today as positioned in the massive shifts of climate and to ask what
constitutes house/home in the shifting spheres of technologies impacting previous
preconceptions of the imaginary and interior life. This will be explored in the contemporary
examples of digitally-rendered spaces as seen in the work of UK-based artist Hannah Black
and the proposed autopoiesis architecture of parametricsim by the architect Patrik
Schumacher.
Trafficking in Persons and the Rule of Law: Looking for a “Victim”
Anette Sikka, University of Illinois Springfield - [email protected]
This paper examines the role of anti-trafficking efforts as a measure of compliance with “the
rule of law”, and the potential harms inherent in such assessments. Using the framework of
Critical Legal Pluralism, I argue that an image of a paradigmatic “victim” has been created to
supplement the legal vacuum created by the vagaries in the definition of “trafficking” in the
Protocol to Prevent, Suppress and Punish Trafficking in Persons and that this paradigm has
provided a politically useful symbol used to support only tangentially-related domestic
criminal and immigration reform in the U.S. I suggest that there are highly gendered and
racialized historical underpinnings to the fight against “trafficking” and that the use of this
paradigmatic “victim” symbol further ensconces such biases. As a consequence of such
political maneuvering, sex workers, migrants and people of color are subjected to increased
oversight and the rights of these groups are truncated, rather than protected. Thus, I argue,
establishing anti-trafficking efforts as a measure of compliance with “rule of law” assessment
41
serves to internationally replicate and perpetuate the system of marginalization, surveillance
and criminalization inherent to anti-trafficking programs in the United States.
This outcome is antithetical to the perceived goals of rule of law programming. Although the
“rule of law” is still a somewhat amorphous and under-interrogated concept by its
practitioners, particularly when related to transitional justice, programming that serves to
perpetuate further marginalization of vulnerable groups cannot be taken to be a meaningful
assessment criterion for rule of law compliance. And yet, anti-trafficking efforts are a feature
of many U.S. led rule of law assessments and programming. Furthermore, through the use of
the Department of State’s Trafficking in Persons Report, such compliance is sought not only
in places in which the U.S. specifically implements rule of law programming, but worldwide,
and this paper suggests that such criteria have detrimental, rather than progressive impacts.
Panel 5: Islamic Law: Contemporary Reconfigurations
Chair: Qudsia Mirza
Panel organisers: Qudsia Mirza (Birkbeck Law School) and Komal Patil (Divya Shah Associates)
The increased presence of Muslims in Europe in recent decades has resulted in calls for the
'assimilation' of diasporic Muslim minorities in non-Muslim majority societies. This has often
been associated with calls for changes within national legal systems to respond to, and
accommodate, Muslims. Throughout the Muslim world, there are also calls for the ‘reIslamisation’ of legal systems and laws. Both these developments take a variety of different
forms, ranging from a re-institution of 'original' Shari'a precepts, or a re-configuration of
Shari'a norms into more progressive contemporary forms, or simply a recognition that the
practice of Islamic legal principles are based upon a navigation between 'secular' norms and
religious standards.
Consequently, there is a growing body of evidence that points to the development of new,
hybrid forms in Islamic social and cultural practices, customs and laws, arising from the
presence of diasporic Muslim communities in Europe. Muslims are negotiating their way
through state 'secular' provisions and requirements which conflict at times with their 'Islamic'
values and ideals. This process of negotiation has involved identifying those aspects of life
which are culturally relative – and open to jettisoning or modification - from core 'Islamic'
values, which are seen as inviolable and absolute. This process is, at times, problematic as can
be seen with the need to reconcile gender equality and certain (conservative or orthodox)
interpretations of Shari'a precepts.
This panel invites participants to submit proposals to investigate the nature, scope and
operation of Islamic Law in contemporary European societies. We encourage papers that
address this issue from a theoretical or doctrinal level as well as papers that address specific
areas of law.
42
The Colonial Crafting of Islamic Law: Anglo-Islamic Jurisprudence
John Strawson, University of East London, UK - [email protected]
Guy Burak’s ground-breaking book, The Second Formation of Islamic Law (Cambridge
University Press, 2105), offers a fascinating account of the transformation of Islamic law by
the Ottomans from the 16th century (CE) with the adoption of the Hanafi school as the official
jurisprudence of the Empire. The wielding of Islamic law for state purposes was a new
development, which has many implications of contemporary legal and political enquiries. In
this paper I want to turn to a parallel development within the British Empire, the Imperial
practices of constructing an official Anglo-Islamic law (sometimes called Anglo-Mohammedan
Law) from the 18th century. The focus will be on the way in which the Judicial Committee of
the Privy Council was used to develop and Empire-wide form of Anglo-Islamic law. In the
Bakhshuvem case in 1951, the Privy Council revealingly rejected arguments requesting a
judgment to take into account classical positions of Islamic law and explained that on “a
question of Mohamedan law decisions of the Privy Council in appeals from India must bind
them.” In other words the official Islamic law of the Empire derived from British Courts not
Islamic authorities. Taking a Saidian approach this paper will analyze the text of such
judgments and other relevant case papers in order to reflect on the persistence of colonial
influence on Islamic law in 21st century.
Islamic Law and Gender Equality: A Critical Analysis
Qudsia Mirza, Birkbeck, University of London, UK - [email protected]
The emergence of Islamic feminism within the broader reformist movement is committed to
the re-conceptualisation of gendered social, legal and political rights within Islam. The
feminist project locates women’s rights within an exclusively Islamic discursive framework. It
offers both a trenchant critique of orthodox Islamic thought as well as opening a new phase
in the politics of gender and of feminist theorisation in diasporic Muslim communities in
Europe as well as in Muslim majority societies.
The reform of Islamic law is seen as one of the principal means by which the inequalities and
discrimination women have suffered under 'incorrect' interpretations of Islam can be
addressed. Implicit in any form of Islamic feminism is the understanding that law is highly
gendered and that it plays a significant role in constructing and underpinning gender
hierarchies. Islamic feminism is predicated upon identifying such laws and offering
suggestions for reform by which gender equality can be instituted in the areas of marriage,
divorce, child custody, inheritance and evidence - the key areas that are considered most
problematic in terms of gender equality.
In this paper I will explore key Islamic feminist positions and their implications for the
reconfiguration of Islamic Law and gender equality. Although such theorizations offer great
potential for change, there are certain substantive and methodological issues which revolve
around the notion of gender equality that I will critique in this paper.
43
Against Public Policy: Dutch courts dealing with Islamic Family Law
Iris Sportel, Lichtenberg Kolleg, Georg-August University Göttingen, Germany [email protected]
Through private international law, European courts can come into contact with a wide range
of “foreign” family laws and concepts. When migrants aim to register their marriage, divorce
or take family disputes to court, courts in the country of residence may apply the laws of their
country of origin. In the context of increasing migration from the Middle-East to Europe,
European courts are confronted with a growing number of disputes which involve aspects of
Islamic family law. In the Netherlands, where views of Muslims and Islamic family law are
highly politicised, the application of sharia-based family law systems by Dutch courts is
especially controversial.
This paper will be based on an analysis of court cases, both published as well as collected in a
research project on transnational Dutch-Moroccan and Dutch-Egyptian divorce, in addition
to interviews with Dutch lawyers, translators, NGOs, and other professionals involved in court
cases of migrant minorities. I will focus on Dutch courts dealing with shari’a-based legal
concepts in family law cases. How do professional actors see Islamic family law, and what
does this mean for contested topics as polygamy and talaq (repudiation)? How do judges and
lawyers appeal to public policy in these cases? If and how do actors in the legal system take
into account the effects of Dutch court cases on the legal situations of family members in the
country of origin? And how can this be connected to general discourses on Islam, Muslims,
family law and rights in the Netherlands?
The Position of the Organization of Islamic Cooperation on Abortion: Not Too Bad, Yet
(Mystifyingly) Non-Existent
Ioana Cismas, University of Stirling, UK - [email protected]
In the wake of the “Arab Spring”, Shereen El Faki explains that if the latter is understood as a
contestation of power relations, alongside political, economic and social elements, sexuality
as an instrumentalizable element of such relations cannot be neglected. This paper subscribes
to such understanding in as far as sexuality is regarded as an element of power relations,
“bound up in religion, tradition, culture, politics, and economics”. At the same time, it seeks
to avoid essentializing any of these factors. Built on such premises, the aim here is to explore
the Organization of Islamic Cooperation (OIC) on one of the features of sexuality: abortion.
The study is driven by a doctrinal legal approach and draws on socio-legal insights which
together permit an examination of the dialectic interplay between the OIC and its member
states. This methodology also allows for an exploration of the relation between the OIC’s
normative position and the discourses made on the global stage by OIC representatives. In
terms of structure therefore, abortion is first placed within the context of feminist thought
and the current international human rights law framework. Second, relevant provisions of the
OIC Cairo Declaration on Human Rights in Islam and the Covenant on the Rights of the Child
in Islam are examined. Third an overview of the practice of member states is provided,
whereby practice is understood to comprise domestic legislation and policies on abortion,
and their consequence on the lives on women. Fourth, the normative position of the OIC and
44
member states’ practice are contrasted to the stance adopted by the Organization in relevant
UN fora. The conclusion assesses the findings and inquires in what ways the OIC’s institutional
voice on abortion could be shaped in the future.
Panel 6: Re-sistance, Re-expropriation and Re-enclosure
Chair: Olivia Barr
Panel organisers: Lara Montesinos Coleman, Robin Dunford and Lucy Finchett-Maddock
(University of Sussex)
New waves of primitive accumulation or accumulation by dispossession are occurring, in
Europe and beyond, through, amongst other things, land grabs, water grabs, resource grabs,
urban gentrification, the clearing of social housing, mortgage foreclosures, financial
regulation and authoritarian responses to capitalist crises. This panel explores the
intersections between these logics of (re)expropriation and forms of struggle, resistance and
(re)appropriation that have arisen in response to them, such as (amongst much else) land
occupation, urban squatting, or appeals to rights, demands for judicial and non-judicial
remedy.
Space, abstraction and appropriation
Chris Butler, Lecturer in law, Griffith Law School - [email protected]
Explorations of the social, embodied and imaginary dimensions of space have been a
consistent feature of the successive waves of theoretical innovation that have accompanied
the spatial, relational and material ‘turns’ in the humanities and social sciences during recent
decades. Two important background influences for much of this scholarship have been Henri
Lefebvre’s account of the abstract constellation of spatial tendencies that characterise
contemporary capitalism, and his concept of the ‘right to the city’, which opens up
possibilities for the reappropriation of space. However there are a number of limitations to
the reception of his work within legal theory and the interdisciplinary field of law and
geography studies. Perhaps the most obvious of these problems is the way in which the right
to the city has been increasingly subsumed within a positivist and bureaucratically reformist
agenda, which inevitably undermines its most radical implications. In this paper, I will suggest
that an alternative to such anodyne formulations lies in a rethinking of the relationship
between abstraction and appropriation. It is only through understanding the right to the city
as a demand for the political and aesthetic appropriation of space, which rejects both the
violent abstractions of juridification and the moralistic repudiation of abstraction as such, that
it might be possible to deploy this concept as a ground for resistance to dominant forms of
spatial production.
45
Contesting Commoditisation: Property, Certainty and Emissions Trading
Bonnie Holligan, Lecturer in Property Law, University of Sussex - [email protected]
The proposed paper investigates the process of “propertisation”: the placing of legal and
material boundaries around a (corporeal or incorporeal) thing to allow it to become the object
of property rights. As David Harvey, among others, has argued, what counts as an individual
resource is both a matter of convention and a socio-technical achievement. The extension of
property rights plays a crucial role in the creation of new commodities and the extension of
markets, but this process also engenders resistance on a variety of levels: material, social and
legal-technical.
The paper focuses on the creation of property rights in environmental goods, in particular
rights under various “emissions trading” schemes, and the specific role of property law in
creating what Scott Prudham terms “social relations of abstraction”. In Armstrong DLW GmbH
v Winnington Networks Ltd, an allowance under the EU Emissions Trading Scheme was held
by the High Court in England to be “property” on the basis that it was definable, identifiable,
transferable to third parties and had sufficient permanence and stability. The paper seeks to
unpack some of the contradictions within this analysis, arguing that the certainty necessary
to create stable and secure property rights runs contrary to the complex and chaotic nature
of biological systems. There is a fundamental question about the extent to which one unit of
ecological function in one location can ever be equivalent to another and the extent to which,
by isolating particular functions from their ecological and social context, we risk legal and
ecological incoherence and the severing of important connections between people and
places.
From Property to Territory – The Alchemy of State Formation
Henry Jones, Lecturer in Law, Durham Law School - [email protected]
This paper is about the creation of the two modern legal systems for ordering and controlling
space: property and territory. These ideas are political technologies for ordering space,
controlling actions within that space, and ultimately shaping the subjectivity of the people in
those spaces. It takes an historical and literary approach to these developments. The historical
study will explore the creation of these methods of legally constructing space. The literary
study gives access and understanding to different forms of organising space which have been
lost. I am looking at the indigenous stories of England, English property law, and English
colonialism. Cumulatively this paper reconnects property and territory, and therefore private
and public social and spatial ordering through law.
The argument is in four parts. The first uses Jim Crace’s novel Harvest to illustrate the process
of enclosure in England, as well as understanding pre-enclosure life. The second
internationalises this process by connecting these practices over private property with similar
international processes of state formation seen in Stuart Elden’s book The Birth of Territory.
The third illustrates how this connection can be seen in the work of John Locke. Locke’s
writings on property in particular show a connection between domestic enclosure and
colonialism. The final part returns to literature, looking at Brian Friel’s play Translations, in
which the violence of cartography is laid bare in a setting which is at once domestic and
46
colonial. This purpose of this argument is to draw together the concepts of property and
territory, to understand that both these legal concepts are important political concepts, and
potential sights of contestation.
Panel 7: Recasting Rights
Chair: TBC
A Right-Claim as a Political Challenge
Konstantine Eristavi, University of Edinburgh - [email protected]
The main objective of my paper is to capture the radical dimension of human-rights-claims
through the example of a transnational movement of peasants, La Via Campesina, which
makes an extensive use of the language of rights.
I will demonstrate how the leading conceptualisations of human rights fail to explain the
transformative core of the movements like La Via Campesina. For this purpose, I will classify
the leading theories in terms of how they understand the performativity of rights-claims. The
latter are usually considered to be either commands, the recognition/enforcement of which
is authorized pre-politically (e.g. naturalistic and functionalist conceptions); demands which
lack such prior authorization (e.g. Lefort, Ranciere); political proposals made to co-citizens
(e.g. Arendt); declarations which constitute new political subjects (e.g. Gündoğdu); or some
combination of the latter three. While rights-claims understood as commands and demands
cannot exceed the possibilities provided by the extant order - insofar as both of these speech
acts presuppose the capacity of the addressee to realize the content of the issued speech act,
- rights-claims as proposals and declarations fail to capture the conflictual nature of rightsclaims.
My contention is that the radical dimension of a right-claim can be grasped only if we
understand it in terms of the speech act of challenge. A right-claim as a challenge intends to
demonstrate the extant order’s incapacity to realize the right in question. This is an act of
provocation that questions and politicises the fundamentals of the existing system and,
thereby, initiates a political space where a new alternatives can be deliberated and contested.
Going back to my main example, the theory of rights-claims as challenges helps us rethink La
Via Campesina’s call for the right to food sovereignty as precisely such a challenge; a challenge
to the current systems of production and distribution of food, which triggers a radical
discourse capable of transforming prevailing social relations.
Self-Determination of Indigenous Peoples under the Socialist Perspective
Chris Chu Cheng Huang, Institute of Law for Science and Technology, National Tsing Hua
University, Taiwan - [email protected]
Peoples as social creatures endowed with the right to self-determination are limited in
modern international law. Culturally or politically cogent communities resided in colonies
before the two World Wars, or even the dependent and auxiliary nation-states per se were
admitted as peoples to that collective rights under ICCPR. Yet neither treaties nor judicial
47
practice recognized indigenous peoples of the existing states are entitled with the same right
until the 2007 UNDRIP were adopted. In fact even under this innovative instrument if the
oldest polities have the right to cession is still contentious, though which is conceived as an
indivisible leverage to implement the right. It is therefore necessary to understand the factors
either in the form of national policies or judicial practice that shaped the right before we can
describe its context. Leaving the Latin-American states which developed the right under an
alternative Monroe’s legacy, it is to our surprise that since its drafting stage the UNDRIP was
supported by many socialist states including China. Without doubt the socialist’s international
law scholarship (SILS) played important roles in formulating source of current international
law, yet the study of which values did they focused upon and rationale to implement for the
UNDRIP may provide a real picture of the residual impact of SILS in modern days.
Deconstructing the European Union’s present: a chronic solidarity disease, domopolitics
and the migrant crisis
Rachael Dickson Hillyard School of Law, Queen’s University Belfast - [email protected]
The perception of values, their content and meaning, has become a problem for the European
Union (EU) during recent times as the Member States and institutions have attempted to
respond in a spirit of solidarity. This paper will discuss how the EU’s handling of the migrant
crisis creates a façade of a ‘turning point’ in EU relations while grounding actions taken in a
condition of presentism through the holistic treatment of wider afflictions through the
narrative of crisis. It addresses the problem of understanding the EU’s response as something
beyond immediate action to save lives. It illuminates alternative narratives which speak
beyond the governmentalities of security, unease and risk to go right to a crisis at the heart
of the EU rights project – the understanding of solidarity.
The results of an empirical analysis of policy, the interpretations of law made to formulate it
and articulations of key stakeholders and individuals it will be presented. The paper will
address how the EU conceives of itself as a home and then detail how the migrant crisis poses
a threat to the values comprising this home. By analysing the articulation of the values of
rights, solidarity and shared responsibility by the EU institutions and comparing them with
the mandates of the actors delivering the response pragmatically, the paper will emphasise
the presence of domopolitics. Therefore, the paper illustrates that the migrant crisis is a
symptom of a greater condition affecting the EU (namely, a lack of understanding of the
content and meaning of the value of solidarity). Due to this wider state of unwellbeing, the
EU is engaging in a domopolitical governmentality in order to tame and domesticate
migration that could intensify the symptoms of a chronic solidarity disease. Thus, the migrant
crisis is a turning point, a moment where it is either cured or worsened.
48
Panel 8: Security, Securitization and Criminalisation
Chair: TBC
Organized criminal answer to State governance in Latin America: gang resistance in
motion
Vitor Stegemann-Dieter, University of Kent (UK) and Eötvös Loránd University (Hungary) [email protected]
This exploratory study aims to discuss the interplay between states and gangs based on the
Latin American dynamics after the re-democratisation and economic opening period in the
end of the 20th century. Traditional gang research (see Thrasher, 2000; Sánchez-Jankowski,
1991) shows how gangs behave, but they do not take into consideration the role of the State
behaviour and State governance to crime and the consequences to gang organization and
behaviour. Relevant governance researchers (see Rhodes, 1996) claim that a new set of
networks are relevant to understand the undermining power of the state in present society,
some (see Gambetta, 1996; Skarbek, 2014) claim that gangs have taken a share of that
governance to themselves. However, the present study argues that the state capacity to rule
has not diminished, but changed from welfare inclusion to criminal persecution (Wacquant,
2009), and that marginalized individuals respond to those policies by creating new forms of
organization inside and outside prisons (Moore, 1978). I argue that gangs respond to the State
by creating new forms of organisations (Biondi, 2010) that enhance their collective capacity
to evade, corrupt or confront State policing (Bailey & Taylor, 2009). Thus, in spite of the
shrinking of the inclusive State, gangs do not become independent of State policies, but more
engaged with the State behaviour, a phenomenon defined by Lilian Bobea (2011) as
‘statetropism’. This exploratory study aims to critically engage with the concept of
‘governance’ and ‘self-governance’ according to political and economic transformations in
South and Central America, and secondly, ‘resistance’ as a conceptual tool to the interrelation
of socio-economic responses of society to these changes. Finally, this debate contributes to
the understanding of crime control policing strategies repercussion in different countries, in
which economic inclusion has been reduced and aggressive policing strategies have been
enhanced.
Making a Case for Adopting a Human Rights Paradigm To Pandemic Preparation
Omowamiwa Kolawole, University of Cape Town(UCT), South Africa - [email protected]
The recent Ebola virus pandemic that spread across many parts of the world, brought to the
fore the lack of preparedness of the global health governance system and individual state
parties for pandemic outbreaks. Of the various factors identified as contributing to the limited
pandemic preparation capacity, perhaps the most important has been the approach with
which pandemics have been addressed, pre and post outbreak. The existing theoretical
framework for pandemic preparedness has been one of Securitization and the protection of
State party economic interests. However, the securitization approach has been criticized for
placing undue focus on the protection of state security rather than the care of citizens.
While the protection of states’ security is a valid concern, recent outbreaks have shown that
pandemics do not recognise geographical boundaries, and actions solely geared at
49
securitization have yielded minimal results. In addition, in the case of many developing
countries, the primary factors for the spread of pandemics have been poverty and weak
health systems that are unable to withstand the wave of diseases and appropriately nip such
outbreaks in the bud. For many of these countries, there is need to have a different approach
to pandemic preparedness. A case has been made for the adoption of a human rights
approach. This paper explores this approach, and the ramifications of its implementation by
developing countries. The paper further enquires into the normative structure of such an
approach, highlighting what it would entail, the legal framework required to implement such
an approach and the systems needed for successful implementation; yielding in a
subsequently better pandemic preparedness stance.
Discretion, Framing, and the Single Legal Definition of Terrorism: One Size Fits All?
Alan Greene, Durham Law School - [email protected]
This paper argues against a single definition of terrorism in law, both at a domestic
international level. Using the UK's definition contained in section 1 of the Terrorism Act 2000,
this paper argues that a single definition of terrorism is invariably broad owing to the need to
accommodate the lowest common denominator thus damaging to the 'principle of legality'.
This faith in discretion paves the way for the definition to be applied arbitrarily and selectively
against certain groups, rather than against an objectively identifiable phenomenon known as
‘terrorism’. In addition, arguments suggesting that by legally defining terrorism we can
control its use in political discourse, misunderstand law's capacity to shape and frame public
debate. Such arguments instead promote law to a lofty place in the political discourse that it
simply does not occupy. A legal definition of terrorism cannot hope to control public debate;
rather, it can only serve as a tool to be arbitrarily applied by those with the actual power to
frame public discourse.
Panel 9: Urbanity, Control and the Commons: Realising Possible Urban Futures
Chair: Harley Ronan
Panel organizer: Harley Ronan
The urban environment is now the daily context for more than 50% of the world’s population.
The way cities are governed, and the manner in which law underpins the spatial, material and
social architecture of cities determines the conditions of existence for the majority of the
global population. In a European context, law, politics and social organisation cannot be
separated from the urban condition. Rethinking the legal and political nature of urban social
organisation creates a realm of possibility for building alternative, more socially just urban
futures. This panel seeks to further debates on how the city possesses potential for innovation
in the fabric of social organisation; what strategies and approaches can harness this potential;
and how the ‘just city’ might take shape - politically, socially and legally.
The city is a unique settlement form for the realisation of alternative forms of legal, political
and social organisation. This has crystallised recently in disparate claims to appropriate the
city such as the Gezi Park movement, the Arab spring, the rise of Podemos and Syriza in
50
southern European cities, and a global multitude of ‘right to the city’ movements which are
reclaiming urbanity to further social justice. In the current context of European austerity,
precarity and disenfranchisement, there is increasing debate on the constitution of urban
society and how it could be radically different. Cities are complex worlds, socially produced
by inhabitants, and replete with energy and potential. ‘Tapping into’ this potential to build
more socially just forms of urban life requires further attention, elaboration and
experimentation from critical legal scholars and urbanists. The commons has become a
powerful concept to imagine alternative ways of thinking the city, of organising social life and
reshaping the distribution of resources. It has been suggested that the commons is the
“progressive political key word of our time”. It crystallises concerns of social justice and
provides a mode of action to realise forms of collective social organisation that are an
alternative to state and market. Importantly, the commons provides inspiration for
development of alternative, collective conceptions and practices of property that are based
on furthering social justice.
Conceptualising cities and the commons also invites us to think dialectically with enclosure
and how capitalism has continually extracted value from the commons. Cities are a strategic
site of accumulation and enclosures, foreclosing alternative forms of social organisation. The
ubiquity of ‘luxury’ developments; the splintering of the urban fabric intro control zones
creating intertwined states of exception; and the continuing intensity of surveillance
technologies built into the urban environment further capital’s grip on the city and polarise
urban life. Understanding how capital and law valorise urban space, the technologies of
dispossession employed and the resulting inequalities is essential in formulating alternative
urban futures produced in common.
This panel seeks to interrogate the juncture between enclosure and the commons; how the
latter can inspire alternative forms of organizing the city, and how the former forecloses the
possible. It seeks to explore the possibility of the commons as a political, legal and property
regime for organizing the city; and it seeks to understand the forces preventing the realisation
of other, more socially just urban futures.
Walls of the city as palimpsests of the commons.
Francesco Salvini
On the wall of the Pavillon L in the former Loony Bin of Trieste, a graffiti cries: “LA VERITÀ É
RIVOLUZIONARIA” (truth is revolutionary); almost illegible another sentence goes like this:
“C'est toujours au nom de la verité que l'on enferme. Ne crois qu'à la tienne” It is always in
the name of truth that a person is confined. This palimpsest is the explosion in the public
space of another practice of commonality, one typical of the total institution.
Writing on the wall of the institution constitutes an escape from solitude and the imagination
of another life beyond the institution, beyond the wall. By inscribing, accumulating,
overlapping and contrasting these words on the same surface, a silent conversation emerges
between the one interned now, the one that was here before, and the one that will be here
again after you; this silent conversation allows the inmate to become a living agent in and
against the endless and identical objectivation of confinement, imposed by the institution. It
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is a conversation that expresses and refuses and resists the attempt of making the confined
body and the confined life nothing else than a bare object for the institutional disposal.
In my communication, I address the translation of this intimate practice of inscription and
expression into the urban space, as a dynamic of invasion that transform the status of a place,
its legality and regulation. Throughout the radical reorganisation of mental healthcare in
Trieste, writing on the walls became a practice for claiming an appropriation of public space
and a political voice. A voice that is composed through a palimpsest of walls, and floors, and
letter boxes, throughout the city. A palimpsest of the commons.
Urban Protocols: An architectural commoning experimentation
Thanos Zartaloudis, Kent Law School, University of Kent
In this paper I will briefly present the inspirations, plans and development of an architectural
project that I have been devising for a few years with the Antonas Office in Athens, Greece
called Urban Protocols. This will detail to the extent possible the schematics, the ideas and
the problems that are involved in this experimentation, whereby we attempt to facilitate the
development of common uses of particular spatial categories in Athens, during a time of
'crisis' and in response to 'crisis', yet with ramifications that extent beyond the particular
period and with particular regard to the role architecture can play in commoning experiences.
This presentation will coincide with the publication of the book that details this collective
project (Archipelago of Protocols, dtp Barcelona, 2016).
Control and Creativity
Nathan Moore, School of Law, Birkbeck College, London
The question of control, as with any regime of power, is one concerned with processes of
freedom and enslavement. The particular difficulty under control, which differentiates it
from sovereign and disciplinary arrangements, is that it tends to make freedom and
enslavement converge; that is, it obliges us to be free. It is then a matter of exploring the
forms and methods of such an obligation, across an array of practices and activities. In this
paper, I will focus on this question in relation to architecture. In particular, I am concerned
to address how it is that increasingly open and interactive spaces, that seemingly increase
choice and engagement, also serve to channel and shape behaviour through techniques of
pre-emptive design and informational feedback.
In so doing, I will draw an analytic distinction between two modes of being in, and of, space.
The first, labelled ‘creative being’, involves thinking of space as a matter of embodiment, with
risky and unpredictable encounters serving as the condition for the formation of new and
creative modes of spatial being. The second, labelled ‘innovative being’, considers how
spatial design invites seemingly open engagements, all the while restricting them to preformatted regimes of power. To be clear, this latter is not a static set of ‘rules’ or ‘obligations’,
but rather an interactive mechanism that requires us to constantly innovate – not for the
production of new and creative modes of being, but as a subtle demand that we constantly
re-form ourselves as we move from space to space, that we re-invest in the designated
52
features of each design, and that we re-responsibilise ourselves when faced with unexpected
and unplanned for spatial engagements.
Title TBC
Anne Bottomley
Abstract TBC
53
1. AFTER CHRISTIAN LAW? CONTESTING LAW'S CHRISTIANITY,
CONTEMPLATING ALTERNATIVES
Stream organisers: John Ackerman, Didi Herman and Thanos Zartaloudis (all University of
Kent)
It has sometimes been noted, but is more frequently forgotten, that both the rule of law and
the critique of ‘the law’, as we know them, are deeply Christian phenomena, the dual legacy
of Christianity’s historical and theological overcoming of Judaism and of its contributions to
the emergence of the modern Rechtsstaat. It has long been acknowledged that the chief
alternative to the persistence of Christianity as the organising frame for state and society –
the narrative of secularisation – is itself the product of Christian categories and divisions that
it continues to reproduce. But critical legal thinking, too, whenever it is tempted to overcome
the law (a law that inevitably falls short of justice) or proclaim the insufficiency of its dead
letter, inevitably finds itself acting out one of Christianity’s oldest tropes, one that has been
deployed through the ages as a rebuttal to Jewish adherence to the law and sometimes to
Islamic legalism together with – or perhaps increasingly apart from – it.
These considerations provide the occasion for a series of questions:
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Can we think critically about law and/or law’s Christianity without adopting this
Christianpose (including in its secularised form)?
Have we really even begun to wrestle seriously with the Christian character of presentday legal systems?
Do (historical and contemporary) Jewish and Islamic (or perhaps also other
Christian/other than Western Christian) understandings of law offer new and
overlooked critical resources for contesting reigning legal practices and ideas and the
problematic traces of their Christian political-theological heritage?
Do other approaches to law outside the history of the contests between these three
monotheisms offer alternative resources for critiquing the Christianity of both the rule
of law and critique of the law in the West and around the globe?
Does the manifestly Christian character of imperialism and the colonial rule of law
produce its own various species of non-Christian critique of the law?
Can other-than-Christian critical legal scholarship revivify the law today for everyday
practice, for democracy, for justice?
This stream invites new efforts to conceive and contest the relationship between law, legal
critique and Christianity, whether through investigation of this Christian nexus or by appeal
to Christianity’s various others. It aims to bring together a range of projects for contemplating
critical (non-Christian) approaches to law in the context of societies that today are often far
less Christian than the legal systems – and perhaps also the modes of legal criticism – against
and through which they are constituted. The stream welcomes both theoretical studies and
commentaries on specific contemporary political, social and legal issues and impasses. In
doing so it also invites participants to ask: Might the assembling of such a collection of critical
approaches help to begin to signal the possibility of a ‘turning point’ between the imperious
reign of (post-) Christian law and another epoch that has perhaps already begun? And if it is
not a matter of ‘turning points’ what is the situation in which we find ourselves?
54
Panel 1
Chair: John Ackerman
“A major attack on Jewish freedoms…”: A Socio-Legal History of Anti-shechita Prosecutions
in the English-speaking World, 1855-1913
David Fraser, Nottingham - [email protected]
This paper offers the first legal historical examination of attempts to prosecute those engaged
in the Jewish mode of slaughter for animal cruelty. These cases, which took place between
1855 and 1913, present unique insights into the development of the anti-cruelty movement,
immigrant Jewish communities, the interactions between the two, and use of legislation and
criminal law adjudication to settle fundamental normative conflicts. Taking place in England,
Scotland, Canada, the United States, and Australia, these animal cruelty cases present unique
insights into the normative conflicts between two sets of religious beliefs within a legal system
of criminal prosecution. Jewish slaughter or shechita was controlled and sanctioned by
religious authorities, while anti-cruelty cases were placed by legislation in the hands of
Societies for the Prevention of Cruelty. The apparently neutral legislative regime aimed at
eliminating cruelty to animals was deeply informed by the larger frame of Christian social
reform. In every case, private modes of regulation and enforcement, on both sides,
confronted the legal system of anti-cruelty legislation and adjudication before local lower
courts (magistrates or Police Courts). Jews saw these prosecutions as a form of antisemitic
agitation, the goal of which was to criminalize the practice of the Jewish faith. Protection
societies saw the cases as protecting helpless creatures from unnecessary suffering. This
paper examines these normative religious, ethical, and legal conflicts across a number of
jurisdictions, from the first to the last reported prosecution. It explores the historical, political,
religious, and social contexts in which the cases took place and were decided, and uncovers
a heretofore unexamined aspect of the legal history of anti-Jewish agitation in the common
law world.
Stigma and the Political Theology of the Ban on Torture
Michelle Farrell, Liverpool - [email protected]
The European Court of Human Rights attaches a ‘special stigma’ to torture to distinguish the
act from other forms of ill-treatment. This phrase was introduced in Ireland v United Kingdom
and is now elemental to the Court’s conceptualisation of torture. The phrase has little legal
currency; perhaps, for this reason, it has been overlooked in academic commentary. Or
perhaps ‘special stigma’ is simply viewed as an innocuous reinforcement of the pervasive
universal view that ‘torture is very bad’ indeed.4
In fact, the representation of torture as stigmatic gestures to ulterior social and theological
logics underpinning the act of, and the ban on, torture. This papers re-imagines torture by

David Rome, The Jewish Biography of Henri Bourassa, Part 1, (Montreal: National Archives
of the Canadian Jewish Conference, 1988), 94.
4 William T. Cavanaugh, Torture and Eucharist: Theology, Politics, and the Body of Christ
(Blackwell Publishing, 1998) 2.
55
filtering international legal definitions and renderings of torture through a political
theological conceptualisation of torture. Torture occupies a paradoxical position in the
international imagination – whilst it earns universal normative recognition as barbarous and
beyond the pale, it is also reserved – almost reverently – to describe a particular and limited
kind of practice. Torture has this special status in the international imagination, yet, in
practice, it is mundane (i.e. ordinary/pervasive).
This paper exploits the perfectly ambiguous notion of stigma to explore this paradox. Stigma
suggests shame and disgrace, on the one hand, and stigmata (the marks corresponding to
those left on Christ’s body following crucifixion), on the other hand. Correspondingly, special
stigma has operated in the Court’s jurisprudence both to free the state from the disgraceful
enunciation as torturing and to deny the victims their claims to suffering. This latter
interpretative invocation of stigma signifies a jurisprudential nod to the redemptive character
of Christ’s suffering on the cross. Stigma, then, opens up the space to explore the Christian
character of the universal ban.
Christian Israel
Didi Herman, Kent - [email protected]
The early 20th century Christian conquest of Palestine, Protestant theological influence on
the development of Israeli nationalist thinking, Protestants’ continued involvement in
propping up successive Israeli governments, and the orientation of Israel nationalist leaders
and settlers towards northern European Christianity – have had an enormous impact on the
character and politics of Israel. This paper explores some of these dimensions.
Panel 2
Chair: Didi Herman
Queering International Law: Sodom and ‘sodomy’ in a foundational moment
Nan Seuffert, University of Wollongong - [email protected]
Spurred by the impotence of international law and its conventions in the face of Australia’s
industrial incarceration system for asylum seekers who arrive by boat, including significant
numbers of sexual minorities, this paper investigates a founding moment in modern
international law, the lectures of Francisco de Vitoria, for the shapes and limits of the Sodom
allegory and ‘sodomy’ embedded there. Central to Vitoria’s work is the construction of a ‘law
of nations’ which imposes broad and deep duties of hospitality, often religiously based, on
indigenous Mesoamericans in the ‘New World’, duties which are not reciprocated by
European nations.
56
The Colonial Encounter and The Construction of a Sacrificial International
Kojo Koram, Birkbeck - [email protected]
This paper will aim to add to the conversation of historicizing the colonial encounter between
the European and Non-European worlds as the originating violence of the international legal
order. Commencing from the juridical architecture produced to account for SpanishAmerindian relations, this paper will engage with the work of Spanish theologian Francisco
De Vitoria, reading him, in the manner of James Brown Scott, Carl Schmitt and Anthony
Anghie, as a international law’s paterfamilias. However, drawing on Vitoria twin office of
theologian and jurist, this paper will extend Anghie’s arguments regarding the
accommodation of imperialism within Vitoria’s bold claim to a universal humanity, by reading
them alongside Vitoria’s translation of a religious metaphysics onto the problem of the
colonial encounter. This paper will make an intervention in Vitorian scholarship by
emphasising his resonance with philosophical anthropologist Rene Girard’s understanding of
community being produced through sacrifice. Vitoria’s ‘dynamic of difference’ betrays an
ontological violence, through which the colonised subject is formed, underwriting the modern
universal jurisdiction. I will argue how the Vitorian legal order corresponds with Girard’s social
ordering through a sacred, legitimizing violence. The interior/exterior positionality that Girard
mandates as necessary for the scapegoat to exorcise the intra-communal violence will be
shown to marry with Vitoria’s inclusion of the Amerindian in a condition of primary exclusion.
I will synthesise Girard’s scapegoat mechanism and Vitoria’s universalist schema, so as to
illuminate the extent to which this category of colonial subject as sacrifice,- perhaps best
captured by Frantz Fanon’s description of the colonised subject as ‘the damned’ –persists
within the contemporary global order. Ultimately, I will conclude by exploring potential
pathways through which we could imagine a non-sacrificial international law.
Christian Identities of the Law: A Post-Colonial Perspective
Vishavjeet Chaudhary, Jindal Global University - [email protected]
Ideas of and from Christianity have undoubtedly shaped law in ways that are, more often than
not, linear. The ethos and values of law are moulded by Christianity. Shared legacy and a
common ‘starting’ point of the modern jurisprudence of the Indian subcontinent has meant
these nations have, broadly speaking a similar legal system to the former colony. Even
systematically, the organisation of courts, trials by jury and other legal matrix is dictated in
many ways by ecclesiastical law.
Using this as a starting point, this paper analyses the Christian identity of law using broadly
two lenses. The first is that of literature. The main argument is that the literature, in subtle,
yet sure ways has added to the law the ‘milk of human kindness’ that a strictly religious
perspective could not have necessarily articulated. I rely on, for instance, characters from
Shakespeare and discuss ideas of guilt, non-guilt and the gray area in between. This vibrancy,
seeds of which are mostly seen during the renaissance period has added to the appreciation
of law as a ‘humanised’ area.
The second lens is that of a different culture and religion. The starting point is the
‘architecture of justice.’ I start with a brief discussion of the architecture of courts in India57
how the buildings display the values of Indian understanding of law as well as the
shortcomings from the colonial hangover. This is followed by a discussion of the history of law
in India. The idea of Dharma (meaning ‘duty’- though this is a much more loaded term than
that) and the treatise of Arthashastra is discussed. In the last century, post independence,
the Indian courts did away with trial by jury (Nanavati)- an idea widely believed to be an
epitome of justice and the cornerstone of English legal system. This was an era when the
Indian courts asserted culture specific reasons and showed a drift away from colonial
hangover. More recently, the Indian Parliament has ruled out the possibility of criminalising
marital rape. Many have cited cultural reasons for this, as another drift from the colonial
contemporaries to pre-colony era.
The idea of this brief paper is to start a discussion to articulate law in ways that are not too
familiar- especially to the Western World and have, for most part, been forgotten in the
Indian world. This paper is multi-discplinary and I make constant references to literature and
history. The purpose will be fulfilled if it provokes discussions in the direction of articulating
law with diverse frame-works.
Panel 3
Chair: John Ackerman
The vacillating ultimate name: glitches in disinstalling "Christianity"
Anton Schütz, Birkbeck - [email protected]
A few years ago, two superior minds, in order to make the world a better and safer place,
decided to send troops to Iraq to root out its weapons of mass destruction. Not only were
there none, and not only does one not find the most minimal announcement of a safe world
in the Christian Gospel, but the care for the universal and the desire to make the world
different – better, actually – than what it is, are effectively symptoms suggesting that
Christianity is more than only a religion. A first argument concerns the hermeneutical levels
on which “religion” and “Christianity” develop their respective sense-effects. A second one
concerns (Western) Christianity’s peculiar slant of realizing itself courtesy of secularization,
rather than against its resistance. Thirdly I shall focus on the attempts to find alternatives” [to
Christianity] or to establish a world “after” Christianity, and on how to appraise their chances.
My final question is to what extent our quest to dismiss Christian Law and Christianity should
be seen itself as a particularly fine blossom on the flower of Christian reason.
