The New Legal Temporalities?
Discipline and Resistance across Domains of
Time
Regulating Time AHRC Network
Canterbury Cathedral Lodge, Canterbury, Kent
8-10 September 2016
PROGRAMME
Location and Housekeeping
The workshop will be held at Canterbury Cathedral Lodge, located within the
grounds of Canterbury Cathedral. The official address is The Precincts, Canterbury
Cathedral, Canterbury, Kent, CT1 2EH. You can see the cathedral from many places in
town – just head to the front gate and say you’re coming for a conference and they’ll
let you in.
If you have any questions about logistics or access requirements, please see our
conference website or get in touch with Sarah Gilkes on [email protected].
All meals and refreshments will be served in the Dean John Simpson room.
Otherwise, rooms are specified below.
Thanks! We would like to thank the AHRC for subsidizing this event and funding the
Regulating Time network, as well as SoCRIL (Social Critiques of Law, Kent Law
School) and the Science & Technology Studies Unit (University of York) for support.
Thanks especially to Sarah Gilkes and Sarah Slowe for their administrative expertise
and to Kent Law School (University of Kent) and the Department of Sociology at the
University of York for much behind the scenes work.
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Thursday 8 September
9.00-10.00:
Registration and coffee
10.00-10.30: Welcome and introductions/housekeeping (Clagett
Auditorium)
10.30-12.00: Plenary session 1: Visualising Law & Time – Amanda PerryKessaris (Clagett Auditorium)
12.00-12.45: Lunch
12.45-2.15:
Panel session 1
Gendered bodies 1 (Common Room)
Security (AV Theatre)
Rasheedah Phillips from Afro-Futurist Affair, Philadelphia, arts based session
(Clagett Auditorium)
2.15-2.30:
Afternoon tea
2.30-4.00:
Panel session 2
Technologies of Time 1 (AV Theatre)
Temporalising the International (Clagett Auditorium)
Philosophies of Time and Power (Common Room)
4.00-4.15:
Comfort break
4.15-5.30:
Keynote – Carol Greenhouse (Clagett Auditorium)
5.30-5.45:
Comfort break
5.45-6.45:
Book launch Karin Loevy (NYU School of Law) Emergencies in
Public Law: The Legal Politics of Containment (Cambridge University Press,
2016) (Campanile Gardens)
7.30 – late:
CT2 8AA
Conference dinner at Café du Soleil, 5 Pound Lane, Canterbury,
Friday 9 September
8.30-9.00:
Registration and coffee
9.00-10.15:
Plenary session 2 – Michelle Bastian (Clagett Auditorium)
10.15-10.45: Coffee break
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10.45-12.15: Panel session 3
Technologies of Time 2 (AV Theatre)
Experiments: Spaces, places and architectures of time (Clagett Auditorium)
Temporalities of Labour (Common Room)
12.15-1.00:
Lunch
1.00-2.15:
Plenary session 3 – Sarah Keenan (Clagett Auditorium)
2.15-2.30:
Comfort break
2.30-4.00:
Panel session 4
Technologies of Time 3 (AV Theatre)
Temporalities of Racialisation (Clagett Auditorium)
4.00-4.30:
Afternoon tea
4.30-5.45:
Writing Gender and Power in/from Ancient Greece: A
Conversation with prize-winning Canadian author Annabel Lyon (Clagett
Auditorium)
5.45-6.30:
Drinks (Campanile Gardens)
Saturday 10 September
8.30-9.00:
Registration and coffee
9.00-10.30:
Panel session 5
Gendered Bodies 2 (Common Room)
Temporalities of Migration, Immigration and Law (AV Theatre)
10.30-11.00: Morning coffee
11.00-12.15: Final plenary session – Justin Richland (Clagett Auditorium)
12.15-12.30: Comfort break
12.30-1.15:
Wrap up and next steps for the network (Clagett Auditorium)
1.15-2.00:
Lunch and departures
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ABSTRACTS
Plenary abstracts
These are online and will be made available separately at the conference.
Panel abstracts
Panel session 1
Gendered bodies 1 (Common Room) – Convened by Starla Hargita
(UTS/Kent)
Tactics and Alternative Visions
1. Mairead Enright (Kent): 'No, I won't go back': Homogenous National
Time and the Case of Symphysiotomy in Ireland.