The Political Economy of Messianism
Harvey Shoolman, London Metropolitan University - [email protected]
We shall explore a messianic trope or leitmotif that is peculiar to a number of Jewish thinkers
in the western tradition and which has been enormously influential, albeit conceptually
polymorphous, within modern philosophic culture. This is the connection between nomos or
the juridical, human identity and time itself. We will explore the deep connections between
the Pauline (and inevitably the Taubesian) conception of radical Judaism as inherently and
paradoxically antinomian with respect to Halakhic prescriptivism whilst being simultaneously
58
fulfilling of the loving geist that is the internally prescribed law and we will relate this to the
Kabbalistic notion of law as a pre-lapsarian text, pregnant with all possible meanings, a
pleroma of semantic potential that will be combined into new meanings and a new ontology
with the advent of the Parousia. The eschatalogical ‘withering away’ of the external
juridicality of Halakha is a prefiguration of another Judaic vision, which is the withering away
of the liberally bourgeoise state-form and the advent of a utopian organic gemeinschaft
according to Marx’s materialist conception of history. Capitalist labour time as commodified
and fetishized time, composed as a linear sequence of homogeneously identical units which
are inherently empty and meaningless to the worker, whilst exploitative of surplus value, can
be redeemed, by those able to scientifically distinguish appearance from reality, in the
establishment of an organic ‘gemeinschaft’ in which the individual achieves true speciesbeing. The state of juridical suspension as sacred exceptionalism is also a form of withdrawal
of the law from the sphere of meaning and appropriate semantic reference. The law retains
its force yet signifies nothing. This, again was prefigured kabbalistically in the Lurianic
conception of Tsintsum or divine withdrawal of its presence so as to leave a vacuum for the
emanationist creation of the profane world of good and evil. Benjamin’s concept of time
contrasts messianic homogeneous temporality as the commodity-fetishized nature of
capitalistic time with the temporally disruptive notion of the jetztzeit , the ‘now-time’ as the
redemption of sequentially homogeneous capitalist clock-time. Time and law are intimately
connected, and so the disruption of meaningless commodity fetishized time is seen as the
simultaneous overcoming of the exclusionary and manichaean state of juridical exception.
Capitalism is forced to enact tsintsum and to contract, to withdraw, leaving a space to be filled
by messianically redemptive time as the overcoming of that sequential and punctiform
experience of clock-time which alone provides the capitalist and the worker with the illusory
ontological equivalence between labour power and commodity value. This, in turn, heralds a
revolutionary and dialectical withering away of production relations and indeed of all
previously fetishized notions of ‘order’ and ‘disorder’ and their replacement by a nondurational and passionate form of ‘enchanted’ or intuitive engagement with the world. The
cultic theology of capitalism, based upon fetishism, guilt and blame as the daily liturgical
observance of a nihilistic rule of law is henceforward to be re-written and reconfigured as a
return to the ur-state of profane inclusivity. We will conclude by noting many of these tropes
as constitutive of the late metaphysics of another Jewish thinker, Spinoza, who also
postulated a dialectical relationship between the perceiving human mind and the categorial
framework of Nature (or God). Though Spinoza would appear to be an unequivocally nonmessianic and deterministic thinker we shall discover that he entertains a covertly expressed,
messianic, view of communal knowledge based upon the possibility that society can, one day,
be entirely composed of purely rational citizens who can act together as one mind,
representing one undivided state-body as a form of ‘conative aggregation’, able to produce a
‘frictionless’ polity or gemeinschaft in which there is no requirement for the existence of an
externally imposed law, for that which is conceptually represented or perceived by the civil
‘mind’ is no longer an existing collective ‘body-politic’ but the continuum of Nature as such.
Such a society would enact and perpetrate a politics based purely on intellectually eternal or
non-temporally saturated objectives without recourse to mediating institutions, law,
commodification or the exploitative economics of homogeneous clock-time. What is
envisioned in each of the cases studied is the birth of a radically new, even if currently
inscrutable, lebensform of both the individual and the community.
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When the Gods were born, what questions did they answer?
Thanos Zartaloudis, Kent - [email protected]
In this paper I examine the manner of asking key questions about the relationship between
law and religion through my research into ancient Greek religion and law. When one delves
into, for example, the 18th to 20th century research in ancient greek religion, law and society
one is not surprised perhaps to find 'ideological' or 'dogmatic' readings of the sources,
whether Christian or Marxist and so forth. But that observation remains only a starting point
if one wishes to explore the 'emergence' of ancient greek religion and law in a time when the
two are both unrecognizable (to the contemporary senses of the terms) and inseparable.
What can one learn from such a turn to the ancient traditions? It is my suggestion that one
can find here a fertile field for questioning current assumptions as to, for instance, law and
its relation to justice, 'political theology' and the understanding of how traditions form.
Panel 4
Chair: Thanos Zartaloudis
Possibilities of law making in alternative metaphysics
Elena Paris, University of Bucharest - [email protected]
Current governance at various levels tends to operate with certitudes which take their
authority from their alleged obviousness. Take EU economic governance for instance, where
the austerity principle seems a necessity dictated by reason. Law’s function is, then, to declare
how things are. How law was made matters less, since law’s legitimacy does not come from
the democratic inclusiveness of the law-making process, but lays in its content being dictated
by reason. Christos Yannaras is a political philosopher and theologian who suggests that the
modern fascination with objective reason displays the same foundational impulse as the „premodern” reliance on natural law of a transcendental origin. He points to an alternative to
„Western metaphysics”, to use Heidegger’s expression, a metaphysics that springs from an
Eastern Christian theological concept of apophaticism, understood in two components, as
acknowledgement of the relational, hence indeterminate character of language and as
requiring the social verification of knowledge. In its first component, apophaticism offers
theological support to the theory of law’s indeterminacy promoted in critical legal studies.
However, it takes it to different effects, in light of an accompanying relational ontology which
contrasts to the atomism at the core of the modern epistemic matrix. The perspective ensuing
from this alternative metaphysics grants priority to no pre-set model, and invalidates the
temptation to appeal to any a priori regulative principle with the function of disciplining the
free unfolding of life. It results an enabling and inviting pose, a pluralist ethos that facilitates
the making of the law in a participatory, horizontal fashion. In the words of the call, this might
constitute a kind of „other-than-(Western)-Christian” critical resource that revivifies the law
for today’s democracy, since it supports the plea to take seriously consent as the basis for
law-making.
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Justice as Desire in Trans-Immanence
Jan Patrick Oppermann, Independent Scholar - [email protected]
The problems with the “Christian” approach to both law and the critique of law (which
converge to be the same thing, possibly), are based on two similar but distinct philosophical
phenomena:
1) The rationalist question of the ground, limiting the possibilities of immanence. (This
requires a discussion of Heidegger’s analysis thereof, in Der Satz vom Grund)
2) The confusion of Being and the Good, limiting the possibilities of transcendence (This
involves the central questions of ontological desire and, ultimately, of grace)
Both are metaphysical, and, from a certain point of view, ontological. There is in the history
of metaphysics, at least prior to (but most likely including) Heidegger, the avoidance of the
phenomenon of desire and of longing on the part of the human soul. Desire, to the extent
that it is acknowledged, is sub-divided into desire for God, and thus radical and fully nonimmanent transcendence - and desire as animal lust which is held to be incapable of
transcendence and must instead be inscribed in the catalogue of sin.
This is well-known, and constitutes the limitation of desire for the understanding of Christian
hope. Indeed, this is how Christian doctrine traditionally works against itself - but it does so
because the history of metaphysics works against its own subjectivist origins.
To move out of this subjectivist conundrum - indeed this ontological prison - is to re-think the
problem of desire. With respect to the law, this is a question of re-thinking desire as justice;
with respect to grace as the Christian telos (the gift of grace, enhancing the self at the expense
of the loss of subjectivity and thus the achievement of salvation in a state of possibility which
is all human effort can possibly attain) it is a question of re-thinking desire as hope.
It is curious that we can only hope for justice and only desire even desire as hope, whenever
justice is to have salvationist content. If it does not, it remains merely functional and always
the cause of further conflict, dissatisfaction, and ego-destruction, obviating the transcendent
function of the self.
My purpose in this paper is to take a few modest steps towards thinking what Jean-Luc Nancy
terms “trans-immanence” with respect to the re-thinking of justice as desire and as hope. To
do this, I propose to focus on a re-thought Christian notion of grace but set this notion into a
context that metaphysical Christian thought has neglected and excised. I will also briefly seek
to link Nancean “trans-immanence” with the transcendent function of analytical psychology
(if time and space permit)
Figures like Heidegger, Levinas, Meister Eckhart, Georges Bataille, Jean-Luc Nancy, Jean-Luc
Marion, Keiji Nishitani, Jacques Lacan, and others may be considered, depending on whether
there is space and time. A brief personal meditation may put the argument into the context
of life-as-it-is lived.
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The God Beneath: Towards a Trinitarian Political Theology?
Paddy McDaid, Birkbeck - [email protected]
This stream poses the question 'After Christian Law?', the question mark perhaps suggesting
an uneasiness with regard to the 'situation in which we find ourselves', hence the further
question of whether we have 'really even begun to wrestle seriously with the Christian
character of present-day legal systems?' Taking this question seriously raises the issue of how
one could even begin such a process.
In The King's Two Bodies Ernst Kantorowicz reads Vergil's crowning of Dante as releasing the
human from 'the Christian aggregate of thought'; Dante, representing humanity, now reigning
supreme over himself. Arguably, much of the theorising of the transition from Royal to
Popular sovereignty has followed this trajectory and, therefore, emerges from a 'form'
inspired by the idea of the double-bodied king. Emblematic of this trajectory is the work of
Claude Lefort. In his essay The Permanence of the Theologico-Political? he explores the
symbolism of the execution of Louis XVI, concluding that the theological and political are now
divorced.
This paper suggests that if we are to wrestle seriously with the Christian character of presentday legal systems then we must re-consider the trope of the double-bodied king and its legacy
against the backdrop of Merleau-Ponty's paraphrasing of Paul Claudel that:
'God is not above but beneath us - meaning that we do not find Him as a suprasensible idea,
but as another ourself which dwells in and authenticates our darkness. Transcendence no
longer hangs over man: he becomes, strangely, its privileged bearer'.
Such a reconsideration, it shall be argued, calls for a re-orientation of Western Christian
Political Theology, a re-orientation which must go beyond the idea of the Incarnation and give
due cognisance to the idea of the Trinity in Christian theology.
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2. BIOPOLITICS AND DECONSTRUCTION
Stream organiser: Chris Lloyd (Oxford Brookes University)
In an interview from 2007 the Italian theorist Antonio Negri was asked ‘What exactly is the
biopolitical diagram?’ His reply was as follows:
The biopolitical diagram is the space in which the reproduction of organised life
(social, political) in all its dimensions is controlled, captured, and exploited – this has
to do with the circulation of money, police presence, the normalisation of life forms,
the exploitation of productivity, repression, the reining in of subjectivities (Multitudes
2008 (31)).
Negri’s reply was of course an allusion to Michel Foucault’s concept of the ‘diagram’ which
underpins his account of ‘panopticism’ in Discipline and Punish. Thereafter this concept
develops into the governance of spatio-temporal relations and leads to the imposition of
‘regulatory controls: a bio-politics of the population’, as outlined in The History of Sexuality
Vol. 1. As is well known Negri and other prominent Italian theorists such as Roberto Esposito,
Maurizio Lazzarato and Giorgio Agamben have elaborated and expanded Foucault’s work on
biopolitics well into the 21st century. The most well-known elaboration is found in Agamben’s
seminal Homo Sacer series and illustrates that ‘the exemplary place of modern biopolitics’ is
‘the great totalitarian states of the twentieth century’ and therein, par excellence, ‘the
concentration camp’ which is ‘the pure, absolute, and impassable biopolitical space’ (Homo
Sacer, 119, 123).
Agamben’s analysis of the biopolitical camp can be shown to draw on, amongst other
influences, two key concepts. Firstly ‘abandonment’, or the ‘ban’, which Agamben adopts
from the work of Jean-Luc Nancy (see Nancy’s 1981 essay ‘Abandoned Being’). In his recent
monograph Giorgio Agamben: Beyond the Threshold of Deconstruction Kevin Attell comments
that within Agamben’s works this concept ‘is the most evidently “deconstructive” in its
derivation and function’ and that the ‘deconstructive provenance’ of this concept is crucial to
understanding Agamben’s political theory (127). Secondly Agamben’s work draws on Jacques
Derrida’s spatio-temporal concept of différance (see Derrida’s 1968 essay ‘Différance’). In
Kalpana Seshadri’s recent work HumAnimal: Race, Law, Language she argues that ‘différance
… [is] the site of the biopolitical’, because ‘biopower depends on a contamination, the trace,
the différance between biological (natural) life and political (human) life, in order to produce
the specter of bare life’ (xiii, 86).
However, in opposition to these two recent works which connect Agamben’s biopolitical
thought to the metaphysical critique of deconstruction, stands the work of Catherine
Malabou. In her recent essay ‘Will Sovereignty Ever Be Deconstructed?’ she argues that
Agambenian biopolitics is not influenced by deconstruction but rather that it was always
already a causal result of deconstruction; ‘biopolitics is already, in itself, a deconstructive tool
of sovereignty’ (see Plastic Materialities: Politics, Legality, and Metamorphosis in the work of
Catherine Malabou, eds. Brenna Bhandar and Jonathan Goldberg-Hiller, 37). Consequently,
when Malabou recalls Foucault’s assertion that ‘In political thought and analysis, we still have
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not cut off the head of the king’ (The History of Sexuality Vol. 1, 88–89) she laments at our
continuing failure because biopolitics is ruled by the epistemic sovereignty of biology.
From the accounts above it is clear that recent literature has begun to investigate the
relationships between biopolitics and deconstruction, with differing views on the relatability
of one concept to the other. These comparisons engage not only with Foucault’s original work
but with later adaptations of it as well. But whether or not it is the case that these two
disparate concepts can be connected – and this may seem unlikely given that the former is
an administration of life driven by biological knowledge and the latter is a critique of the
metaphysics of presence – it is nevertheless the case their respective individual contributions
to an understanding of our contemporary world could hardly be more important.
Amidst our (potential) ‘turning point’ of precarity, and from within our increasingly
marginalised positions within the academy, this stream asks participants to reengage with,
and investigate the relationships between, two of the most influential concepts to emerge
from the contours of 20th century European thought.
Panel 1: Biopolitics, Deconstruction, Sovereignty
Chair: Chris Lloyd
Plasticity, Jurisdiction and the Interruption of Sovereignty
Daniel Matthews, University of Hong Kong, Hong Kong - [email protected]
In a series of recent essays Catherine Malabou argues that Foucault, Agamben and Derrida all
fail to properly ‘deconstruct’ sovereignty. Pursing a ‘plastic reading’ of sovereignty, Malabou
claims that all three thinkers retain an operative division between ‘symbolic’ and ‘biological’
forms of life. This division has animated the history of sovereignty since Aristotle and is given
a celebrated rendering in Kantorowitz’s study of medieval kingship. I argue that Malabou
ignores the role of the juridical in giving form to sovereignty and this paper seeks to develop
a ‘plastic reading’ of sovereignty through attention to the juridico-political rather than
politico-biological nexus. Through a reading of ‘jurisdiction’, the paper examines legal
technologies that give form to sovereignty, arguing that due regard to the juridical reveals an
always already self-deconstructing sovereignty that supplements Malabou’s thinking in this
area. The paper concludes by offering some brief criticisms of Malabou’s approach though a
reading of José Saramago’s novel Seeing.
Sovereign Iconography
Stacy Douglas, Carleton University, Canada - [email protected]
In 1922 Carl Schmitt declares that “sovereign is he who decides the exception” (Political
Theology). In 2004 Marie-Jose Mondzain claims that there is “no power without an image”
(Image, Icon, Economy). This paper explores these competing theological-historical accounts
of the true place of political power to consider the role of the visual in formations of
sovereignty. Although Schmitt conjures up an image of his decider as absolutely autonomous,
I propose – via a reflection on his interest in Herman Melville’s novella Benito Cereno – that
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this moment of sovereignty is deeply dependent on its legitimation through visual
iconography.
Archiving Bodies Through Forms of Life
Stewart Motha, Birkbeck College, University of London - [email protected]
In this paper I examine the growing interest in a ‘form of life’ as a mode of law’s archival of
sovereign violence. The label attached to a form of life signals the extent to which it is
regarded as part of a political community. Life is characterized through distinctions such as
human/animal, citizen/subject, migrant/refugee, and constructs such as ‘illegal maritime
arrival’ in migration law. Sovereign power has been characterized as constituting itself
through the production of such ‘forms of life’ (e.g. as biopolitical life, or bare life). The
constitution of sovereignty through a form of life is – whether by script or neglect - mediated
by law. Agamben’s elaboration of ‘homo sacer’ or bare life served as an important point of
departure for contemporary articulations of the relationship between law and life. While
much that is critical can be said about the veracity of this ‘bareness’, it signals a turn to a ‘form
of life’ as central to the theoretical optics of recognition. Other influential studies on a ‘form
of life’ include Judith Butler’s characterization of the body under the extremities of sovereign
subjection as ‘precarious’ – and her attempt to orient an ethical response to the other
through a universalization of the ‘vulnerable’ and ‘grievable’ subject. Similarly, Eric Santner
has explored ‘creaturely life’, and developed a notion of living in the ‘middle’ in order to resist
the orientation of metaphysical essences of life. More recently Catherine Malabou has
suggested that sovereignty is not fully deconstructed until the symbolic register of
representing ‘life’ is fully materialized. This new materialism asserts that the “structural
meaning of the empirical [body]” can be found “within the empirical itself”. The symbolic no
longer needs to serve as supplement, surplus, or excess of the real. The assertion in Malabou’s
argument is that life can be a sign of itself. Or, to put it another way, and now more critically,
Malabou seems to displace homo sacer with homo cerebrality – a return, I suggest, of the
metaphysical register that she eschews. Through a discussion of the work of these writers I
explore the sign and form of life by which law mediates sovereign power.
Panel 2: Biopolitics, War, Terror
Chair: Chris Lloyd
A Metaphysical Reading of the Biopolitical Subject
Teagan-Jane Westendorf, Monash University, Australia - [email protected]
Torture may be ineffective for intelligence and evidence-gathering purposes, however it is far
from mundane. Extensive research interrogates the efficacy of ‘enhanced interrogation
methods’ under different variables from a policy perspective regarding national security in
response to post-9/11 terrorism. The increasing acceptance of such policy in the post 9/11
political climate and correlative counter-terrorism legislation (e.g. In USA, Australia, UK)
however circumvents the question of what the scene of torture, particularly by agents of
liberal democratic governments, illuminates regarding both the fundamental nature of
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sovereign juridical power and the subject it administrates. What does torture signify? This
post-structural analysis of the interaction between the perpetrator and victim, perpetrator
and sovereign authority, explores the scene of torture as a discursive matrix of law. I
synthesize juridico-political theories of lawful subjectivity with reference to the testimony of
US military personnel who have participated in torture interrogations. I argue that
understanding torture to be the real performance of juridical power as a regulatory system,
in what is commonly considered by influential jurists like Schmitt and Agamben to be a site of
legal exception, illuminates how the legal matrix produces the systems and subjectivity
theorized by Foucault and renders the subject coherent within the discursive matrix of law.
The interplay of Rights, Bio-politics and Necro-politics in the Regulation of Speech
Jen Higgins, Birkbeck College, University of London - [email protected]
Bio-politics may be used to describe a collectivist approach to governance, a governmentality
that focuses on the wellbeing of the population in the long run. As such it can be contrasted
with the individualism of human rights. This is not to suggest that human rights are not often
promoted for bio-political ends nor that the two approaches are never complementary;
rather it is argued that where there is a perceived conflict between the two, it is the
collectivist approach that takes precedence, as demonstrated most strikingly in the realm of
counter-terrorism.
This paper uses this juxtaposition of bio-politics and rights to explore the regulation of speech
in England and Wales, specifically examining the origins of Section 5 and the ‘stirring up
hatred’ provisions of the Public Order Act. It is argued that although discussions on hate
speech laws are always imbued with the language of individual rights, the limitations of these
rights are drawn at the point at which they infringe the rights of others. Thus, there is much
scope for negotiating which rights and whose rights should be prioritised. This is
demonstrated throughout the evolution of the stirring up provisions, where freedom of
speech is balanced at every turn with public order and the public good – what changes over
time is who is deemed as belonging to that public, and who is deemed a danger to it. In the
increasing legal overlap between hate speech and terrorism offences, it is especially apparent
how the bio-political governance of a population is necro-political for those who are excluded
from it. Critical race, feminist and queer theory perspectives can subsequently be used to
argue that concern for ‘the public’ produces a necro-politics for some in the defence of the
rights of others.
Can the subaltern speak international criminal law? Authority, jurisdiction, and the politics
of international criminal justice
Roberto Yamato, Institute of Int. Relations, PUC-Rio, Brazil - [email protected]
At present, there are ten “situations under investigations” and seven “preliminary
examinations” before the International Criminal Court (ICC). On the one hand, all “situations”,
except that of Georgia, involve African countries (Democratic Republic of Congo; Uganda;
Central African Republic; Darfur, Sudan; Kenya; Libya; Côte d’Ivoire; Mali; and (again) Central
African Republic). On the other hand, the “examinations” involve two other African countries
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(Nigeria and Guinea), one Latin American (Colombia), as well as Afghanistan, Iraq and Ukraine,
plus the case of Palestine. Although the ICC has jurisdiction only over individuals, it identifies
its situations and examinations by reference to states, providing in its own homepage a very
telling “world map” of international criminal justice. Inspired by Gayatri Spivak’s Can the
Subaltern Speak?, this paper aims at critically engaging with such a geopolitical-jurisdictional
“world map”, questioning who can – and who cannot – speak international criminal law.
Drawing on the works of Costas Douzinas and Jean-Luc Nancy, the paper first explores the
political philosophy of jurisdiction, focusing on the fundamental relationship between
authority, jurisdiction, and, hence, the “speaking of the law”. In so doing, the paper wants to
draw attention to the foundational politics of law and language (or, law as language), in order
to pose the political question of who is authorized to speak the law. The paper then focuses
on the ICC’s “world map” of international criminal justice, giving particular attention to its
jurisdictional grounds. Here, the paper offers a close reading of the jurisdictional grounding
of the Darfur, Sudan case, questioning, in particular, the structural relation between the UN
Security Council and the ICC. Finally, considering certain structural asymmetries, inequalities
and hierarchies, such as the exclusivity of African “situations under investigations”, on the
one hand, and the US “immunity”, on the other hand, the paper concludes with a reading of
the politics of international criminal law and justice. In what regards the IRI/Newcastle
workshop more specifically, the final part of the paper will engage the politics of international
law in terms of its relation to both “neoliberalism” and the “international”.
Panel 3: Sex, Gender, Bio-Deconstruction
Chair: Stacy Douglas
Legitimizing Legal Sexual Policies: Normalization as Affective Regime
Barbara Kraml, University of Vienna, Austria - [email protected]
When it comes to de-/legitimizing legal sexual policies, normalization plays a vital role: Whilst
sexualities perceived as ‘normal’ are legitimately decriminalized, legally protected and
acknowledged on the one hand, those sexualities perceived as ‘anormal’ are legitimately
criminalized, excluded and remain unprotected. The term ‘normalization’ already hints at its
process-like conceptual quality: Following Michel Foucault and Isabell Lorey, normalization
needs to be conceptualized as a mode of collective immunization against existential threats.
Its modus operandi is closely intertwined with Foucault’s understanding of normalization and
biopolitics, and can be conceptualized as follows: Perceived threats are identified via
processes of othering and are subsequently neutralized via partially taking them in into an
endangered (living) social collective – the population in a Foucauldian sense. Within the field
of sexuality, the discursive construction of threatening sexualities is – implicitly or explicitly –
related to the question of their alleged non-/reproductivity (Repo 2013). Due to its processlike and never completed character, normalization is a pretty diffuse and impalpable matter.
The paper focuses at affective aspects of normalization which are constitutive of its
conceptualization: The ongoing discursive construction of harmful and threatening others,
the legitimating effects of concern, fear and anxiety in view of social/legal exclusion of these
others and feelings of rightness attributed to phenomena in the course of their normalization.
What gradually becomes normal is perceived less and less worrying. In this regard,
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normalization as an affective regime mainly performs a legitimating function in political
discourse: It determines whether – and when – certain legal sexual policies can be successfully
claimed and are accepted. Taking the example of decriminalization of homosexualities in
Austria (1971-2002), the paper shows how such an affectively enriched analytical perspective
helps to explain shifting legal policies in the – from a biopolitical point of view highly relevant
– field of sexuality.
The Biopolitics and Body Protests of Extreme Hindu Nationalism
Oieshi Saha, West Bengal National University of Juridical
[email protected]
Sciences,
India
-
At the heart of the debate on Biopolitics is the argument propagated by Foucault that the life
and body of the individual is at the heart of the modern political battle. There is a clear shift
from the Aristotelian notion of the life of the individual being of primary importance and their
political existence being an additional and largely secondary feature. The dominant idea of
our times is that the politics of the individual often places their existence as a living being
questionable. The introduction of the zoe into the sphere of polis has been (for both Agamben
and Foucault) the decisive event of modernity. When life becomes the object of the exercise
of sovereign power, the notion of freedom and the capacity of life to resist such control
therefore necessarily come in as a corollary.
In this paper, I will be analysing the idea of biopolitics in the context of extreme nationalism
and saffronisation. Further, I will look at the body protest movements that attempt to resist
such exercise of power and in doing so create forms of subjectification that attempt to escape
its control.
In Part I I will be arguing that the biopolitics of Hindu nationalism is evident in the propagation
of the archetypal Hindu male as one who is essentially hyper-masculine – who is dominant
and in control of both the home and the political sphere and necessarily superior not only to
Hindu women, but also to men and women of all other religions. The ruling party in its
propagation of the concept of Hindu masculinity attempts to assert the ideology of the ‘Ram
Rajya’ with the Hindu male becoming the protector and guardian of the State against all
externalities that are believed to be corruptive in nature.
In Part II I will be analysing this link between Hindu Nationalism, Masculinity and State
Construction. I seek to show that the psychology of violence against the ‘other’ and the
characterization of non violence as being equivalent to impotence (a product of male
insecurity which in itself is a natural by-product of the very construction of masculinity), is
linked to the desire to be ‘real men’. The hypothesis that I seek to argue is that the idea of
masculinity does not exist a priori. Rather its genesis lies in the construction, concomitant
suppression and control of femininity.
In Part III, I will be arguing that in the masculine construction of gender roles, the greatest
horror and revulsion would be reserved for precisely those males who would adopt practises
of the ‘weaker sex’. Hence, in revolting against this model propagated by the government,
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the human body has become the chief tool of registering dissent, and herein comes in the
concept of body protests.
Queer Bioethics: What Is It, What Could It Be?
Tiia Sudenkaarne, University of Turku, Finland - [email protected]
Queer bioethics is a latterly explicated field of bioethics focusing on LGBTQI-related
questions. On the one hand, queer bioethics discusses issues such as gender reassignment or
sex affirmation of trans and intersex people, or reproduction justice for same-sex couples in
accessing assisted reproduction technology. On the other hand and further, however, queer
bioethics interrogates the basis on which socio-medicalized views on gender and sexuality are
produced and reproduced, by critically deconstructing these concepts with the analytical
tools of gender binary system and heteronormativity. When analyzing specific treatment and
care practices around LGBTQI and the socio-historical context in which these positions
continue to be reconstructed as anomalies from “normal” within the Western thought of
bioethics, we can deconstruct the heteronormative sense-making system that operates via
gender binaries. Yet even further, I suggest, queer bioethics can lead us to places
unimaginable to strictly medicalized views of bioethics, those places existing both inside and
out the human condition.
What is the relationship between (queer) bioethics and biopolitics? How does queer bioethics
and biopolitics relate to feminist projects? What does the queer patient reveal about health
as a public good? What could queer bioethics as a moral theory be and what could it do
medical legislation, practices and politics? What could posthumanist responsibility mean in
terms of embodiment, ability and justice – bioethical, biopolitical and beyond?
Panel 4: Biopolitics Otherwise
Chair: Daniel Matthews
Resisting the Present: Biopolitics in the Face of the Event
Thomas Clément Mercier, Kings College, London - [email protected]
In its hegemonic definition, biopolitical governmentality is characterised by a seemingly
infinite capacity of expansion, susceptible to colonise the landscape and timescape of the
living present in the name of capitalistic productivity. Indeed, the main trait of biopower is its
normative, legal and political plasticity, allowing it to reappropriate critiques and resistances
by appealing to bioethical efficacy and biological accuracy. Under these circumstances, how
can we invent rebellious life-forms and alternative temporalities escaping biopolitical
normativity?
In this paper, I provide a deconstruction of the conceptual and temporal structures upholding
the notion of biopolitics, in view of laying the ground for new forms of resistance. The
articulation between life and power has a long philosophical history, which has been largely
ignored by social theorists and political thinkers when they use biopolitics as an interpretative
model. I wish to re-inscribe this model within the tradition of critical materialism, by
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articulating Foucault’s ‘critical ontology’ to Marx & Engels’s conception of ‘real life’ and to
recent philosophical works on biological plasticity (Malabou). In all these discourses, the logic
of biopower depends on a representation of life – ‘the living’ – as living present. Biopower is
thus anchored in the authority of the present, that is to say, of being-as-presence (ontology);
it sustains presentist definitions of life and materiality, be it under the form of a ‘plastic’
ontology. By drawing on Derrida’s notions such as ‘spectrality’ and ‘life-death’, I wish to
deconstruct these discourses on life and materiality, and to dissociate them from their
ontological grounding, in order to suggest new paths of resistance to biopower. This exit from
the authority of the present is the condition for imagining a politics of the event, hospitable
to otherly life forms – life-beyond-life – and anachronistic timescapes.
Legitimacy and Life: humanity discourse and biopower in global law and policy
Ukri I Soirila, University of Helsinki, Finland - [email protected]
This paper deals with what I call ‘humanity discourse’ in global law and policy – that is, a
discourse that aims to shift focus from states to humanity and human individuals on the global
sphere. I pay special attention those most radical and constitutionalizing forms of the
discourse, which try to posit ‘humanity’ as some kind of tangible core of global law and policy.
In contrast to most work done on the topic, I do not try to advocate for the change towards
what some have called ‘humanity’s law’, nor do I try to prove that it has occurred. Rather I
am interested in tracing the shifts it would entail in relations of power, were it to actualize. In
other words, I explore what new forms of power the discourse enables, and what are the links
between the discourse and social change. My main observation is threefold. First, the
narrative corresponds to a surprising extent to that of a fluid deterritorialized empire as told
by Hardt and Negri – although voiced from a very different political perspective. Second, the
legitimacy the power described and actualized by the discourse seems to derive from
“sacredness of human life”. Third this kind of bio-legitimacy is, however, used in practice in
struggles of different regimes and actors to re-distribute legitimacy at the international
sphere, and tends to lead to oppressive forms of biopower and the kinds of bio-inequalities
and immunizing practices studied by Didier Fassin and Roberto Esposito, respectively.
The empowerment of human being through a micro-physics of power: elements for an
instrumentalization of human rights
Guadalupe Satiro, Independent Scholar - [email protected]
The <<micro-physics of power>> which marks the thought of Michel Foucault (1979) offers
an important analytical tool for (re)think the human rights theory in line with Herrera Flores
(2009) thought, which understands the human rights as a process of struggle and resistence
in order to (re)claim the human dignity as a possibility of exercising power - in line with a
<<micropolitics of social desire>> (Deleuze, 1980, Guattari, 1987). In this sense, this article
highlights the Deconstruction (Derrida, 1967) of theoretical maps from the perspective of
marginalized sectors, in order to legitimate a new paradigmatic understanding of human
rights as consecration of a historical and concrete subjects (Krohling, 2008) in detriment of an
universal abstract human being. At the same time, it is an objective of this article rescues the
ethical perspective which is enunciated in the philosophy of liberation of Enrique Dussel
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(1995), which seeks to the emancipation of <<Other>>. In this context, emerges the
perception that empowerment it is a process which enable the exercise of power through the
existence of instruments and previous conditions which allow this exercise. Considering this
analitical process, it is important to highlight the expansion of basic human capacities as an
approach of an idea of substantive freedoms (Sen, 1999). Thus, this article tries to make a
brief bibliographic interaction of theoritical maps into an interdisciplinary methodology
perspective, in order to propose a new reading of the marginalized subjects from an
hermeneutics of the genealogy of power inspired in Foucault´s thinking and in the critical
theory of human rights in dialogue with others authors which propose a contra-hegemonic
thinking.
Panel 5: Postcolonialism, Justice, Biopolitics
Chair: TBC
Has Transitional Justice Reached a Critical Juncture?
Catherine Turner, Durham University, England - [email protected]
Since its emergence less than twenty years ago, transitional justice has become established
as a coherent field of activity, held together by a set of common assumptions about the value
of justice in times of political transition. The requirements of transitional justice are
increasingly institutionalised in international law and policy, creating a clearly defined model.
This approach is rooted in the consistent opposition of violence with law, thereby providing
the foundation for a reliance on law as a tool of transition. However a range of critical
perspectives have also been brought to bear on the emergent policy and practice of
transitional justice. These critiques have highlighted the blind spots and the ways in which
the model of transitional justice itself has set the boundaries of inclusion and exclusion in the
transitional space. Deconstructing the nature of the relationship between violence and law
casts considerable new light on some of the perennial problems of transitional justice. In
particular it helps to provide a coherent framework for analysing why opposition to
transitional justice arises. Using Derrida’s concept of the economy of violence this paper
explores the relationship between the past, the present and the future in transitional justice
discourse. It asks whether justice is ever possible in the present, or whether the quest for an
elusive end goal of justice simply generates new forms of precarity that in turn threaten the
model of transitional justice itself.
Intervention and Dispossession: Biopolitics and Indigenous governance in (post)colonial
Australia
Mark Harris, University of British Columbia, Canada - [email protected]
This paper is concerned with two moments in Australia in the last decade that reflect the
extent to which Indigenous Australians are caught within racist and biopolitically
administered forms of power; the Northern Territory Intervention of 2007 and the decision
made by the Western Australian government in 2015 to close 150 remote Aboriginal
communities. Central to both moments is the framing of the Indigenous communities in the
respective State/Territory as being either morally dysfunctional or economically
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unsustainable. The governance measures introduced in the respective territories are based
upon funding cuts and legislative measures which have the effect of erasing Indigenous
difference. In short the exercise of bio-power within the context of the Northern Territory
intervention and in Western Australia are predicated upon a moral alibi for what is seen as
the ‘necessary’ rehabilitation and recuperation (to within the nation) of the Indigenous
presence. The moments are ultimately concerned with the creation of acquiescent, cooperative populations; the intervention replacing Indigenous self-government and control of
their lands with government oversight (following the invasion by the Army and Federal police)
while the remote communities are forced off their traditional lands into town camps. In the
control and regulation of Indigenous communities the effect is to simultaneously erase or
obliterate (borrowing from Wolfe and Ferreira da Silva) the Indigenous Other whilst
simultaneously seeking the preservation, regulation and control of the biological beings
within, as Berlant would have it, ‘the embrace of the nation’ –yet always no longer Indigenous
and always less than a citizen.
“Three great men sit in a room, a king, a priest and a rich man with his gold…” Or How to
Answer a Riddle and use Biopolitics to deconstruct Private Law in the Post-colonial context
Giacomo Capuzzo, University of Perugia, Italy - [email protected]
Drawing from Koskenniemi’s idea of Law as a discourse aimed at persuading individuals to
behave in a determined way, this paper will deconstruct private law as a biopolitical
mechanism designed to capture, control and transform the reproduction of life within a social
body. In this sense, Law affects the multiplicity of force relations among different individuals
and groups that constitute society, it may intervene within social conflicts calling winners and
losers, but it also impacts on the processes of knowledge production that characterized a
particular social, cultural and political context. According to this critique, a specific legal model
is not just a set of formal rules about property or contracts, rather it is a mix of legal arguments
and technicalities elaborated to frame, structure and re-shape the way in which life is socially
and politically organized, perceived and represented in a given legal system.
This is particularly evident in the colonial and post-colonial context, where legal instruments
were used to promote a certain kind of social organization (market and state dichotomy) and
social groups (white, men, colonizers) and to marginalize other types of structures (traditional
and customary laws) and social formations (non-white, women, colonized).
In particular, the paper deepens how property rules and family law were deployed to create,
organize and define the legal, social and political space of the colony. The western concept of
private and public property was employed both as a tool to re-think rural and urban life and
as an ideal of progress and modernity. Through Property colonizers re-framed social
hierarchies, re-imagine colonial cities and changed the general economic and political
background. Similarly the implementation of western marriage laws aimed at completely
transforming the social constitution of the colonized family in order to create a more
favorable environment for the free market.
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Panel 6. Bodies. Borders. Bio-Politics
Chair: Tiia Sudenkaarne
Women Instigating Conflict - Poetic Imperative versus Command Responsibility - Civilians
or Combatants in an NIAC
Lucy Mathieson, Glasgow Caledonian University, Scotland - [email protected]
Biopolitical violence plays out in very gendered ways, both in terms of the commission of the
conduct of hostilities and war crimes, but also in attempts to prevent reoccurrence. The
violence of applied legal paradigms becomes apparent, in steps to tame aspects of the state
of exception, whilst destroying others – biopolitics and humanitarian law and resultant
disarmament, demobilization and reintegration (DDR) programming offer insights into the
gendered nature of the nation state and steps to maintain its equilibrium even with porous
and nomadic subjects crossing its border regions. This paper examines an interesting case
study from the peripheral regions of Sudan, states of exception, where women singers and
poets, female bards, known as the Hakamat, loosely translating as “judge”, have a traditional
role in instigating violence.
Through the study of crime in poetry, traditional Hakamat discourse can be connected with
developments in understandings of war crimes—where a network of interrelated concepts
exist. Tracing dialectical links between criminal discourse and poetic representation, this
paper examines the ways in which Hakamat poetic form, accommodate not only evolving
epistemologies of crime, elaborating the poetics of murder and violence, but also represent
a responsible command function, through symbolic power, a nostos in folkloric form.
While the themes of murder and sexual violation provide apt demonstration of how Hakamat
poetry and song can embed multiple layers of cultural meanings making pointed political
arguments, it also accesses multiple questions of power—between perpetrators and victims,
between instigators and perpetrators, between victims and instigators, between the state
and arguably its biopolitically gendered subjects – namely how responsible or functional
command/hierarchy are recognised in interpreting the Principle of Distinction, whilst
highlighting gendered norms around concepts of harm, threat and agency in determining
civilians versus combatants.
Healing the North Korean Skin: Somatechnics of Sovereignty in South Korea
Hea Sue Kim, Goldsmiths, University of London, England - [email protected]
In 2016, the South Korean police started a free cosmetic surgery program for North Korean
immigrants. The surgery has to date been performed on 19 North Korean immigrants, and
involves removing tattoos, burn marks, and scars. The aim of this program is to “improve the
looks of the North Korean immigrants” and “to help heal the physical and psychological
wounds inflicted (on them) by the experience of escaping from North Korea.”
Instead of repressing life, biopower creates the conditions through which life becomes
possible. The life-conditions created in South Korea through the somatechnical erasure of
marks on North Korean skins is neoliberalism and militarism: normalization of “abnormal”
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North Korean bodies into clean, fully-functioning, and docile South Korean bodies by pulling
and moving their skins around.
I will examine how the clean and sanitized skin becomes a biopolitical marker for belonging
to the capitalist South Korean body-politic. South Korea has the highest per-capita cosmetic
surgery rate in the world, and thrives on its beauty industry. However, the process of erasure
also leaves its mark. Bringing back the past and present of the bodies to a “recording of
experience” involves thinking through the skin to invent another notion of relational
embodiment.
I look at different ways the body can resist the somatechnics of sovereign power to invent
another notion of community and sovereignty that critically engages with the limitations of
the nation-state and the market ideology. I read this possibility through a Korean novel called
the Vegetarian (2007) and a film called The Woman, the Orphan, and the Tiger (2010). I also
engage with the works of performance and visual artists who disrupt the stylized repetition
of bodily movements choreographed by the police-state.
From Worker to Entrepreneur of Himself; The Transformative Power of the Homo
Economicus and the Freedom of Movement
Dion Kramer, VU University Amsterdam - [email protected]
This paper seeks to make a contribution to our understanding of the development of the EU’s
free movement of persons by analysing the internal transformation of the homo economicus.
Describing how the subject of EU free movement law is ‘imagined’ in every consecutive stage,
it is argued that the instrumentalism of free movement rights shifted from ‘freeing up’ the
ability of the economic migrant to respond to the economic mechanisms of supply and
demand in the European marketplace to targeting the conduct of the European himself in
terms of his free choice, self-sufficiency and self-entrepreneurship. The essence of the ‘new’
homo economicus of EU free movement law resides in the discursive possibility for national
authorities, national judiciaries and the European judiciary to assess the economic potential
of the individual European in the context of his right to access to nationally bounded welfare
systems.
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3. BLOCKCHAIN LAW
Stream organiser: Rob Herian (Open University)
2016 will be another “turning point” year in which the further development and growth of
technology will create seismic, albeit expected, accepted and culturally interred shifts in the
consciousness and being of humanity. These shifts both notional and actual will continue to
transform existing structures and systems - legal, social cultural, political and economic otherwise taken for granted in the “real world”. Now is the time of the Internet of Things
(“IoT”) and the possibility of “liquefying the physical world” for more effective and efficient
digital administration of both tangible and intangible property. Now is the time of smart
property and contracts able to facilitate self-executing transactions and conveyance based on
technical not legal code. Now is the time of decentralized autonomous organizations that
resist and disrupt formal political, economic and legal paradigms. Now is the “end of trust”
and the end of the messy morality of the internet of people. These are just some of the
changes already under way, and accelerating.
This stream will bring together scholars who have an eye on the future of law and equity set
against this technically-charged insurgence on mainstream and traditional juridical values,
ideas, mechanisms and systems both micro and macro in scope and nature. For example,
much has already been discussed with regard to the democratizing global potential of the
latest wave of technological developments, but at a more domestic level how does the IoT
change notions of ownership and property rights; what impact will smart contracts have on
equitable and performative remedial strategies; what use is a trustee or fiduciary in a posttrust world? These questions and more demand attention.