2. Ruth Fletcher (QMUL): Hetitation and Appointment time on the
abortion trail
3. Starla Hargita (UTS/Kent): Bourdieu and the Temporal Embodiment of
Parental Leave in Australia
Chair: Sian Beynon-Jones (York)
Mairead Enright: 'No, I won't go back': Homogenous National Time and the
Case of Symphysiotomy in Ireland.
This paper is about Survivors of Symphysiotomy (S.O.S), a campaigning group which
represents elderly women who were wrongfully subjected to a childbirth operation
which unhinges the pelvis in Irish Catholic hospitals from the 1940s to the 1980s.
These women have suffered lifelong physical, psychiatric and emotional
consequences. S.O.S insists that doctors performed this operation on young women,
against their will, without any medical justification, and for religiously-motivated
reasons. The group has lobbied successive governments for over a decade, asking for
a public inquiry into the structures of medical and religious power which enabled the
operation to take hold, and for payment of appropriate compensation. The UN
Human Rights Committee has confirmed the validity of S.O.S's position in
international human rights law. However, the Irish government has not met their
demands, instead establishing an inaccessible and short-lived redress scheme, which
offered limited financial payments to a small number of survivors, without
admission of liability and without any substantial public investigation. S.O.S. have
responded by encouraging some members to strategically boycott the scheme and
instead to bring medical negligence actions against state hospitals in the civil courts.
Their hope, in part, has been that the courts would act as sites for detailed
interrogation of the circumstances in which individual symphysiotomies were
performed; that they would obtain 'statements of truth'.
This paper frames the conflict between S.O.S. and the government as centring around
competing renderings of national time. The Fine Gael government which has
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overseen the suppression of S.O.S's claims has repeatedly presented itself as a
responsible secularising force, which has dealt responsibly and efficiently with the
'legacy issues' of the state's theocratic past (institutional child sexual abuse; the
Magdalene Laundries; the Mother and Baby Homes) and made compassionate but
prudent financial provision for its victims. Government delivers 'closure'; ensuring
that the past is moved beyond any substantive present responsibility to do justice.
(Butler)
As part of this project, symphysiotomy is understood as a relic of an era safely past;
undoubtedly wrong by today's standards, but perfectly understandable according to
the standards of an inaccessible different time. The confinement of symphysiotomy
to the past allows the state to cleave to a certain rhetoric of inevitable upward social
progress and to break the narrative link between symphysiotomy and related
contemporary episodes of gender-based violence (obstetric violence, suffering
caused by restrictive abortion laws etc). Government responses to S.O.S are marked
by an absolute refusal to respond to symphysiotomy as 'of the present'.
The women of S.O.S, by their refusal to accept their place in this narrative - by
insisting that their claims belong to the law of medical negligence and of torture
rather than to historical redress - are 'out of time'. They interrupt the homogenous
empty time of the nation state (Benjamin), demonstrating its inherent instability
(Braidiotti). They stubbornly prise open the gap between today and the yesterday of
the nation (Latour). They disfigure the national narrative of overcoming the past, by
insisting on holding the time zones of past wounding and present responsibility
together (Braidiotti).
Again and again in Ireland social progress has been worked out over women's bodies
and women's reproductive experience. That happens again here. Because they are
out of time, the women of S.O.S. are presented as misguided, and vulnerable in their
appeal to the courts. Accordingly their claims are subjected to special modes of
management. In particular, the state takes advantage of time-based legal techniques
(deadlines for application to redress schemes, Statutes of Limitation, complex
common law rules on prejudice and delay, modifications of the law on standards of
care designed to protect defendants' interests in historical cases).
Ruth Fletcher: Hesitation and Appointment Time on the Abortion Trail
If linear time has been the time of the nation-state (Greenhouse 1996, 179) working
through rationalisations of technology and social control, what is the time of the
transnational space of the abortion trail, and what are its modes of
rationalisation? If the abortion trail is constituted by a range of legalities including
but not limited to those of nation-states (Fletcher 2013; 2015), then its temporality
must be plural (Valverde 2015, 44). But the trail is more than a space of plural
temporalities and cosmopolitan subjects. Rather it is a place of uneven temporality
where time speeds up and slows down as hesitant abortion-seekers respond to the
trail’s noise, look for some of its visible steps and feel out their way. This paper will
consider hesitation (Lowe 2015) as an enactment of plural temporalities with
uneven effects, and the fixing and unfixing of appointment time on the abortion trail
as one technique for rationalizing uneven temporality.
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Starla Hargita: Bourdieu and the Temporal Embodiment of Parental Leave in
Australia
This paper analyses Australia’s parental leave system with reference to Pierre
Bourdieu’s approach to temporal embodiment. It focuses on the temporal issues
surrounding Australia’s parental leave system which is made up of federal unpaid
parental leave and a separate parental leave pay scheme, and seeks to demonstrate
the legislation’s inadequacies in incorporating women’s reflexive temporal
experiences into legal and temporal boundary making. Australia’s Paid Parental
Leave Act 2010 (Cth) came into effect 1 January 2011 and grants eligible parents 18
weeks of parental leave pay. The paid parental leave scheme is an attempt at
constructing parental leave as a chrononormative pause from waged labour, subject
to strict boundaries and rules that fail to reference or incorporate the cumulative
and reflexive embodiment of gendered time and temporality. The legal construct of
parental leave pay is anchored to ‘clock-time’ as the dominant construction of time,
relying on chrononormativity to perpetuate existing relations of power in late
modern Australia. In this chapter, I introduce three temporal characteristics of
parental leave to illustrate the temporal boundary making of parental leave law and
attendant pay. I further demonstrate how the legislation reflects a chrononormative
legal and political paradigm, drawing on Bourdieu to present an alternative vision of
temporal embodiment and boundary-making.
Security (AV Theatre) - Convened by Geoff Gordon (VU University
Amsterdam) and Gavin Sullivan (Kent)
1. Henrique Furtado (Manchester): A Time for Never, Again:
The Discipline(s) of Transitional Justice and its Post-Conflictual Time
2. Bernard Keenan (LSE): Temporalities, Law and Security
3. Karin Loevy (NYU School of Law): Time and Temporalities in
Emergencies: Ticking Time in the Israeli High Court of Justice
4. Natalie Pompe (Zurich): The Legal Temporalities of Blacklisting
Chair: Geoff Gordon (VU University Amsterdam)
Henrique Furtado: A Time for Never, Again: The Discipline(s) of Transitional
Justice and its Post-Conflictual Time
The literature on post-conflict transitional justice has long discussed the conditions
for implementing a just and everlasting peace in divided societies. Scholars often
analyse the merits and demerits of different strategies, such as punishment,
acknowledgement and forgiveness, in promoting the emancipatory promise of
“never again” and reaching a time when violence has ceased to happen. The problem
with this literature, however, is that it largely departs from a traditional view of the
production of knowledge, assuming a relation of exteriority between the field and
practice of transitional interventions and the problems faced in the wake of
systematic violence. In a sense, this perspective takes the quest for justice in the
aftermath as a question of problem solving; it identifies in a particular situation (the
post-conflict) a need to implement one specific solution (truth, justice or
reconciliation). In this paper I propose a different analysis of the quest for justice in
times of political transition, one that moves away from the “conditions for
implementing” peace towards the conditions of possibility of the promise of “never
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again”. Drawing on a Foucauldian methodology I analyse the knowledge and practice
of transitional justice as a form of discipline that not only responds to an external
reality, but helps to produce this reality. I suggested that the emergence of this
“discipline” could only appear in the late twentieth century, with the appearance of a
postconflictual ethos. This ethos, based on the narrative of the “end of history” and
the final victory of capitalism and liberal democracy, conditioned the advent of a
triple novelty; the appearance of a new object (the post-conflict); the appearance of a
new knowledge (transitional justice); and the appearance of a series of new
technologies to implement the transition to the post-conflict (truth, justice and
reconciliation).
Bernard Keenan: Temporalities, Law and Security
Security in the system of modern politics is dynamic and processual. It is based on
the analysis of as many present-futures (futures that are foreseeable in the present
moment) as practicable in order to help bring about desirable future-presents (the
single situation that is ultimately realized).
As a former head of GCHQ puts it, security practices exist 'so that people can go
about their normal business, freely and with confidence' – and this normal business
includes law.1 For the legal system, risk-based problems are complicated in the field
of national security,2 which demands a further modification of due process so as to
control secret information while gaining the imprimatur of legality.3
Taking seriously Luhmann’s claim that communication media define historical
epochs of social systems,4 this paper considers the temporal-legal complications
presented by machine-led analysis of Bulk Personal Datasets (as defined by the draft
Investigatory Powers bill) in projecting future risks.5 Here, legal challenges will be
always-already decided by the fact that such techniques will, where there is a legal
system to consult, not be second-guessed, and thus defeat any claim of
disproportionality in advance.