As a signifier of this turning point in the life of law and equity, the blockchain – a digital ledger
and infrastructure that supports, amongst other things, cryptocurrencies including Bitcoin,
and which provides a highly reliable “trustless” witness of digital events and transactions - is
playing an important role. There is, however, far more to discuss than the blockchain
alone. Although much of the significance attributed to these changes returns to the decisive
factor of decentralization and disintermediation that the blockchain in particular
engenders. Furthermore, the technology touches and concerns all areas of the global legal
landscape and of global juridical life and tradition: public/private; civil/common;
international/domestic; jurisprudential/procedural etc.
The sheer scale of influence the Internet has had in the last two decades demonstrates the
capability, potential and significance the next technological wave will herald. The growth
more recently in mobile technology as a decentralizing and democratizing tool is also
indicative of the fact that societies and cultures cannot return to the formalities nor the
ignorance of pre-homo technologicus.As such, lawyers cannot afford to be complacent and
continue to frame concepts, reason and practice exclusively in terms the technology
threatens with at best redundancy, at worst extinction in the near future. Law and equity will
not cease to be entirely in this brave new world, experience so far tells us that. But neither
can they remain fixed on either present or traditional courses in light of the blockchain and
other technologies that have the potential to derail them. This stream invites all scholars –
theoretical, practical, doctrinal, and critical – to interrogate, discuss and debate what law and
75
equity will look like in the coming years as they negotiate this latest technological turning
point.
Panel 1
Chair: Rob Herian
The Blockchain and Contract Law
Claire Sumner, The Open University - [email protected]
Smart contracts offer the prospect of cheaper, more secure and quicker legally binding
agreements than conventional written contracts but much like all contracts, the strength of
the smart contract will depend upon how well ‘drafted’ it is. How far can smart contracts be
designed to eliminate the need for existing contract law remedies?
The code required to form smart contracts is in its infancy and it is predicted that there will
be a need for conventional contract law remedies until technology is able to self-regulate
more complex smart contracts. This leads to the question of whether existing contract law is
fit for purpose to adequately resolve disputes emanating from smart contracts. Consider the
role of equitable remedies such as rescission and specific performance and how and whether
they might they be utilised to resolve disputes arising from smart contracts. Will these
remedies in fact be made obsolete? Will new remedies be needed which are fit for purpose?
Looking ahead, how might an alternative enforcement platform operate alone or in
conjunction with conventional contract law remedies and what will human obligations be or
look like?
The Blockchain and European Union Private International Law
Rhonson Salim, The Open University - [email protected]
Use of the blockchain transcends territorial borders. A typical chain can involve computers
scattered around the globe. Each computer the location of and the control over, is unknown.
This reality raises questions of private international law. Which court has jurisdiction to hear
a claim in the event of a dispute? Will any resulting judgment be recognized and enforced?
This paper seeks to examine the current application of the rules of EU private international
law to the operation of the blockchain.
A central tenant in the operation of EU private international law is the existence of mutual
trust between jurisdictions. Trust is also a foundational concept of the blockchain. Computers
on the chain have to prove that they are trustworthy. Computers stamp that trust on the
“blocks” of recorded transactions. As part of an examination of the application of the rules of
EU private international law to the blockchain, the utilization of the concept of trust will be
interrogated.
76
Between Scylla and Charybdis: Lessons From A Comparative Analysis of the Regulation of
Bitcoin in the United States and the United Kingdom
Immaculate Dadiso Motsi-Omoijiade, Warwick University - [email protected]
This paper identifies the lessons that can be learnt from a comparative analysis of the United
State (U.S)’s and the United Kingdom (UK)’s approach to the regulation of Bitcoin. The study
commences by giving an overview of the Bitcoin ecosystem in order to identify the key
regulatory concerns associated with the Digital Currency. Here, it is observed that the key
issues Bitcoin regulation need be concerned with are (a) the safety and soundness of
exchanges, (b) addressing pseudonymity, (c) harnessing innovation and (d) incorporating the
regulation of the Dark Web. The study finds that the U.S’s strategy has robustly addressed the
issues of pseudonymity and the safety and soundness of exchanges whilst doing little to
harness innovation. By contrast, the UK’s strategy has led to the promotion of innovation
without rigorously addressing the concerns about the safety and soundness of exchanges and
pseudonymity. In this way, the study’s locus is on the key lessons that can be found on
steering this course between the Scylla of weaknesses of Command and Control and the
Charydbis of the shortcomings laissez-faire in the regulation of Bitcoin with a ‘Bitcoin
enforcement pyramid’ being put forward as a recommendation.
Organic Digital Contracts – Organic Digital Things
Jannice Käll, Gothenburg University - [email protected]
The intellectual property right system have long been understood as the legal construction
for turning into, as well as limiting, the way that knowledge may be turned into things or
indeed, property. Already one decade ago, Margaret Jane Radin however pointed at the fact
that this is today not the only legal construct that may be utilized to turn knowledge into
tangible matter as both technological design as well as contracts are used to produce effects
of property over knowledge in the digital era. Contracts over “digital matter” also entail
practices where traditional understandings of contracts are put out of place e.g. as consent
to enter contracts has become only fictional through phenomena such as browsewrap
agreements. Contracts in this sphere may also include clauses that make it possible for one
party to change them after that the contract has been concluded. Digital contracts may also
be integrated in network contract structures that can be described as platform-based.
I suggest that these developments can be read as a development of what one could call
organic contracts. As these contracts form part of what actually defines something as a digital
thing, it is suggested that they may be understood as leading to an increased organic capacity
of code, property and also things in themselves. This in turn can be understood as a rupture
of the person-thing divide continuously reproduced in Western legal theory. Subsequently it
is suggested that the legal constructs built along this divide, such as modern contract law,
might not be able to respond to the challenges posed by digital things. For this reason, it is
argued that new theoretical tools that break with the person-thing divide is needed in order
to produce a critical legal understanding of contract practices regarding digital matter.
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Panel 2: Blockchain Roundtable
Chair: Rob Herian
Participants are invited to join the roundtable in order to examine the juridical significance of
blockchain beyond rules and regulation: to think about and examine blockchain and other
associated technologies as juridical phenomena.
Panelists:




Tatiana Cutts, Birmingham / LSE - [email protected]
Primavera De Filippi, Berkman Center for Internet & Society at Harvard University [email protected]
Daniele D’Alvia, Birkbec, [email protected]
Jake Goldenfein, Swinburne University of Technology - [email protected]
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4. The Crisis of Democracy in an Antipolitical Age
Stream organiser: Steven Winter (Wayne State University)
Democracy is in distress. The strains can be seen in the threatening fractures in the European
Union; in the polarization and political gridlock in the United States; and in the resurgence of
populist and xenophobic parties, candidates, and movements on both sides of the Atlantic.
We can trace these developments to three, closely-related, long-term trends that
characterize our late-modern moment: the hollowing out of politics by neoliberal forms of
governance; the atomization and privatization of the social world in a consumer society; and
the alienation from the public sphere and concomitant disillusionment with the political
classes. The result is an apolitical notion of “politics” as either a zero-sum game between
competing interests or a take-no-prisoners, antagonistic struggle founded on the
friend/enemy distinction. The crisis of democracy in an antipolitical age is the inability to
recognize politics as a collective activity of common constitution and coordination. Politics is
the necessary condition of the intersubjective relation between socially-situated selves who
need each other to succeed and, inevitably, are not of a single mind. It requires mutual
recognition and respect between citizens. And that is, precisely, what no longer seems
possible given the degeneration of the social in an increasingly fearful and narcissistic age.
Panel 1
Chair: Louis Wolcher
The Fundamental Question
Louis E. Wolcher, University of Washington, Seattle USA - [email protected]
Beneath the distress of democracy and the degradation of the social in “our fearful and
narcissistic age,” as this stream’s description so aptly puts it, lies another, deeply personal
kind of distress: namely, the conscientious individual’s loss of faith in the logical determinacy
of universals in the spheres of politics, law and morality. The latter distress, paradoxically
enough, comes from the elevation of the merely social to the status of the only remaining
“basis” (qua cause, not rational ground) for the projects of law and justice. Nietzsche’s
analysis of the rise of nihilism began to expose the destabilizing psychological consequences
of our growing awareness of the radical historical and social relativity of universals and the
values that underlie them. But so long as the question was limited to whether any given set
of universals might or might not be universally binding, one could still believe that the
expressions associated with these universals (“justice,” “democracy,” “human rights,” etc.)
actually meant something (literally) that could and should be rationally isolated and debated
apart from their socially determined applications in this or that particular situation. But the
nimbus of prestige which once surrounded the idea of the universal has now been dimmed
to such a degree that it is no longer sufficient to secure the possibility of a good conscience
for those who undertake, in good faith, to make the world a better place in the spheres of
politics and law. The many decent human beings who have noticed and experienced this
diminishment of prestige find themselves in a thoroughly disenchanted existential situation.
For them the attempt to do justice without the illusion of being grounded in something
beyond the sheer facticity of their own performances is a distinctly ethical theme which cries
79
out to be investigated in its own right. Heeding the cry, this paper – which is based on the
author’s recently released book The Ethics of Justice Without Illusions – will grapple with the
following fundamental question: Is a life in the law - even one spent in the pursuit of justice worth living, and if so, how can a disenchanted person come to bear the living of it without
constantly having to engage in self-deception? If Nietzsche is right that living without illusions
is impossible for human beings, then the most important ethical implication of this essentially
anthropological fact goes far beyond the question of what illusions we ought to choose. It
must also include the question of whether we should succumb to that most seductive and
pernicious of all illusions: namely, the belief that exercising great care and responsibility in
choosing our illusions – which we might then call our “principles of justice” – excuses or
redeems us ethically for what we do to others in their name.
Democracy in an inhospitable world: On Kant and the moral law
Anél Marais, Aberystwyth University, Wales - [email protected]
Under current fractious conditions, describing the populace of a democracy (the demos) as a
‘political unit’ is difficult. Our disparities seem to far outweigh our similarities. Contra Aristotle
we do not seem to have a rational nature in common, nor do we have shared sympathies.
This paper will address the question whether the law, as a symbolic order, can compensate
for these deficiencies? In a highly optimistic frame of mind one can argue, with Kant, that the
law, as a neutral arbitrator, may be able to ensure that we are at least on an equal footing.
Eagleton points out that because law, reason and the symbolic order transcend ‘individual
interests and appetites’, it is possible for them to keep a critical distance, a cool head, an even
keel. Kant, like Hegel, is scornful of the reliance on ‘feeling, enthusiasm, the heart and the
breast’. This is an issue for the symbolic order, rather than for the imaginary.
Following this Kant argues that in a fractured society, which may very well include almost all
societies, the duty of the law is to abstract from the legal subject everything specific, peculiar
and personal. It is only in abstraction that we can be equal. This resonates with much of the
parlance of modern international human rights law as well as certain strands of cosmopolitan
theory.
Against this background the idea will be presented that Kant, despite his protestations of
austerity, is not impervious to the pull of the imaginary. Within the sphere of the aesthetic
we may have an opportunity, not necessarily to ‘understand’, but to experience the world as
something that we can, in principle, understand. The Kantian sublime, however, cuts in two
directions: the world may appear hospitable to us, but it may also, in equal measure, frighten
and intimidate us.
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The Crisis of Democracy in an Antipolitical Age
Albena Azmanova, Brussels School of International Studies, University of Kent, Brussels [email protected]
Steven L. Winter, Wayne State University Law School, USA - [email protected]
Democracy is in distress. The strains can be seen in the threatening fractures in the European
Union; in the polarization and political gridlock in the United States; and in the resurgence of
populist and xenophobic parties, candidates, and movements on both sides of the Atlantic.
We can trace these developments to three, closely-related, long-term trends that
characterize our late-modern moment: the hollowing out of politics by neoliberal forms of
governance; the atomization and privatization of the social world in a consumer society; and
the alienation from the public sphere and concomitant disillusionment with the political
classes. The result is an apolitical notion of “politics” as either a zero-sum game between
competing interests or a take-no-prisoners, antagonistic struggle founded on the
friend/enemy distinction. The crisis of democracy in an antipolitical age is the inability to
recognize politics as a collective activity of common constitution and coordination. Politics is
the necessary condition of the intersubjective relation between socially-situated selves who
need each other to succeed and, inevitably, are not of a single mind. It requires mutual
recognition and respect between citizens. And that is, precisely, what no longer seems
possible given the degeneration of the social in an increasingly fearful and narcissistic age.
Panel 2
Chair: Steven Winter
The Problems and Perils of ‘Global Constitutionalism’
Tarik Kochi, Sussex Law School, University of Sussex - [email protected]
This paper follows the question of whether we can properly think of International Law, or
Global Law, in terms of a ‘constitutional order’, or at least as a set of overlapping legal regimes
and orders which can be attributed some degree of constitutional significance. The paper asks
what is at stake in trying to conceptualise International Law or Global Law in this way.
The paper takes its cue from a number of prominent attempts within legal theory and the
sociology of law to think about the emergence of a global constitutional order such as that
presented in the work of Gunther Teubner and Neil Walker. Critically responding to these
accounts the paper asks what might a language of ‘global constitutionalism’ offer to an
understanding of International Law/Global Law? Particularly, in what ways might such
accounts attempt to legitimate the historical and ongoing violence of various regimes of
capital and power, while masking and deflecting more radical forms of contestation and
antagonism which challenge these orders?
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Is the largest democracy of the world becoming the largest dictatorship? – India Position.
Parva Dubey, Hidayatullah National Law University, Raipur, Chhattisgarh India [email protected]
India is known as the world’s largest democracy of the world (1.25 billion people). Recent
circumstances raise the question whether the country is heading towards autocracy.
Although elections are held every five years at the national and state levels, voters are not
electing local representatives who then select the Prime Minister or Chief Minister. Rather,
each party puts forward a prime ministerial or chief ministerial candidate before the elections
and, then, all of the elections are contested in the declared candidates’ names. The Prime
Minister or Chief Minister becomes larger than the contesting party; as a consequence, his
views and decisions dictate the actions of individual legislators. Instead of being a festival of
democracy, election practices in India are contributing to a more autocratic form of
governance. This paper will discuss these developments and the electoral reforms necessary
to counteract them.
Brazillian Judiciary in The Focus For Democratic Demands
Rafael da Silva Menezes, Federal University of Minas Gerais (Brazil) and Federal University of
Amazonas (Brazil) - [email protected]
Democracy, in the representative and deliberative aspects, directed to the legislature has lost
credibility space in Brazilian society, either because the current system of proportional
elections does not allow a clear identification between elector and elected, either because
people do not realize their demands being satisfied by the body of parliamentarians,
commonly identified as managers of own corporate interests, leading a legislative inaction
about discussions involving major political and moral differences. This frame loss of citizens'
trust in their representatives, made demands for solutions on political and moral differences
displaced, including public support, for the judiciary, especially to the Brazilian Supreme Court
that once triggered, it began to define political and moral contours to initially legal issues and,
in this way, analyzed and defined, for example, questions about the apparent conflict
between environmental protection and economic development; campaign finance;
biographies of unauthorized disclosure; samesex unions; interruption of pregnancy in the
case of anencephalic fetuses; affirmative action for access to higher education and; research
on embryonic cells. With the shift of the focus of democratic demands, the Judiciary must, to
the same extent, be open to new forms of procedural intervention, which enable citizens,
substantially, to participate in the debates before the judiciary, with serious, responsible and
responsive analysis of their arguments, which can be achieved with the improvement of the
intervention procedure of amicus curiae before the supreme court, which often has limited
the performance of that democratic character.
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5. A CRISIS OF THE LIBERAL VISION OF THE RULE OF LAW AND FUNDAMENTAL
RIGHTS? TURNING POINTS IN THE EAST AND WEST
Stream organisers: Adam Sulikowski, Rafał Mańko, Jakub Łakomy and Konrad Kobyliński
The political events of recent years, both in Central-Eastern and Western Europe, some of
which can certainly be described as ‘turning points’, provide an impulse to analyse the crisis
of the liberal visions of ‘rule of law’ and ‘fundamental rights’. What we consider of particular
importance, is the growth of the political significance of parties and groups described
sometimes as ‘populist’, and the challenges which follow therefrom for well-grounded
conceptions of the rule of law. We also consider it necessary to analyse the role (neo-)liberal
ideology, including its legal variant, in the process of marginsalisation of the social classes and
groups which have made attempts at regaining political subjectivity and empowerment by
supporting political parties described as populist.
We would like invite efforts to apply the concept of the political (as opposed to the concepts
of 'politics' and 'policies') to the activity of constitutional courts which, whilst officially
perceiving themselves as the exclusive guardians of the constitution, often conceal the
influence of political views on their decision-making process. We think that adequate tools,
allowing to diagnose the crisis of the liberal vision of rule of law and fundamental rights, can
be provided by critical legal theory, inspired by the classical school of CLS, as well as its
contemporary continuations in the UK and on the Continent, including in Central Europe. Of
particular importance is the combination of critical legal studies with an agonistic philosophy
of politics (C. Mouffe). Liberal visions of law as a neutral forum for conflict resolution and of
constitutional courts as apolitical arbitrators can be opposed to an agonistic vision of society,
which underlines the unalienable dimension of conflict, which is at the root of the social bond
(C. Mouffe, E. Laclau, S. Žižek).
Another area which papers submitted to the stream are invited to explore is the impact of a
neoliberal understanding of politics as post-political governance upon the narrowing down of
the spectrum of ideas accepted by the mainstream, which, after a certain time, leads to an
inevitable eruption of the so-called populist moves (C. Mouffe, E. Laclau) which can rightly be
described as turning points in the on-going crisis of the liberal vision. We assume that certain
choices on the level of political theory (regarding the understanding of the concept of the
political) have their consequences in the sphere of political practice, and therefore predetermine the scope of actual choice. Not only law is entangled in the political, but also
politics impact upon legal theory and practice, as evidenced by the phenomenon of ‘rightist
crits’ in Central Europe.
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Panel 1
Chair: Rafał Mańko
Polish Constitutional Court and the Political: On the Consequences of the Fall of a Certain
Myth
Adam Sulikowski, University of Wrocław - [email protected]
The topic of the allegedly apolitical character of the Polish Constitutional Court is crucial not
only from the perspective of contemporary social and legal thought, but has also attracted
broad public interest in Poland and abroad. On the one hand, the official legal discourse is
dominated by the myth of the apolitical character of constitutional judiciary. On the other
hand, the ruling Law and Justice partty which is engaged in a conflict with the Court bases its
arguments on the Court’s political involvments. The main purpose of the paper will be to
analyse this dispute (its causes, course and consequences) by resorting to theoretical tools
developed by Carl Schmitt, Chantal Mouffe and Ernesto Laclau.
The Constitutional Tribunal in Poland – From the Greatest Judiciary Authority to the
Guardian of Political Interests? (Polish Democracy at the Crossroads)
Grzegorz Pastuszko, University of Rzeszów - [email protected]
The paper aims at depicting the legal position and the political role of the Constitutional
Tribunal in Poland. The main questions the author asks are what was the Tribunal in the
beginning, by the time of communist regime, and what it is now, after almost 30 years of
democratic transformation. The author’s intention is to put emphasize on the changing role
of this institution over last couple of decades concerning the current context of the
constitutional crisis.
The scope of the research involves two aspects of the problem - the aspect of legal regulations
(including reforms) and the aspect of “political conditions”. Examination of these two factors
enables important conclusions to be drawn on how the process of forming the Tribunal has
been being developed, especially what reasons have importantly influenced the changing
perception of the Tribunal – primary as “a reactive and antisocialist instrument”, next as “a
great judiciary authority in democratic state” and finally as “a political body supporting or
struggling government”. The paper as a whole is divided into three parts covering the
significant periods of the evolution of the Tribunal. The first period is the time when the
Tribunal gained the reputation as “a nail in the coffin” of communist regime (1981-1989), the
second when it enjoyed a high rank position in the system of the state powers (1989 – 2015),
and the third when it - nolens volens - lost its authority and became an element of political
plays (2015 until now).
All these remarks are shown against the background of the models of constitutional judiciary
in contemporary Europe and its theoretical origins.
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The Constitutionalisation of Austerity and the Economy of Sacrifice in the Colombian
jurisprudence on Social and Economic Rights
Johanna del Pilar Cortes Nieto, University of Warwick - [email protected]
It has been claimed that by relying on the minimum core of social and economic rights (SER)
and targeting people in poverty, the Constitutional Court of Colombia (CCC)has found the
right balance between the enforcement of SER and the austerity reforms necessary to
overcome economic crisis and (Landau, 2014).In contrast, based on the most famous rulings
of the CCC,I argue that by relying on a particular understanding of poverty, the Colombian
jurisprudence has facilitated the constitutionalisation of austerity and the reconfiguration of
SER according to neoliberal lines. For the CCC, poverty is a problem of material deprivation
which produces individual suffering. It is caused by lack of growth and individual failure.
Consequently, the Court should uphold fiscal decisions that foster growth – e.g. austerity
reforms, even if they sacrifice SER, and focus on how poverty can be alleviated on an
individual basis. Besides these solutions, there is not much to be done; poverty is conceived
as a quasi-natural phenomenon whose effects can only be ameliorated. This narrative is
linked to a particular interpretation of the Constitution. For the CCC, it foresees an enabling
state aimed a fostering growth, and only condemns extreme forms of inequality in the face
of which the state has to engage in a limited distributive role aimed at guaranteeing the
physical survival of the poor. SER are the manifestation of this role. This interpretation
normalises inequality as the precondition of competition and growth. It reinforces the idea
that the state should only correct the most adverse effects of market failure by engaging in
poverty alleviation, which is also an opportunity to rehabilitate the poor. It drives attention
away from the root causes of poverty, naturalising its existence. Finally, the interpretation of
SER as the rights of the poor to the means necessary for survival limits their political
aspirations and helps to control social uprising.
Panel 2
Chair: Konrad Kobyliński
Rule of Law or Rule of Lawyers? Critical Reflections Inspired by a Symptomatic Reading of
Artur Kozak
Rafał Mańko, University of Amsterdam - [email protected]
Artur Kozak was undoubtedly the most original legal theorist in Poland in his time. His period
of academic activity (from his first publication in 1988 until his premature death in 2009)
spans over the period of Poland’s political transition from actually existing socialism to
capitalism, parliamentary democracy and the ‘rule of law’. Kozak combined an impressive
philosophical erudition with a talent for insightful sociological observation. Precisely because
his academic activity spanned over the period of transformation combined with the
implementation of the Western (mainly German) ‘Rule of Law’ ideology (Rechtstaat), it is
worth exploring his work from the point of view of how he conceptualised the notion of the
rule of law.
In fact, Kozak was fully aware that the systemic transformation of 1989 created new
challenges for legal theory. He stipulated, however, that the theoretical underpinnings for
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broadened powers of lawyers in the post-socialist system were inadequate. He was
particularly concerned about the social prestige of law and the adverse effect thereupon of
the increasingly popular hermeneutic current in Polish legal theory. Instead, he proposed a
juriscentrist philosophy of law. He claimed that lawyers exercising their interpretive discretion
are not arbitrary because they are limited by the constraints imposed them by the institution
of law (in the sense used by Berger and Luckmann), but not by legal texts of positive law. This
had direct implications for the legitimacy of law in society, which – in Kozak’s view – should
be sought by legitimising the legal institutions.
The paper will engage critically with Kozak’s juriscentrist philosophy of law. Whilst Kozak’s
aim was to legitimise the power of lawyers in society, I will offer a symptomatic reading of
Kozak’s texts, revealing the Real hidden behind the screeon of the ‘Rule of Law’ ideology.
Discovering the role of performativity within the right making and right taking processes
Elif Ceylan, University of Exeter - [email protected]
Law/right production by means of legal transplants has been analysed through a number of
different theories. This way of right making has been criticised for its accomplice to
imperialism and colonialism due to consolidating the law-maker West and the law-taker nonWest binary relationship. This paper will re-evaluate this law-making method by putting
“imitation” at the heart of its analyses. Doing this will allow me to address the imitation
embedded within legal transplantation in conjunction with that theorised by Judith Butler in
her performativity theory. Examining legal transplantation and human rights making through
performativity will expose the role of imitation in the formation and diffusion of human rights.
This will enable us to reconsider the right-making and right-taking processes through a
different perspective in which they both occur to be performative. Given that the
performative is a speech act that is capable of reproducing subjects and norms by repetition,
can we conclude that human rights produce the human subject through repetition of norms.
Discovering the performative reproduction circle within the formation and diffusion of rights,
this paper will examine the way in which the subject is humanised through repetition of preexisting human rights structures, as well as gendered through the repetition of pre-existed
gender conventions. It will canvass these norm-making processes exampling the formation of
the LGBTI rights concept and its diffusion to non-West, in particular to Turkey, whose lawmaking method historically relies on legal transplantation. In the light of these analyses, it will
aim to provide an alternative reading pertaining the cultural values versus universality
dichotomy that the LGBTI rights concept triggers in the less/non-Western countries.
Poststructuralist Critique of the Liberal Concepts of Legal Interpretation. Between
Interpretive Communities and the Political
Jakub Łakomy, University of Wrocław - [email protected]
From the vantage point of hermeneutic universalism [Shusterman] - one of the
epistemological stances in the philosophy of interpretation, from the perspective of which
I'm carrying out the analysis in this paper - the political [Mouffe] inevitably determines the
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interpretation of texts, including legal texts. Each interpreter, and each interpretive
community [Fish], occupies a specific place in the structure of social conflicts that constitute
the political. The role of the classical, positivistic theory of interpretation of texts is - on the
other hand - reduced to providing the tools for the interpreter to find objective, universal
meaning of the text, and thereby eliminating the influence of "subjective" cognitive
categories, eg. the impact of the political on this process.
The main purpose of the paper is to show the influence of poststructuralist revolution on the
thinking about the relation between internal (legal) arguments and political arguments in the
process of establishing the meaning of legal texts. More precisely: it is about disclosing the
consequences of introducing the poststructuralist approaches to politics and the political to
the problems of legal interpretation. I will analyze two streams of philosophy of legal
interpretation: neopragmatism and cls.
In my paper I'm arguing from the perspective of hermeneutic universalism
(paninterpretationism), according to which every cognition is relativized to the perspective of
the subject, which is to say that all cognition is interpretation, so there is no such thing as
knowledge not relativized to any perspective. There is no cognition, which, using the words
of Thomas Nagel, provides "view from nowhere". These thesis, present in philosophy of
interpretation of many representatives of neopragmatism and cls, will serve me for a critical
analysis of the basic assumptions of the positivistic philosophy of legal interpretation inherent
in the liberal concepts of politics. In my paper I will refer in particular to the work of Duncan
Kennedy and Stanley Fish.
Panel 3
Chair: Adam Sulikowski
Nomos Basileus - “the Reign of Law” According to Giorgio Agamben. A Critique Commentary
on Using the Ancients
Paulina Święcicka, Jagiellonian University, Kraków - [email protected]
‘Popolo di Pekino, la legge e’ questa!’ - “People of Beijing, that is the law!” These are the first
words of the opera ‘Turandot’ by Giacomo Puccini. “La legge” - in Greek “nomos” - “law” as
“a custom” or “a statute” - seems to be one of the oldest words in the world, of great
importance, on which humanity has deliberated for ages, since the appearance of the positive
law enacted by the political authority. In particular, the problems of political authority and
the rights and obligations of citizens were a major concern in the thought of the leading Greek
Sophists of the late 5th and early 4th centuries BC. They distinguished between nature and
convention, and placed laws in the latter category (e.g. Pl. Prt. 337c-d). Law - nomos generally was thought to be a human invention arrived at by consensus (a custom) or by an
order (a statute, a decree) for the purpose of restricting natural freedoms for the sake of
expediency and self-interest (e.g. Herod. Hist., 7.104; comp. Pl. Grg. 483b-d; Pl. Plt. 339a).
However, this view of law as arbitrary and coercive was not conducive to social stability and
thus was amended by Plato, Aristotle and other philosophers, who asserted that nomos was,
or at least could be, based upon a process of reasoning. By means of this reasoning immutable
standards of moral conduct could be discovered and then expressed in specific laws (e.g. Pl.
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Ep. 7, 354e). In fact, this dichotomy between the negative and positive views of law has been
never actually resolved.Pindar (6th / 5th century BC) was the first one who wrote about
“nomos basileus” in his famous passage on “nomos as a king” (Frg. 169a Maehler, 1-8).The
conceptual apparatus of Pindar and the object of his interest belonged to the sphere of presophistic reflection on the essence of things, of the pre-principle of the world - arche and the
eternal, immutable law governing the world, and thus determining the fate and human
actions. As mentioned above, there were the Sophists who introduced the antithesis: nomos
- physis - for the Sophists this was in fact a variant of the ancient opposition: true - false (Pl.
Ptg. 337c; Diels-Kranz 87 fr. A, B). Nomoi as rules resulting from human culture and setting a
certain pattern of behavior might only become a false, illusory convention covering the
proper essence of things, the truth, which came only from the nature. Since then the
opposition of truth and the verisimilitude has been a leit-motif in philosophy. Poet Pindar,
wishing to walk the path of truth, on the one hand wanted to protect himself from all lies and
pretences, and on the other hand was a first worshiper of the nomos. To this particular
concept: “nomos basileus” – because, as it was said above, not only Pindar used this syntagma
“a combination of words” to describe his thoughts about law - appealed Giorgio Agamben in
his famous work Homo sacer: il potere sovrano e la vita nuda, 1995, trans. Homo sacer.
Sovereign Power and Bare Life (part. I, par. 2). The paper will examine the understanding and
use of the idea of law as the sovereign rule of law - nomos basileus - by the ancient authors
and modern philosophers of political sciences, such as Carl Schmitt, Michel Foucault, and in
particular Giorgio Agamben. Agamben used the term “nomos basileus” in his book in a certain
way, in order to describe “the paradox of sovereignty” namely “a justification of violence and
justice”: “the sovereign nomos is the principle that, joining law and violence, threatens them
with indistinction” (Homo sacer, p. 25). The ancient Greeks employed this term in a different
way - “nomos basileus” meant for them “law as a sovereign” (comp. Ps.-Archytas’ definition
of the “basileus” as “sovereign” and “living law” -). However, the questions asked by the
ancients and by modern philosophers such as Agamben are the same: does law need any
keepers to keep it according to the way of keeping the law - but: Who are the law’s keepers the legislature or the lawyers in their discretion to decide which part of the law could be
overturned and under what conditions? What is law? And who or what is external to law?
These questions are more important as for millennia man has remained what he was for
Aristotle - an animal equipped with a life, in addition capable of political existence (Arist. Polit.
A 2 1252 b 27- 1253 a 29); the modern man is an animal in politics, in which the question of
his life as a living being is asked (M. Foucault, Histoire de la sexualité, ref. after Polish trans.
Historia seksualności, Warsaw 1995, p. 125).
Rule of law as a foundation of Polish constitutionalism and liberalism at the turn of 18th
and 19th century
Michał Gałędek, University of Gdańsk
In this paper, I intend to seek an answer to the question about the characteristics of Polish
constitutionalism in the first half of the 19th century, viewed from the perspective of the role
played in it by the Polish Republican tradition of the 18th century. The main point of reference
is Polish attachment to rule of law understood as legal principle that law should govern a
nation, as opposed to being governed by arbitrary decisions of government. In seeking this
answer, I am guided by the premise that, to a large extent (yet not only), the answer is hidden
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in the system-related debates held directly prior to the issuing of constitution of the Kingdom
of Poland by Alexander I in 1815. The general thesis to be verified is that the world-view
revolution that took place in late 18th and early 19th century, prompted by the founding of
the French Revolution, Napoleonic epic and the crystallization of liberalism, left a sufficiently
lasting impression on the Polish political and intellectual elites. And so, when they embarked
on the project of building foundations of the system of their own state following the demise
of the Duchy of Warsaw, they did not decide to take a more unequivocal turn towards the
Polish political tradition, though it seemed to have satisfied all the necessary conditions. This
happened even though the Polish constitutional heritage from late 18th century, and
particularly the Constitution of 3 May 1791, had achieved the status of a symbol, of an
indisputable value and of an object of national pride; despite the fact that it was imbued in
the national imagery as lasting patrimony of native political thought, constantly referred to
on the symbolic plane. However Polish attachment to rule of law seems to be an exception. I
am going to analyse it.
Rule of French Commercial Law in the Polish Territories
Anna Klimaszewska, University of Gdańsk - [email protected]
The Polish commercial law of the 19th century developed along a specific trajectory. In 1807,
Napoleon established the Duchy of Warsaw, as a result of which French legislation from
various branches of the law, especially private law, was successively adopted in this state.
Besides the Civil code and the Code of civil procedure, also the Commercial code of 1807 was
promulgated. It was, however, 'hurdled' into a legal reality that was feudal, particular and
largely customary, in which there had never been any commercial code before, which
entailed a number of ensuing problems. How, then, was its potential put to a use? Did the
Polish legislator employ Code de commerce consciously and purposely to change the existing
economic reality? To what degree the foreign institutions, adopted to the French reality,
exerted an influence on the shaping and development of economic relations on the Polish
territories, whose specificity was so starkly different? What was the reaction of the Polish
society to the new institutions, which appeared suddenly, without time for gradual
development? In other words: how did the Polish society perceive the French commercial law
and to what degree (if at all) did it use it? In my presentation, I will refer to the reactions to
Code de commerce on three different levels: (I) the statutory one; (II) of scholars, and of the
representatives of the society who participated in the commercial life of the country (III).
Panel 4
Chair: Kimberley Brayson
Judicial Politics and the Rule of Law
Konrad Kobyliński, University of Silesia - [email protected]
The term judicial behaviour refers to what judges do as judges. Judicial decision making is the
most evident form of judicial behaviour. There are two points of view about judicial decision
making: the legal perspective, in which the behaviour of judges is explained by law and formal
procedure and the attitudinal perspective, in which personal values and social factors play a
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crucial role in decision making. In political science, the Attitudinal Model suggests that judicial
outcomes are driven by judges' sincere policy preferences - judges bring their ideological
inclinations to the decision making process and their case outcome choices largely reflect
these policy preferences. It is quite obvious that most judges see their own behaviour in terms
of legal behaviour. In this model judges only want to find the correct interpretation of law.
In the attitudinal perspective, law is a rationalization for judicial decision making, because it
is too general and imprecise to determine the decision. The law does not constrain judicial
decision in any meaningful way. I will argue that the proper framework for judicial behaviour
research is goal-based analyses, and that the content of legal policy and legal accuracy are
the most important goals that judges are trying to achieve. But sometimes an obvious
contradiction between these two goals emerge. Legal participants act as if the law matters,
they are trying to find legal arguments and doctrinal explanations that fit their policy
preferences. C. Herman Pritchett, one of the pioneers of judicial behaviour, considered three
types of attitudes:
3) Attitudes towards the law; this attitude is a framework for the legal model of judicial
behaviour;
4) Justices’ policy preferences;
5) Structural preferences.
For many judicial behaviour scholars, legal policy is the most important goal that drives
judicial decision making. However, as studies have shown, the role of legal policy in judicial
decision making depends on the level of the judiciary. The third type of attitude was called
structural preferences. No Supreme Court or Constitutional Court does not exists in an
institutional vacuum. Justices can only maximize their policy goals by reacting to the
constraints imposed by other significant players in the Court’s political and institutional
environment. It has been suggested that “judges’ decisions are a function of what they prefer
to do, tempered by what they think they ought to do, but constrained by what they perceive
is feasible to do” (J.L. Gibson, From simplicity to Complexity: The Development of Theory in
the Study of Judicial Behaviour, Political Behaviour 5, 9) . This constatation leads us to another
model of judicial behaviour – strategic model. “In most strategic models judges seek to make
good policy, but they define good policy in terms of outcomes in their court and in
government as a whole” . It is unquestionable that, at some level, all political and social
behaviour must be explained in reference to individual values, attitudes or personalities. But
all these factors should be explained in contexts of their occurrence. In my paper I will try to
examine the policy implications of extra – legal models of judicial behaviour, especially their
significance to the rule of law idea.
Decline of the Rechtsstaat in Turkey: An Analysis through Schmitt’s Articles at the Dawn of
Nazi Power
Berke Özenç, Turkish-German University in Istanbul - [email protected]
Rechtsstaat is the legitimate organizational form of the modern political power at the age of
liberalism. The promise to be a Rechtsstaat is also a constitutional component of the
legitimacy building of the Turkish Republic, whose constitution define it as a democratic,
social Rechtsstaat. Although the promise of Rechtsstaat has been distorted so many times
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during the history of the Republic, policies of AKP government, especially after the Gezi
resistance, have gained a novel feature which is implicated in two major break points in its
path towards a Rechtsstaat.
The first major break point can be defined as the decline of the public trust in the idea of
state's neutrality. This has been the result of the state's attempts to resolve political conflicts
through political trials, government's interventions in the judicial power and the extreme
violence against the protesters in big cities, most of whom have never faced with the brutality
of the state before, unlike the Kurds in south-eastern Turkey. The second break point, on the
other hand, happened to be a more fundamental one. Since Gezi protests, the political power
in the leadership of Erdogan has tried to establish its legitimacy not on legality and impersonal
order but on a kind of survival strategy, which comes into being in the form of an ongoing
state of emergency.
In this paper, I will use Schmitt’s perspective on Rechtsstaat in order to conceptualize the
recent shift towards authoritarianism and one man rule in Turkey. I will analyse recent
political developments based on Carl Schmitt’s articles, which were written at the dawn of
Nazi Power. I will argue that Schmitt’s attempt to redefine Rechtsstaat by replacing the legal
security with the justice and his glorification of Führer’s “will” as a personal political power
instead of liberal promise of stabile and impersonal order offer some insights to understand
the ongoing transformation of the political sphere in Turkey.
Liberties Under Siege: The Liberal Democratic Party's Draft Constitution for Japan and the
Regression of the Rule of Law
Keisuke Abe, Seikei Unviersty - [email protected]
Japan’s ruling Liberal Democratic Party and its allies won a sweeping victory in this year’s
upper house election, achieving the two-thirds supermajority necessary for putting
constitutional change to a national referendum. For the first time in history, there are now
enough votes to propose a constitutional revision in both houses of the Diet.
Political changes towards such direction have been taking place for some time. In 2015, the
Diet passed a package of security bills loosening constraints on the use of force so that the
Self-Defense Forces would be able to play an open-ended role in war zones around the world,
drastically modifying the interpretation of Article 9 of the Japanese Constitution, which had
long been thought to prohibit the exercise of collective self-defense. Against the backdrop of
the rise of Chinese military power in the Asia-Pacific region, Prime Minister Shinzo Abe seems
determined to replace the present pacifist constitution with a new one, with less protection
of civil rights and liberties and more flexibility to take military actions.
The LDP’s draft constitution, however, is often viewed as a deviation from the tradition of
constitutional democracy. If adopted, it would impose on every citizen a duty to salute the
flag; it would also allow the government to limit freedom of speech when the maintenance
of public order so requires. Most noticeably, it would eviscerate the doctrine of separation of
church and state, opening the door to direct government participation in Shinto rituals. Its
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approval could pave the way to theocratic monarchy similar to the one Japan experienced in
the past.
Is Japan able to defend itself effectively without amending its constitution, which was drafted
in 1946 by General Douglas MacArthur’s advisers—who clearly intended to disarm Japan?
Will the Abe administration be able to initiate legal change without raising the specter of
nationalism? Combining insights from constitutional law, history, and politics, the presenter
will explore answers to these and other questions and forecast the future of the rule of law
in Japan.
Panel 5
Chair: Paulina Święcicka
‘Burqa Avenger’ and the paradoxes of the secular subject
Giorgia Baldi, Birkbeck - [email protected]
The current debate over the hijab is often understood through the lenses of a ‘clash of
civilizations’ between a tolerant ‘secular’ ‘west’ and a chauvinist ‘religious’ ‘east’. This article
argues that this polarization is the result of a specific secular semiotic understanding of
religion and religious practices which is nowadays embedded in western law. In fact, the fixed
symbology attributed to the practice of veiling by many European judges emerges as a useful
tool not only to re-configure religious sentiments in the public sphere, but also to create a
specific religious subject based on secular thought. This re-conceptualization of religious
practices has been rendered necessary in order to save unity and homogeneity of a
heterogeneous and fractured Europe.
European Court of Human Rights and the Case of Turkey: A failure in the enforcement of
liberal ideals?
Esra Demir-Gürsel, Marmara University - [email protected]
The European Court of Human Rights has been widely regarded as aninfluential institution
having a significant impact on the domestic legal orders of the state parties to the European
Convention on Human Rightsin the enforcement of the liberal ideals of human rights,
democracy and the rule of law.Turkey, however, has almost always ranked among the top
three in the violations of the rights protected under the European Convention,although it has
recognized the jurisdiction of the European Court many years ago.Furthermore, recent events
in Turkey indicate that human rights violationsof the state havegaineda more systematic
character particularly in relation to its so-called "war on terror".Turkey's obligations under
the European Convention do not seemingly prevent it from violating Convention rights.In the
face of large-scale human rights violations, doesthe incomplianceof Turkeywith the
Convention indicate a failure on the part of the European Court of Human Rights in the
enforcement of theliberal ideals of human rights, democracy and the rule of law?And does
the Court's ineffectiveness against suchincompliance constitute a rupture in the path towards
the realization of these ideals?In this paper, I will address these questions by investigating
into the historical records produced during the preparatory workfor the drafting of
theEuropean Convention. I will argue that the Convention was more of a product of its
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founders' motivations to protect the European states as liberal nation-states and to maintain
a liberal inter-state order within Europethan to protect every single human being from state
interventions. Informed by this argument, I will first discuss the legal mediums applied by the
Court in line with these motivations and than try to explain the ineffectiveness of the Court
in the example of therecent systematic human rights violations of Turkish state.