This invokes Esposito’s claim that computational methods of profiling and prediction
may result in a relationship between truth and knowledge that finds historical
parallel not in the modern age of reason and accountability – essential for legal
evaluation of decisions – but in a machine-led form of divinatory truth.6
1
David Omand, Securing the State (London: C Hurst & Co Publishers Ltd, 2012), 3.
For reasons recently gathered together concisely in, S. Opitz and U. Tellmann, “Future
Emergencies: Temporal Politics in Law and Economy,” Theory, Culture & Society 32, no. 2 (March 1,
2015): 107–29, doi:10.1177/0263276414560416, see also, Niklas Luhmann, Law as a Social
System, trans. Klaus Ziegert (Oxford: Oxford University Press, 2004), 417, “growing anxiety about
the future and concern about the risky behaviour of others... which cannot yet be voiced because
the injury has not yet materialized”.
3 One retired Court of Appeal judge suggests that the secet services should now be considered an
autonomous pillar of government in the symbolic “division of powers”, see Stephen Sedley, Lions
under the Throne: Essays on the History of English Public Law (Cambridge: Cambridge University
Press, 2015), 190–1.
4 Niklas Luhmann, Theory of Society, trans. Rhodes Barrett, vol. 1, 2 vols. (Stanford, California:
Stanford University Press, 2012).
5 Bernard Keenan, “LSE Law Department Briefings on the Investigatory Powers Bill - Bulk Data in
the Draft Investigatory Powers Bill: The Challenge of Effective Oversight,” SSRN Scholarly Paper
(Rochester,
NY:
Social
Science
Research
Network,
December
15,
2015),
http://papers.ssrn.com/abstract=2703839.
6 Elena Esposito, “Digital Prophecies and Web Intelligence,” in Privacy, Due Process and the
Computational Turn, ed. Mireille Hildebrandt and Katja de Vries (Routledge, 2013), 121–42.
2
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Karin Loevy: Time and Temporalities in Emergencies: Ticking Time in the
Israeli High Court of Justice
A major source of legal and political mobilization and norm making in emergencies
has to do with the problem of containing emergencies ‘in time’. In traditional
emergency powers theory emergency time is predominantly an exceptional time: the
problem is that there is 'no time' and the solution is 'in time' - exceptional behavior is
allowed for a limited time only (until the emergency is over, or according to formal
sunset clauses). But what is characteristic of many emergencies is not the problem of
'no time' but the ways in which time is legally structured and framed to handle them.
Such legally significant time structures and solutions lie beyond the problematic of
exceptional-time but carry grave legal and political consequences.
The Israeli 1999 Supreme Court decision on the use of physical interrogation
methods under conditions of necessity illustrates why and how we should move
beyond the exceptional-time framework to unravel analytical time-lines and
timeframes. In this case the problem of 'no time' featured in the classic ticking-bomb
scenario. In exceptional necessity, the state argued, security service interrogators are
authorized to use physical force to save lives. The Court rejected this claim,
maintaining a distinction between ex-ante authorization (which is forbidden) and
ex-post criminal defense (which might be available in specific cases). This solution
corresponds to the typical circular timeline of emergency management practices:
that they are hardly concise in one moment but continuously move from ex-ante
anticipation, prevention and preparation to real time response and to ex-post
recovery and mitigation. But the Court, I claim, while attempting to tie the state to
this analytical timeline, did not restrict its own position on it. Anticipating ‘the
necessity of the necessity’, the Court lays down in advance, a broad scenario by
which security officials are encouraged to prepare for the ticking-bomb ‘time’ so that
when that time comes the ex-post question of criminal liability will already be
solved. This solution does not only open the door for a practice of regulated
‘necessity procedures’ for legalized and controlled torture, but also further conceals
a set of additionally significant emergency ‘timeframes’ which the Court applies and
which contain the problem of exceptional-time. These time frames do more work in
folding-in the problem of ‘no-time’ than can be acknowledged by current
exceptional-time theories and debates.
Natalie Pompe (Zurich): The Legal Temporalities of Blacklisting
The global blacklisting regime has mostly been discussed in relationship with the
right to privacy, the right to a fair trial and the lack of transparency. This paper in
contrast addresses the effect of the global blacklisting regime on the underlying
values of privacy rights namely privacy as a public good and individual autonomy.