Distorted Communication at the European Court of Human Rights
Kimberley Brayson, University of Sussex - [email protected]
This paper challenges existing orthodoxy at the European Court of Human Rights as the
highest constitutional court for Europe using a discourse theory analysis. The paper takes up
the methodological tools developed by Jürgen Habermas in The Theory of Communicative
Action as a normative yardstick by which to diagnose and test the human rights discourse
developed under the European Convention on Human Rights.
The paper focuses in particular on the issue of Islamic dress in Europe as presenting a
challenge to the liberal vision of fundamental rights. The paper examines the extent to which
the jurisprudence developed by the ECtHR in this area can be considered “systematically
distorted communication” in the sense defined by Habermas, with the aim of highlighting
systematic discrimination against women who wear Islamic dress. As such the paper sheds
light on the normative role that this case law plays in reinforcing existing popular attitudes
and shaping social morés on the issue of Islamic dress in Europe.
Understanding of this divisive issue is imperative in a society which continues to become ever
more diverse and where Muslim women continue to experience an increase in verbal and
physical hate crime. The application of the critical theory of Habermas to the case law of the
ECtHR is borne out of a need to identify and analyse the deep structures functioning behind
the case law of the ECtHR in cases concerning Islamic dress. The ECtHR is not an apolitical
arbitrator and what this paper aims to do is to expose the external political and economic
forces at play which influence the decision making processes of the ECtHR. The paper
concludes that given the ECtHR’s reliance on state acquiescence for its very existence, all
decisions made by the ECtHR ultimately constitute “distorted communication”.
Panel 6
Chair: Giorga Baldi (tbc)
History Against Rules: History against Rules: Is the Nationalistic Quest for Returning the
Cultural Properties of Ancient Kingdoms Dangerous to the Rule of Law?
Yoshiaki Sato Seikei University - [email protected]
In 1995, the Korean government designated three volumes of large Prajnaparamita, printed
in the eleventh century, as national treasure. It is highly probable that these volumes were
stolen by a group of Korean thieves from a temple in Japan. The Japanese government
requested the Korean authorities to check the identity of the volumes. The Korean
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government refused to do so, backed by the popular opinion that it was legitimate to recover
the “Korean antiques,” even by means of criminal acts.
Here we find a typical argument for repudiating the legitimacy of positive rules of law. It relies
on the historical legitimacy and tries to exploit the nationalistic sentiment of the populace.
Such arguments seem to increase influence around the world. In particular, the People’s
Republic of China and Korea are being more and more assertive for recovering their cultural
properties, i.e. remains of their “glorious past”, relying on the historical arguments similar to
“irredentism”.
In order to establish peace based on the Rule of law, it is necessary to respect positive rules
and status quo. The claims whose causes happened too distant in the past should be barred
by prescription. If everyone is allowed to bring the historical claim up over and over again,
the legal order may become too instable. However, it is true that the history appeals more
and more people for challenging the status quo. This presentation will examine the
relationship between the Rule of Law and the challenge by historical legitimacy.
The Precariousness of (Constitutional) Rights: Investigating the Charter-Interpreting
Process
Garrett Lecoq, Carleton University - [email protected]
What are constitutional rights and how do they regulate phenomena in common wealth
constitutional models (S. Gardbaum 2013)? Countries that prescribe to this constitutional
model, such as the United Kingdom, Canada, and New Zealand share a certain precariousness
of rights that follows from the potential for legislative and judicial branches to contest the
other’s interpretation of the constitution. This precariousness echoes agonistic conceptions
of politics by constantly allowing for one of these branches of the state to disagree with the
other (B. Honig 1993). In addition, this precariousness also reifies the problematic liberal
conceptions of rights by insinuating that rights do certain (albeit vague) things such as
guarantee the right to ‘equality’ or ‘freedom’ regardless of their tendency to be
(re)interpreted. The thrust of this paper looks at two recent controversial decisions from
Canada’s Supreme Court (Bedford 2013 & PHS Community Services 2011) coupled with the
responding legislation from the federal legislature to illustrate how both branches have
presented drastically opposing interpretations of s. 7 of the Canadian Charter of Rights and
Freedoms. These different readings, while equally legitimate, highlight the precariousness of
(constitutional) rights located in their potential to be read in opposite ways, specifically as
they relate to my examples of the sex trade and the operation of safe injection sites. By
facilitating this stark disagreement between these two branches, the Charter embraces
agonistic philosophy in the act of governing sex workers and drug users in distinctly different
directions. As such, this paper emphasizes the importance to further examine the
constitution-interpreting process as a pivotal link in governing populations through the
precarious and agonistic nature of (constitutional) rights in common wealth constitutional
models.
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Indonesia and the Challenge of Legal Pluralism and the Rule of Law
Hilaire Tegnan, The Center for Constitutional Study, Andalas University, Indonesia [email protected]
It has been over 70 years since Indonesia proclaimed her independence in August 1945.
However, the 350 years of the Dutch colonialism is still impacting the life of the Indonesian
people. The difficulties faced by the Indonesian legal system as the government tries to
accommodate adat (custom) and religion principles within the national law and the extent to
which this legal mechanism affects the everyday life of the Indonesian people from the legal
perspective are the main focuses of this paper. It discusses the characteristics as well as the
phases of the Indonesian legal system. The research, conducted in 5 Indonesian cities (Aceh,
Bali, Batam, Medan, and Padang), reveals that several problems hinder the Indonesian legal
system: the foreignness of the law, the neglect of customary law, half century of military and
totalitarian regimes, corruption within the state’s apparatus and unsynchronized laws. These
obstacles are most certainly threats to the rule of law and lead to a weak legal pluralism.
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6. FROM CRISIS TO RESILIENCE: SPATIAL JUSTICE IN AN AGE OF AUSTERITY
Stream organisers: Julia Shaw (De Montfort University) and Hillary Shaw (London School of
Commerce)
The production of space is dependent on a variety of social practices and physical conditions,
meaning the experience of space and time varies between particular individuals, groups and
cultures: ‘Castles, palaces, cathedrals, fortresses, all speak in their various ways of the
greatness and the strength of the people who built them and against whom they were built’
(Lefebvre 1991, 232). Just as social models and relationships are contingent upon and shaped
by large scale policies and organising mechanisms such as almanacs, calendars and maps;
cultural norms and economic prospects are also influenced by temporal and spatial
structures. The spatial turn provides a material grounding from which to address the erosion
of jurisdiction in a world of algorithms, globalisation and advanced capitalism. By
reconsidering the means by which the physical infrastructure is allocated and appropriated
by citizens across the socioeconomic spectrum, it moves towards an understanding of how
social justice expresses itself in the technologically mediated urban environment.
The figuration of space and its elaborations are no less significant than the spectacle or event.
Understood as a form of writing, the organisation of power is able to be read by those
encountering it. Spatial metaphors also constitute an imagistic way of thinking which
transfers one idea or concept to another; this cross-domain mapping can usefully represent
the abstract in terms of the concrete. In this way, technologies of surveillance, policing
strategies, areas of separation in the built environment express regimes of order and control
which, in turn, describe the nature of a society. For Lefebvre, ‘constructed space – a
transparency of metal and glass – tells aloud of the will to power and all its trickery. It is hardly
necessary to add that the ‘habitat’ too shares in this spatial distribution of domination’ (1976,
88).
Law’s capacity for reinvention as an instrument of politics, finance, commerce or technology
for example, is exposed by its proximity to spatial schisms and ambiguities. In precisely the
same instant law engages in the allocation and reinterpretation of space, justice is required;
so as to interrogate the legitimacy and efficiency of existing legal configurations. Oppressive
new globalised systems of governance and their self-destructive structural policies often
facilitated by coercive technological innovations have proliferated and further exacerbated
the retreat of the state and law. As the pace of change continues to outstrip our potential to
control these new sites of opportunity and exclusion, it is necessary to engage in critical sociospatial justice analysis in the context of, what has become, a seemingly endless era of
austerity.
Shaw J.J.A., H.J. Shaw (2016) ‘Mapping the technologies of spatial (in)justice in the
Anthropocene’, Vol. 25(1) Information and Communications Technology Law (2016) 32-49
Shaw J.J.A., H.J. Shaw (2015) ‘The politics and poetics of spaces and places: mapping the
multiple geographies of identity in a cultural posthuman era’, Vol. 12(3) Journal of
Organisational Transformation & Social Change, 234-256
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Panel 1
Chair: Julia J.A. Shaw
The Walker
Olivia Barr, Melbourne Law School, Australia - [email protected]
Walking is a legal practice. The habitual and often unthought step-by-step of walking is not
only a physical, pleasurable, healthy and an increasingly well-funded government activity, but
also an activity that is political, subversive, and always already juridical. Put simply, my central
argument is that walking matters legally. What, then, is the relation between law and walking;
law and the walker? Consider the legal figures of the pilgrim or the refugee. Yet the
relationship between law and the walker is not limited to these iconic figures. Walking, in all
its forms, is a material movement that carries legal meaning in the sense that each step is a
spatial production, as well as a place-making activity of law. In other words, walking is a legal
practice that grounds law in place.
However, this is not a universal grounding, nor a universal lawful place. Rather, the placing of
law through walking is a dynamic non-linear activity that varies in time and space. By way of
illustration, I engage with Francis Alÿs’ artwork, The Green Line, where, nearly 60 years after
the Green line was drawn on a 1:20,000 scale, Belgium artist Francis Alÿs redrew the Green
Line on a 1:1 scale. Linking walking to law, a jurisprudential attention to lawful walking in Alÿs’
Green Line starkly illustrates both the mundanity as well as the material and topographical
awkwardness of assigning legal distinction through the drawing of lines. The strict linearity of
lines is actually quite difficult to maintain. Yet this is precisely what many try to do; this is
precisely the conceit of modern law; and this is precisely what a jurisprudential attention to
the materiality of walking reveals: the wobbliness and instability of lines; the wobbliness and
instability of the place of law.
Crisis, austerity and socio-spatial justice: reflections from Athens, Greece
Penny Koutrolikou, National Technical University of Athens, Greece - [email protected]
After decades of political, economic and moral domination of neoliberal orthodoxies and –
crisis or not– induced austerity, an increasing number of theorists as well as activists and
movements are challenging its tenet. While OECD data shows that inequality grows,
numerous studies argue about the adverse consequences of rising inequalities, of the
dismantling of the welfare state (if any) and of austerity. At the same time, a growing
literature on spatial justice is developing, reflecting on the significance of space in the quest
for justice. The global financial crisis, the debt crisis of some European countries, the enforced
austerity and its repercussions for people and places as well as the recent refugee question
in Europe turns the issue of social justice in the city into a vital one.
Drawing from Athens (Greece), a city experiencing a multifaceted crisis, this presentation
examines the ramifications of austerity and debt-repayment policies on socio-spatial justice
and rights (human as well as economic, social and cultural). UN reports have warned about
the repercussion of such policies upon rights. In a context of imminent threat, (false)
dilemmas of safety versus rights were often expressed. The reduced welfare state and the
high unemployment, questions the relations of poverty and social exclusion with potential
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violation of rights, while ‘newer’ rights (such as housing and water) are challenged by
increased taxation and privatizations. In such a context, can the numerous solidarity
initiatives that emerged in the city can be perceived as a network of redistributive local sociospatial justice?
Paul and Spatial Justice: Critical Legal Readings of an (Non)Ecclesial Figure
Taylor Weaver, University of Kent - [email protected]
Space and law have been mixing in critically for several decades. Most recently, Andreas
Philippopoulos-Mihalopoulos has written on the lawscape, atmosphere, and bodies in
relation to spatial justice (Spatial Justice, 2015). In attempting to counter disciplinary
boundaries that often cordon off ecclesially centred figurations of the apostle Paul, this
presentation attempts to follow the recent trend of ‘philosophising’ Paul, specifically through
applying Philippopoulos-Mihalopoulos’ particular readings of the concepts of lawscape and
spatial justice to a radical, materialist Pauline figuration. Law already has strong connections
to streams of Christianity, and the Pauline corpus, because of its obsession with law,
materiality, and justice is ripe for a re-reading through a critical legal lens. While the variety
of concepts that come together in Spatial Justice deserve equal attention, the focus here will
be narrowed to those readings of the concepts of law and justice that deal with spatiality as
described within the text (space as: interrelated and embedded practices, a sphere of multiple
possibilities, a ground of chance and undecidability, as always becoming). In addition, paying
attention to the rearticulation of spatial justice that Philippopoulos-Mihalopoulos has
provided in Spatial Justice, such that atmosphere and lawscape come to the fore through
retaining certain interpretations of withdrawal.
Panel 2
Chair: Hillary J. Shaw
CLOCK: Transforming Cultural, Material and Spatial Spheres of Justice
Jane Krishnadas, Keele University Law School - [email protected]
The ‘Age of Austerity’ is presented as the structural ground for the Legal Aid, Sentencing, and
Punishment of Offenders Act, 2012; an external, irredeemable and unrelated factor that of
itself justifies the limits of access to justice, within a finite domain. Drawing upon my earlier
work ‘Relocating the Master’s Domain’ (2008), I map the reconstruction of sites of justice, in
which the finite budget of the World Bank limited access to the constitutional rights of
equality and life, and ultimately the jurisdiction of the Supreme Court. Simultaneously ground
level rights interventions, challenged and broke down the manmade, structural and
governmental barriers, to challenge the ‘finite’ resources, within a universal concept of
human rights. It is at this point, whereby the limits of justice may be understood as a false
construction, which was drawn within the blue print of the Bretton Woods Agreement and
Universal Declaration of Human Rights, which prioritises the dominant, capitalist and global
North framework.
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CLOCK (the Community Legal Outreach Collaboration, Keele) maps the rights claims to
reconstruct the lines of engagement between the identity, needs and location of legal actors
as they interact at different scales of justice. From the manual and physical navigation of legal
pathways, legal actor rights are identified, valued and located to claim access to justice.
Clock.uk.net, translates the mapping of fixed determinates of identity, needs and location,
within a transformative three dimensional web of legal relations which reconfigures the
Cartesian coordinates, to a transformative axis of rights, from recognition to reflection,
redistribution to revaluation, and relocation to revolution.
Being Illegal
Anette Sikke, University of Illinois, Springfield, USA - [email protected]
This paper seeks to answer the question: What are the stated and unstated purposes of
attaching criminal sanctions to the occupation of particular spaces in the U.S. and Canada,
and how has this criminalizing legislation particularly affected racialized persons, namely
black, indigenous and foreign-born. This question is situated within the broader literature of
critical race theory, highlighting not only the disproportionate impact of such criminal
legislation on racialized persons but equally the racially-biased historical roots of those laws.
I argue that a key method employed by dominant racial groups in both the United States and
Canada to ensure that racial groups are “kept in their place” is to literally keep them in their
place. Through the criminalization of being in a space in which certain groups of individuals
are deemed “unwanted”, racial groups’ mere existence acts as a catalyst for criminal sanction.
Once this “criminal” label is attached, they are excluded from society’s view, both literally and
figuratively.
Building on recent works on race and incarceration I analyse the creation and implementation
of laws regulating racial occupation of space, and their relationship to societal fears around
racial incursions into white spaces. These laws include “Black Codes” in the PostReconstruction U.S. South criminalizing vagrancy, Canadian and U.S. laws preventing
individuals of Aboriginal descent from leaving reservations without prior approval, and the
various immigration reform laws criminalizing the unauthorized presence by foreign nationals
on U.S. soil. These laws are analyzed with reference to the disproportionate numbers of
racialized (Black, Latino, Indigenous) persons incarcerated in the U.S., the disproportionate
numbers of Latino persons deported from the U.S., and Aboriginal people’s massive
overincarceration in Canada. I argue that through the criminalization of racialized spaces the
hyperincarceration of these groups becomes normalized.
Offshore Processing, Spatial Imaginaries and the Sovereign Crisis: An Australian Case Study
Emma Patchett, King’s College, London - [email protected]
Australia's offshore processing centres create a series of enclosed spaces, where the spatialtemporal topography of crisis is reframed through a narrative of protection and a re-drawing
of abyssmal anti-territoriality. This paper will consider the film 'The Journey' (2016),
commissioned by Australia's immigration department to deter asylum seekers, as a distortion
of the concept of sovereignty and a deconstruction of post-colonial spatial imaginaries. Using
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an innovative interdisciplinary methodology, this film will be read through and against
Australia's immigration and asylum policy, in order to consider new ways in which critical
scholarship can take account of spatio-legal counter-topographies in an era of global crisis.
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7. CRITICAL LEGAL STUDIES AND POLITICAL ECONOMY STREAM
Stream organiser: Iain Frame (University of Kent)
This steam has the very broad aim of providing a space for discussion for those who have an
interest in (i) critical legal studies (however understood) and (ii) capitalism or the economy or
economics or commercial law or finance, or other related areas. The motivation for doing so
is a sense that many of us with an interest in the CLC also have an interest in understanding,
critically analysing, and perhaps re-imagining the relationship between law (or specific areas
of law) and some aspect of our modern day, post financial crisis, capitalist economy.
Panel 1: Financialization, speculation, short-termism
Chair: Iain Frame
A philosophical dialogue on financial risk towards a phenomenology of financial markets
Daniele D’Alvia, Birkbeck University - [email protected]
The paper aims to address the global dimension of financial markets in their objective form
of ‘experiencing’ as well as subjective dimension of ‘that which is experienced’. This
observation has revealed a new phenomenology. Indeed, the dual relationship between
objective and subjective dimensions in the phenomenology of financial markets is translated
into the reflection on objective as well as subjective meanings of financial risk.
However, the subjectivity of risk is represented by the Speculator who is willing to second
guess the choices of other speculators. This figure is responsible of the creation of value of
financial assets, and it is at the same time a personal subjectivity identified through the
person of the Speculator and its decision making process. On the other hand, the subjectivity
of financial markets within the new phenomenology by means of ‘that which is experienced’
is represented by new actors such as Central Banks, Regulators and the Law. They are all
impersonal and they are thirdly in respect of the ‘experiencing’ of financial markets, but they
can influence and direct that ‘experiencing’. Indeed, it seems that today the Homo
economicus is no more in charge of his decisions. In this light, the new ‘experiencing’ of
financial markets can make the new Homo economicus to adopt the most reasonable
behaviour instead of the most profitable one. Furthermore, it is the same concept of
reasonability to constitute also the measure of intervention of a Central Bank in terms of
proportionality. Indeed, under this idea a Central Bank as well as Regulators should not follow
an unreasonable policy intervention because where the line stops at the reasonability level,
there it is also where the new Homo economicus stands and the decisions of a superior level
of control should always reflect an assessment of proportionality inspired by reasonable
standards in order to preserve financial innovation too.
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The Post-Crisis Reproduction of Financialization in the E.U. The Reconstitution of the
European Capital Market as a Medium of Governance. “A Constructive Effort Towards
Spontaneous Development”
Jasper van Dooren, Kent - [email protected]
A decade since the start of the global financial crisis, the long-standing project of a European
capital market has recently been revived by the European Commission through its Action Plan
for a Capital Markets Union (CMU). While concern over the stability and viability of the E.U.’s
financial markets remains, this Action Plan illustrates the ‘success’ of the E.U.’s response to
the crisis over the last decade: the (capital) market has been reinstated as the starting point
for any initiative addressing problems in the material reproduction of the Union.
In this paper I take a look at the regulatory and supervisory framework that has made this
situation possible. I will argue that post-crisis financial regulation and supervision in the E.U.
is aimed at reproducing a separation between public state authority and private market
activity, thereby shielding questions on the material reproduction of the E.U. (and its social
relations) from democratic processes of decision-making. In order to provide some empirical
depth, I offer a focus on the European Securities Markets Authority, with its extraparliamentary delegated executive powers in the Lamfalussy Framework (e.g. cost-benefit
analyses of legislation, market- and institutional risk reporting, technical standard setting in
legislative interpretation and adoption). Subsequently, I will illustrate how these
developments in regulation and supervision need to be appreciated from an historical and
class-based perspective: as constitutive to the historical project of creating a European-level
form of state power and governance, and originating in the response to squeezed profit
margins and income redistribution to the advantage of wage-earners.
In my conclusion, I will return the European Securities and Markets Authority to its place
within European financial governance, and consider the relationship between financial
regulation and supervision and a contemporary ‘financialization’ of capitalism.
Law, scale, anti-zooming, and corporate short-termism
Lilian Montcrieff, Glasgow - [email protected]
This article uses ‘Contact’, an art installation by Olafur Eliasson, and an essay by Bruno Latour
to reimagine the problem of corporate short-termism. It investigates what it means to
propose that directors and investors look to the ‘long-term’, using the force of law where
necessary. The article contends that it is possible to zoom, as if using a telescopic lens,
between the demands of different time frames. It is only after an extended amount of
‘contact’ that one is able to plot the relation of the short to the long term and make sense of
it, a finding that problematizes the corporate self-governance of time. A way forward is
imagined that makes the thesis of anti-zoom fit for renovating corporate law.
The Company as Subject
Stephen Connelly, Wawrick - [email protected]
Abstract TBC.
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Panel 2: Accountability and its limits
Chair: Iain Frame
The Value of ‘Corporate Accountability’ in International Law: A Marxist Analysis
Grietje Baars, City University London - [email protected]
In this paper I examine the emergence of the debate on ‘corporate accountability’ (CA). Today
the call to ‘hold corporations to account’ as an answer to the latest corporate backlash is
heard far and wide.5 CA is generally understood to mean the efforts to force corporations to
account for (explain, justify, excuse, compensate, make good) the negative effects of
corporate activity on its ‘victims’ and the public at large. The methods employed for this
include both ‘self-accounting’, through or with the help of various NGOs, lawyers, media,
activists, states and international bodies, corporate-produced corporate social responsibility
(CSR) programmes, drawing up voluntary guidelines, standards, creating schemes for
compliance, monitoring or (self-) certification, working with PR and the media on corporate
image, etc. It also includes the work of states and courts in legally regulating, permitting selfregulation, prosecuting or threatening to prosecute, subjecting to licensing and other
bureaucratic procedures, and a variety of actors in advocating and lobbying for or
participating in negotiations around CA instruments and policies. CA in this sense is thought
of as a vital method of restraining corporate activity, limiting wrongdoing and reducing
negative effects of corporate profit-making activities.
I propose here an alternative perspective informed by Marxist theory of international law. In
my analysis, the value of ‘corporate accountability’ is that it legitimises the current system of
surplus value extraction. Corporate accountability struggles effectively reduce capitalism’s
violence to occasional ‘wrongdoing’ by the otherwise good corporate citizen, which is ‘fixed’
by the mere existence of ideological CSR schemes and mostly dead letter legal accountability
mechanisms, amounting to ‘planned impunity’.
Instituting the capitalist State: the trials against German industrialists in post-war
Germany
Hannah Franzki, University of Bremen - [email protected]
International Criminal Law (ICL) is not usually an area of law that is associated with political
economy. This is because since its re-emergence in the 1990s, national and international
courts investigating crimes against humanity, genocide, and war crimes have focused
predominantly on the criminal responsibility of military officials or head of states. The
demand to address the responsibility of economic actors for state-backed violence has only
fairly recently gained momentum. In line with the wider legal and political request to
strengthen the corporate accountability for human rights abuses, we can observe increased
demands to address economic dimensions of state crime by investigating the criminal
responsibility of economic actors
5
E.g. the work on accountability of the Business & Human Rights Resource Centre, at http://businesshumanrights.org/en/corporate-legal-accountability (last accessed 4/1/15).
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My paper seeks to intervene in this debate by looking at the trials against German
industrialists for war crimes, crimes against humanity and aggressive war that were
conducted by the allies in 1947 and 1948, following the International Military Tribunal at
Nuremberg. Trials in response to state crime in general are concerned with the excesses of
the state, the omnipresence of the state apparatus and the suspension of individual liberties.
In the trials against German industrialists, I will be arguing, the lines intended to demarcate
the difference between the `evil' past and the new `good' state are twofold. They do not only
introduce an opposition between arbitrary state violence and a democratic rule of law, but
also distinguish those interactions between the economy and the state considered acceptable
from those thought to be conducive towards violence. Against the collectivism, trusts, and
monopolies that were identified with the German war economy, the underlying reasoning of
the respective judgments suggests, only a juridico-political order based on the principle of
competition could prevent history from repeating itself. In this regard, the trials were central
to what Michel Foucault, in the The Birth of Biopolitics, called the “German miracle”, namely
“to get the legality of the state from the veridiction of the market”. Thus, rather than being a
first attempt to set bounds to the violence of capitalism, as the corporate accountability
discourse often suggests, the trials against German industrialists were an important element
in the salvation of the reputation of capitalism.
The Language of Law and Trade
Yoriko Otomo, SOAS - [email protected]
Looking at the public language employed by international lawyers talking about technological
risk in war and in trade, my recent book, ‘Unconditional Life: The Postwar International Law
Settlement’ extends existing feminist approaches to thinking about the relationship between
the market and the state. I argue that what is at stake in this relation is primarily the question
of who gets to determine what human life is, in the ontological sense. And particularly since
the Second World War, this struggle – a struggle historically between Church and State – is a
struggle that has relied upon a gender binary that conflates ideas of masculinity with
ontological wholeness and superiority. The diagnosis also shows that this dynamic that
structures our political economy is in crisis, breaking apart the modern pact between state,
corporation and the individual. And it can be shifted by changing the way in which we use
language, to change the conditions for, and logic of, global economies.
Panel 3: Legal intersections and comparative law
Chair: Iain Frame
Responses to gender pay equality impediments: Deciphering the Equal Remuneration cases
and substantive equality in Australia.
Amanda Viriri, Kingston Law School - [email protected]
The presence and the availability of information is arguably a hallmark in accurately
identifying, assessing and resolving legal issues. This is certainly true within the sphere of
discrimination law and in particular gender pay equality. It remains undeniable that the
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gender pay gap still persists despite 46 years of equal pay legislation in the United Kingdom
(UK), but questions remain as to why. This paper aims to comparatively analyse the
approaches to information gathering and the use of information, as it pertains to equal pay
between Australia and the UK. The legislature within the UK has taken some steps in
facilitating disclosure and the ease of access to relevant information by the introduction of
transparency with the enactment of the Equality Act 2010 but appears to stop short of
allowing a substantive analysis of the gender pay gap. Recent developments with Australian
federal law appear to demonstrate the benefits of the substantive examination of information
gathered regarding contributing factors to the gender pay gap and ways of eliminating it.
Although these developments are relatively new and their full effects are yet to be observed,
there appears to be positive effects to the way in which the gender pay gap is dealt with. This
paper will argue that the state in its law making capacity should facilitate the discovery and
availability of this information so as to substantively assist in eliminating the gender pay gap.
It will also argue that by revising the model of economic regulation, the ‘business case’
argument advanced within the UK will be a moot point.
Recovery of pure economic losses under a comparative analysis
Renato Lovato Neto, Universidade do Porto/CAPES - [email protected]
Pure economic losses are financial losses that does not results from an injury to the victim’s
personal or property rights. The claimant is usually a third party who is affected by the
conducts of other subjects, which are involved in a contractual relationship between them.
This loss makes the division between contract and tort very tenuous and it can demand the
usage of instruments such as the “contract in favor of third parties” (e.g., art.443. o,
Portuguese CC, and §§328-335 BGB, for example) to achieve that kind of protection. Although
from the point of view of economic efficiency its contemplation by civil liability is more
advantageous than not repairing that loss, it is not fully accepted by doctrine. The social loss
is not necessarily equal as the personal loss and full compensaion creates incentives for
excessive precaution – and it would be more efficient in contract law than in tort law. Those
damages are not related with an offense of an absolutely protected legal position and they
are only compensable on an exceptional basis. The difference to other economic losses (such
as medical expenses and lucrum cessans) is that these are immediately consequences of an
injury to the person or property and the only problem will be to verify remoteness. Some
kinds of these losses are analyzed as non-pecuniary damages, in particular resulting from the
death or injury of someone in a compensation owed by the liable person to the victim's family,
and can be named as préjudice par ricochet and danno riflesso. The study aims to analyze the
compensation of pure economic loss in comparative law, from the treatment by legal orders
from Europe – such as the Portuguese, French, English and German Law – and also by the soft
law instruments – e.g. PETL, Art. 2:102, n.º 4, and the DCFR, art. III.-3:701.
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About Law, Economics and Argumentation: The Forgotten Case of Labor Concerns in
Brazilian Competition Policy
Alberto Barbosa Jr., University of Hamburg and University of Vienna [email protected]
The perceived success of competition law in Brazil hides old inconsistencies in antitrust
practice regarding an unusual topic: the interplay between merger control and labor market
regulation. That policy interplay could well be seen as only an old miscarriage of “antitrust
justice” in developing countries. It may not be the case, though. Past intersections of different
regulatory domains, and the lack of accountability as to the reasons for abandoning labor
concerns, can still affect the legitimacy of competition policy. Such failures in policy-making
could also create conflicts between the Brazilian Competition Authority (CADE) and
authorities responsible for enforcing labor laws.
In view of those potential hurdles to antitrust implementation, this paper takes a normative
stance on the question of how CADE could justify what appears to be a definitive shift in
competition policy away from labor market regulation. My analysis is centered on policy
justifications: instances of legal argumentation meant to support implementing decisions.
Accordingly, antitrust decision-making is framed within the argumentative discourse of
competition law, as a product of practical reasoning informed by legal rules and economic
knowledge.
However, I do not offer here a positive answer as to whether and how CADE should justify its
decision to break the interplay between merger control and the regulation of labor markets.
Instead, my claim is only that, in defense of such implementation choice, justifications
grounded on economic theory may become, in practice, an informal fallacy. As an unusual
topic in antitrust policy, the broken interplay between merger control and labor market
regulation also allows me to explore the impact of economic indeterminacy on legal
discourse. I demonstrate that disagreements among economists can reduce the plausibility
of arguments based on economic consequences. In doing so, this paper challenges some uses
of Economic Analysis of Law, as argumentation technique, in legal reasoning.
Panel 4: Law and capitalism
Chair: Iain Frame
An Uneven and Combined Development Theory of Law
Susan Dianne Brophy, St. Jerome’s University in the University of Waterloo [email protected]
That various legal orders preside in any one jurisdiction has long been seen as evidence of
legal pluralism; however, this approach lacks a systematic understanding of history in general,
and as such, tells us little about the inner machinations of law’s relation to capitalist
development in particular. What is needed instead is a dialectical materialist approach to legal
development; for this reason, I tender an uneven and combined development (UCD) theory
of law. Law flexes in concert with ever-changing social relations, or more plainly, law evolves
in an uneven and combined manner. More than being mired in the contradictions that are
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the driving force of the UCD of capitalism, law boasts its own set of contradictions that, if
carefully accounted for, helps distinguish the historical evolution of capitalism and better
equips us to gauge what we can reasonably expect from law in the future.
Capitalism, Economy and Foreign Investment
Enrique Prieto-Ríos, Birkbeck and Universidad de los Andes - [email protected]
Capital accumulation, invasions, plunder, international trade and foreign investments have
been an integral part of the capitalist economy. The modern Capitalist system came into
existence in the late fifteenth century in Western Europe and America, and since then, it has
been in a constant process of adaptation and expansion, reaching by the late nineteenth
century the entire globe. The combination of colonialism practices with the expansion of
capitalism, created an international economic uneven structure in which few states exploited
and plunder colonies expropriating the surplus of the colonial societies, and transferring it
from the periphery to the centre. Such economic uneven structure was deepened with the
industrial revolution, broadening the economic gap between the centre and the periphery.
After decolonisation processes, peripheral countries continued serving as places where
capitalist seeking further profit accumulation could find cheaper material, cheaper labour,
new markets for products and the place where raw materials essential for the functioning of
the global market and the western life style were found. In this context, Foreign Direct
Investment -FDI- was presented as the best alternative to capital importer countries (all
countries under this label happened to be former colonies) to improve their socio-economic
situation and to reach the promise land of development.
According to the foregoing, this paper offers an analysis from a political-economic perspective
of FDI. In doing that, this chapter will approach the perspective of investors and states within
a global capitalist market. As it will be explained in more detail in the following pages,
International Investment Law -IIL- was transformed in an international legal instrument for
the protection of capitalist accumulation, based on plunder and an unequal economic
relationship.
Varieties of Capitalism and Market-Style Criminal Process
Darryl K. Brown, University of Virginia School of Law - [email protected]
This paper would explore ways in which criminal justice systems are structured and
rationalized according to prevailing ideas about political economy—that is, ideas about how
states should organize and intervene in markets. Comparative studies of “varieties of
capitalism” distinguish between “liberal market economies”, such as the U.S. and U.K., and
the “coordinated market economies” of most continental European states. States play a
smaller (and different kind of) role in private markets in the former than the latter. That choice
about the state’s role and responsibility is reflected also in the structures of criminal justice.
At a general level, adversary systems—which align closely with liberal-market states—place
greater responsibility on the parties for accurate outcomes. Various rules partially “privatize”
responsibility for public court judgments. Rules on pretrial evidence disclosure and
procedural default, for example, foreclose possibilities to achieve or correct accurate
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judgments based on lapses of private parties. Plea bargaining law—particularly in the U.S.,
where it took shape contemporaneously with the rise of neoliberal ideas in the 1970s—
borrows directly from the private law of contract and claims about the efficiency of private
exchange. This kind of market-inspired rationality is apparent in judicial opinions, which stress
personal incentives, motivations, and responsibility while minimizing the role and
responsibility of the state. As it does the market sphere, the liberal market state is disinclined
to guarantee a particular kind of outcome in criminal adjudication—even a fair or accurate
one. The state promises only an opportunity to contribute to, or compete for, a particular
outcome. The more that criminal process internalizes the norms of a liberal-market political
economy, the more it turns to market-like or private-ordering mechanisms as substitute for
legal standards, public duties, and judicial oversight—incrementally privatizing a public law
process refining notions of the rule of law.
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8. CRITICAL PERSPECTIVES ON CULTURE AND PRESERVATION - PRECARITY IN
OUR PAST, PRESENT, AND FUTURE CULTURAL HERITAGES
Stream organiser: Sara Ross (Osgood Hall Law School)
The past few years have born witness to the destruction of places, spaces, and objects that
carry unquantifiable historical, heritage, and cultural value. As the world gazes on, horrified,
many critical questions arise in relation to preservation, protection, ownership, and
intervention. What role can or does law have? And how is the view of law’s role shaped by
critical legal and radical perspectives?
Atrocities committed against relics of the past are but one aspect of the greater question of
the role of preservation and protection in our globalizing world. Just as the term “culture” can
capture nearly endless possibilities, so too can the question of what should be protected and
preserved as “culture”.
What about the destruction of that which exists intangibly within the boundaries of cultural
spaces, and practices? As the UNESCO Convention for the Safeguarding of the Intangible
Cultural Heritage enters its next decade, has it been successful in its goals and intentions?
Questions of how to strengthen and better dedicate ourselves to the preservation of human
culture go far beyond the physical and the physically destroyed. Much of what constitutes art
and culture is intangible—yet these cultural aspects are as vital to human civilization as the
towering ruins of the past.
Alongside the question of how law should (or should not) employ preservation strategies in
areas of conflict and war, the question of how law should respond to the privatization and
commodification of culture within neoliberal development initiatives also arises.
What about urban culture in our cities? As neighbourhoods face gentrifying forces and
municipal redevelopment strategies, what important buildings and spaces should be
preserved? How do we determine what to preserve? Can live music venues benefit from
intangible cultural heritage protection? In the UK, can and should pubs receive protection
through legal tools such as designation as an Asset of Community Value in the face of an
owner’s development rights? Or, in New York City, does an otherwise unremarkable building,
such as the Stonewall Inn, merit landmark designation based on past important events or the
importance it carries to a community like the LGBT community?
Further, if we critically deconstruct existing decisions and paradigms to provide, or not to
provide, legally enforceable protection to spaces, places, and objects, will we find a
replication of the architectures of hegemony, unequal valuation, or even, recolonization? Or
will we find something else? Is the notion of “culture” itself something hegemonic or colonial?
This stream seeks to engage the work of critical and radical scholars and perspectives working
at the intersections of law, culture, preservation, and the governance of culture—municipally,
domestically, and internationally—as well as those interested in tangible and intangible
cultural heritage matters and our human right to culture in all of its varied forms. The goal is
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to create a lively critical dialogue surrounding how we will treat crucial issues in the
preservation of our array of collective past, present, and future cultures moving forward.
Panel 1: Contemporary Issues in Cultural Heritage Law: Underwater Cultural Heritage and
Illegal Trafficking
Chair: Sara Ross
A Battle between Universality and Integrity: From the Point of View of the Convention on
the Protection of the Underwater Cultural Heritage
YinCheng Hsu, University of Glasgow (UK) - [email protected]
The fifth session of the Meeting of States Parties to the Convention on the Protection of the
Underwater Cultural Heritage (hereinafter CPUCH) took place at Paris on the 27th April 2015.
The main issue for discussion was how to promote its ratification. Comparing with other
conventions in cultural heritage law system, the CPUCH has not been met with broad-based
acceptance. After lengthy discussion, the creeping jurisdiction (mainly in the continental shelf
and the Area), the application of salvage law and state immunity are main concerns to hamper
the ratification. However, the CPUCH was finalized and enacted before really untying the
knots. Since reservation (except Article 29) is prohibited in the CPUCH, for those states which
have very little concern are pushed out of the regime. Is it a right time to rethinking the
possibility of allowing reservation in order to maximize state participation as ICJ concluded in
the 1951 Genocide Convention Case? Considering the pros and cons, this article argues that
the CPUCH should increase the number of States Parties even if the integrity may be sacrificed
to a certain degree. Three raised reasons are in favor of opening reservation. First, the new
principles established in the CPUCH are the in situ preservation, non-commercial exploitation
and international cooperation. The principles differ from what states mainly concern. Second,
there will be more diverse practices in the international waters if the number of State Parties
is low. Third, the non-States Parties may still claim preferential rights granted by the CPUCH.
As a result, they enjoy rights from the CPUCH without corresponding duties. The article will
also evaluate which provisions may be not appropriate to be made reservation.
Bridge Over Troubled Waters? Underwater Cultural Heritage, The UNESCO Convention, Past
Doubts and Current Challenges
Eden Sarid, University of Toronto (Canada) - [email protected]
The legal regime aimed at the protection and governance of underwater cultural heritage is
presently facing substantial threats and strife. Unauthorized salvage and looting are an acute
threat to this richness of humankind legacy. Alongside these, current challenges include
disputes between post-colonies and post-empires over patrimony of underwater cultural
heritage; WW1’s centenary, which involves dealing with sunken war-vessels and underwater
gravesites; and the exploitation of underwater cultural heritage as a means to claim disputed
territory (as evidenced in the South China Sea, Crimea, and the North-West Passage). Present
times also mark a considerable passing of time since the signing (2001) and entry into force
(2009) of the UNESCO Convention on the Protection of the Underwater Cultural Heritage (‘the
Convention’), which is the international legal framework aimed at the protection of
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underwater cultural heritage. When the Convention was signed, notable maritime powers
such as the UK, the US, and the Netherlands, were concerned that it erodes international law
principles, particularly, marine jurisdiction and State vessels’ immunity. Therefore they have
not joined the Convention.
It is thus a timely moment to consider the Convention’s competence to face current
challenges and inquire whether the maritime powers’ concerns indeed materialized in
practice. These are the two questions that the paper explores.
The paper maintains that the concerns expressed by the maritime powers fifteen years ago
did not materialize, and that the Convention actually strengthens international law’s rules
regarding jurisdiction and immunity. It also demonstrates the Convention’s success in
establishing cooperation and fighting looting and unauthorized salvage. It then asserts that
the Convention is seemingly also the best tool to confront the current challenges, as it allows
to reconcile former colonies’ and former empires’ interests, it provides a framework well
attuned to protect underwater gravesites and warship wrecks, and because it can (and
should) be used to prevent abuse of underwater cultural heritage in territorial disputes.
New Means in Fighting Against Illicit Traffic of Cultural Property
Raffaele Aveta, Seconda Università degli Studi di Napoli (Italy) - [email protected]
The intensification of the illicit trade and the growing number of disputes about the return of
smuggled or illicitly exported cultural properties represents an alarming signal that shows
serious questions on the real capacity of the restrictive laws to fulfill protective purposes. First
of all, the question should be dealt with by the countries rich in cultural patrimony, which
should carry out a role of “cultural avant-garde” and prepare new forms of struggle against
the illicit traffic of cultural properties. The means, that can be used to reach this aim, can be
various and require a change in the perspective compared to the traditional national policies
in the field of the cultural property. In many cases it is a matter of solutions easily to be
solved, which even if they require an organizational effort, they might not be a burden on the
public finance. It is to be considered, for example, the opening of an international market of
works of art, where States can give the works of art that are not essential to the national
history, starting from the less important archeological finds and/or from the foundation of a
compulsory state system of registration of high valued artefacts and their transactions. This
market should involve not only the public bodies but also the private ones. In the first case,
resources are removed from the black market and the illicit purchase becomes less
convenient, since it exposes to the risk of obtaining not authentic materials and being
involved into judicial inquiries. The decline in the demand would have a direct effect on the
safeguard of archeological sites, while avoiding the non authorized excavation in new areas
and the loss of scientific information. The revenues deriving from the archeological resources
might be used to finance research projects, safeguard and promotion or to support a state
system of cultural heritage registration. The certification of the cultural, public and private,
property, should offer to the buyers the possibility of checking the legitimacy of the title
before of carrying the transaction out, by rebuilding the good faith not on the base of criteria
which are probable to suppose but through documentary certainties. The birth of national or
international systems of cultural property registration offers a precious occasion to stabilize
and implement the art market.
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Panel 2: Cultural Property and Conflict
Chair: Kanwal DP Singh
Protection of Cultural Property in the Event of a Non-International Armed Conflict: a case
study of criminal prosecutions before international courts
Alice Lopes Fabris, Universidade Federal Minas Gerais (Brazil) - [email protected]
Cultural property has always been targeted in armed conflicts. Even though frequent, the
attack against important cultural, religious, scientific and archaeological landmarks was
mostly condemned. These attacks have intensified in contemporary conflicts, such as the
Syrian Iraqi and Mali conflicts, even though several international instruments such as the 1954
Hague Convention and the Rome Statute are in force as well as the costumary rule that
prohibits attacks directed against cultural property without military necessity. In September
18, 2015, the Trial Chamber I of the International Criminal Court have issued an arrest warrant
for Ahmad Al Faqi Al Mahdi [hereinafter Al Faqi] for the destruction of the mausoleum Sidi
Mahmoud Ben Omar Mohamed Aquit, the mausoleum Sheikh Mohamed Mahmoud Al
Arawani, the mausoleum Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir, the
mausoleum Alpha Moya, the mausoleum Sheikh Sidi Ahmed Ben Amar Arragadi, the
mausoleum Sheikh Muhammad El Micky, the mausoleum Cheick Abdoul Kassim Attouaty, the
mausoleum Ahamed Fulane, the mausoleum Bahaber Babadié, and Sidi Yahia mosque,
located in city of Timbuktu, in Mali. Those destructions occurred in the Malian internal conflict
between May and September 2012 and, since the city of Timbuktu has been listed as a World
Heritage by the UNESCO since 1988, and those monuments are entitled to special protection.
The engagement of individual responsibility in relation to cultural heritage crimes is not new
and the Nuremberg Tribunal and the International Criminal Tribunal for the former Yugoslavia
have had held individuals accountable for attacks against historic monuments and pillage,
under the violation of law and customs of war. This paper proposes the analyses of the
applicable law concerning protection of cultural property in the event of non international
armed conflict, focusing on the individual responsibility, to understand the law applicable in
the Al Faqi case.
ISIS: A Catalyst for Revisiting the Concept of Cultural Genocide?
Mary Kavita Dominic, The National University of Advanced Legal Studies (India) [email protected]
Since the United Nations Organization and the United Nations Educational Scientific and
Cultural Organization (“UNESCO”) were formed and the Universal Declaration of Human
Rights was adopted, cultural diversity, heritage and human rights have been widely
researched. Most of the related research surround legal, ethical and international issues
concerning tangible cultural objects, such as illicit trafficking, restitution of the looted
artifacts, and destruction of historical sites. Legal systems typically providing special
protection for cultural heritage that falls within their national patrimonies have recently
started adopting legislative measures and creating policies regarding intangible cultural
heritage, as well. Accelerating such process, the UNESCO Convention on the Protection and
112
Promotion of the Diversity of Cultural Expression has also encouraged policies concerning
future heritage, including film industry.
This paper looks at linkages between conserving future intangible cultural heritage by
maintaining cultural diversity and enforcing identity and culture as a human right with specific
focus on the film industry. Questioning the notion of culture itself being hegemonic or
colonial, this paper documents the fear of McDonaldization, by giving examples from the
trends in Turkey and China in the face of American productions taking over the global film
industry. It also takes a bold approach to deconstruct existing paradigms to push for legally
enforceable protection to diversity and criticizes the unequal valuation in the name of culture.
Rather than another traditional retrospective analysis of the cultural heritage preservation,
this paper embracing precarity introduces a prudential viewpoint towards constructing future
heritage from today by preserving cultural components. Interrogating whether international
community has a legal and ethical responsibility to protect diversity, this paper ultimately
calls sovereigns and global society for an objective pro-polycultural intervention.
Iconoclasm, Cultural Politics and Resilience: The Protection of Cultural Heritage in PostConflict Zones
Valentina Vadi, Lancaster University (UK) - [email protected]
What role, if any, can international law play in situations in which a state is assisting to the
deliberate destruction of cultural heritage of great significance located in its territory?
Iconoclasm, that is the destruction of religious icons for religious or political motives, has been
a constant feature in human history. However, how international law can prevent, address
and cope with iconoclasm remains a relatively understudied domain. This article aims to
address some gaps in current international law literature. After discussing the various forms
of political, religious and economic iconoclasm and highlighting the complex interplay
between iconoclasm and cultural politics, this article discusses the threats to the protection
of cultural heritage in post-conflict zones, focusing on Afghanistan as a case study. In 2001,
the Taliban destroyed two massive Buddha statues in Afghanistan’s Bamiyan Valley
considering non-Islamic art as symbol of idolatry. This act brought the interplay between
iconoclasm and international law to the forefront of legal debate. However, this article
suggests, today, an even more impressive and significant type of iconoclasm is under way:
that of economic iconoclasm that is the inexorable destruction of cultural sites yielding to
economic development needs. The paper examines and critically assesses how international
law governs the protection of cultural heritage in conflict societies. It then concludes that
despite the extraordinary and paradoxical resilience of cultural heritage, much remains to be
done 'to build peace in the minds of men' and promote the protection of cultural heritage as
a mechanism to foster peace and security.
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Panel 3: Changing the Conversation in Cultural Heritage Law: Intangible Cultural Heritage,
Heritage Discourse, and Collective Memory
Chair: Valentina Vadi
Tension in the Cityscapes: Redevelopment, Intangible Cultural Heritage Preservation, and
Assets of Community Value
Sara Ross, Osgoode Hall Law School (Canada) – [email protected]
As many of today’s modern cities undertake redevelop projects that increasingly seek to
involve a city’s cultural agenda, tensions arise between the value of, on the one hand,
preserving certain spaces, or assets, of community value and community cultural wealth, and,
on the other hand, replacing or redeveloping these spaces. In terms of cultural economics,
this tension can be framed through a comparison of use value versus exchange value. But
where use value is connected to the liveability and cultural vibrancy of a city, this paper will
question current strategies for effective consultation of those who have created and find
community cultural value and wealth in marginalized spaces and venues of culture in the city.
The paper considers the case study of Toronto, Canada and a sampling of its historic music
venues in order to 1) examine the treatment of spaces of intangible cultural heritage, and 2)
the community consultation practices implicated in redevelopment decisions that affect
spaces of known cultural heritage as well as unknown, or yet to be identified spaces of cultural
heritage. The work posits that city’s such as Toronto do not adequately valuate intangible
cultural heritage and spaces of community cultural wealth, and that this is both reflected in
as well as symptomatic of ineffective or underdeveloped legal frameworks for both
safeguarding spaces of intangible cultural as well as determining spaces of intangible culture.
Authorised Heritage Discourse and Cultural Heritage Law
Sophie Vigneron. Kent University (UK) - [email protected]
This paper aims to develop a critical perspective of cultural heritage law through the prism of
Authorised Heritage Discourse. Firstly, it will present the traditional distinction between
market nations and source nations, or cultural nationalist and cultural internationalist that
initially created a framework to address the issues of the regulation of cultural objects. It will
then criticise this dichotomy which is too simple in its distinction between right and wrong as
well as its analysis of international conventions, which does not take into account countries
that are both source and market nations like France and Italy or Australia with the booming
of the aboriginal market, which ignores local tribes or ‘intra-nationalist’ like American Indians
or Australian Aboriginals who might claim for the restitution of their cultural heritage/cultural
property from the national state. This binary distinction ignores certain forms of heritage and
minority stakeholders’ voices in the protection and identification of heritage.
Secondly, this paper will describe the concept of Authorised Heritage Discourse as developed
by Smith in the discipline of heritage studies. It will critically analyse the core principles of
heritage law through Authorised Heritage Discourse: the obligation to respect cultural
property in the event of armed conflict, the obligation to abstain from appropriating and
transferring cultural property within militarily occupied territories and the corresponding
obligation of restitution, the principle of cooperation in times of peace for the prevention and
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remediation of the illicit traffic of movable cultural property, the respect for national laws
protecting cultural property, the respect for cultural diversity and the protection of living
cultures. Finally, this paper will refer to Authorised Heritage Discourse to critically assess the
dominant political and legal discourses that are prevalent in the legal protection of cultural
heritage both nationally and internationally.
Cultural Heritage and the City: Urban Conservation and Collective Memory in Hong Kong
and Macau
Mirosław M. Sadowski, University of Wroclaw (Poland) - [email protected]
The 20th century has brought us, among other things, the destruction of objects of culture on
an unprecedented scale. They perished not only in wars and conflicts, but also due to human
ignorance, greed, negligence, and, perhaps most importantly, lack of rules protecting cultural
heritage. However, despite the fact that in the 21st century we have numerous regulations,
both on a national and international level, which aim to protect the cultural heritage, they
often fail to do that. In particular, due to the fact that land suitable for building on is scarce,
modern cities have turned into unobvious ‘battlefields’, with city councils, developers,
heritage preservation groups, and citizens often finding themselves in opposing groups. The
aim of this paper is to examine various conservation approaches and mechanisms employed
in two extremely difficult environments (as they both principally lay on islands): Hong Kong
and Macau. In the first part of this article, M. M. Sadowski briefly investigates the history of
the two cities, remarking on the events which led to the creation of the two extremely potent
local cultures. In the second part of the article, the author introduces and compares the two
unique legal systems of Hong Kong and Macau, focusing on the regulations concerning
protection of the cultural heritage. The third part of the article is devoted to the problems
concerning urban conservation in the two cities, which arose in recent years, i.e. the case of
Guia Lighthouse and the issues regarding construction of casinos in Macau, and the cases of
the ferry piers, of the Nga Tsin Wai village, and the Fishball Riots in Hong Kong. In the last part
of the paper, M. M. Sadowski reflects on the collective memories of the two cities, looking
into their connections with Hong Kong and Macau’s rich cultural heritage.
Panel 4: Cultural Heritage Law in India
Chair: Zehra Betul Ayranci
A Novel Perspective on Cultural and Natural Heritage; Innovative Alterations to the Existing
System and Thoughtful Addendums for Future
Emil Sunil George, Symbiosis Law School, Pune (India) - [email protected]
Culture is a collective programming of mind with its preconceived pattern with elements such
as language, traditions, articles and practices. Differences in this pattern give rise to different
cultures with intrinsic traits. Heritage is something that is passed on from one generation to
another generation cutting through the passage of time to persevere the obstacle of
obsoleteness. Cultural and natural heritage are well integrated at times where the line of
difference dilutes. Defining cultural and natural heritage aptly that combines the tangible and
intangible aspects and its impacts is a pending target.
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Effectiveness and common lacunae’s in various legal systems (comparative approach) when
it comes to preservation and protection of heritage will be discussed while understanding the
impact of UNESCO conventions of 1972 and 2003 on preservation of tangible and intangible
heritage alongside an insight into major threats towards preservation of heritage spanning
from manmade innovative advancements to conflict zones and natural causes reflecting
marks of time with related examples and scenarios.
The objective is to beam light in the grey area of preservation by remodeling the rules;
delegating authority and responsibility to local community stake holders in an inclusive
approach and tapping the potential for monitored heritage tourism with financial incentives
and opening up for digitization of places idolized for its significance but faces imminent
threats of destruction or defacement. It is vital to discover the possibilities of integrating the
innovative breakthroughs in natural and cultural heritage preservation to the legal
enactments of the land. This work of research relies upon understanding and analysis of
environmental reports, expert interviews, legal reports, finance articles, news articles
alongside conservation and preservation related legal enactments of few countries.
Intellectual Property Rights Law: A Tool for Legal Protection of Cultural Heritage – Indian
Experience
Lisa P. Lukose, University School of Law and Legal Studies (India) - [email protected]
The expression ‘cultural heritage’ in its broadest sense encompasses cultural expressions and
traditional knowledge. They assume significance as it reflects the culture of the nation and its
people. They are perceived as valuable sources of identity, creativity and diversity. At global
level, they are recognized as forming the intangible component of cultural or natural heritage.
The constitutional and domestic laws of various nations attach the legal duty to protect,
conserve, preserving, showcase and revitalize such cultural heritage.
The discussion on the legal protection of cultural heritages and traditional knowledge began
four decades ago at international level as part of initiates aiming at legal recognition of
indigenous peoples and traditional and other cultural communities. As of now, the
international community has made certain legislative achievements on the international level
such as ‘Model Provisions for National Laws on the Protection of Expressions of Folklore
Against Illicit Exploitation and Other Prejudicial Actions’- (UNESCO/WIPO, 1982); ‘the
Convention on Biological Diversity’ - (CBD, UN, 1992); the Convention for the Safeguarding
of the Intangible Cultural Heritage (2003) etc.
India is a country having much respect for her cultural heritage. India’s rich cultural heritage
is 5000 years old. As historians say India’s culture is a ‘civilisational legacy to the world’. Dr.
A.L. Basham, in his work titled ‘Cultural History of India’, states that “…while there are four
main cradles of civilisation which, moving from East to West, are China, India, the Fertile
Crescent and the Mediterranean, specially Greece and Italy, India deserves a larger share of
credit because she has deeply affected the cultural life of most of Asia. She has also extended
her influence, directly and indirectly, to other parts of the World.”
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There are many legal provisions including constitutional provisions prevailing in India to
protect cultural heritage though there are criticism against their efficacy. Intellectual Property
rights are considered to be an important tool in India for protecting cultural heritage. Against
this backdrop, this paper will critically analyse the existing Intellectual Property Laws’
provisions on protection of cultural heritage. This paper will also discuss landmark decisions
from India on protection of cultural heritage such as Amar Nath Sehgal v. Union of India.
Analysis of Law Relating to Protection of Heritage – Reconfiguring Corporate Resources in
Reference to India
Kanwal DP Singh, University School of Law and Legal Studies (India) - [email protected]
Methodologies and legislative frameworks regarding the conservation and preservation of
heritage differ throughout the world. At the international level, the United Nation
Convention on the Law of the Sea (hereinafter “UNCLOS”),and the UNESCO Convention on
the Protection of the Underwater Cultural Heritage(UCH) delineate legal principles to protect
and preserve culture and heritage. Many countries have also enacted statutes to regulate
protection of heritage. Conventions, statutes, and case laws provide a legal framework and
comprehensive understanding of different national research traditions, methodologies and
legislative structures is needed.
Social scientists need to trace the process of heritage governance through corporate bodies.
Use of corporates for heritage policy statements serve as a way to develop economic
capacities. Protection of heritage may be offered by corporate interests as a bargaining chip
to negotiate enhanced access to resources but a balance needs to be maintained. In general,
corporate social responsibility (CSR) programmes of corporates in India rarely involve
initiatives about protecting culture and heritage. Projects on education, water, poverty
alleviation and almost every other potential focus areas listed out under schedule VII of the
Companies Act, 2013, find precedence over heritage conservation, indicated under entry (v)
of schedule VII. The importance of engaging communities through initiatives on art and
culture is not being put forth systematically and corporates are not aware about the benefits
of carrying out such programmes. This field thereby poses immense potential for executing
successful CSR programmes which can align a corporate’s activity to its core business.There
is need for total rethinking of the laws. The cultural heritage faces danger from treasure
hunting due to ambiguities in law and lack of proper enforcement and implementation of
the law. Conservation and preservation should be the basis of the legal framework. The laws
need to be formulated keeping in mind the economic disparity in the world. There is a need
for historical appreciation by common public and also a need to take the issues outside the
academic arena.The essay shall discuss the need for new structures to make preservation of
heritage an amalgamation of profit and a knowledge seeking venture. It would discuss the
benefits of commercialization of heritage to preserve and conserve.
The essay hopes to look for protection of cultural heritage through the prism of law keeping
the cultural & heritage considerations in mind. A new methodology needs to be developed
keeping in mind the economic considerations of developing countries like India. The essay
hopes to strike a balance between heritage protection and economic considerations which is
necessary to make it an academically and financially profitable venture.
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Impact of Globalization, Westernization on Indian Culture: Good or Bad?
Ankit Bhandari and Srijan Mishra, National Law University (India) - [email protected]
Globalization has become a key word in today’s world, and the world of today is very different
from what it was ten years ago, even from what it was yesterday. Today, development
happens overnight. One of the countries that has been focused on during the past decades is
India. In 1991 when the Indian economy was opened the pace of globalization in India
suddenly accelerated. Since 1991 India had witnessed an explosion of new media. From the
1990 the access of the television grew from 10% to 75%. Within a decade, satellite television
and foreign movies became widely available.
The Indian urban and rural life is viewed as the two faces of the same coin. They are mutually
interdependent and both have a greater impact of globalization. India is getting global
recognition and slowly moving forward to become a major economic and political strength.
Thus, the paper clearly elucidates that globalization is a complex phenomenon and its impact
on rural and urban life clearly. It has a very profound impact on both Indian rural and urban
life. As a result globalization has shown remarkable growth in urbanization and rural
development. Thus present paper focuses on the impact of the globalization on the Indian
culture and whether due to globalization and westernization, Indian culture has taken a
setback.
Panel 5: Modernization of Cultural Heritage Law
Chair: Lisa P. Lukose
Transforming India’s Antiquated Antiquity Laws
Arkalgud Ramaprasad, Chetan J Dixit, Priyansha Rawat, Swati Singh, and Vijeth Acharya,
National Law School of India University, Bangalore (India) - [email protected]
India is a land of extraordinarily rich heritage and diverse culture with a history of thousands
of years. Its cultural heritage artifacts are tangible, intangible, and natural. In addition to
immovable monuments and archaeological antique sites, India is also rich in tangible movable
antiquities. In this era of globalization it is imperative for any country and its citizens to
understand their history so that they can protect, preserve, and propagate their antiquities.
In doing so, the interaction between the country’s governance and culture plays a critical role.
The legacy of India’s cultural Renaissance in India dates back to the colonial times marked by
the enactment of Bengal Regulation XIX of 1810.This tradition of cultural preservation
continued in the post-independence with the enactment of The Antiquity and Art treasure
act of 1972. However, presently the government is facing hurdles in preserving the vast
antiquarian wealth. It is not documented properly except for the registered antiquities and
those in some museums. Due to the changing times and gray spots in legislations there have
been increased cases of plundering of antiquarian wealth for selling in the international
market.
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This paper presents a comprehensive, systematic and systemic analysis of India’s laws on
antiquity using an ontological framework. The ontological analysis throws light on the gaps in
these laws to protect, preserve and propagate India’s rich heritage embodied in its
antiquities. The ontological study of the existing laws provides an approach to a stronger base
for preserving antiquarian wealth by focusing on the laws’ bright, light and blind/blank spots.
The ontology could be used as a guide for developing a comprehensive legislation that caters
to the needs of present society. Simultaneously, an executive action coupled with
technological intervention could rescue the country from its antiquated antiquity laws.
Internet and Popular Pakistani Literature
Muhammad Kamran, Oriential College (Pakistan) - [email protected]
It is a fact not deniable that evolution is an ongoing process. It triggers the quest of innovative
paradigms for the promotion of fine arts and literature. The use of internet has compressed
the wide distances of the universe. The use of Internet is increasing day by day in Pakistan.
Such digital progress in digital world has deep effects on social, economic, literary and political
life. Interdisciplinary research has not only bestowed new dimensions upon the minds but
also has led to the ways of integrity in different spheres of fine arts. In my research paper, I
shall focus on the point that the Internet has proved itself an important source regarding
promotion of art, culture and literature in Pakistan. The Internet reader shall find this research
paper a basic document for understanding the trends of arts and variation of cultures in
Pakistan. The article while discussing the role of Internet in the promotion of Pakistani art and
literature also touches upon the contemporary literary, social and political milieu of the
Pakistani society in 21st century.
Fear of Hollywoodzilla: Future Cultural Heritage, International Law and Call For Duty to
Preserve Diversity in Global Film Industry
Zehra Betul Ayranci, Istanbul Bilgi University School of Law (Turkey) [email protected]
Since the United Nations Organization and the United Nations Educational Scientific and
Cultural Organization (“UNESCO”) were formed and the Universal Declaration of Human
Rights was adopted, cultural diversity, heritage and human rights have been widely
researched. Most of the related research surround legal, ethical and international issues
concerning tangible cultural objects, such as illicit trafficking, restitution of the looted
artifacts, and destruction of historical sites. Legal systems typically providing special
protection for cultural heritage that falls within their national patrimonies have recently
started adopting legislative measures and creating policies regarding intangible cultural
heritage, as well. Accelerating such process, the UNESCO Convention on the Protection and
Promotion of the Diversity of Cultural Expression has also encouraged policies concerning
future heritage, including film industry.
This paper looks at linkages between conserving future intangible cultural heritage by
maintaining cultural diversity and enforcing identity and culture as a human right with specific
focus on the film industry. Questioning the notion of culture itself being hegemonic or
119
colonial, this paper documents the fear of McDonaldization, by giving examples from the
trends in Turkey and China in the face of American productions taking over the global film
industry. It also takes a bold approach to deconstruct existing paradigms to push for legally
enforceable protection to diversity and criticizes the unequal valuation in the name of culture.
Rather than another traditional retrospective analysis of the cultural heritage preservation,
this paper embracing precarity introduces a prudential viewpoint towards constructing future
heritage from today by preserving cultural components. Interrogating whether international
community has a legal and ethical responsibility to protect diversity, this paper ultimately
calls sovereigns and global society for an objective pro-polycultural intervention.
Safeguarding Intangible Cultural Heritage: Challenges and Experiences
Ali Aghahosseini Dehaghani, University of Nantes (France) - [email protected]
Cultural Heritage has come to be viewed as a shared common interest of humanity, to be kept
safe and protected under the auspices of international law. From the early interest of
international community in protecting cultural heritage during periods of peace and war, this
interest has expanded and evolved to include intangible cultural heritage which is a relatively
recent addition to the corpus of international heritage law. There are some questions about
the nature and function of this new concept of international law. This contribution is an
attempt to provide answers to these questions. To this end, the paper will be divided into
four parts. The first part of the article, as a brief historical note, will discuss the shifts and
divergences that have taken place within the heritage discourse to accommodate the notion
of intangible cultural heritage. Indeed, the conceptual development of intangible heritage
reflects an intellectual shift stemming from discourse in international forums and a general
criticism that monuments do not embody all forms of cultural heritage. The second part
explores the foundations of intangible heritage law and its link and interaction with cultural
rights. The third part aims to analyze the current status of intangible cultural heritage by
examining the challenges of legislative protection of intangible heritage at international level.
The last part will examine the experiences on national implementation of intangible heritage
law and safeguarding measures by discussing the methods of translating and incorporating
related international legal rules into domestic legislation.
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9. CRITICAL PSYCHOLAWGY: DIALOGUE AT MODERN TIMES BETWEEN LEGAL
AND PSYCHOLOGICAL SCIENCES
Stream organisers: Mathilde Coulanges, Sandra Da Silva, Orane Hmana, Rachid Oulahal, Yann
Zoldan, Sonia Harrati and Patrick Denoux (all University Jean-Jaures, Toulouse)
Links between psychology and law rightly raise more and more scientific awareness. The
human being, as the common object of this two fields, is studied from both an individual and
a social perspective. This stream is an invitation to build an interface and exchange between
clinical psychology(1), cross cultural psychology, justice and law through a critical perspective.
This critical approach(2) can be reached with a psychoanalytical lecture of society(3). Indeed,
this stream aims at enlightening Law by opening a dialogue with respect to social ties within
a legal emergency legislative culture, migrants rights, post-colonial laws, counterterrorist
justice. The violence/criminality and colonialism/migration proposed topics are in keeping
with a transversal approach. In this approach, the researches belong to an always renewed
process, linking psyche, culture and society.
Violence and criminality at modern times
Violence and criminality are breaking news. Legal, Social and sanitary treatments are, all over
the world for victims and authors, one of the main stakes for public policies and institutional
practices. Moreover, professional practices are always actualized under legal securitarian
policies and their praxeological, judiciary and clinical applications. Multidisciplinary answers
in criminology articulate the justice and health domains, as for the care organization in
forensic, social counselling, legal monitoring and relapse prevention.
Through this topic, our goal is to question how clinical psychology and cross cultural
psychology can enlighten the understanding of criminal and violent subjects and
consequently provide them support. Our specific approach is focused on understanding
people involved in criminal activities by taking into account their singularities but also the
conscious and unconscious dynamics that underlie these criminal/violent behaviours(4).
Finally, this means to understand how the historical, cultural and political contexts these
subjects are involved in, are related to the emergence of those violences, victimization,
delinquencies and criminalities, considering the complexity of present and past situations.
Witnesses of historic violence through clinical testimonies: from colonialism to migration
Delinquency, usually considered from a legal perspective, may also be regarded as a
postcolonial reaction.(5) Within some of the European countries, we witness an increase of
gangs phenomenons, violences and risky behaviours from “racialized” youths who are
designated under the stranger status(6). By considering their History we may highlight some
senses and significations from their delinquency behaviours.
As a result of the various colonial histories(7) of the second part of the 20th century, the
important migration waves raise the question of the migrants’ intercultural temporality.
What perspective can bring the clinical psychology and the cross cultural psychology, with
respect to the legislation and the migrants’ life course? When the migration was forced to
avoid violence and armed conflicts, as for asylum applying migrants, how can an identity
process emerge without any legal recognition? How to move forward from the trauma
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experience while the trauma recognition is a prerequisite to a legal status? In case of a chosen
migration, such as for economic reasons, the question of settling permanently in the host
country or returning to the country of origin is constantly renewed. It is now time to provide
those populations with adequate institutional and care programs that respect intercultural
temporality.
This stream is an invitation to an interdisciplinary dialogue to open discussions in a world in
perpetual motion. We are looking for papers on those topics: Psychocriminology, Critical
Psychology, Psychoanalysis, Post-colonial and Critical historical studies.
1.
2.
3.
4.
Denoux, P.(1994). L’identité interculturelle. Bulletin de Psychologie, 264270
Parker, I. (2004). Psychoanalysis and critical psychology. Critical Psychology , 138161
Freud, S. (1939/1995). Le malaise dans la culture . Paris: P.U.F.
Harrati, S., Vavassori, D., & Villerbu, L. M. (2009). D élinquance et violence : clinique,
psychopathologie et psychocriminologie . Paris: A. Colin.
5. Fanon, F. (1952). Peau noire, masques blancs. Paris: Seuil.; Fanon, F. (2002). Les
damnés de la terre. Paris: La découverte .
6. Kristeva, J.(1988). Étrangers à nousmêmes.Paris: Fayard
7. Cherki, A. (2009). La frontière invisible. Paris: Edition des crépuscules
Panel 1: Critical Psychology: Cross-Cultural and Clinical Perspectives
Chair: TBC
An introduction for a Critical debate in psychology
Patrick Denoux, University Toulouse Jean-Jaures - [email protected]
Sonia Harrati, University Toulouse Jean-Jaures - [email protected]
Links between psychology and law rightly raise more and more scientific awareness. The
human being, as the common object of this two fields, is studied from both an individual and
a social perspective. This stream is an invitation to build an interface and exchange between
clinical psychology, cross cultural psychology, justice and law through a critical perspective.
This critical approach can be reached with a psychoanalytical lecture of society. Indeed, this
stream aims at enlightening Law by opening a dialogue with respect to social ties within a
legal emergency legislative culture, migrants rights, post-colonial laws, counterterrorist
justice. The violence/criminality and colonialism/migration proposed topics are in keeping
with a transversal approach. In this approach, the researches belong to an always renewed
process, linking psyche, culture and society.
Emergency and its deadly politics
Yann Zoldan, University Toulouse Jean-Jaurès - [email protected]
It has been shown by sociological studies that new management brings a work under
emergency that is a real threat to workers’ solidarity. Nowadays there is an emergency culture
and we are all under the rules of the emergency as it can be seen with the example of the
French “état d’urgence” and its worldwide laws. This emergency culture is based on various
capitalist’s restructuration like open spaces, politics of transparency, etc. All the society is
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now dealing with those new forms of interaction; we are living in a panoptical society where
intimacy doesn’t exist any longer. Alongside of specific laws there are many psychological
consequences: we are leaving in a hyperactive society where hypervigilance is required.
Subjects are experiencing a manic response toward the anguish of destiny, death. This refusal
of passivity is a real challenge for the psychoanalytical and psychopathological approach. A
society needs complexity and a balance between active and passive tendencies. A new
monolithic society emerges with the rejection and fear of the others. Deadly politics are
created toward the illusion of security, as if a dead society could protect from the reality of
death. The non-acceptance of this reality is a threat against a common social bound. For those
reasons terrorists and antiterrorists share a common discourse, the one of the fascist incest
against the diversity and the unsafe reality of love and revolution. Critical psychological
approach will try to raise those questions in order to think a collective emancipation.
From “sacrified youth” to radical fanaticism: Reflection on the phenomenon of
radicalisation
Lucie Rodrigues, University Toulouse Jean-Jaurès - [email protected]
In this work, we will re-consider the phenomenon of radicalisation by questioning its
relationship to the contemporary social link. To deal with this subject, we chose to start from
the thesis of P. Dardot and C. Laval (1):
« [...]le néolibéralisme, avant d'être une idéologie ou une politique économique, est d'abord
et fondamentalement une rationalité, et qu'à ce titre il tend à structurer et organiser, non
seulement l'action des gouvernants, mais jusqu'à la conduite des gouvernés eux-mêmes. »
This will then allow us to discuss two types of rationalities which seem to be situated in
opposition: a « neoliberal rationality », and what we call « djihadic rationality ». The first one
defines the underlying logic in our modernity ruled by the speech of the capitalist especially
as defined by J. Lacan. The second shows the structuring of the social link suggested by the
organization of Daesh. From the definition and the debate on these two rationalities, we
wish to study the relation of the so called « sacrificed youth »» to this phenomenon of
radicalisation, in particular when it ends in a suicide attack. Our work will be based on written
testimonies and testimonies from the media as well as on G. Agamben's ideas about the
condition of the Homo Sacer. This work will then, make it clear that these two rationalities,
far from being opposite, seem to be sometimes situated in continuity or even to answer each
other in mirror effects. We shall study then how the contextual coexistence of these two
rationalities, their dialogue in a society characterized by a global capitalist speech, can be the
fertile ground for a phenomenon of radicalisation. To go beyond this conclusion, we shall
question the different alternatives to the speech of the capitalist which can be offered to
this sacrificed youth.
[1] DARDOT, P. & LAVAL, C. (2009). La nouvelle raison du monde, essai sur la société
néolibérale (La Découverte). Paris. p. 13 : trad : " [] the neoliberalism, before being an ideology
or an economic policy, is at first and fundamentally a rationality, and which as such it tends
to structure and to organize, not only the action of the government, but until the
conduct(driving) of the very citizens. "
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Public and Police Perspectives on Conflict management and Resolution Strategies: Working
together for a Systemic Reform?
Garima Jain, Jindal Institute of Behavioural Sciences, O.P. Jindal Global University [email protected]
Sanjeev P. Sahni Jindal Institute of Behavioural Sciences, O.P. Jindal Global University [email protected]
The police force’s role in conflict management and resolution is pivotal in crime prevention
and maintaining law and order in India and no substantial study is available so far. This study
investigates the following objectives: (a) to understand and analyze causes of conflict
between the public and the police, (b) recognize ways in which conflict situations are handled
at the police station, (c) determine gaps between existing methods versus an ideal way of
police resolution of conflict situations (d) develop recommendations for working together as
a system.
The total respondents, 3231 police personnels and 1630 civilians were recruited from both
rural and urban areas of four states (Chandigarh, Delhi NCR, Haryana, and Punjab) through
convenience sampling and simple random sampling respectively. Separate survey
questionnaire were administered to both groups. ANOVA, t-test and comparative analysis
revealed the following findings: (a) Both police and the civilians perceived that efficiency was
an issue with the police personnels; (b) Discrepancy existed in the perception of police and
civilians on issues such as police handling and resolution of the conflict situation; (c)Garima
Jain and Dr. Sanjeev P. Sahni
Lack of awareness amongst civilians about civil and criminal procedures, over expectation of
the civilians from the police, lack of respect of the police personnels towards the public, and
corruption were identified as deterrents to the conflict resolution process. The findings have
policy and program implications and is an important resource in creating social-educational,
awareness and sensitization programmes for both public and police personnels.
Panel 2: Crime and Punishment
Chair: Rachid Oulahal
Criminality in modern times: A clinical study of the violent criminal act from the
author/victim couple
Mathilde Coulanges, University Toulouse Jean-Jaurès - [email protected]
Violence and criminality are breaking news. The emergence of violent criminal acts and their
prevention feed current sociopolitical and scientific debates. From a socio-penal and scientific
point of view, the heterogeneousness of criminal violence may lead to distinguish the criminal
acts according to their nature. For example, sexual offenses, and their authors, are the object
of specific considerations both on the scientific level and from the judiciary and sanitary view
point. However, we ought to widen our perspective and focus on all violent offenses
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committed against people (Moulin, 2010) and thus to question the psychic processes
underlying the act whatever it may be.
Besides, professional practices are always actualized under legal securitarian policies and
their praxeological, judiciary and clinical applications. Multidisciplinary answers articulate the
justice and health domains: this includes care organization in forensic, social counseling, legal
monitoring and relapse prevention. However, the duality author/victim in practices continues
to emphasize the specificity of some violent offences and lead to the risk of reducing the
criminal to his act.
By relying on a psychodynamic perspective and starting from a clinical case, we question the
relationship between an author and his criminal act (feelings, recognition of the act,
responsibility/guilt, the course of life). More specifically, we aim at bringing out the heuristic
impacts of this study from the point of view of the couple author/victim. The purpose of this
communication is to question the psychic construction of a victim for an author (psychological
function, place, investment) from the analysis of the modus operandi, and the
representations of the couple author/victim in the psychic economy of the author. This will
finally lead us to discuss practical and clinical effects.
Death penalty: an empirical analysis of public opinion in India
Sanjeev P. Sahni Jindal Institute of Behavioural Sciences, O.P. Jindal Global University [email protected]
Garima Jain, Jindal Institute of Behavioural Sciences, O.P. Jindal Global University [email protected]
Owing to the rarest of the rare doctrine for capital punishment in Indian legislation, it seems
prerogative to take into consideration the views and opinions of the people pertaining to
capital punishment and its practice in any form. The present study is first of its kind where we
collected 25210 responses from general population from almost all states and union
territories of India. An anonymous self-administered survey was formulated comprising of 15
items and disseminated via online and offline method. The purpose of this study to assess
public attitude towards capital punishment, the type of crime and circumstances for which
death penalty is favored, the level of support among various subpopulation and
understanding the reasons, socio- psychological and attitudinal correlates of death penalty in
India. It has been observed that an overwhelming 79% of the respondents favor legalizing
capital punishment for specific crimes. Logistic regression and association rule analysis
revealed that generally people who supported death penalty tend to be females, elderly,
middle and upper class economic status, Hindu, businessman & self-employed. The support
of death penalty with respect to demographic correlates for various crimes ranging from
treason, murder, rape, terrorist attack, genocide, dowry death, human trafficking, drug
trafficking and offences against children is also examined. Research results further indicated
that 20% of the total sample favor abolishing death penalty owing to various factors like
violates right to life, uneconomical, due to its barbaric, arbitrary & irretrievable nature.
Explanation of this finding and is implication for legislative and judicial decision makers is
discussed further.
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Issues to bullying: between psychical reparation and penal sanction.
Regior-Ferrat Fabienne, University Toulouse Jean-Jaurès - [email protected]
Pirlot Gérard, University Toulouse Jean-Jaurès - [email protected]
Nowadays, bullying is one of the main political fights in France. Its issue is at the heart of
current concerns of public health actors in France. According to this awareness, November
the 5th has become “national day” against bullying. At first, bullying might be compare to
moral harassment. Nevertheless, the first difference is about the young audience concerned.
Thus, it comes throughout the complex phenomenon of adolescence, at the time of identitybuilding.
Despite multidisciplinary debates bullying belongs to, there is no specific legal definition of it.
There are only ones about sexual harassment, marital or work. Currently in France, no one
can be convicted of some form of bullying against a student in school. There is a form of
normalization of violence intra-institutional setting any difficulty prosecution. Because of this
awareness, many french associations involved in the fight against the bullying and / or outside
school, for twenty years. Their purpose was at first to awaken the responsibility of everyone
on the excesses of bullying practices and serious consequences on the physical and mental
integrity of the victims. But, secondly, it’s became a way to pass a law condemning the acts
of perpetrators.
In terms of clinical psychology, we want to question two levels: on the right hand, the
consequences of an only legal outcome, and on the other hand, the place of subjectivity in
this debate. According to the marital harassment, if we deal with bullying through a
nosography, we take the risk to reduce bullying, young people and above all adolescence, to
a psychiatric disease. However, it’s necessary to consider the adolescence process, with its
inherent violence. How successfully does not reduce a subject to be his actions? The aim
would be to protect him from a stop in his psychical development, to allow the adolescent
subjectivation process.
Ambivalent sexism and moral values: A way to understand men’s rape proclivity in Brazil
and England
Arielle Sagrilla Scarpati, University of Kent - [email protected]
Afroditi Pina, University of Kent
Roger Giner-Sorolla, University of Kent
Cultures that legitimize discrimination and prejudice against women and tolerate gender
inequality may indirectly promote different forms of violence (i.e., rape). From this point of
view, the occurrence of sexual violence ought not to be understood as an individual problem,
but as a social one, as a set of social norms serve as a backdrop to the act. Research evidence
suggests that the endorsement of sexist attitudes towards women is linked to acceptance of
interpersonal violence, rape myth acceptance, victim-blaming, as well as men’s rape
proclivity, indicating the relevance of this construct in terms of the understanding of sexual
violence perpetration. Nevertheless, its relationship with the moral domain has not been
tested yet. Thus, this study aimed to explore the relationship between moral values and
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ambivalent sexism for adult men in Brazil and England. Two studies were conducted and
participants were adult men (over 18 years old) from Brazil and England. Participants were
recruited either at universities or in public spaces (study 01) or invited to answer an online
survey (study 02). For the first study, measures about Ambivalent Sexism, Moral Values, as
well as socio-demographic questions were included. For the second study, three different
scenarios were created in order to manipulate participants’ exposure to different forms of
sexism and measures of rape proclivity and rape myth acceptance were also included. The
results from the univariate General Linear Model (GLM) showed that the Brazilian sample
showed significant relationship with hostile sexism, but not with benevolent sexism. When
the analysis was carried over to find possible moral dimensions as mediators between the
nationality group and benevolent and hostile sexism. Therefore, the results presented
significant relationships that are explored in both studies.
Panel 3: Human being Instrumentalization
Chairs: Yann Zoldan and Orane Hmana
Cyborg imaginaries in law
Mika Viljanen, University of Turku - [email protected]
Legal and regulatory theory has typically relied on three broad-stroke impact imaginaries that
explain how legal interventions effect changes in their targets. Legal interventions have an
impact on their targets as 1) individuals seek to evade the sanctions associated with noncompliance, 2) individuals seek to maximise their utility and the rules create incentives that
affect utility calculations, and 3) rules affect the moral and social norms individuals follow.
The paper analyses two cutting-edge regulatory projects, nudging and the Internal Capital
Adequacy Assessment Program by the Basel Committee on Banking regulation and uses
cybernetic and distributed cognition theory to argue that a novel impact imaginary informs
these projects. The emergent cyborg impact imaginary is characterised by the mechanism it
enacts and performs to facilitate behavioural manipulation. Under this imaginary, regulation,
first, treats its subjects as malleable information processing machines—that is as cybernetic
organisms. Second, regulation seeks to effect effect desired behavioural changes by affecting
the subjects’ material cognitive processes. For example, in nudging regulators attempt to
determine which cognitive systems are active when the subject makes a choice, while in
ICAAP the desired behavioural responses are functions of highly complicated assemblages of
technological, theoretical, physical and human material.
The emergence of the cyborg impact imaginary has important implications. The paper
discusses the ontology of cyborg legal subjects, the effects of the imaginary on the
anthropocentricity of modern law and the politics of cyborg imaginaries.
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Psychical filiation / legal filiation a dialectical relation in the heart of contemporary families
Delphine Rambeaud-Collin, Psychology and Clinical Psychopathology, University Toulouse
Jean-Jaurès - [email protected]
Sylvie Bourdet-Loubere, Psychologue Clinicienne, Maître de Conférences HDR, University
Toulouse Jean-Jaurès
Anne-Valerie Mazoyer, Psychologue Clinicienne, Maître de Conférences HDR, University
Toulouse Jean-Jaurès
Jean-Philippe Raynaud, Professeur des Universités - Praticien Hospitalier. PU-PH La Grave
Hospital Toulouse
The legal filiation relates to the family’s relationship which binds an individual to one or
several people. It allows to recognize socially the family ties. So the law is interested in the
filiation in its interpersonal dimension. It deals with the question of the successions, the
inheritances and the parental rights. From a psychic point of view, the filiation constitutes a
process where the subject recognizes himself, represents himself as belonging to a lineage,
thanks to the affects, but also thanks to the biological and body links.