Due to the limited perception of privacy in the listing framework, privacy rights are
seen as tradable against security, which ignores the purpose of privacy as a public
good. Moreover, the right to individual privacy is a direct instrument for the
protection of individual autonomy. The lack of transparency in the blacklisting
framework limits the scope of individual autonomy, which also affects the capability
to evaluate risks. The relationship between lack of transparency in the legal
framework and individual perception of risk is the main subject of this article. This
relationship is of special importance as the perception of risk – mostly influenced by
extreme events such as a terrorist attack – is determinant for risk policies such as
blacklisting. For the purpose of this paper theories about risk perception will be
summarised first. Second, the legal framework of the global listing regime will be
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outlined. Third, the role of Big Data in the establishment of the listing is described,
particularly the relationship between data as a basis for the listing and the public
perception of risk influencing the underlying data of the listing. The paper reaches
the conclusion that the listing regime that is established on available data influences
the perception of risk, which in turn has a direct effect on the underlying data of the
listing. In other words, the use of a data-driven algorithm as a basis for the listing is
affected by the perception of risk – which is influenced by the listing framework
itself.
Rasheedah Phillips (Afrofuturist Affair) arts based session (Clagett
Auditorium)
Rasheedah Phillips is a lawyer and social activist and creator of Afrofuturist
Affair, a grassroots organization based in Philadelphia dedicated to celebrating
and promoting Afrofuturistic culture, art and literature through creative
writing and associated events. She is author of the novel Recurrence Plot (And
Other Time Travels) as well as several other published short stories. Rasheedah
has very kindly agreed to formulate an arts-based session on the theme of her
current work and her abstract below.
Chair/introducer: Emily Grabham (Kent)
Law and temporality are inextricably linked; however this union is underexplored in
the world of poverty law and civil legal services to the poor, as are the ways in which
class oppression and institutional racism are reinforced by this union. The time
dimension plays a daily and crucial role in how people - particularly people of color
and poor people - are valued, treated, punished or underserved by and within the
justice system. Similarly underexamined are the ways in which individual, subjective
temporalities and communal temporalities are often at odds with the linear, Western
temporality embedded in the American legal system. Such tensions between
subjective time and the so-called objective temporality offered by the legal system
can cost one their livelihood, home, children, or freedom.
Using case studies from housing, child welfare, and employment law, I will examine
the ways in which temporalities show up in the legal process, and how subjective or
communal temporalities should be taken into consideration as a part of the decisionmaking process in the legal system. I will also present examples of alternative
temporalities as practical tools for allowing access to pasts or futures in a way that
linear temporality and obedience to mechanical and digital clock time cannot. Such
access provides for a unique opportunity to survey the ways in which collective and
personal pasts continue to affect us, how intergenerational trauma cycles throughout
our personal lives and within the larger communities and societies that we
participate in, and how we can break or shift these cycles. Ultimately, alternative
temporalities can inform legal perspective, legal rights, and the impact of future lawmaking on poor, vulnerable, and historically marginalized and oppressed
communities.
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Panel session 2
Technologies of Time 1 (AV Theatre) – Convened by Lucy Welsh (Sussex)
Temporalities of Medical Constructivism
1. Emilie Cloatre (Kent): Traditional medicines, law, and the (dis)ordering of
temporalities
2. Lisa Wright (Carleton): Legal Chronotopic Boundaries of Harm
Reduction
3. Caroline Somers (University College, Cork): When Duration Becomes the
Overarching Value: Constructing Time at the End of Life’
Chair: Lucy Welsh
Emilie Cloatre (Kent): Traditional medicines, law, and the (dis)ordering of
temporalities
Millions of patients around the world turn to traditional medicines for their
everyday healthcare. However, these practices pose significant challenges to
regulators. This chapter argues that one of their most complex features is that they
operate on a different temporality from those of law and biomedicine. I explore these
temporal challenges through three particular issues. First, so-called traditional
medicines in fact complicate the traditional/modern dichotomy on which both public
health systems and regulators often rely on when setting the parameters of
legitimate healthcare. For many patients, traditional medicines offer a turn to more
‘natural’ health practices, that are symbolic of a new form of modernity, in which
past, present and future overlap in complex ways. Legal systems have responded to
those challenges in highly contrasting way, proposing different readings of what, for
law, constitute the boundaries of contemporary medicine. Second, the temporalities
of traditional medicines do not fold easily into the standard tests and trials that
biomedicine relies upon, and that legal systems have adopted. In particular, the
emphasis that traditional medicine often places on continuities rather than timebound ‘events’, does not sit easily with the type of evidence regulators may seek
when assessing the validity of medical knowledge. Again, legal systems differ in their
accommodation of such difference. Finally, the capture by law of traditional
medicines is often a transformative rather than neutral process. Amongst other
things, it affects, directly or indirectly, their temporal operations. Often, an effect of
regulating traditional medicines is their transformation into new hybrid forms of
both products and practices, which enables them to fit more readily into some of the
expectations of biomedicine. Overall, this chapter explores how the question of
temporality, in the context of traditional medicine, enlightens new aspects of the
complex relationship between law and medicine.