So, from a clinical perspective, the filiation deals with the factual external reality - the legal
filiation - and the internal psychic reality of the subject, the fantasmatic one.
In our contemporary societies, Medically Assisted Procreation, join the natural conception
and adoption within the various modalities of the « faire famille " (the way family is created).
Then, physical links (pregnancy) and the biological ones (genetic), between the mother and
her child, is no longer such an evidence, questioning not only the legal filiation but also its
inscription in the offspring’s psyche. According to the law, in the case of the egg donation, the
legal filiation recognizes the woman who carries the child as the mother. When surrogacies
are allowed, it is the genetic link, or the intended parents’ desire, which make the filiation.
But what about the feeling of filiation of the subject born thanks to these various techniques
of procreation?
Beyond the societal and legal debate, we want to question the specificities of the filiation’s
psychical inscription linked with the various way of "faire famille ".
Social representations of homoparentality and their consequences in legal psychologist
practices (France and Brazil).
Fillipe Soto Galind, University Toulouse Jean-Jaurès - [email protected]
Allyne, Evellyn, Federal University of Pernambuco
Elaine Costa-Fernandez, Federal University of Pernambuco
Patrick Denoux, University Toulouse Jean-Jaurès
This communication has as objective to present a research project which aims to compare
the social’s representations of homoparentality from psychologists working in the legal field
in France and Brazil. Whereas this professional context involves the establishment /
legitimization of LGBT families, it gives specific objectives identify forms of constitution of
homoparental families and the different ways in which these forms of family constitution are
represented by legal psychologists who work with LGBT families France and Brazil; Compare
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representations systems involving homoparental families through the study of social
representations about adoption in homoparental families in France and Brazil; Analyze the
ethical implications of specific social representations to each culture in the professional
practices of legal psychologists in France and Brazil . Following the intercultural perspective
and the anthropological approach, the research will focus on the comprehensive approach to
comparative studies. A critical approach to assessing the similarities and differences
considering the specificities of each cultural context. It is opposed to the pragmatic
comparative approach aimed at universality of practices as well as the transferability of "
good practices " (Regnault, 2015). The research will be developed together with the
psychologists who intervene in support of legal services to families that meet the LGBT
population in France and Brazil. At first it will be offered an online questionnaire prepared in
Portuguese and translated into French according to the methodology of translation,
transcultural adaptation proposed by Beaton, Bombardier, Guillemin & Ferraz (2002). In a
second stage will be carried out semi-structured face interviews with some participants. It
will be used for thematic content analysis of Bardin (1977) following the next operational
steps: creation of the corpus, floating reading, coding, categorization and inferences.
Panel 4: Critical Culture Contact: Memories, Trauma, Violence
Chairs: Mathilde Coulanges and Yann Zoldan
Growing old and experiencing memory disorders what perspectives for elderly migrants
Rachid Oulahal, University Toulouse Jean-Jaurès - [email protected]
Patrick Denoux, University Toulouse Jean-Jaurès
Julien Teyssier, University Toulouse Jean-Jaurès
Our communication will be based on a research in the cross-cultural psychology field. This
research aims at proposing guidance with respect to the evaluation and identification of
cognitive impairments for elderly from minority groups and who may be illiterate or may not
speak the language of the country they are living in.
The important migration waves of the 20th century raise the question of the migrants’
intercultural temporality. For instance, in France, several studies stated a "surprise" related
to individuals from minority groups, who came to France during the 60s and 70s, and who
were not really expected to “grow old” in France.
This reality is now a society issue and has to be addressed by the public health policies. For
such persons, due to the lack of appropriate evaluation tools and professionals who can
address the person in the appropriate language, the dementia diagnosis, such as for the
Alzheimer disease, will be proposed at a late stage, when the impact on the person’s life
becomes significant.
Thus, our research considers the way to take into account the specificity of these elderly
migrants. When it comes to memory impairments, several questions raise with respect to
identity and life history. How to consider such elderly migrants when memory disorders
appear? Are we still an elderly immigrant when the memory of our life before the migration
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is no more? Or are we always an elderly immigrant when our life after the migration has
disappeared from our memory?
Sometimes a forgotten history of violence may come back in the migrants’ life. Sometimes,
only memories from the life before the migration will remain… It is now time to provide those
populations with adequate institutional and care programs that respect intercultural
temporality.
Psychical dynamics of resentment : the example of the S.T.O. (forced labour) during WWII
Bérangère Pautrat, University Toulouse Jean-Jaurès - [email protected]
The period of compulsory work during the first world war is little known by the public today.
After the defeat of France in June 1940, and after Marshal Pétain was granted full powers, he
- with the help of his government - implemented a collaboration policy with the German
occupying forces .
During the years 1942, 1943, 1944, the Vichy government would vote three laws by decree
setting up Service du Travail Obligatoire (STO) - that would apply to the majority of the French
population during the years when Marshal Pétain was in office.
The exploitation of the work force by the Nazis was a phenomenon that spread to the whole
of Europe, but, in France, 650 000 young people - mostly born in 1920, 1921, 1922 - were
exiled to Germany and forced to work by the Nazis in the German factories.
At first, this population was considered as deported, some even use the phrase deportation
for work, but since 1945, they have been suspected of leaving voluntarily and this would last
for over sixty years. There has been a long judicial battle over the title of « deported person
for work » and the conscripts have suffered from violent accusations for a long time.
Between 1980 and 1990, several courts refuse to condemn the title of « deported person for
work », but in 1992, the judgement made by the final Court of Appeal was without appeal,
and it obliged the National Federation to give up this title - « Le DT » - for the term - le «
PROSCRIT ».
This long quarrel about the title has continued to have a great impact on this group who felt
excluded and abandoned by the public authorities and it was in a climate of general
indifference that in 2008, a decree made the phrase « the victims of forced work in Nazi
Germany» official, any notion of deportation being eliminated and forbidden from then on.
The resentment felt by the individual or the social group always originates from an open
wound, an act of violence, a trauma or an insult. Among the French conscripts I interviewed
in the context of my university research that did not originally focus on this aspect of forced
work, I became aware that the memory of this long judicial battle was opening old wounds.
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The Care in prison in New-Caledonia : why take culture into account
Orane Hmana, University Toulouse Jean-Jaurès - [email protected]
The goal of this presentation is to provide an insight on the situation of detainees in the
“Camps-Est “ detention center, located in Nouméa, New-Caledonia.
The French Law of 18 January 1994 requires that detainees get a quality and continuity care
equivalent to those offered to the general population . But in fact, in the prison to have access
to the care/health system is very difficult.
As for New Caledonia, where 90% of the population in prisons belongs to the Kanak
community ( Kanak are indigenous to New-Caledonia), it is necessary to avoid a European
oriented perspective but to implement intercultural care protocols where the “subject
detainee” would be an actor.
In fact, when Western doctors are in front of Pacific people the problem of difference of
cultures arises in the medical treatment of detainees. It is important to place the detainees
at the center of care device because although most pathologies are characterized by clinical
presentations from Western countries. Nevertheless the meanings attributed to them are
different from one culture to another .
I propose to explain the grounded research I realized. In April 2014, for my doctoral research,
I worked in Camps-Est and I conducted interviews with Kanak detainees who had risk
behavior.
This grounded research considers the status of culture with respect to medical and
psychological care provided to Kanak prisoners.
Migration: between resistance and compromise
Clementine Resve, University of Lorraine - [email protected]
The aim of our communication is to first understand how the migration of students
contributes to a (re)construction of gender identity and how this migration is a strategy of
resistance against the global hegemonic Western masculinity model. We will discuss those
subjects in the context of French colonization and more precisely within the Kanak people.
This communication is based on a comparative study about students’ genders. Our population
is located in Toulouse, where Kanak community is settled.
Ten semi-structured interviews have been conducted: five males and five females, all of them
were Kanak students newly arrived from the Lifou Island (New Caledonia / Kanaky). We made
some observations and asked the interviewers about their vision of the “Coloniality of
Gender” and their life under colonialism. It has been shown that the roles of migration,
education and qualification impact the (re)construction of masculinity and the
reestablishment of the masculine domination through jobs and businesses of power back in
New Caledonia/ Kanaky. Our results highlight how students’ migration joins the struggle
against the hegemonic Western masculinity and for the independence. This student's’
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migration may represent a process of resistance against colonialists’ roles of power. Our
findings could explain how the economic and cultural forces of globalization influence the
(re)construction of kanak's masculinity and gender roles in this region. The inquiry shows that
to resist the imposition of colonialism power they have to compromise with the Western
model.
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10. FEMINIST TURNING POINTS
Stream organisers: Katie Cruz (University of Bristol) Yvette Russell (University of Bristol)
This stream invites papers to engage with the theme of turning points in legal, political and
economic spheres of life and feminist theory. It is particularly interested in creating a space
for a discussion about heightened precarity and neoliberal hegemony and the response of
feminist theorists and activists. For some, the present necessitates a return to theoretical
traditions rendered suspect, including Socialist and Marxist feminisms. Others, fatigued by
poststructuralist analysis, claim that we can only understand the present by turning our
attention towards ‘New Materialisms’. Others still insist that we critique feminist engagement
with the neoliberal state through the lens of so-called ‘governance feminism’. The stream is
envisaged as a space for feminist discussion, theorising, planning, and debate.
Panel 1
Chair: Yvette Russell
Mobilisation, problem representation and silencing – paradoxes in Swedish policy around
stereotypes, gender equality and free speech.
Eva-Maria Svensson, University of Gothenburg - [email protected]
Maria Edström, University of Gothenburg
Gender equality and freedom of expression are two core values. The purpose of this paper is
to analyse policy processes in Sweden when the values are in conflict, and why freedom of
expression tend to weigh heavier than gender equality. The starting-point is the ratification
and the implementation of CEDAW in Sweden, where the core values are explicitly branded
as hallmarks, with a focus on policy processes around article 5a, concerning the elimination
of gender stereotypes. The issue is of specific interest in Sweden when it comes to legislation
against sex and gender discriminatory advertising, a topic of concern for the women’s
movement since the 1970s. Despite repeated government inquiries proposing legislation
against this type of advertising, the perception of the impossibility to legislate due to it being
a threat against freedom of expression is still persistent. The policy processes (including
legislative processes) are analysed with help of theories on policy processes, and the concepts
mobilisation, problem representation and silencing (Bacchi). Which actors have been active
in the implementation of CEDAW’s article 5a? How has article 5a been framed? Which aspects
of the article have been debated and which have been silenced? We have earlier stated that
the core values are understood as colliding and freedom of expression is considered the most
important (Svensson & Edström 2014). In this paper we address why Sweden has this position,
a country known for its governance feminism. We see mainly two explanations, the long
Swedish tradition of freedom of expression compared to the more recent tradition of gender
equality, in combination with an increasing importance and emphasis on the value of the
freedom to conduct a business, the core value and a fundamental right of the market
economy. With the help of Wendy Brown’s theory the latter explanation will be explored.
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Criminalising violence against women: feminism, penality and rights-based discourses in
post-neoliberal Ecuador
Silvana Tapia Tapia, University of Kent - [email protected]
Contemporary penality has been linked to the decline of the welfare state and the rise of
neoliberal discourses which emphasise individual responsibility, sidelining social
redistribution (Garland, 2012; Simon, 1998). A sector of feminist scholarship has analysed the
role of “governance feminism” in expanding carcerality through campaigns for harsher penal
laws, particularly in trafficking, prostitution, and wartime rape (Bernstein, 2007; Bernstein,
2012; Halley, Kotiswaran, Shamir, & Thomas, 2006; Halley, 2008). “Carceral feminism” is said
to stem from a structuralist understanding of gender violence as sexual domination which
overshadows concerns with social inequality. However, Ecuador and other Latin American
countries have undergone processes of political and legal reform which are generally
regarded as redistributive and averse to neoliberalism (Grugel & Riggirozzi, 2012; Ospina,
2009; Radcliffe, 2012). Ecuador’s 2008 Constitution has been framed as both post-neoliberal
and decolonial. This has not stopped penality from thriving; instead, some analyses show that
incarceration is on the rise (Sozzo, 2015). Likewise, the Penal Code of 2014 created new
criminal offences, including forms of violence against women whose criminalisation was
promoted by many feminists. These paradoxes demand further examination of the conditions
that allow penality to thrive in allegedly post-neoliberal scenarios and how feminist
campaigns relate to penality in non-Anglo-American contexts. “Governance feminism” is not
always useful to look at transforming sites where feminists are only able to negotiate legal
reform sporadically. Based on fieldwork carried out in Ecuador, this paper argues that
penalisation has come to be conflated with the protection of women’s rights, and that such
association, which is a constant amongst feminist networks, has not been interrogated but
rather reaffirmed through Ecuador’s post-neoliberal turn. This shows the complexity of
“apolitical” rights-based discourses as fields of intelligibility that channel emancipatory
demands, often acquiring a penal orientation even outside neoliberal agendas or deliberately
carceral projects.
Gay Governance: A Queer Critique
Aeyal Gross, Tel-Aviv University - [email protected]
In 2009 the US Congress passed a statute that expanded the federal hate crime law to include
crimes motivated by the victim’s gender, sexual orientation or gender identity. While this was
heralded as a victory for LGBT rights, some queer groups expressed reservation to this
legislation, arguing that the harsher prison sentences accorded to hate crimes, mean that the
statute will increase the power of the prison system, in which trans people, people of color
and poor people, are disproportionally incarcerated. Hate crime legislation may be seen as a
version of “gay governance” in this case criticized by queer activists. But it is not the only
example. The involvement of the Israeli government and Tel Aviv municipality in gay pride
and in a gay tourism campaign, were described by many as “pinkwashing” – the use of gay
rights as propaganda for Israel, aimed at diverting attention from the occupation of the
Palestinians. In 2013, after the legislation for same sex marriage passed in the UK, Prime
Minister Cameron said he wanted to export gay marriage around the world as part of the
“global race” where the UK should export more and sell more. But in recent years it has been
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argued that the growing legislation and violence against homosexuality in Africa, is partly a
backlash to the sights of same sex marriage being recognized in various countries and the fear
of such demands being made locally, not to mention exported globally. These stories point
to the complexity of what happens when homosexuality shifts from being a phenomenon
persecuted or at least marginalized by states, to one that is incorporated into the state or the
municipality. Can we than talk of “gay governance”? What can the queer critique offer? This
paper will examine these questions and consider how gay governance is similar to
“governance feminism”.
Panel 2
Chair: Sarah Keenan
‘Governance Feminism’ and the Neoliberal Academy
Katie Cruz, University of Bristol - [email protected]
Yvette Russell, University of Bristol - [email protected]
‘Which state legislatures are under feminist control? How many public universities have a
noticeably pro-feminist leadership and agenda, and which ones are they? And are they
hiring?’6
This paper seeks to subject the claims of the critics of so-called ‘governance feminism’ (CGF)
to the same critical scrutiny they purport to subject feminist scholarship. First, it traces a link
between the market-based logic of the neoliberal university and the take up of CGF studies.
CGF scholars seek to both generate a ‘entirely new framework of thought’ through which to
characterize the research and activism of feminist scholars, but they do this primarily by
reference to tools and methods characteristic of neoliberalism. It argues that paradoxically,
given its supposed aims, CGF scholarship is itself underpinned by neoliberal rationality.
Second, this paper traces how CGF scholars’ call for a more ‘materialist’ feminist approach in
research and activism is de-linked from the rich history and present of materialist, including
Socialist, Marxist and political economy, feminisms. These feminisms, however, are
mischaracterized, reduced and idealized in the CFG narrative. It concludes with a call for
feminist scholars to continue to oppose rather than capitulate to the demands and rationale
of the neoliberal academy and for continued intellectual honesty and critical rigour in our
social justice projects.
International Criminal Law, Gender and Governance Feminism: An Examination of Halley’s
‘Rape at Rome’
Valerie Oosterveld, University of Western Ontario - [email protected]
In 2009, Janet Halley published ‘Rape at Rome: Feminist Interventions in the Criminalization
of Sex-Related Violence in Positive Criminal Law’. In this article, she posited that the changes
6
Ann Bartow, ‘Janet E. Halley, Split Decisions: How and Why to Take a Break from Feminism’ (Princeton
University Press, 2006).’ Windsor YB Access Just. 26 (2008): 391, 395.
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in international humanitarian and criminal law implemented in the 1990s in relation to gender
issues were the result of an evolving, but relatively unified, feminist universalism centered
around the conception of a global war against women. She raises a number of concerns about
what this means for feminist understandings of conflict and justice, including the exclusion of
violations against men. In my paper, I will argue that the reality behind the story outlined by
Halley was more complex, more nuanced and less universalist (and structuralist) than she
describes. I do so as a feminist scholar working in the field of international criminal law, and
also as an individual deeply involved in the specific processes critiqued by Halley. I will
question Halley’s ‘feminist universalism’ categorization through two examples: the
categorization of sexual and gender-based crimes in the Rome Statute of the International
Criminal Court, and the negotiation of the victim-centered procedural provisions in that
Statute. That said, certain of Halley’s concerns do resonate, including those related to
unintended consequences. I will use the example of Canada’s importation of the Rome
Statute’s rape provisions into its Crimes Against Humanity and War Crimes Act in 2000. This
adoption is potentially at odds with successful feminist efforts of the 1980s to remove the
legal term ‘rape’ from the Criminal Code in favour of the broader category of ‘sexual assault’.
I will end by comparing Halley’s concerns with the application of the gender-focused
provisions of the Rome Statute to date.
Medea and the Tragedy of the Stranger: Feminist turning points
Nayeli Urquiza, University of Kent - [email protected]
This paper fleshes out the turning point where feminist notions of justice were rendered
unintelligible and impossible to include within law, represented by the effacement of the
goddess Metis in Greek mythology, which is also the event out of which Athena was born.
According to the myth, the Metis was swallowed by Zeus, who felt threatened by her power
and that of her unborn child (Athena). Metis died in Zeus’ mind while Athena was born from
Zeus’ head; however, the Metis lives obliquely in the myth of Medea. In this paper, I propose
reading the tragedy of Medea as an allegory of the effects arising out of the estrangement of
the feminine in ancient thought, represented by the Metis, that reverberates in legal theory
today. Said otherwise, in the face of dispossession and exile, Medea’s mourning allegorizes
the exclusions of a specific feminine justice. Through a rejoinder between Adriana Cavarero’s
vocal philosophy and Judith Butler’s performative approach to vulnerability, I will explain how
Medea’s mourning is not simply unintelligible rage and grief. Instead, her lamentation is
directed at the hostile hospitality of the law towards femininity, best represented by the
social orderings that endow masculine legal subjects with specific attributes highly valued in
liberal legal tradition, such as the ability to own property or to be heard only when one speaks
clearly through reason.
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Panel 3
Chair: Katie Cruz
Sex/Gender is Fluid: What Now For Feminist Engagements with International Human
Rights?
Kathryn Mcneilly, Queen’s University Belfast - [email protected]
During the 1980s and 1990s much feminist activism and scholarship worked hard to insist that
‘Women’s Rights Are Human Rights’ and challenge the earlier masculinist logic underpinning
rights. This work marked a significant turning point in relation to feminist engagement with
the discourse and practice of human rights. However, towards the end of the ‘Women’s Rights
Are Human Rights’ era an equally important turning point took place in feminist and queer
theorising more generally; the deconstruction of sex/gender and of the binary of male/female
and asymmetry of male>female within heteronormativity. This troubling of sex/gender has
indeed stimulated a critical reassessment of the ‘Women’s Rights Are Human Rights’
campaign, critiquing how such feminist work served to unconsciously reinforce binarised and
asymmetrical sex. How can feminist work on rights proceed after this critique? It has been
suggested that sex/gender be foregrounded as fluid and non-binarised and coalitional work
between feminists and queer activists be undertaken in order to work towards engagements
with human rights which more effectively respond to the myriad of ways of living and being
sexed/gendered. In this paper I assert that it is not possible to continue the feminist project
on human rights by changing our conception of gender alone. Rather, the way in which
feminist work perceives human rights, their underpinnings and their potential usages must
change too. A critical and queer understanding of gender must be accompanied by a critical
and queer understanding of rights beyond liberalism which fundamentally grasps human
rights as also fluid, non-binarised and unfinished. This possibility is demonstrated via the
concept of a right to gender flourishing which I outline as one way of troubling both gender
and rights in feminist work.
On Gender and Justice: Interrogating Equality, Difference and Discrimination
Marjo Rantala, University of Helsinki - [email protected]
Tiia Sudenkaarn, University of Turku - [email protected]
Gender and gender difference are critically present, actively configured and reconfigured in
legal discourses. Feminist philosophy of law has commendably discussed gender difference
between women and men, crucially revealing how her jurisprudential position is often
detrimentally different from his. This seemingly unproblematic male-female dichotomy per
se, however, remains uninterrupted. Its effects grossly exceed debates on e.g. salary equality
or childcare arrangements (even though important on their own right). Most brutally, this
dichotomy is forced upon whose very embodiment is non-compliant to it, such as intersex
people who are subjected to severe body mutilation as infants for mandatory sex affirmation,
or trans people stipulated by law to undergo sterilization. Both of these practices are currently
enforced in Finland, a Nordic welfare state with a progressive human rights agenda. From
our viewpoint combing feminist metaphysics and moral theory with Gender and Law work on
anti-discrimination jurisprudence, we urge the concept of gender discrimination to be revised
and expanded. We argue that among others currently excluded issues, several of trans and
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intersex practices should be perceived as gender discrimination. Anti-discrimination
legislation established in Finland, in the European Union and by the European Court of Human
Rights builds upon the Aristotelian tradition that justice is served when those deemed similar
based on shared qualities are treated equal; when like cases are treated as like. In terms of
gender, who should be similar to whom; to what notion of gender should the courts compare
trans and intersex? What is cisgender? Is cisgender a necessary condition for equality and
justice? How does ’raw’ or ’just’ gender relate to norms and normativity? How to facilitate
this approach with intersectionalism, acknowledging several causes and effects of
discrimination simultaneously? How to achieve justice sensitive to difference without
eradicating equality? We suggest redefining justice and other key concepts in the tradition of
feminist metaphysics and moral theory.
The legal recognition of same-sex couples as a political demand: Biopolitical classifications
and the aporia of the “married” subject
Athina Papanagiotou, Panteion University of Social and Political Sciences [email protected]
Legal recognition of same-sex couples forms one of the most topical questions
internationally for LGBTQI+ movements and the relative theory. Legal recognition consists,
for a part of the movement, in a political, emancipatory claim which seeks to ensure a safe
legal ground, where the partners will enjoy visibility and rights comparable to those
provided to heterosexual married couples. However, the historicization of partnership
recognition, and more specifically of the institution of marriage, emerges its links to
exclusion and the biopolitical classification of desire and pleasure. My study indicates the
aporetic tensions between the political demand of recognition -as a radical one- and the
context (historical, political and social) that matters the institution of marriage. Which
subject is re-produced under a legal institution of recognized partnership and what story
about partnership does the institution tell? In other words, how does legal recognition form
the “married” subject and which are the consequences and the abjects of this formation?
From this position, I will question the potentiality of institutions such as the civil partnership
to unsettle gendered binaries or/and reproduce exclusions, by signifying specific gender,
sexual and relational expressions as imaginable or unimaginable. The study will not attempt
to respond to the dilemmatic question "for or against" the legal recognition, but to
complicate it in terms of a Derridean aporia of justice. The questioning could become a
point of reflection on understanding law, not “simply” as the juridical class of state power,
but also as an effective apparatus of subjectification or/and a potential tool of making
emancipatory claims.
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Panel 4
Chair: TBC
Killed because she is a woman – so what? Law´s (lacking) response to femicides
Marjo Rantala, University of Helsinki
This paper discusses the conceptualization of intimate partner femicides, that is, intimate
partner homicides with female victims and male perpetrators. The term of femicides is used
to explore different approaches of (criminal) law to gender, as femicides manifest one of the
most extreme forms of structural gender hierarchy and oppression of women. An
international systematic review published in 2013, studying an overall number of nearly
500.000 homicides, concluded that if a woman dies as a victim of a homicide, she has most
probably been killed by her former or current partner. The probability was highest in high
income countries.7 On the other hand, since the 1990s, both the UN human rights treaty
bodies and the European Court of Human Rights have been developing doctrine of due
diligence with regard to violence against women. States have been found liable for sex
discrimination in cases where public authorities have not made every effort to prevent the
killings of women. By the adoption of the Council of Europe Convention on Preventing and
Combatting Violence against Women and Domestic Violence (the Istanbul Convention) in
2011, the principle of State responsibility has now been explicitly incorporated into a human
rights convention text. Furthermore, the UN Special Rapporteur on Violence against Women
dedicated her annual thematic report to femicides in 2012, referring to ‘gender-related
killings of women’, calling for action. Notwithstanding, somewhat surprisingly, intimate
partner femicides have not been vastly studied by legal scholars nor specifically addressed by
European institutions when measuring and assessing gender equality and human rights. It is
asked, how Europe is responding to address femicides. How the gendered nature of domestic
violence in general, and of intimate partner homicides in particular, is and should be
addressed in law?
The Gendered-Nature of Criminal Law Defences: An African Historical Perspective
Caroline Smart, University of the Western Cape - [email protected]
Legal systems made and compiled by men are draconian in that it continuously refuse to
appreciate the reality of the lives of women who are driven by fear or despair to kill their
abusive spouses in non-confrontational killings. Domestic abuse is in itself is gendered
natured. The power of men who abuse women and the effects of the abuse disappear in the
face of apparently neutrally applied legal rules because the embodied gender is rendered
invisible. Hence, the actions of women who kill in non-confrontational situations are
considered as vengeance and unreasonable. Their actions are categorised as either bad or
mad and the criminal law defences, not grafted with the female in mind has shown itself
unwilling to excuse or exonerate their behaviour. They are judged by an inappropriate male
yardstick. When relying upon these draconian criminal law defences they do so with little or
virtually no success. These defences are currently applied and understood in the context of
7
Stöckl, Heidi –Devries, Karen – Rotstein, Alexandra –Abrahams, Naeemah – Campbell, Jacquelyn – Watts,
Charlotte – Garcia Moreno, Claudia: The global prevalence of intimate partner homicide: a systematic review.
Lancet 2013; http://dx.doi.org/10.1016/S0140-6736(13)61030-22013.
139
masculine social norms and do not speak the language of women. In order to fully engage
with, and critique the historical exclusion of women’s perspective from criminal law defences,
this study considers the origins of existing conventional defences available to abused women
and evaluates the existing gender bias within these defences. This study is expected to
suggest that these draconian criminal law defences cannot be adapted to accommodate
women, not to afford abused women “a licence to kill”, but attempt to develop an alternative
legal framework in which the values and norms recognises abused women’s reactions as
reasonable in the light of the African abused woman’s social context.
Gender Equality and the IPC: The Judicial Response
Sanskriti Singh, Indian Institute of Technology Kharagpur - [email protected]
Women in India are discriminated from the very inception of birth through female infanticide.
Even before birth, female feticide and sex selective abortion, battering during pregnancy,
coerced pregnancy etc are very common in a country like India. But in recent times, it has
been argued by many that certain provisions of Indian Penal Code are gender bias in nature
and it has left a lot of scope for misuse. The law of Adultery has been challenged on the ground
that it is discriminatory and unconstitutional. Woman who involves herself in an adulterous
relationship either through consent or active involvement should not be left out from the
arena of the law. It is also argued that the way Sec-498A has been formulated has left a lot of
loopholes for exploitation and abuse. According to me, Adultery should not be dealt under
the Penal Law any more. Rather, civil remedies should be made available against the offence
of adultery. It is already dealt as a ground for divorce. Along with that, the spouse involved in
the act should be made liable to pay heavy compensation. Similarly, the provision relating to
Cruelty should be amended so as to put a heavy fine upon the wife who brings false
allegations against her husband and in-laws. If the section is amended in such a manner that
the offence is made bailable, then it would not stop the abuse of the law. Women who are in
actual need of protection under this provision shall be deprived from justice. In a country like
India, there exists a probable fear that the police officials might get easily manipulated and
frame the case in a way so as to make it bailable. However, the section can be made
compoundable so that there exists a chance of conciliation.
Feminist Turning Point of Nepal
Renuka Devi Sitaula, Norvic International Hospital Kathmandu - [email protected]
It is the age of empowerment of women and the promotion of gender equality in all sectors
of society. It has been included in the Constitution of Nepal 1992 and more comprehensively
in the recently promulgated constitution of 2015 .There are also further provisions like the
inclusion of women up to 35 percent as candidates for the periodic election . The results of
the new Constitution can be describe as the election of the women president Miss Bidhya
Bhandari , The Chairman of the house of representatives Miss Onsari Gharti Magar and Miss
Susila Karki as the Chief Justice of the Supreme Court of Nepal .
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11. OCCUPATION
REPRESENTATION
&
THE
DAY
AFTER:
PROTEST,
PREFIGURATION,
Stream organisers: Simon Thorpe (Warwick) and Illan rua Wall (Warwick)
The stream calls for papers which address questions raised by the recent occupations of
squares and parks. From Puerto del Sol to Syntagma Square to Zucotti Park and far beyond,
each occupation presented a polyphonic platform, always pulled taut, and occasionally torn
apart by the multiplicity of politics, strategies and demands at play. Can we usefully typologise
the plural politics of the square, or does it defy identification? Tensions have been said to
exist in binary, e.g. horizontality/verticality, autonomy/hegemony, anti-representation/alterrepresentation; as well as in ternary, e.g. anti-power/constituent power/counter-hegemonic
power, or anarchism/communism/socialism. Do these contrasting frameworks antagonise or
complement each other? Or are they false oppositions, obscuring too much common ground?
The prefigurative turn in radical political strategy seems to infuse all of them in different ways,
but is that to stretch prefiguration to breaking point? Perhaps the plural politics expressed in
the squares is a new fact of multitudinous political life, or perhaps politics is still a matter of
choosing and consolidating, building chains of equivalence allowing a different type of
representation. In either case the constitution of radical politics raises a crucial point of
negotiation: what form of constitutionalism is prefigurative politics prefiguring, or is it
rightfully anti-constitutional? The return of the party then, under the shadow of the square,
seems to determine new trajectories while also further confusing political distinctions.
Prefigurative organising folds into state populism, institutionalising itself while subverting its
own institutionalisation, constituting itself while exceeding the bounds of constitutionalism.
In the days after the occupation – in the parties, the citizens’ platforms, the municipal
governments and the extant local assemblies – what is left, and what is to come?
Panel 1: Constitutionalism beyond Representation
Chair: Illan Wall
Anarchism and Republicanism
Ruth Kinna, Loughborough - [email protected]
Alex Prichard, Exeter - [email protected]
This paper draws on a neglected history of anarchist ideas to develop a critique of
contemporary anarchist theory. Inspired by contemporary protest movements,
contemporary anarchist theorists (Uri Gordon, Saul Newman) elide domination with power,
finding the key to freedom as non-domination in empowerment and in direct or consensus
accounts of democracy.
While these contemporary accounts provide important insights into the nature of structural
domination, the underlying conception of domination points to an understanding of freedom
that fits Berlin's positive conception of liberty. Lost within it is the possibility that one might
exercise one’s will yet remain dominated, subject to the mastery of others.
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We develop an anarchist account of freedom as non-domination which has its roots in a
nineteenth century engagement with republicanism in order to examine the potential to
develop an idea of anarchy as a constitutional principle.
Drawing on P-J Proudhon's critique of property we show that the slavery that republicans of
all stripes decry is rooted in a right to ownership that cannot be universalised. Further,
questioning the red republican defence of the state as the political instrument necessary to
overcome the slavery of the labour contract, we argue that the state is also structurally
dominating. In the second part of the paper we recover the anarchists’ historical sociology of
the state to give a second account of structural domination: the role of the state in upholding
the institution of private property through the monopoly of violence. In the final, constructive
part of the paper we return to contemporary anarchist critiques of domination and set out
the groundwork for an anarchist approach to constitutionalising.
Negri beyond Negri: Constituting the Constituent Process
Simon Thorpe, University of Warwick - [email protected]
Antonio Negri describes constituent power as the permanent crisis of constitutionalism,
which should be kept open and made unlimited in a prefigurative process of infinite
becoming. It is a revolutionary moment that must be continued and, in an apparent paradox,
governed and institutionalised through an ongoing constituent process. But what is a
constituent process? More specifically, how can an infinite process of becoming and
insurrection be constituted? Is not institution the enemy of insurrection? Is not constitution
the enemy of becoming? Negri’s writing is infamously abstruse and ambiguous, making the
answer to this question far from obvious. Yet the questions he asks are crucial to
contemporary radical social movements, and thus so too are the respective answers.
Therefore, this paper will first present an analysis of Negri’s writing that systematises the
primary concrete constitutional principles that would constitute a Negrian constituent
process, under two core meta-principles: anti-representational direct democracy, and the
constitution of becoming. Through analysing the theoretical difficulties presented by the
latter, I will argue that, to ape the title of Negri’s book on Marx’s Grundrisse, a Negrian
constituent process requires a theory of power beyond the reductive binary of constituent
versus constituted power: it requires a Negri beyond Negri.
Reconceptualising representation: Schmitt and Derrida
Jacques de Ville, University of the Western Cape, South Africa [email protected]
Political representation, a consequence of the modern state, is today said to be in crisis,
specifically the representation offered by mainstream political parties. Representative state
institutions in general are likewise under scrutiny. Commentators point in this regard to the
low turnout for many elections, the declining membership of political parties, the general
distrust in politicians, and the declining interest in mainstream politics. Those who participate
in recently formed movements no longer want to be ‘represented’, but to directly act
themselves. The calls for an end to representation have been explained with reference to the
perception of a by-and-large decadent and self-serving political class, the accompanying
142
resistance to being represented by this class, as well as the effects of neo-liberalism. The latter
has led to gross inequality and concentrations of wealth, and is characterised by a suspiciously
close relationship between political representation and capitalist interests. Because of
‘globalisation’, structural changes are furthermore taking place in the nature of modern
society, specifically a movement away from fixed collective identities towards a more
complex mix of (non-)identities as well as towards individualisation (see Simon Tormey The
End of Representative Politics (Polity 2015)).
Schmitt’s reflections on representation and identity in texts such as Constitutional Theory
(1928) and Roman Catholicism and Political Form (1923), although written in a different
context and with different concerns in mind, can be read as offering at least a partial
response, more specifically a conceptual response, to the present ‘crisis’ of political
representation. In Constitutional Theory Schmitt contends that the identity of a people is
dependent on representation so that there is no real possibility of escape. Different from
what is sometimes contended, Schmitt fully appreciates the lack of purity and inevitable
interrelatedness of these two principles as manifested in every state form. The paper will
point to a reconceptualisation as well as a certain radicalisation by Schmitt of the notion of
representation in Roman Catholicism. Representation for Schmitt does not simply reproduce,
but enhances, and does not draw its strength in this regard from the represented, but from
what Derrida refers to as the un-representable. The implications of this reconceptualisation
of representation for constituent power as well as for constituted powers will be explored in
the paper.
Panel 2: Subjective Politics After the Occupation
Chair: Simon Thorpe
Experimenting, nothing but experimenting: mapping the (im)possibilities of political
ruptures.
Leticia da Costa Paes, Birkbeck College, University of London, Law and Humanities
Department - [email protected]
2013 was a year of intense protests in Brazil: thousands of people occupied the streets,
questioning the political system, general living conditions and the repressive policies carried
out by the local and federal governments. Besides the police violence, the streets were
continuously and intensively occupied by popular forces and popular meetings. In October
2014 general elections were held. The hope was that all the protests and claims for rights that
rocked Brazil could be reflected and resonated during the elections. It did, but for the worse.
The results of the elections have formed the most conservative and sexist Parliament
composition post-dictatorship. In 2015 and 2016 the streets were occupied by a crowd
composed predominantly by white people and the middle class demanding the impeachment
of the President, Dilma. In a completely different scenario from the demonstrations of 2013,
this time no claims for rights were brought. Unfortunately, 367 congress legislators voted for
the impeachment proceedings against Dilma. In May, Brazil awoke to a new interim President,
who immediately changed the government composition, ignoring all the diversity of Brazilian
society. Considering the context, quickly described, it is easy to realize the movement that
goes from intense resistance and occupations to a current scenario in which the social conflict
143
is captured and the city is vacated of political dimension. We can find similar experiences
around the world, considering the particularities of each locality and historical context. My
main purpose is to investigate the conditions, if any, for a political rupture at a time when the
production of subjectivity constitutes the most fundamental of capitalist concerns. Are the
occupations sufficient to change our political subjectivity? How might we produce our
subjectivity differently? What are we capable of becoming? What can rights do in the face of
such contexts? My intention is not to give a correct answer to these questions but rather to
provoke reflections and highlight these concerns within legal and social studies, taking a
critical perspective. I am mainly interested in the relations between law and politics,
considering the political context in which we find ourselves. The purpose is also to explore
the practices and theories that renounce every political discourse that insists in maintaining
the current values of the status quo.
Looking for Love in All the Wrong Places: Thinking after Squares and Parks or from Pubs and
Working Men’s Clubs?
Jayan Nayar, School of Law, University of Warwick - [email protected]
The ‘(non-)working classes’: this amorphous, generalised collectivity of disobedience – in all
their democratic glory or their bigoted stupidity, depending on your point of view – emerged
as the critical determinant of the Brexit referendum. And yet ‘they’ seldom find mention in
critical theory, save in some generalised allusion to precarity, to exclusion, to bare life, the
point of departure from which to think. I am intrigued by this apparent dual presence and
absence of this recalcitrant configuration of the constituted; they serve thought, yet appear
seldom within it; they provide the apparent rationale for progressive imaginations of
‘prefigurative’ politics but appear to have resoundingly turned against such aspirations. And
so my question: as critical theory contemplates the extra-ordinary event ‘prefigured’ as it
were by the ‘Occupation’ of parks and squares, streets and critical theory conferences, how
do we account for the so-thought-of ‘uncounted’ when ‘they’ assert their (inconvenient,
perhaps unacceptable) disobedience of being in the world, thought out of the theoretically
abandoned, economically decimated, socially sneered at locales of pubs, working men’s
clubs, job centres, football terraces etc? I wonder if in the efforts towards so much
‘prefigurative becomings’, we critical thinkers have unoccupied, abandoned, ignored the
many configured places of the materiality of being. To recover, and to re-member socialities
of being otherwise than the (abandoned-)atomised-aspirational-consumer-subject, to
reclaim futures from impossibility, therefore, less perhaps the reification of evental
occupations and more a necessary return and reoccupation of precisely the messy worlds of
inconvenient and unpalatable ordinariness wherein lies the hard matter of social
transformation.
Under the Sight of Justice
Ceylan Begüm YILDIZ, School of Law (PhD), Birkbeck College, University of London [email protected]
Berkin Elvan was struck down by police canisters during the 2013 uprising, known as the Gezi
uprising, in Turkey. Elvan died after being in a coma for 269 days. Although an investigation
144
has been undertaken for more than two years, the case has not been brought to the courts
yet. The Revolutionary People’s Liberation Party-Front, an armed leftist organisation which is
recognised as a terrorist organisation by the Turkish state, laid claim to the legacy of Berkin
Elvan. In May 2015, Party-Front members held hostage the prosecutor in charge of Berkin
Elvan’s case in a courthouse in Istanbul. They asked for Elvan's murderer's names to be
released publicly in order to prosecute them in people’s courts which would be established
by them, or else they would kill – or in their words 'punish' – the prosecutor, and die fighting.
While the negotiations were still taking place, Special Forces undertook an operation which
ended in death. The Party-Front members were executed. While the ending of their bare lives
counted as neither murder nor sacrifice, the prosecutor was named a martyr. In this paper, I
focus on the crises of representation, justice and rule of law through unpacking the imagery
presented by opposing parties. Among weapons to carry out the action, the Party-Front
members smuggled in their flag and a poster of Berkin Elvan which served as a background
image to the video statement in which their demands were listed while pointing a gun to the
prosecutor’s head. Some days later, a funeral ceremony took place in the same courthouse.
The prosecutor’s coffin, wrapped in a Turkish flag, was placed in between two gigantic Themis
statues inside the courthouse. Through these contesting images, this paper will analyse the
sovereign’s monopoly on law and justice. Then, I will explore the Party-Front’s counter claim
of justice. Finally, through drawing on the works of Judith Butler, Michel Foucault and Jacques
Derrida, I will discuss the interplay between two opposing justice claims.
Panel 3: (Dis)order and (In)justice in Atmospheres of Protest
Chair: Andreas Kotsakis
The Long Range Acoustic Device and the Jurisprudence of Sonic Violence
James Parker, Melbourne Law School - [email protected]
The Long Range Acoustic Device (LRAD), its manufacturers claim, is a ‘high-intensity
directional acoustic hailer designed for long-range communication and issuing powerful
warning tones’. Its detractors, by contrast, call it a weapon: a ‘sonic canon’ perfectly capable
of causing permanent hearing damage in seconds if you find yourself sufficiently close. The
device was first developed in the US at the turn of the century in the wake of the attacks on
the USS Cole and the fall of the twin towers. Today it is used by military and police forces in
cities around the world as a mode of embodying and projecting sovereign authority and, in
some instances, enacting sonic violence. LRADs can be found today everywhere from the
streets of Baghdad and Kabul, to Brisbane and London. In 2014, they were used to disperse
protestors in Ferguson, Missouri, following the police shooting of Michael Brown, and again
by the NYPD following the killing of Eric Garner later that year. A lawsuit has been filed by five
protestors present that day. This is not the first time the device has found itself in court.
How should we understand the LRAD as a matter of jurisprudence? And how does its use
affect the practice and atmospherics of protest? This paper argues that the LRAD not only
came into being by and through law, it has introduced new forms of both legal and acoustic
relations, some of which are, politically speaking, deeply sinister. The LRAD is important in its
own right therefore. But it also serves as a model for thinking through some of the ways in
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which, together, law and sound are mutually implicated in the production and destruction of
contemporary life.
Atmotechnics: Policing Crowds in Occupation
Illan rua Wall, School of Law, University of Warwick - [email protected]
At the Battle of Orgreave, before wading into the assembled miners the police began to
rhythmically beat their truncheons against their shields. The sound was intense and
menacing. Subsequent accounts describe it as a valorising action, generating an atmospheric
bubble where the police became aware of their collective strength as a single unified entity.
The paper investigates the use of atmospheres by police in response to crowds, developing
the term ‘atmo-technics’ to describe the attempts to produce collective affect. In so doing,
the colonial nature of such tactics becomes evident.
The Disabled People’s Protest: the counter-conduct of the benefit scroungers? A
Foucauldian perspective on disability resistance in the context of a welfare reform
Ivanka Antova, Queen’s University Belfast - [email protected]
We are living in tumultuous times. Austerity, the ongoing welfare reform in the United
Kingdom and various insurgencies of the marginalised have led to a moment of crisis for the
status-quo and an opportunity to discuss resistance from a variety of perspectives. This paper
focuses on disability resistance in the context of a welfare reform; a reform defined as a
complex social control mechanism aimed at transforming deviance into responsible and
productive citizenship. The reform policies adopted by the Coalition Government between
2010 and 2015 constructed and re-enforced the disabled deviant identity: either a deliberate
social criminal (the ‘scrounger’), or a tragic victim of institutional dependency. In 2010 the
deviants revolted: disabled people led a mass protest against austerity in Birmingham, known
as the Disabled People’s Protest, and demanded not charity, but a strong socio-economic
rights framework. Further protests followed, including an occupation of the House of
Commons by disabled activists in 2015. These examples of insurgency are more complex than
immediate responses to an unfair governance of public funds and its discriminatory effect. A
Foucauldian approach to the reform policies as tactics of governmentality opens up the
possibility for discussing these actions as part of a resistance to being governed in a particular
way, thus mapping the counter-conduct of the disabled deviants. This paper discusses the
Disabled People’s Protest as one key example of disability counter-conduct, or the rejection
of being governed either as a passive recipient of benefits, or as an active social criminal. The
transformative effect of the policies as tactics of governmentality is also being resisted
through political narratives that challenge the medical-only truth on disability that the policies
construct; and through theoretically disconnecting citizenship and perceived responsible
behaviour.
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12. ON THE LEGAL PRODUCTION OF THE (NEW) COMMONS: LAW AS A LIVING
PRACTICE
Stream organisers: Riccardo Baldissone and Vito De Lucia
In a world pervaded by the repetition of neoliberal patterns, and in a European context where
law is increasingly deployed as a technical tool for the enactment of austerity measures and
the precarization of labour and life itself, this stream intends to explore law as a productive
radical practice. Whilst law is traditionally considered by critical theorists as an instrument of
oppression - and legal critique is often primarily understood as a mode of revealing the
architecture of this oppression - we wish to ask: can law become a radical practice and how?
If bodies bear the marks of law in multiple ways, can bodies re-claim law with/through their
practices? Can law become, as it has been suggested, an insurgent practice, that is, a literally
embodied instance of that insurrection of knowledges Foucault considers crucial for critique?
As a starting point, we would like to focus on the experiences of the new commons as they
unfold in Europe, and especially in Italy, both as beni comuni, common goods, and comune,
common. To be sure, law maintains its imbrication with biopower, and it is a privileged
instrument of oppression, as a key tool in the continuous re-negotiation of hegemony. And
yet, the engagement with law of the claimants of the new commons is at once strategic and
ambivalent: as the activists of the occupied Roman theatre Valle put it, “we use law when it
proves useful; we break the law when it prevents the realization of a more just common life.”
This means a new understanding of law as a living law - that is, a law that remains alive and
is animated by the practices of living bodies. In other words, these activists reclaim law itself
as a commons through their radical practices of legal production. Here, to be sure, we are not
referring to law as a mere tool of emancipation as in the liberal and socialist traditions, but as
an explicitly acknowledged subjectivating power. This acknowledgement exceeds the
categories and the epistemic imaginary of modernities, and whilst it re-claims, as in the critical
tradition, a thoroughly political function of law, it opens toward a radical practice of law here
and now. Of course, we conceive of this political function not as necessarily confined within
the politics of representative democracy, nor within the perspective of a new
constitutionalism (despite the strategic engagement of the practices of the commons with
existing Constitutions), contexts within which law is alternately neutralized through its
encryption, its spectacularization and its technicization.
Panel 1
Chair: Vito De Lucia
Of Commons, Heterolegalities and Alter-Temporalities
Vito De Lucia, Arctic University of Norway - [email protected]
Foucault’s engagement with space is mostly associated with his concept of heterotopias. As
places of otherness that do not abide to the prevailing hegemony, heterotopias seem to
capture perfectly the mechanics and aspirations of the practices of the commons. The
materiality of places and the social and cognitive practices of commoners combine to effect
transversal openings in the hegemonic topography of law. These openings, these
opportunities function simultaneously dentro e contro (that is, inside and against) the
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hegemonic structures, but also, and crucially, in a transversal space that is neither entirely
inside, nor entirely outside. The practices of the commons can be in this respect described as
a rhizomatic ensemble of heterolegalities (giving to the Foucauldian notion of heterotopias a
specific legal inflection) that coalesce into an insurgent legal topography. Moreover, these
heterolegalities, that is these places and practices of legal otherness, further suggest the need
to operate within novel alter-temporalities that function as insurgent chronographies. In this
paper I will try to describe these heterolegalities and these alter-temporalities, and to show
their role as re-embodying practices, that is, practices of re-emplacement of law.
The juridical production of reality: towards a theory of legal performativity
Riccardo Baldissone, Westminster University - [email protected]
Aristotle underscored the practical nature of positive law by linking it to the practices of lawmakers, judges and rulers as a kind of praxis, that is an activity that has its aim in itself: justice
was thus ‘the order of the political community.’ The transcendent order of juridical theology
then split justice into a natural and a legal one. The latter’s subordination to the natural order
was only overcome by modern conventional constructions of law. And yet, even with the
dismissal of natural law, the role of juridical interventions generally did not go beyond the
recovery of the Aristotelian ordering capacity of law (albeit more or less disjointed from a
world of necessity). On the contrary, juridical practices do not simply order reality within a
legal framework, but they have a major impact on the joint processes of subjectification (in
the sense of Foucault) and objectification. Hence, we may rather reconsider the category of
poiesis, which Aristotle reserved for material production, in order to characterize the effect
of juridical practices at large as the production of both their human and non-human objects.
We may translate this poietic capacity of law in contemporary terms with the notion of legal
performativity – in a similar sense to Austin’s performative utterances – which extends the
reach of legal normativity from rule-making to ontopoiesis. Whilst this extension always
already surreptitiously operated the formatting of realities, its acknowledgement would open
unprecedented perspectives of radical political intervention by legal means here and now.
Radical Sovereignty, Law’s Potential
Angus McDonald, Staffordshire University - [email protected]
The stream organisers propose Law as a productive radical practice; ask Can law become a
radical practice and how? They ask Can law become an insurgent practice, an insurrection of
knowledges crucial for critique? They add, “We conceive of this political function not as
necessarily confined within the politics of representative democracy, nor within the
perspective of a new constitutionalism, contexts within which law is alternately neutralized
through its encryption, its spectacularization and its technicization. We would rather suggest
exploring law’s excess, living law within and beyond constitutionalism.” What is the radical
potential of law? Is it part of the essence of law, an essence occluded bylaw’s actual
existence? Or is it some other matter, formalised by law but capable of in-surging beyond the
neutralisation not of law, but by law? Such is the hypothesis of encryption proposed by
Restrepo, the other matter being radical democracy. Law’s role in spectacularisation suggests,
alternatively, that the other matter is radical subjectivity, as proposed by Debord and the
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Situationists. If technicization is the force doing the neutralizing, perhaps the other matter is
radical justice. It could be, as a parallel proposal, that the excessive matter pushing law
beyond constitutionalism, a force capable of embodying a resistance to law’s neutralizing
programmes, combining the within and the beyond of law, might be best investigated under
the heading of radical sovereignty, a sovereignty radical in the sense of identifying the root of
sovereignty prior to its alienation into political theology (as in Feuerbach), a sovereignty, then,
recovered, not so much by the self as by the unique (as in Stirner).How this radical sovereignty
might relate to radical democracy, subjectivity and justice; how radical sovereignty might be
the insurgent, productive radical excess sought by this stream’s organisers will be the further
argument of this paper.
Panel 2
Chair: Margherita Pieraccini
We as the problem – has it already happened?
Kristina Cufar, European University Institute - [email protected]
The turning point we are witnessing is not a mere problem of here-now, it already happened,
it’s happening and will happen – the traditional tripartite conception of temporality is part of
its urgency. Law is always already a radical practice of production. For this reason, the
concepts of complete liberation or of complete state domination are/were never applicable
in any compartment of hegemonic understanding of time or law – these concepts are tricks
of institutionally organized knowledge. If the conventional (objectively valid) law is to be
(ab)used in the struggle for peaceful and joyful coexistence anticipated by the idea of
commons, we must take a closer look at this law and its becomings. Subjugating power is an
undeniable feature of law, yet, the complexity of the problem exceeds faceless markets or
powerful groupings ‘behind the law’. The mass of bodies and things producing law, as corrupt
and illegitimate as it might seem, urgently deserves attention. Law, as it is, depends on each
living body, on the gesture of sliding across a touchscreen, for example. Commons need
bodies, they need more than a formal juridical recognition – to evolve as the living law they
must be lived, believed: can commons reach enough fleshy bodies, enough likes, can they
excite? There are multiple radical practices, subverting and producing law conditioning them;
they pull into multiple directions, many of them frightening. The perpetual practices bringing
about a transformation are not exceptional moments, great victories or defeats, but constant
processes. The present turning point demands a critical engagement with our collective
participation in the practices we despise – which is harder than pointing at the evil other (like
state, market, fascism…). Instead of the search for a sovereign enemy, we must face our
shared responsibility.
Legal personhood – singular plural?
Susanna Lindroos-Hovinheimo, University of Helsinki - [email protected]
This research analyses the legal person in European law. The overall rationale of the project
is an awareness of the often invisible workings of law in relation to human beings. The law
builds on some understanding of what it means to be a human being, a person, or a subject,
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but it also influences definitions of personhood. As the human being is taking centre stage in
EU law, there is an increasing need for an inquiry into the foundations of our shared being in
law. The person of the law can be conceptualised in individualistic terms or intrinsically tied
to community. My research project focuses on the right to privacy and personal data
protection as exemplary areas of law, where both alternatives may be analysed. This paper,
however, concentrates on the work of Jean-Luc Nancy in an attempt to understand legal
personhood without a necessary connection to individuality. By accepting the singular plural
nature of the legal subject, the paper tries to rethink privacy and personal data regulation and
the legal person that comes with them. What seems to happen when privacy and personal
data protection are considered in this philosophical framework is a certain kind of confusion.
The person becomes both singular and plural. The paper considers what such personhood
could mean for law.
Panel 3
Chair: Riccardo Baldissone
Law's Imaginary Life on the Ground: Liberia and the Rule of Law
Shane Chalmers, Australian National University - [email protected]
This paper is concerned with “what takes place in the rule of law”, a question I consider here
through an examination of what is taking place in the process of instituting the rule of law in
post-war Liberia. This involves an empirical study of law, and as such, a study of law’s
imaginary life on the ground. My argument here is that all empirical research engages the
imagination, requiring the scholar to develop their capacity to study phenomena through the
imaginary rather than seek to eliminate it from their scholarship. I make this argument under
the influence of Theodor Adorno’s negative-dialectical philosophy, which bears most
pointedly on this paper through his concept of “exact imagination”—a concept that is
enlivened by the tension between reason and imagination, in a way that makes them critical
to each other and thus to research. This is an attempt to see law through the imaginary by
seeing how the national law of Liberia takes form as law through the many different ways in
which it diverges from its concept. This is about how the ungrounded situation of the national
law of Liberia—a situation that results from its being sea-borne to begin with—is what
grounds it as “the law of the land”, and how this is the condition of its rule.
Joining legal pluralism with legal consciousness in the study of Italian new commons
Margherita Pieraccini, University of Bristol - [email protected]
The paper presents some theoretical reflections on the relationship between legal
consciousness and legal pluralism, before concretising them in the context of Italian new
commons. Both legal consciousness and legal pluralism search for law beyond the state. The
former does so by engaging with everyday life and agency (individual understandings and
mobilization of law and legality), whilst the latter, in its more traditional positivist form, does
so by engaging with objects (a plurality of normative orders out there). If the analytical points
of departure of both schools differ, in time they have both experienced internal revisions and
certain openings between the schools are detectable. Exploring such openings may allow us
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to marry certain key insights of those schools, strengthening their analytical value for sociolegal studies. The paper uses the example of Italian new commons to test such analytical
framework. The commons movement in Italy has been revitalised in recent years, stepping
away from agrarian traditional common land and common property, and politicising the
concept of the commons through direct action (occupation of urban spaces such as the
Theatre Valle in Rome), through attempts at reforming the law to decouple ownership of
goods from their purposes (for example, Rodota’ Commission on civil code reform) and
through expansive legal readings drawing on constitutional norms (Court of Cassassion, case
n. 3665/2011 and its ). The ways in which we can make sense of such initiatives within a legal
pluralist/legal consciousness unified framework is the subject of this paper.
Politico-legal dynamics of global constitutionalism and the possibility of commons through
law
Ekaterina Yahyaoui Krivenko, National University of Ireland [email protected]
Global constitutionalism purports to create a common framework for orderly life at the global
level. The dominant approach to global constitutionalism is normative. The political dynamics
of global constitutionalism and the associated projects are usually disregarded or discussed
only marginally. I argue for the need to re-discover the link between law and politics in
discussions of global constitutionalism. Furthermore, I argue that examining seriously
underlying visions of the political is essential for the deeper understanding of the
consequences of various visions of global constitutionalism. Focusing on two different visions
of the political: that advocated by Carl Schmitt and the one proposed by Agamben in his
discussion of coming politics and coming community (Agamben’s diagnosis of the current
politics will not be touched upon) the presentation will illustrate this last point. Based on this
analysis it will be argued that Agamben’s vision of coming community and the related reimagination of politics helps us to re-imagine the idea of global constitutionalism. In this vision
that remains under-explored by Agamben himself we can discern elements of a radically new
role for law. In this vision of the new role for law, law becomes simply a tool, a toy and the
world will appear ‘as a good that absolutely cannot be appropriated or made juridical.’
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13. PARRHÊSIA AND THE LAW
Stream organisers: Samuli Hurri (Helskinki Collegium for Advanced Studies) and Kati
Nieminen (University of Helsinki)
The stream on parrhêsia and the law probes into Michel Foucault’s lectures on parrhêsia in
the 80s, considering also their relevance to critical legal analysis and contemporary society.
This ‘spidery kind of notion’, parrhêsia, has three basic meanings – ‘saying everything’, ‘telling
the truth’ and ‘free-spokenness’ – but it never seems to mean only one thing. Whereas the
element of arrogance was emphasised in the Byzantine religious context, the risks and the
courage involved defined an act of speaking as parrhêsia in classical Athenian politics.
Foucault’s entry to the theme went through Christian practices of the direction of the soul,
whose genealogy he investigated in The Hermeneutics of the Subject. But this genealogy
eventually led him to classical Greece. In The Government of Self and Others (GSO) and The
Courage of Truth, Foucault explored the political and philosophical period roughly from
Pericles to Diogenes the Cynic. What he staged in his lectures was the ‘Greek drama’ of the
foundation of truth-telling in the realm of politics.
In addition to all types of readings of Foucault’s lectures in the 80s, we invite papers and
performances considering the relevance of parrhêsia today. Foucault himself envisaged that
the Ancient dilemma of parrhêsia (“No democracy without true discourse, but democracy
threatens the very existence of true discourse”; GSO 184) may make also problems of modern
times perceptible. What kinds of viewpoints does parrhêsia offer for an analysis of
contemporary practices, structures and pathologies of speaking in public? To begin with,
papers analysing the problem of freedom of speech, its history and contemporary state, are
invited to participate. Instances of honest speech as courageous political action may be found
also in contemporary phenomena of whistleblowing and civil disobedience. For a longer time,
speaking one’s mind and living one’s truth have existed in the ways in which, e.g., gender and
sexuality have surfaced in the sphere of public discourses. Finally, phenomena such as hate
speech, trolling, and other forms of aggression appearing on the Internet, can be debated as
problems of parrhêsia.
Especially, we invite papers and talks considering the relevance of parrhêsia to the critical
analysis of the law and its speaking practices. One of the ancient types of parrhêsia Foucault
focused on was the ‘judicial parrhêsia’ that takes place in court proceedings. This was, more
generally, the discourse where the weak take the risk of reproaching the strong of their
injustice (GSO 133, 154). Re-visioning the law from this vantage point may provide, for critical
legal scholarship, a fresh possibility to reconstruct legal practice in the field of forces between
the weak’s resistance and the strong’s domination. Lastly, considerations of parrhêsia’s
critical relation to rhetoric, also legal rhetoric, are invited to participate. Like rhetorical
speech, also parrhêsia is about persuasion, but not by way of pleasing the audience, that is,
by way of resonating with what the audience wants to hear. On the contrary, parrhêsia’s
effectivity relies entirely on the weight of its truth, and this truth is characteristically very
uncomfortable to the listeners.
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Panel 1
Chair: Kati Nieminen
The mimesis of free speech: Reading Athenian parrhesia with/against Michel Foucault
Jan R. Stenger, University of Glasgow, Helsinki Collegium for Advanced Studies [email protected]
Parrhesia, the freedom of the citizen ‘to say everything’, was seen by the ancient Greeks as a
defining characteristic and sine qua non of democracy. Yet, paradoxically, texts from classical
Athens insist that free speech had ceased to exist in the democratic polis and that revealing
one’s true beliefs carried a big risk. These documents led the philosopher Michel Foucault to
postulate a crisis of parrhesia and, more generally, the impossibility of truth-telling in
democracy. In this paper, political speeches from fourth-century Athens will be examined in
order to demonstrate that, far from faithfully describing political conditions, the speakers
made strategic use of the concept of free speech in the struggle for political dominance. On
the one hand, the rhetorical mimesis of parrhesia was intended to show the orator, in contrast
to his rivals, to be the champion of true democracy. On the other hand, the provocative
reflection on democratic free speech resulted in the establishment of ethical criteria which a
truth-teller had to meet. I will argue that this shift in the discourse on parrhesia, while
presented as a defence of democracy, was in fact an attempt to limit the equal opportunity to
say everything in public.
Milton, Parrhesia, and Derrida's Force of Law
Louise Mabille, University of Hull - [email protected]
This paper considers John Milton, in particular the Milton of the Areopagitica from 1644, as a
parrheiastic writer. The paper departs from the position that reading Milton within the
context of the seventeenth-century revival of parrhesia does better justice to the complexity
of his ideas than the traditional interpretation of Milton as precursor to nineteenth-century
liberal defenders of freedom of speech like John Stuart Mill[1] and Oliver Wendell Holmes.[2]
Reading Milton as a seventeenth-century parrheiastes goes a long way towards explaining the
limitations he put on freedom of expression, the emphasis he placed on the duty to resist
tyranny and the tension that existed between his classical frame of reference and the ‘plain
speech' embraced by his faith. However, it will be demonstrated that as parrheiastes, Milton
found himself in a double bind similar to the signatories of the American Declaration of
Independence as argued by Jacques Derrida in Force of Law: implying by his action of engaging
in free speech the existence of a free space for which he is in fact arguing.
[1] John Stuart Mill, On Liberty, (New York: Holden Crowther, 2008), pp. 15-47.
[2] His defence of ‘free market of ideas’ occurs in Abrams v. United States, 250 U.S. 616, 630
(1919). See further, Thomas Healy, How Oliver Wendell Holmes Changed His Mind And
Changed Free Speech Forever in America, (New York: Metropolitan Books, 2014).
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Ethopoiesis and the law
Samuli Hurri, University of Helsinki - [email protected]
My topic is ethopoiesis, which is a Greek notion that broadly refers to the activity of selfmaking, especially through speech. So I will be moving in the field of ancient rhetoric.
However, in the background of my paper stands a larger research project as well. This is about
the effects of legal language on the moral constitution of individuals: What will happen, or
will have happened, in the speaker’s self, at the moment when he or she starts to argue about
rights and wrongs, duties and powers, and other such juridical matters? This problem of selfmaking through law may be related to Foucault’s discussion of judicial parrhêsia: the moral
spectacle of someone weak standing up to the strong, and speaking about the wrongs they
have have committed.
I will focus on a certain historical text that to my mind resonates with the above problem of
self-making. In his treatise on The Ancient Orators, Dionysius of Halicarnassus, who lived in
Rome at the time of Augustus, wrote a sort of literary critique about Lysias. Lysias, in turn, was
one of the most famous forensic logographers – lawyers, as we would say – in classical Athens.
At certain point of his discourse, Dionysius made the remark that Lysias’s ingenuity lay in his
mastery of ethopoiesis. What is ethopoiesis? And how does it appear in the ancient practice
of lawyering?
In English translations, ethopoiesis is rendered as ‘moral tone’, but the literary meaning of it
is ‘production of ethos’. Dionysius himself explains that ethopoiesis is the way in which a
composer of speeches makes ‘his characters seem by their speech to be trustworthy and
honest’. In my paper, I will first consider the way in which, according to Dionysius, a legal
speech may produce the speaker’s ethos. Then I will consider whether this may help, in one
way or another, in understanding the broader problem of the effects of legal language on the
moral constitution of individuals.
Panel 2
Chair: Samuli Hurri
Hate speech
Eliska Pirkova, University of Helsinki - [email protected]
Hate speech is an irreducibly complex and contested idea, requiring weighing of competing
rights in different ways in different legal traditions and jurisdictions. It is dependent on
different legal understandings of speech and its potential consequences, framed by varying
and conflicting assessments as to what constitutes ‘hate’; linked to particular identities that
are the subjects of speech, as well as to particular speakers and ‘viewpoints’; and politically
deployed as a strategy in a variety of ways, many of them deeply contradictory.[1] Thus, one
can naturally assume that there is no accepted definition of the term “Hate Speech” in
international law or indeed under European law, despite its most frequent use.
Different definitions of hate speech are shaped by different historical, socio-political and
disciplinary context and thus, provide for so-called anatomy of hate speech. By the words of
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Gavan Titley, such an anatomy includes various types of speech, potential consequences and
targeted subjects. However and as Kenan Malik argues, hate speech is not a particularly useful
concept. According to him hate speech restriction has become a means not only of addressing
specific issues about intimidation and incitements but of enforcing general social regulation.
This article will critically analyse how the classification of tolerable and punishable speech
happens.
[1] Gavan Titley, Starting Points for Combating Hate Speech Online, p. 9.
Inquiring the truth, misstating facts: Law, history and the holocaust denial prohibition
Daniela Bifulco, Seconda Università degli Studi di Napoli - [email protected]
Traditionally, legal and historical methodology to inquire the truth are divergent. The former
is inclusive, whereas the latter is exclusionary: if historians are supposed to be exhaustive in
their search for truth and facts before deciding what’s trustworthy, judges, by contrast, select
viewpoints. Historians often refer to this peculiarity saying that law ‘hides’ facts, meaning that
during a trial, timely, certain resolution is achieved by restricting the flow of facts. From this
standpoint, lawyers seem more concerned with resolution than with the truth (J. Lepore, YLJ,
2015). Hence, the assumption that law and history are incommensurable discursive practices,
which can never be reconciled.
Still, exceptions to the aforementioned divergences between history and law are possible.
After the World War 2 (Nűrnberg trials), and then in the 80s and 90s (see statutes on
Holocaust denial prohibition, historical Memory laws, judicial cases such as Garaudy v. France
before the Strasbourg Court, the ‘Auschwitzlűge’ before the German Constitutional Tribunal,
etc.), historical truth and judicial truth seem to converge, inclining toward each other, on
issues related to the Holocaust. From Nűrnberg onward, historical truth has become a matter
for legislators and courts. Since then, a proper ‘turning point’ occurred, which brought the
historical truth closer to the judicial truth. Increasingly, legal regulations seem to frame our
view of history and historical truth. In the light of this evolution, it is worth reconsidering the
idea (not uncommon among legal scholars) that ‘truth is the basic purpose of all adjudication’
(M. Damaška, YLJ, 1997). Despite the influence of many currents of contemporary thought,
which are skeptical of truth as a philosophical principle and doubt that any acquisition of
objective knowledge is ever possible, law seems to defend the idea that the search for truth
represents a crucial objective for the judicial proceeding (M. Damaška).
The legitimacy of denial prohibition (currently, one of the most controversial issue related to
the freedom of expression in Europe, especially since the 2008 adoption of the European
Union Framework Decision on combating racism and xenophobia) can be framed in the light
of parrhesia as to a conceptual basis, which can work both for those supporting the militant
anti-racism of punishing denial and those supporting the libertarianism that fights any
attempt to muzzle expression. In my paper, I will try to highlight the theoretical feasibility (or
the weakness ?) of this hypothesis.
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The Taboo in Law & the Law as a Taboo
Kati Nieminen, University of Helsinki - [email protected]
In this paper I explore the possibility of detecting the taboo in law. Taboo is here understood
as something profound, even something constitutive, to law / society, but simultaneously
something that cannot be discussed or questioned. I approach the taboo in law mundanely
through the case law of the European Court of Human Rights. Tentatively I suggest that the
modern taboo that can be found in law relate to opposing the past and the present; and the
human and the animal. The underlying taboo of the law, however, is the foundation on which
the law is said to be built upon. In this context, the parrhesiastes, the truth-teller, is discussed
as someone whose claim of justice exposes the taboo, and therefore threatens to challenge
the fundamental presumptions on which our society rests upon.
Panel 3
Chair: Samuli Hurri
Counter-community and rights as friendship
Bal Sokhi-Bulley, Queen's University Belfast - [email protected]
In this paper, I want to explore the idea of rights as friendship – and the possibilities of how
such a relation might allow the (irr)responsible (non)volunteer to act in struggle against an
ethics of responsibility. Modern Britain has adopted an ethic of responsibility which is a
reaction against rights discourse, emphasising community and opportunity over individualism
and right. A kind of governing (through) community. It is the first of two objectives of this
paper to unpack the rhetoric of community and its association with volunteerism as a
technology of governmentality. The second objective, in the context on performing struggle
and parrhesia, is to explore how the dissatisfied citizen acts to struggle against an ethics of
responsibility, which by its nature stifles the enactment of an ethical right of refusal, and
whether this is only possible outside of reclaiming rights discourse. The particular category of
dissatisfied citizen I look at is the disabled citizen within the context of recent cuts to welfare
spending and welfare reform. The dissatisfied citizen has an ethical right (as compared to a
juridical right) to revolt. To speak fearlessly and with courage, that is with parrhesia, and for
example protest. But what else can she do? Her struggle is enacted, I argue, through countercommunities as a form of struggle that is less of a spectacle but perhaps more spectacular
because of its transformative potential. I present a re-imagining of struggle as counterconducts – a new analytics for understanding the subject-object who is being otherwise. This
understanding adopts Foucault’s formulation of a ‘relational right’ and allows for an imagining
of new relationships that elude the normalising categories of ‘community’ and ‘disability’. Can
we move towards a ‘disabled mode of life’? Towards a different kind of culture wherein rights
become embedded in affective relations that we might call ‘friendship’?
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Parrhesia and history
David Thomas, Birkbeck School of Law - [email protected]
My project is a genealogical study of the origins of human rights. Nietzsche in On the Uses and
Disadavantages of History for Life (Nietzsche 1997), one of his Untimely Meditations, has no
time for the writing of history for its own sake, or the idea of history as a science; he considers
that it should always be secondary to the unhistorical, to life and action. He commands us to
write history “in the service of the future and the present …” (77).
In addressing the question of how such a study can be written in the service of the future and
the present, my paper explores the possibility that the practice of writing history may be
conceived of as parrhesia, conceptualized by Michel Foucault as a practice of truthful speaking
in public. What might such a conception entail? And what modifications or alternatives
present themselves?
Parrhesia as Challenge to the Symbolic Order in Political Trials
Karen Richmond, University of Strathclyde - [email protected]
In his lectures on the history and evolution of parrhesia, Foucault describes a transgressive
form of critique, which equates to ‘frankly telling the truth’. Parrhesia is characterised as a
courageous political act - fraught with risk - through which the democratic subject is
empowered and the polis enriched. Foucault indicates that the parrhesiastes bears an ethical
duty, but one which is neither contextually situated nor bound by relations. This leaves open
the question: ‘How can we recognise someone as parrhesiastes?’ Foucault provides a Platonic
example, citing the trial of Socrates. But does the doctrine apply in the context of the modern
political trial, and can we still identify examples of parrhesia?
This presentation attempts to answer those questions. It adopts a position between the
Critical Legal Studies approach (which stresses the political content of all trials) and the
classical liberal approach (which equates political trials with “showcase trials”). It focuses on
two twentieth-century political trials, comparing and contrasting the trial of ‘the Chicago
Seven’ (Illinois,1968) with that of the core members of the Red Army Faction (Stuttgart,1975).
The presentation utilises Lacan’s concept of the ‘symbolic order’ in order to describe the
function of parrhesia.
The presentation concludes that the de-subjectified power of parrhesiastical discourse
derives, not merely from its provocative content, nor from its ethos, but from the
parrhesiastes ability to question the norms and foundational values of the court itself. In so
doing, the true parrhesiastes challenges the political foundations of evidence. It is this
adjectival challenge - galvanised by kairos - which holds the potential to affect power
relations. In response, the court may be driven to attempt to re-assert its authority with resort
to disciplinary power.
The presentation closes by considering the possible implications for those charged with the
responsibility of policing ‘extremist’ discourses.
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14. RESPONSES TO THE LOSS OF THE POLITICAL: INTELLECTUALS,
HUMANITARIANS AND THE REVOLUTIONARIES
Stream organiser: Ozan Kamiloglu (Birkbeck Law School)
Loss of the political after the collapse of Soviets have been discussed by various critical
thinkers, from Jacques Ranciere to Wendy Brown, Jodi Dean to Chantal Mouffe and various
others. This stream will focus on the responses of the left, radical and critical thought in
relation to the wider economical, political and social changes to the world in the same period.
The question this stream asks is not only about the loss of the horizon, but more when the
critical and radical thought, and emancipatory forces faced with the new monopolar world
order, how they coped with it.
Jacques Ranciere in his essay his essay The Ethical Turn of Aesthetics and Politics, defines the
ethical turn and says “it signifies the constitution of an indistinct sphere”, the indistinction
between “what is and what ought to be”. Rancière refers to it as the indistinction of fact and
law. This creates the inclusion of “all forms of discourse and practice beneath the same
indistinct point of view.” The panels in this stream will be responding to the question when
the inclusion is so urgent and pushing, how did the ones that tried to be out, responded to
the new constellation of politics, ethics and emotions? There will be three dimensions for
responses, the critical thought (change of discourses), the law (particularly human rights law,
but not only) and the question of violence (anti-colonial and revolutionary).
Therefore the scope of this panel is very wide but at the same time very precise. On the one
hand it will accept papers that considers rise and fall of certain thinkers (like Levinas, Rawls,
Gramscians and others) in the critical thought in relation the wider changes in history. This
discussions will go parallel with the role of human rights discourses and humanitarianism
which seems to be colonising the political after 80ies. What can be said on the relation
between human rights discourses and the critical thought, than and now? On the other hand
this panel will accept papers that considers the anti-colonial struggles and the question of
violence in the same period. What were the constellations of critical, radical and anti colonial
thought after the ethical turn and in relation to the question of violence and what they are
now? What were the ways of co-option in the West and different parts of the world for the
radicals with the new all encompassing neo-liberalism and humanitarianism? Did the human
rights discourses gave a chance to survive to the anti-colonial, or it was the end of the hope
for emancipation? And finally what is the role of the intellectual in all this?
The questions we are trying to answer are not limited to the ones below, and we will consider
papers that will contribute to have a sense of the relations between the intellectual, the law,
and the revolutionary in the neo-liberal times.
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Panel 1
Chair: Ozan Kamiloglu
Co-operation and the Possibility of the Political
Tara Mulqueen, Warwick School of Law
While the fall of the Soviets has meant the loss of the political, the disappointment of
socialist/communist projects has also enabled a 'retreat' of the political (to borrow from
Nancy and Lacoue-Labarth), away from political programmes centred on the state and
political economy. While on the one hand the failure of these political programmes has
resulted in the near complete submersion of the political within the socio-technical and the
ethical, and opening is also created through the separation of politics and the political. The
retreat of the political creates the possibility of understanding ourselves and the past
differently.
In this paper I will offer a reading of the history of the co-operative movement in England,
through a 'retreated' sense of the political. In this reading, the connection between cooperatives and forms of 'direct action' (food riots) associated with the moral economy of the
eighteenth century becomes more pronounced. This in turn prompts a reflection on the role
of the law and the state in regularizing and 'depoliticizing' these forms of direct action. Finally,
this will be brought to bear on more contemporary issues such as the increasing prevalence
of forms of 'social entrepreneurship' (as a form of non-politics) and how we might understand
recent riots.
From anti-capitalist struggles to poverty alleviation policies: situating post-Marxist theories
Moniza Rizzini Ansari, Birkbeck School of Law, University of London
In neoliberal times, a context characterised by various authors as the marketisation of all
spheres of social life, anti-capitalist struggles have been facing yet new challenges. The idea
that capitalism can be overcome is constantly being displaced as capitalism operates through
its crisis, with appropriations of the revolutionary flows. This paper proposes an analysis of
the recent history of critical theories identified as post-Marxist in the light of the issue of
poverty. Beyond the working classes as the site of revolutionary potentialities, this involves a
serious questioning of the conceptual models for the “unrevolutionary poor” of different
periods: from Marx’s Lumpen to Foucault’s delinquent. Contemporary authors that might
form this critical [Western] scholarship of post-Marxism are revisited with this intent,
specifically the work of representative strands such as Rancière’s aesthetic of politics, Negri’s
autonomism and David Harvey’s spatialized Marxism. This forms part of a study in progress
concerning poverty as a political category, thus countering the usual socioeconomic analysis
of poverty as scarcity – a depoliticised appraisal of social struggles that prioritises reformist
projects of distribution of wealth and social inclusion. It is argued that philanthropic desires
to “save the poor” have historically functioned as a mechanism for the management of
surplus populations, a form of control that ‘keeps the world safe for capitalism’, adapted time
and again in response to newer versions of capitalism: from religious charities to workhouses,
from benefits in welfare states to social projects financed by international foundations. In the
global south, charity have historically served colonial enterprise and recent neoliberal
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versions of corporate-endowed foundations perpetuate a sophisticated mechanism of
corporate governance, NGO-isation of social movements and professionalisation of activism
– a scenario described by Arundhati Roy as a neo-colonial response to the decolonial struggles
erupting by the end of the 20th century. This is also a context of emergence of new fields of
knowledge and liberal disciplines couched in the discourses of identity politics,
multiculturalism and human rights. In this context, it is important to question the ways in
which critical theories have addressed the issue of poverty and the subjects embodied in it:
the poor. The endpoint of this research, as a search for a different angle to look at poverty, is
potentially the reframing of traditional political categories such as masses, multitudes, crowds
and, perhaps most centrally, populism.
How to picture sovereignty: from image theory to image-nation
Marcus V. A. B. de Matos, Birkbeck School of Law
The expansion of the use of surveillance techniques by government and private sector, and
the uncontrolled growth on the practice of torture and mistreatment of suspects, quickly
became the main image of a global phenomenon that would introduce us to the beginning of
the 21st century. This paper proposes to relate these two techniques, torture and
surveillance, as the fundamental grounds on which the contemporary notions of sovereignty
are based. It aims to overcome a more traditional debate over the notion of sovereignty (as
a spatial or a temporal notion) by proposing a visual reading of sovereignty. When I say that I
want to picture sovereignty, I am literally looking for ways in which we can re-think – or,
rather, re-view – the theory of sovereignty and its consequences for us today. I want to
propose that some pictures that you can see, like and perhaps share, are an important part
of how we understand sovereignty. These pictures may constitute a particular way in which
we see what sovereignty is, what it does, or even how it functions. These pictures might be
used to produce and impose an order and, at the same time, link themselves to mental, dream
and literary images that are also a constituent part of our-selves and of our civilization. They
might even shape the very way in which we (are told to) see things and understand them,
delineating consciousness and influencing how we see the world around us. We will test this
hypothesis using an iconological strategy: looking at the discourses and pictures produced
and inspired by mainstream film, media, government bodies and private institutions – a
media apparatus of torture and surveillance. By comparing discourse, images and pictures
that are either fictional and allegorical, or judicial and evidential, this paper aims to
understand how, and if, these biopictures of torture and surveillance might even constitute
themselves as a condition of possibility for contemporary politics. The theoretical background
of this paper is based on the work of W. J. T Mitchell, Costas Douzinas, Giorgio Agamben and
Jacques Ellul. It is also based on the methodological developments of critical legal studies on
the interpretation, building and deconstruction of legal and political concepts. It is possible
that these biopictures will reveal personifications and doubles of the State of Exception, in
the sense that Carl Schmitt understands them: as “impersonations of the sovereign power”,
which becomes visible only through archetypes. Finally, the paper proposes an innovative
interpretation of the use of torture and surveillance techniques, as both operate as a reservoir
of exceptional power.
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Panel 2
Chair: Tara Mulqueen
Mapping the political: Spaces of collective action after the retreat of emancipatory
projectsin Turkey
Zeynel Gül, Department of Sociology, Koç University, Birkbeck
This paper aims to delineate the shifts in the spaces of subversive collective actions in Istanbul
occurring since the mid-1990s and the repercussions of these shifts in relation to (the loss of)
the political. Starting from the mid-1990s, the concentration of the political actions in Turkey
has drastically moved from urban margins to central spaces in the city. This centripetal move
of Turkey’s radical left is accompanied the shift of subversive political demands and armed
struggle towardsa politics revolving around human rights. This transformation in politics
fundamentally pertains to the emergence of human rights as “the last utopia” that prevails
over the remnants of radical political visions (Moyn, 2010; Badiou 2001; Ranciere 2010).
Based onethnographic research in the left-stronghold neighborhoods of Istanbul and scan of
radical left publications, this paper considers the “ethical turn” in emancipatory politics
concomitantly with the changes in the spatiality revealed also through the discourses and
modalities of political action. With the dramatic dissolution of subversive spaces, the political
communities in Istanbul suburbs have become parts of a wider ethical community of human
rights claims. Retreat of radical emancipatory projects also modifies forms of visibilities in
spatio-political constellations.Militantly dissentingvisibility of 1990s, which is predicated on
the demand of social equality, becomes colonized by an admissible visibility that is
domesticated and incorporated into homogenizing realm of human rights discourse based on
recognition of victimhood. As politics is a practice of dislocation for Laclau (1990), Ranciere
(2010) articulates it as re-territorialization of the shares regarding the partition of what is
sensible, sayable, and visible. Yet, apart from geographical grammar that is resorted, space
embodies its share in the formation of the political that reconfigures available forms of
visibility.
Politics of Human Rights Discourses and the ethics of violence
Ozan Kamiloglu, Birkbeck, University of London
This paper looks at the different stages of the evolution of human rights discourses in Turkey
in relation to questions surrounding revolutionary violence, tactics and strategies, and ethics
of resistance. It will focus on one particular association, Insan Hakları Derneği (Human Rights
Association) that have been founded in the late 80ies by people mostly define themselves as
socialist. The paper will focus on different stages of theoretical discussion in the Human Rights
Association particularly those after Amnesty International’s International Council Meeting
(ICM) in Yokohama, Japan (31 August 1991); after which “AI expands its mandate to include
work on abuses by armed opposition groups (as well as by the State)”. Human Rights
Organisation finally adopted the position of Yokohoma declaration but this paper claims the
question about does all kind of violences particularly the one of the oppressed or the one of
the oppressor should be taken as same and condemned by a human rights organisation gives
clues about a more general trend over the construction of human rights discourses after
70ies. If we follow the term ethical turn of Jacques Ranciere, loss of the separation between
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what is and what ought to be, the discussions in the Human Rights Organisation in Turkey can
be read in parallel with the discussion in France during 70ies over the use of violence in the
anti-colonial struggles (Cristofferson, 2004; Arthur 2010 ) and be seen as reflections of a more
general discussion over the loss of the political and human rights discourses.
How to lose friends and alienate people: being a critical theorist
Adam Gearey, Birkbeck – [email protected]
This paper addresses the doing of critical thinking and the sensibilities of those unhappy souls
(in the strict hegelian sense) who engage in such aquixotic pursuit. Drawing on the work of
Dale Carnegie and Cardinal Newman, the paper examines the conditions of knowledge
production in the neo liberal university, doubt, academic emotions and the tasks of critical
legal thinking.
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15. REVOLUTION, COUNTER-REVOLUTION AND THE LAW
Stream organisers: Cosmin Cercel (University of Nottingham) and Simon Lavis (Open
University)
This stream aims to approach the question of whether we are living at a decisive moment for
European history through critical reflection on the potential as turning points of the
precarious political situations that litter Europe’s recent past. Taking a genealogical
perspective informed by theory and historiographical inquiry, we will hold a magnifying glass
over the concept of a ‘turning point’ itself, examining when an apparent rupture is truly a turn
in a new direction and when it is merely a turn backwards onto itself. We thus aim to explore
and problematize further the very core of revolutionary change by examining the status of
law in both revolutionary and counter-revolutionary theory and practice.
The legacy of the 20th century bears witness to a host of moments and periods of eruption,
change and precariousness, fostered by either failed or detoured revolutions or by overt
authoritarian regimes aimed at quelling dissent. For example, the Russian revolution and
ensuing civil war, the European revolutionary movements of the early interwar, but also the
rise of fascism, and the Nazi seizure of power and subsequent Holocaust, indicate an
ambiguous relation to the law that these movements aim to destroy, reconstruct or protect.
Moreover, the numerous regime changes of the post-war era, and the emergence of
transitional justice mechanisms render the relation between law and historical change even
more opaque. Politically, culturally and crucially legally, these movements and regimes are
often described or have presented themselves as revolutions – moments of radical change
and reinvention – with incredible outcomes and mass upheavals that appeared unimaginable
as part of the existing fabric of history. On closer inspection, superficial points of rupture can
disguise deeper currents of continuity, and more obvious signs of precarity are merely the
smoke and lava indicating a more fundamental, subterranean volcanic instability.
Law, as a part of the structure of society, may be seen to join eras together rather than
contributing to their disruption By interrogating law’s role in the architecture of historical
moments of revolution and counter-revolution, we aim to highlight the question of when a
turning point is really a turning point, and shed light on whether at this moment in European
history we really are witnesses to a new epoch.
Panel 1: Thresholds: Revolution and the State of Exception
Chair: Cosmin Cercel
Agamben and Marxism on the State and Civil War
Daniel McLoughlin, University of New South Wales - [email protected]
In the Introduction to Homo Sacer, Giorgio Agamben presents his analysis of sovereignty and
the state of exception as a response to the conceptual limitations of Marxist and anarchist
theories of the state. In this paper I argue that, while Agamben is certainly critical of the
vulgar Marxist reduction of the logic of the political to that of the economic, his analysis of
the relationship between sovereignty and sacred life is nonetheless informed by the Marxist
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argument that state’s basic function is to prevent class divisions from flaring into civil war,
through the use of violence if necessary. I make this argument by examining three aspects of
Agamben’s analysis of sovereignty that have been underplayed in the critical literature: the
debt that his analysis of the state owes to the work of Alain Badiou; Agamben’s claim that
Marx’s account of class conflict is a manifestation of the fundamental political division
between bare and political life; and the barely submerged role that the threat of civil war
plays in many of his examples of the sovereign exception. However, I argue that Agamben’s
analysis of the division between bare and political life often conflates two different forms of
political division that are quite distinct in the work of Badiou and Marx: the structural
exclusion that the ‘normal’ order rests upon, and the state’s production of bare life in
response to the threat of civil war.
Hamburg’s danger zones as a state of exception – A critical analysis drawing on Carl Schmitt
and Walter Benjamin
Thomas Hirschlein, New School for Social Research, New York City - [email protected]
Since 2005 Hamburg’s local police have been authorized by law to declare parts of the city
so-called danger zones in which they have virtual free reign of action to preventively combat
offenses. Effectively this means the police can stop and question people, take them into
custody or even issue residence bans without any juridical legitimation and any evidence of
misconduct.
As elaborated in this paper, what is sometimes an unfortunate aspect of daily life elsewhere
constitutes for the Federal Republic of Germany and the city of Hamburg a state of exception.
Drawing on the work of Carl Schmitt and Walter Benjamin in the analysis of the described
law, this paper argues that we are here indeed confronted with a new and reconfigured form
of sovereignty in contemporary Western democracies that operates through the state of
exception and the police.
After a brief introduction into the empirical case, the law and its application by the police, it
analyzes Schmitt’s definition of sovereignty in his Political Theology and explains its three
elements: state of exception, decision and sovereign. Applying Schmitt’s definition to the
empirical case, it points out the critical connection between danger zones understood as a
state of exception and the police as the deciding, ergo sovereign subject.
The paper then reconstructs the central aspects of Benjamin’s criticism of the police and its
relation to the state of exception in his essay “Critique of Violence”. The police, according to
him, are characterized by the problematic suspension of the separation between lawmaking
(legislative) and law-preserving (executive) power. Drawing on this insight, the paper
demonstrates that the police in our empirical case not only act as a means to preserve the
law, but rather by declaring danger zones and having virtual free reign of action in them, they
in fact make the law.
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On Exception, Fiction and the Performativity of Law
Gian Giacomo Fusco, University of Kent - [email protected]
Three days after the terrorist attacks of 9/11, George W. Bush declared a state of national
emergency. After this declaration, the US introduced radical legal instruments, such as the
USA PATRIOCT ACT (2001), the establishment of a new military commission process, and the
designation of prisoners of war as “enemy combatants”. This radical transformation posed
legally since 2001 and ongoing ever since, has placed the US in a perpetual state of war,
without an actual war. Confronted with this renewed legal and political context, an impressive
legal, political and theoretical debate has been generated, and the question of the state of
exception has been put back on the agenda of legal (among else) scholarship. Nevertheless,
despite the multiple contributions, and the varied elaboration of models of emergency
powers, the nature, scope and meaning of the state of exception remains an open question.
In this paper, I will undertake a different conceptual path in order to gain a better
comprehension of the state of exception. Starting from some suggestions provided by Carl
Schmitt, Giorgio Agamben and Yan Thomas, I will analyse what has been defined as “fictional
state of exception”. In this paper, it will be advanced a critical account of a still current and
globalized emergency, through the concept of “immunisation”, and through the paradigm of
the performativity of law. In analysing this issues I will suggest that the process of
“normalisation” of the exception – and its codification – into a general doctrine of the state
of emergency, made of the exception a “fictional” element of law, ultimately dependent on a
subjective (that is to say dependent by the will of a specific agent) decisional act. The
normalization and regulation of emergency provision – the fictional state of exception – legal
systems seek to ensure, using Agamben’s terminology, an anchorage with the outside; the
possibility of the transgression of legality in the form of an action in an anomic context. From
this point of view, the exception is structured as a specific form of immune reaction for the
protection of the entire system, bringing with it all the risks entailed in the process of
immunisation.
Panel 2: The Other Side: Revolution, Law and Marxism
Chair: Simon Lavis
Revolution Under Siege: Law, Violence and Marxist Legal Theory
Cosmin Cercel, University of Nottingham - [email protected]
This paper aims to explore some of the major paradoxes that the unfolding of the October
Revolution has unearthed: the relation between Revolution and civil war, the dictatorship of
the proletariat, and finally the place of law within the transitional period starting in its
immediate aftermath. My intention is to map some of the penumbral jurisprudential aspects
of the dissolution of the classical categories of war, legality and peace, as well as it is to
explore the conceptual framework of the dictatorship of the proletariat. The meta-theoretical
thread supporting this reflection is one following the significance of the law for and within
the revolutionary struggle. In doing so, I intend to capture the specific jurisprudential
significance of the series of material practices and intellectual tropes opening the law to
radically new uses. In doing so my focus would follow the history of the Russian Revolution
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from the initial seizure of power through the years of the civil war to the dawn of the
Revolution from above.
This analysis is not confined to Russian context at least for two reasons. First of all, the
Revolution of 1917 was originally conceived by its standard-bearers as being only the first
stage of a world revolution. Not unrelated to this creed shared by the Bolsheviks, the
revolution has materially affected not only the Tsarist Empire and its neighbours, but it has
acted as a forerunner for a series of revolutions and social convulsions in Europe following its
immediate aftermath. As such, the revolutionary turmoil was to be contained not only
through repression, but also through ideological reaction. Within these strategies of
containment, law was to play an unsurprisingly important part both as an instrument of
repression, but also as a vector of legitimation.
In this chapter I shall first try to map together with Trotsky and Schmitt the relation between
dictatorship, war communism and the dissolution of classic categories of legality. In a second
part I shall follow Lenin’s steps in understanding the place of the state as the dictatorship of
the proletariat. As these developments hint to a limit state of the law, this chapter shall
inquire into the theory of law developed by Evgeny Pashukanis in order to explain both the
persistence of the juridical within the Soviet polity and to further speculate over the
contingent historical form it took.
Marx against Schmitt: Democratic Dictatorship and Dictatorial Democracy
Dimitrios Kivotidis, Birkbeck School of Law - [email protected]
Despite its abstract title, this paper begins with the analysis of something very specific: the
question of the Greek referendum of July 2015. In less than one calendar year, part of the
political life of Europe has revolved around -among other important issues- two questions
that were referred to the Greek and the British peoples. In this context it was discussed many
a time what it means to fight for democracy against neoliberalism, or what it means to reduce
EU’s democratic deficit. Drawing from the experience of the Greek referendum, this paper
seeks to examine how the most democratic form of expression of the popular will came to
accompany yet another round of austerity-driven measures in Greek society. In particular it
aims to do so through a questioning of what democracy is. Is it simply a relation between
majority and minority? Is it a relation between rulers and ruled? Can democracy be separated
from the relation of exploiters and exploited? Points of navigation in this quest will be E. M.
Wood’s analysis of the relation between democracy and capitalism, as well as Schmitt’s
treatment of the relation between democracy and dictatorship. Democracy and dictatorship
are not antithetical for Schmitt, who locates the main antithesis between liberalism and
authoritarianism. To his concept of a dictatorial (authoritarian) democracy the Marxist
concept of a democratic dictatorship will be juxtaposed: democratic as a form and
dictatorship as per property and productive relations. This will enable a discussion of
democracy in its relation to questions of social and economic power and the reposing of the
question: democracy for whom?
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Towards a Revolutionary Jurisprudence
Tormod Johansen, University of Gothenburg - [email protected]
The relation between legal scholarship and revolutionary Marxist thought has oscillated
between being quite productive and non-existent. A brief period of creative legal thinking on
communism and law in the wake of the Russian revolution gave way to a dark age that has
lasted. While Marxism and historical materialism thought has been a great influence for many
important critiques of legal phenomena and contemporary society throughout the 20th
century up until today two important questions have not been given sufficient attention: 1)
law as potential means towards or threat against revolutionary change and 2) law as it
might/can/must exist in post-capitalism/communism.
The paper attempts to outline some thoughts on both the issue of law towards revolution
and law after revolution through a reading of Marx, Engels, Lenin, Evgeny Pashukanis, Gilles
Dauvé, China Miéville and Giorgio Agamben. A long standing tension in the
communist/socialist tradition centers around the relation to the state and its role in
revolutionary transformation. Although state and law are intimately intertwined in modernity
and under capitalism, this must be contrasted with the fact that law as a phenomena is many
times older than both capitalism and the modern state. The analysis concludes that
fundamental legal questions are disregarded in communist thought, based on simplistic and
false dichotomies between concepts such as law/rules and state/organisation as well as the
reliance on legal questions being resolved when capitalist social relations are replaced with
communist ones. These escapes have made revolutionary thought escape the legal questions
and made the theoretical thought on them shallow.
Panel 3: Revolution and Beyond: Law, Reaction and Transition
Chair: Daniel McLoughlin
Apparatuses of Neoliberal Transition: Transitional justice as Omnus et Singulatem
Josh Bowsher, University of Nottingham - [email protected]
First developed by human rights lawyers and activists, transitional justice emerged from the
so-called third wave of democratisations in Latin America. Over the last 30 years, transitional
justice has risen to become a ‘global project’ of global neoliberal governance, and is now
intertwined with the peacebuilding initiatives of the United Nations (UN) and the World Bank.
It has come to denotes a series of practices that are largely understood to be “common
sense”, including truth commissions, criminal trials, and lustration, that are designed to deal
with the human rights legacies of societies emerging from conflicts or authoritarian rule.
Locating the emergence of transitional justice within the global rise of neoliberalism, a shift
that Pierre Dardot and Christian Laval have described as the ‘great turn’, this paper shows
that transitional justice serves an important function in regards to the particularly neoliberal
contours of many transitions. The precise terms of their relationship, I argue, is best
understood with recourse to what Wendy Brown describes as neoliberalism’s practice of
omnus et singulatum, a double process through which ‘communities’ are gathered together
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as stakeholders to take part in economic activities whilst simultaneously being individualised
as “responsiblised” and self-sufficient entrepreneurial units.
Taking this concept, I argue that transitional justice is a counterrevolutionary ‘apparatus’,
which also undertakes a process of omnus et singulatem that usefully prefigures and supports
processes of neoliberalisation during ‘transition.’ I show that transitional justice mechanisms
bring societies together in the construction of shared truths about the past, which are not
founded in any form of communitarian identification that conceptualises the past in
collectivised or socio-economic terms. Rather, underpinned by the lexicon of human rights
law, transitional justice simultaneously individualises the past by producing members of
transitional societies as the individual victims of human rights abuses. I argue that transitional
justice aims to create the same kind of “empty solidarity” that defines the neoliberal project
as a whole. Transitional justice, I conclude, does the necessary work of bringing conflictual,
traumatised, societies back together, whilst doing so on terms that do not threaten but
instead prefigure the individualising demands made upon subjects at the sites of neoliberal
transition.
Precarity and Cumulative Radicalisation: Nazi Law as Revolution and Reaction
Simon Lavis, Open University - [email protected]
The Nazi period of rule in Germany between 1933 and 1945 was in many ways a precarious
era. The situation of Jews, social aliens, political enemies and others was made increasingly
dangerous and uncertain, and Hans Mommsen’s concept of ‘cumulative radicalisation’
maintains that an enduring Nazi state was impossible, despite Hitler’s ambition for a 1,000
year Reich, because of its tendency towards progressive self-destruction. Furthermore, the
Nazi assumption of power is generally considered to be counter-revolutionary and its
ideology reactionary, calling into question its claim to be a genuine revolutionary ‘turning
point’ in European history.
The comparatively under-historicised and theorised area of Nazi law has also been influenced
by this representational paradigm. The dominant interpretation has Nazi policy as the
progressive instrumentalisation and then destruction of the pre-existing Rechtsstaat,
replaced by chaos and uncertainty, rather than an authentic Nazi law. This theory has been
influenced and supported by two important contemporary analytical concepts: Ernst
Fraenkel’s ‘Dual State’ and Franz Neumann’s Behemoth.
However, Holocaust historian Dan Stone has argued that attempts to integrate Nazism within
the framework of modernity and the continuity of historical development ‘do not consider
that the very excess, the rush of energy which permitted normal societal structures to
become organs of mass murder, may prevent the Holocaust from being incorporated into a
cognitive-rational approach’ (Stone, 2001, p239). This paper will focus on the transformation
of law as a ‘normal societal structure’ into an ‘organ of mass murder’ and consider whether
Nazi ideology can be viewed as the revolutionary reconstruction of law. And if it can, what
are the implications for the ‘rupture thesis’, the idea of Nazi law as a point of rupture from
normal legal development?
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Through an evaluation of Nazi legal history, this paper will seek to interrogate law’s role in
the architecture of precarity of the Nazi state.
Law’s Monsters: The Reductive Framing of Enemies in International Discourse
Lynsey Mitchell, University of Strathclyde - [email protected]
Devetak writes how a particular type of imaginary emerged post 9/11; the gothic imaginary,
in which hyper narratives of fear were placed at the heart of national security discourse. It is
widely accepted that searching for the monsters and demons who lurk beneath these
anxieties is dangerous. Yet, while international relations theory laments the invocation of
anxiety for limiting the political possibility, law conversely is symbiotically reliant on the
invocation of fear and anxiety, precisely because it is in those uncertain circumstances that
the certainty of law comes to be actuated.
This paper explores the allure of discourses of fear in framing the other, particularly
international ‘enemies’, highlighting how such discourses appeal to the power of law, yet
equally limit its capacity to offer solutions in times of crisis. By acquiescing to stereotypical
Manichean framing of enemies as absolute evil and ourselves as virtuous, law limits its
potential to offer an alternative understanding of international crises.
Rather than open a space for law to operate and provide certainty where other disciplines
have failed, the state of exception narratives reduce the capacity for law to know or
understand the monsters, both real and imaginary, that lurk beneath our fears. As Kearney
tells us, ‘Monsters are our Others par excellence. Without them we know not what we are.
With them we are not what we know.’ Thus, this paper explores the potential of law to
embrace the gothic aesthetic and accept that dark and complex characters lurk both at home
and abroad, in both reality and the imagination. If these monsters reflect our contemporary
fears and anxiety, then law must seek to interrogate these in both the actual and the
imaginary, rather than seek to eradicate them.
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16. THE TIME AND TEMPORALITY OF VULNERABILITY
Stream organisers: Carolina Yoko Furusho (University of Kent and University of Hamburg) and
Nayeli Urquiza (University of Kent)
This stream invites proposals on critical, interdisciplinary and creative engagements with the
notion of vulnerability from the perspective of time and temporality, paying attention to
vulnerability’s legal, ethical and justice-related implications in an increasingly complex world.
The complexity involves not only the local and global relationships and networks which are
gradually and irreversibly becoming interdependent, but also the attempts to undercut,
shape, and deny interdependency through disciplinary, coercive and/or violent laws and
regulations. Our reflections on vulnerability arise in a context of growing dynamic mobility,
transnational fluxes and constant technological innovation, while at the same time we
witness immobility, exclusion, precarity and widening of socioeconomic disparities
aggravated by globalizing forces guided by neoliberalism and propelled by economic, political
and social crises.
Taking time and temporality as critical categories of analysis, we invite contributions which
examine the various iterations of vulnerability in law. For example, to what extent does time
and temporality shape the appearance and becoming of vulnerable subjects? Taking a closer
look, there are various fractures in how vulnerability is conjugated. Some argue that
vulnerable subjects are invisible in present law and hyper-visible in the language of future
risks and uncertainty, while others advocate to include it in a utopian future, away from the
ossified past of the liberal legal subject. At the same time, others conjugate vulnerability as
that which crosses over time, connecting and binding the archaeological time of the nonhuman with the human and inhuman. It is also possible that the potential of vulnerability
discourses is in its power to unsettle the ascribed atemporality of legal norms, to reflect back
and expose the horror and violence embedded within law’s aspirations.
By all means, vulnerability consists in a conceptual pleochroism: from different standpoints,
it allows us to observe distinct scenarios which reflect, refract or diffract what we think about
what vulnerability is and its relationship to law. We welcome contributions that explore the
potentiality of vulnerability from a plurality of epistemic stances and diverse conceptual
starting points, which might encompass though are not limited to ontological,
phenomenological or post-structuralist viewpoints and feminist, Marxist, postcolonial, critical
race, radical, post-human, human rights, transnational, affective and other critical theories.
We also wish to identify and discuss how vulnerability arises in the relationships among
individuals, their social connections, States and the international community by and large,
and how law and politics play a role in constraining, liberating, meeting the needs or even
aggravating vulnerability when addressing ethical imperatives and social justice
considerations.
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Panel 1. Framing the Temporality of Law and Vulnerability
Chair: Nayeli Urquiza
Law’s Time: the temporal dimensions of responsibility and vulnerability in law.
Jill Stauffer, Assoc. Haverford College, Haverford
In this paper I’ll use two cases—ex-child soldiers brought to justice as perpetrators and
indigenous people using oral history to make legal claims—to show how law’s account of time
begins to fray wherever its rules and procedures meet the limits of an assumed linear legal
time. These limits draw the contours of some otherwise unseen vulnerabilities—of persons
and populations made marginal by legal forms, but also of the law itself. A more expansive
description of time and temporality, relying on phenomenology and testimony, can both
make that clear and point toward a new way of thinking about vulnerabilities, the formation
of legal claims, and the aims of law.
International law tends to hold that children under the age of 15 or 18 cannot be responsible
for their actions. But what happens if a child who was abducted at age 10 is indicted by the
International Criminal Court 20 years later? At what point did s/he pass the line between too
young to be responsible and old enough to have known better? Law’s answer seems to be
that time itself should have made them responsible. But that answer can’t capture the
vulnerabilities of ex-child soldiers, their victims, or of the law to its own impoverished view of
what it means for time to pass.
Both Canada and the U.S. have begun to listen to oral history as legitimate evidence rather
than hearsay in cases involving indigenous peoples. This is an issue of justice and difference,
but also of time. Oral history isn’t an account of past events; it is itself the event. When courts
allow evidence in that form but then judge it as if it were western history, they find a new
way to fail to do justice to other ways of conceiving time, and they create new vulnerabilities
to harm in an already oppressed population.
The Precarity of Judgment: Temporal Spectrality and the Legal Subject
Thomas Giddens, St Mary’s University.
In Derridean thought, the spectre is an absent presence, an invisible image—it is by very
definition (in)visible. The idea of a legally constituted person is widely recognised to be linked
with the concept of persona; it is a mask we wear to come before the law as its subject. And
masks are haunted by that which they obscure; they make present that which remains absent
and inaccessible behind the mask. But distinct from the revenants or ghosts that return from
the past, the Derridean spectre is also intricately linked with concerns of vision—it is that
which can see but remain unseen. As found in Hannah Berry’s graphic novel Adamtine, the
panoptic presence of the law over the legal subject—which is always behaving in relation to
the regulations that constitute it—is arguably a haunting one. Just as our humanity remains
spectral behind our masks of subjecthood, as legal subjects the source of law’s authority is
always present to us as an absence we cannot access. The legal subject is thus caught,
trapped, between two spectral fronts.
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Time is also spectral. The present moment, including the moment of judgment, is always a
play of traces; it is the absent presence of past and future. As satirised in the instant justice
of Judge Dredd, the point of judgment is a closing down, a coming to a point, a denial and a
repression of any further or other interpretation. The crystallisation of a judicial decision is
thus also a play of traces: of the preceding deliberation and interpretive considerations, as
well as of possible futures, of continued interpretation. The moment of juridical closure is
thus a spectral one, haunted by that which might precede and follow it. The legal subject,
already doubly spectral in its constitution, is thus maintained through an on-going string of
spectral moments. And this deeply engrained spectrality brings with it significant
epistemological connotations. For the spectre, as something that watches, always implies the
existence of another perspective, of an other scene of viewing and knowing the world. The
spectral quality of law thus reflexively embeds the potential for law to be disfigured,
disintegrated—undone and remade in different forms. The processes of bringing justice, the
‘final’ judgments of legal adjudication, are thus always ingrained with their vulnerability, their
potential to be otherwise.
Locating the temporalities of vulnerability
Tiffany Page, Goldsmiths University
Vulnerability has come to prominence within North American and Western European feminist
theory through its ethical potential as a shared condition connected to exposure and risk of
injury and wounding. One of the difficulties in working with conceptions of vulnerability is the
way in which it is understood, both singularly and simultaneously, as an embodied, ethical
and political term.
Within this motif of vulnerability, I want to remain with the tension that exists between
vulnerability as a universal, bodily ontology, and the way it is simultaneously differentially
experienced and distributed across particular bodies. Being able to speak of something
shared, that is distinct from the specific conditions and ways in which bodies are impinged
upon, suggests a temporal primacy to an ontological or foundational condition as a means of
connection, which occurs prior to any form of injury that might be inflicted upon certain
bodies and by certain bodies. I suggest that thinking through the time of vulnerability and
examining the temporalities invested in universal and local imperatives might help to work at
and through the tensions of the shared and the specific. In this paper I will address how
different temporalities might play out across particular bodies, and how this might enable the
emergence of elements or qualities of vulnerability that are transposed unevenly across
bodies and locations as people make lives and endure particular conditions.
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Panel 2. Time Disjunctions and Temporalizing Regulations
Chair: Thomas Giddens
The Times of Ort des Erinnerns: Walter Benjamin, Memorials, and the Nuremberg Race
Laws
Tiffany MacLellan, Carleton University in Ottawa, Canada
Renata Stih's & Frieder Schnock's de-centralized memorial simply titled Ort des Erinnerns, or,
Places of Remembrance, made its public debut in 1993. Spread across the Schönenberg
district of Berlin, the memorial consists of eighty signs, each expressing a different, single
provision from one of the 1933 – 1945 Nuremberg Race Laws. In this paper, I adopt Walter
Benjamin’s acerbic critique of historical time and approach Places of Remembrance through
his methodology of historical materialism. Interpreted from this vantage, I argue that the past
is re-staged and made new again and again in the present by Places of Remembrance,
continually interrupting liberal notions of law as the guarantor of rights. In doing so, the
memorial illuminates the imagined relationship between rights and the protection of
vulnerable communities in the present.
Against and with all odds: Foucauldian perspectives on time and temporality in family
migration.
Alexandra König, Birkbeck School of Law, London; MA in Gender Studies and Political Science,
University of Vienna.
Set against the background of an interest in the de-/construction of family migration, this
paper develops a reading of Foucault’s notion of governmentality and biopolitics. This
contribution particularly aims at exploring the role of time and temporality in Foucault’s
power analysis and its potential connection to law. In particular, this paper will discuss the
role of normative constructions of time and temporality in the regulation of family migration
through law. As will be argued, law is a vehicle to fixate specific notions of family and
migration over time and space. But, moreover, specific constructions of time and temporality
contribute to the stabilization of notions of family and migration. This analysis thereby aims
to contribute to a deeper understanding of the role of space and time for the re-/production
of heteronormative and racist social orders in the governance of the so-called "migration
crisis". In particular the discussion will flesh out how time and different notions of temporality
inform the biography of the “other” (i.e. of migrants-as-populations and migrants-assubjects). The argument will unfold along the discussion of empirical examples. These include
amongst others how a notion of hegemonial biography of the “other” is unrolled through
articulations of specific temporal horizons in the realm of how integration trajectories and
related legal regulations are construed in the context of Austria.
Multiple Parents and the Temporality of the Family
Haim Abraham, University of Toronto
Recently, multiparental family structures, in which there are more than two parents, have
become common. As these families are not recognised by formal law, they resort to using
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parental agreements to gain social status and define rights and obligations. Generally, such
agreements are not recognised by states, meaning that parental status is awarded to two
individuals at most, leaving the family unit vulnerable with many issues uncertain – e.g.
custody, citizenship, holding and succession of property, social support and legitimacy.
Previous papers addressed the ways in which multiparental families should be recognised
(e.g., Baker, 2008; Bartlett, 1984; Jacobs, 2007), but they have not taken into account the
various types of multiparental families, how the status of the child (planned, conceived, or
born) should influence parental recognition, nor did they compare how different jurisdictions
recognised and regulated multiparental families. This paper analyses the instances in which
legislatures and courts of England, California, and British Columbia treated multiparents. This
analysis shows that this treatment varies from non-recognition of any status, through
regulation of the multiparental family (i.e. determining who is a parent and what is the scope
of the parent’s rights and responsibilities), to the recognition of the multiparental family by
giving legal force to parental agreement. Drawing on this analysis, the paper suggests that
parental agreements of multiparental families should be recognised by the state while the
family unit is functioning, taking into consideration the family’s past and present. However,
dysfunctional families should be regulated similarly to “traditional” families, placing more
emphasis on the child’s current and future best interests. Furthermore, the history of families
as an institution, alongside possible future implications to society, should be ignored while
determining who is a parent. Thus, a proper balance is struck between the vulnerabilities of
the family unit, its individual members, and the child.
Panel 3. Spaces of precarity: race, belonging and temporality
Chair: Arturo Sanchez Garcia
From Land to Futures: Are Title Registries like Time Machines?
Sarah Keenan, Birkbeck School of Law
While conveying land through title deeds was reproductive of the land’s local history,
conveying land via title registries frees title from the land to which it pertains. Registered title
can then be reformulated into securities and other speculative financial instruments which
are conceptually and practically located in the future. This reformation and temporal
relocation is made possible via the mirror and curtain principles which underlie Torrens and
other contemporary title registration systems. The mirror and curtain principles create an
enforceable legal fiction that land has no history and no life beyond what is recorded on the
register. The results this legal fiction makes possible include landscapes that are reminiscent
of dystopias previously confined to the realm of science fiction - life-filled suburbs become
derelict, tent cities appear beside rows of vacant houses and flower farms appear where rice
once grew in areas where residents die of hunger. Engaging with literary and philosophical
understandings of time (Bastian, Greenhouse, Mawani) and with critical finance studies
(Alessandrini, Poovey, Riles), I argue that title registries might be understood as time
machines.
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Cashless Welfare Transfers for ‘Vulnerable’ Welfare Recipients – Law, Ethics and
Vulnerability
Shelley Bielefeld, School of Regulation and Global Governance (RegNet), Australian National
University.
Feminist scholars have elaborated an ‘ethics of vulnerability’ with an emphasis on respecting
and fostering autonomy, highlighting that concepts of vulnerability can be used in ways that
perpetuate institutional harm, deny autonomy, and constrain capacity. Catriona Mackenzie
explains that ‘pathogenic vulnerability’ can result in ‘interventions designed to ameliorate
inherent or situational vulnerability’ which produce ‘the paradoxical effect of increasing
vulnerability’ (2014: 39). This framework will be used to analyse cashless welfare transfers for
recipients defined by the Australian government as ‘vulnerable’ who are subject to coercive
income management.
Income management (IM) originally targeted Indigenous welfare recipients as an element of
Australia’s 2007 Northern Territory Emergency Response. Under this scheme 50 per cent or
more of a welfare recipient’s income was subject to compulsory IM, with funds generally
spent using a government issued BasicsCard. The scheme has been extended by legislative
amendments (2010, 2012, & 2015), resulting in a range of specific IM categories, most of
which automatically apply to welfare recipients residing in government targeted geographical
locations. ‘Vulnerable’ welfare recipients are an IM category under the Social Security
(Administration) Act 1999 (Cth) s 123UGA, and those in this category are likely to be income
managed indefinitely.
IM prohibits expenditure of income managed funds on alcohol, tobacco, pornography and
gambling products, and the scheme has been broadly associated with these stigmatising
prohibitions. The BasicsCard requires welfare recipients to spend income managed funds at
government licenced retailers on legislatively defined priority needs, which limits consumer
choice. Empirical research indicates that those subject to vulnerable IM are experiencing a
range of negative outcomes yet to be addressed by law and policy makers responsible for the
scheme. These include increased financial hardship, misrecognition of budgetary capacity,
mental health problems, diminished well-being, restricted travel capacity, barriers to
accessing housing and ongoing racial discrimination.
“The body that loses its chair”: ‘New’ legal temporalities and the racialised subject
Nadine El-Enany, Birkbeck College, University of London.
On 23 April 2015, Lutfur Rahman, Britain’s first Muslim mayor was removed from power
following an election court judgment which found him guilty of a series of corrupt and illegal
practices. The successful electoral petition followed multiple attempts by the media and
political establishment to smear Rahman. The ease with which Rahman was removed from
office, by a deputy judge sitting alone, suggests that Rahman’s time in power was somehow
always up, always particularly precarious. As a Muslim from Bangladesh living in Britain today,
Tower Hamlets was never really “available [to him] as a space for action” (Ahmed 2007: 153).
This paper argues that the judgment was based on a failure to understand the meaning and
extent of racism in Britain today and was itself based on Islamophobic reasoning. In
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overturning their votes, Deputy High Court Judge Richard Mawrey reasoned that the “natural
instinct” of Muslims is to defer to their religious leaders and that Bangladeshis are a “less
sophisticated” and “less well-educated” people (para. 159). Avtar Brah has emphasised the
importance of economic processes and institutional practices for the futures of diasporic
communities (Brah 1996: 183). The legal judgment not only confiscated Rahman’s mandate
to govern Tower Hamlets, but also put in jeopardy a more promising socio-economic future
for the poorest in the borough. Through his administration’s policies, Rahman had been
working towards achieving a fairer allocation of socio-economic resources. Through the
operation of the law, the future of Tower Hamlets’ Bangladeshi community has been
rendered more precarious and contingent. This paper argues that to be concerned with ‘new’
legal temporalities demands an engagement with the way in which differential legal
temporalities are often racialised. To understand the relationship between time and law
therefore demands beginning with the racialised subject, “with the body that loses its chair”
(Ahmed 2007: 160, emphasis in original).
Panel 4. Courts and the multiple temporalities of vulnerable bodies
Chair: Carolina Y. Farusho
The court as the narrator: narrative strategies in the construction of children as legal
subjects
Kristina Hultegård, University of Gothenburg, Sweden.
In this paper, I argue that written verdicts, in its descriptions of the world arisen in the legal
case, is severely limited by narrative writing techniques. The verdicts, read through traditional
narrative techniques, is found to contain characters and dramaturgical twists and clichés
which we know from fiction rather than the physical world. This is seen not least through the
way in which the Court uses chronology, causality, rhythm and metaphors to write up a
description consistent with the argument.
In recent years, written judgments in Swedish courts have increasingly been seen to be
written according to the “woven” technique. This occurred after direct guidance from the
Court authority. Thus, the Court weaves together the described chain of events with the legal
argumentation. The descriptive part of the verdict is not separated from the argumentative,
presumably causing the Court’s descriptive writing to adapt to its purpose. This gives rise to
an interest in the descriptive part of the verdicts, not least with regard to those legal subjects
that only to a small extent will be heard in the proceedings of the Court. I myself have come
to develop a special interest in the Court’s descriptions of children. I am interested in the
extent to which the Court's description of the child reflects known narrative patterns and to
what extent it reflects actual children. My study is conducted through the reading of verdicts,
in which the child and the child's life is up for review, along with the theories of narrative
techniques developed within the narrative discipline.
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The (In)Vulnerable Female Asylum Seeker in Strasbourg
Lourdes Peroni, Human Rights Center, Ghent University, Belgium.
Using feminist analysis, the paper will discuss problematic lines of reasoning in the European
Court of Human Rights’ (the Court) Article 3 case law concerning women whose asylum
applications were unsuccessful at the domestic level. First, the paper will show that the Court
often under-scrutinizes the structures that heighten women’s vulnerability to gender-based
violence in their countries of origin. In particular, the Court does not meaningfully examine
state incapacity/unwillingness to protect women against violence by non-state actors in such
countries. Rather, it readily scrutinizes women’s ability to protect themselves or their
children. Thus, women’s strength, independence and education are implicitly taken as
indications of their invulnerability to violence. Implied in this line of reasoning is an
exclusionary ideal of vulnerability as inherent helplessness that simultaneously obscures the
role that state institutions may play in reducing or increasing vulnerability. More
fundamentally, this line of reasoning overlooks the ways in which vulnerability and agency,
rather than opposites sides of a dichotomy, may be mutually enabling. Second, the paper will
problematize the Court’s reliance on women’s male protective network when assessing the
risk of ill treatment in their countries of origin. In these cases, the Court usually concludes
that expelling women would not be contrary to Article 3 because they have male relatives
who can protect them against gender-based violence back home. The paper will argue that
this line of reasoning risks entrenching the gendered structures at the root of women’s
vulnerability while overlooking that the threat often comes precisely from male relatives.
Ultimately, the paper will explore the underlying links between female asylum seeker’s selfreliance, male protection and (in)vulnerability to gender-based violence in Article 3 ECHR case
law.
Childhood and vulnerability in ECtHR immigration cases
Ellen Nissen, Centre for Migration Law/ Institute for Sociology of Law.
Various scholars have examined the notion of vulnerability in human rights law (Turner 2006,
Morawa 2003) and particularly the case law of the European Court of Human Rights
(ECtHR)(Peroni 2013). Building on these contributions, this paper examines the relationship
between the notion of vulnerability and the social construction of childhood in immigration
cases ruled by the ECtHR. It does so by looking at children both as a group and as individuals,
with the aim to tease out explicit and tacit conceptions of the vulnerability of children.
The concept of childhood is a modern phenomenon that has resulted in a separation of the
world of children from the world of adults. Justification for this different treatment is
grounded in ideas of children as vulnerable and in need of protection. The Convention on the
Rights of the Child (CRC) is an example of how the law reinforces the idea of childhood as a
separate category. The CRC recognizes the vulnerability of children, while at the same time
promoting an image of the child as an autonomous agent, in order to counter misplaced
paternalism (Peroni 2013). This paper uses the vulnerability lens to scrutinize the Court’s use
of the best interests principle and children’s rights which are grounded in these somewhat
contradictory images of the child. It furthermore examines which conceptions of the
vulnerability of individual children emerge in the Court’s case law and how this vulnerability
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is connected to time, e.g. time spend apart from a parent, removal after having spent a certain
period of time in a country, time away from the country of origin. By making tacit notions of
vulnerability more explicit the paper aims to facilitate debate on children’s rights and make
their presuppositions arguable (Reynaert et al. 2008).
Panel 5. Vulnerable subjects: timely construct against persistently unequal relations?
Chair: Lourdes Peroni
How do intimate relationships make us vulnerable and why should the law respond?
Ellen Gordon-Bouvier, University of Birmingham
My paper focuses on the legal response to unmarried cohabitation and considers the issues
from a vulnerability perspective. My main argument is that the current legal regime (the
constructive trust and proprietary estoppel) is based on a fictitious image of the liberal,
autonomous subject. This imagined legal subject is rational, economically self-sufficient and
self-interested. The legal subject is, as Jennifer Nedelsky has argued, “bounded” and
unconstrained by the complex network of relationships that constitutes family life.
I argue that the legal regime in this area is an example of what Martha Fineman terms the
“restrained state”. It seeks to reinforce the ideal of the autonomous family, within which
vulnerabilities become invisible and privatised. It sends the message that caring work within
the family and home is not of equal value to economic contributions.
My argument is that the state has a duty to respond to inequalities that are created within
intimate relationships. This is because the liberal tradition of the restrained state has forced
dependency to become the sole responsibility of the family or the intimate relationship. As
a result, parties organise their relationship in a manner that creates vulnerability through
unequal allocation of tasks. I term this ‘relational vulnerability’. There are various ways in
which relational vulnerability can arise and these vulnerabilities are exacerbated over time
and over the course of the relationship.
My paper concludes that the state in meeting its responsibility to correct relational
vulnerability, needs to focus on enabling resilience through a careful analysis and response to
relational inequality. This can be done in various way, but one option is through the allocation
of resources and subsidies.
Future Generations as Vulnerable Subjects: Out of Sight, Not Out of Mind
Michael Monterossi, University of Venice.
Starting from a critique of the liberal subject, legal scholars have begun to theorize a
multifaceted concept of ‘vulnerable” subject, who is structurally exposed to the risk of being
harmed by circumstances which cannot be handled alone by the self-sufficient/autonomous
being. Vulnerability has thus become the pivotal point from which to re-think legal policies in
a way that forces the state to respond actively to the unequal distribution of material
opportunities which impedes one’s ability to be ‘resilient’.
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Indeed, such issues arise even with respect to future generations, whose lack of autonomy
and inability to affect present political decisions make their opportunities/capabilities
structurally dependent on the socio-economic resources that states’ policies are able to
guarantee them: the deprivation of such assets will increase potential vulnerability over time,
creating the premises for a future of greater inequality.
Considering the above, this paper explores the possibility of construing future generations as
‘vulnerable-legal subjects’: an expedient to render them visible in legal discourse, thus
breaking the legal temporality of ‘here-and-now’ and stimulating positive obligations by the
state to ensure the socio-economic environment necessary to express their capabilities when
they come into being.
This interpretation challenges the modern concept of legal subjectivity, which refers only to
anthropomorphic and liberal beings. The historical perspective reveals that they are both
ideological results of the legal principle of ‘formal equality’. Making all humans legal subjects
has definitely dissolved the original Roman Law separation between ‘natural’ and ‘juridical’
person while leading to the concept of the self-sufficient/autonomous subject.
The discourse on future generations can be used as a legal tool to unhinge such a twofold
notion, which constitutes a fundamental step in disrupting the private/public dichotomy,
untying the subject from an anthropocentric-liberal view, redefining the role of the state and
the horizontal time-frame policy and enlightening their reciprocal interdependency.
The subject or object of law: a trap of civil law equality.
Katarzyna Wojtkowiak, Gdańsk University.
The paper explores the problem of mental condition in the light of Polish relations under civil
law as an example. As the main principle of Polish relation under civil law assumes equality of
both parties it may leave the impression that the act of pursuing free will would be respected
and manifested outside in a form of formalized, mutual and fair agreement. Underlying this
conception, however, is a wide variety of vulnerable mental states. The question then arises,
is the vulnerable party the subject or an object of law. How the vulnerability in the relations
under civil law can arise. How law manifests its power and forces the vulnerable to eventually
double their vulnerability. Finally, how and why law becomes the oppressive force rather than
a carer. The problem needs to be analyzed from different angles, also taking into
consideration possible radicalization of political trends. In the background there is the time,
the constant change in social needs on one hand and on the other – the bone structure of
law, and in the age of multiverse and epigenetics theories it can leave us with even more
question – as for ethics of a given legal solution.
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