Lisa Wright (Carleton): Legal Chronotopic Boundaries of Harm Reduction
Temporal analyses tend to be sidelined or fragmented in critical legal geography
scholarship, which instead focus upon the relationship between law and space
(Braverman et al. 2014; Valverde 2015). In my study of how harm reduction governs,
I analytically connect time, space, and law through an investigation of their
governmental relationship. Applying a legal lens to Bahktin’s (1981) concept of the
chronotope, that is the intricate and affective relationship between time and space, I
analyze harm reduction’s legal chronotopic governance. Based on ethnographic
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fieldwork conducted in Ottawa, Canada over one year at a socio-medical harm
reduction program, I argue that harm reduction is realized within particular affective
temporal, spatial, and legal relationships, which govern through porous boundaries.
Within harm reduction’s legal chronotopic boundaries, time, space, and law serve to
organize a particular set of harms as the object of governance. The temporal, spatial,
and legal boundaries of harm reduction, however, are not totalizing and the
governance of these harms does not persist outside of its boundaries. The porosity of
the temporal, spatial, and legal boundaries of harm reduction’s practices directs its
epistemic purview from both inside and outside. Particular practices of harm
reduction that take place within its legal chronotopic boundaries are carried outside,
for example drug consumption equipment, while other governance practices filter in,
for example prohibition. My research on harm reduction speaks to how time governs
through porous boundaries produced through its relationship with law and space.
References:
Bahktin, M. H. 1981. The Dialogic Imagination: Four Essays. Translated by C. Emerson
and M. Holquist. Austin: University of Texas Press.
Braverman, Irus, Nicholas Blomley, David Delaney, and Alexander (Sandy) Kedar.
2014. “Introduction” Pp. 1-29 in Braverman, Irus, Nicholas Blomley, David Delaney,
and Alexander (Sandy) Kedar, (eds.) The Expanding Spaces of Law: A Timely Legal
Geography. Stanford: Stanford University Press.
Valverde, Mariana. 2015. Chronotopes of Law: Jurisdiction, Scale, and Governance.
New York: Routledge.
Caroline Somers (University College Cork): ‘When Duration Becomes the
Overarching Value: Constructing Time at the End of Life’
This paper takes end--‐‑ of--‐‑ life decision--‐‑ making for young children as an
emblematic focal point through which to analyse the ways in which the medical
system constructs time – a system--‐‑ specific time – and the ways in which the legal
system, in its turn, negotiates that temporal reality with its own temporal
mechanisms of regulation. It uses Niklas Luhmann’s social systems theory, which
presents perhaps the most comprehensive theory of time, to do so.
When the legal system first intervened in this sphere, in the foundational case of Re B
(1981), it insisted on treatment. In doing so, it nudged the medical profession away
from its prior practice, and set in motion a dynamic that has, in the last thirty years
or so, transformed the situation from one in which children with disabilities but no
illness (uncomplicated Down’s syndrome cases for example) might be allowed to die,
to one in which children with very severe multi--‐‑ system impairments are
generally chosen for extensive and ongoing treatment. A significant number go on to
die anyway. This transformation, its elaboration and its consequences, are
considered here.
Luhmann’s theory blends ideas drawn from constructivism, Husserl’s
phenomenology and model logic to provide a highly complex and flexible account of
time, at once both carefully constrained and rich with creative potential. It is this
creative potential that the medical system has been able to harness so effectively in
order to achieve a relationship of cooperation with the legal system.
Legal intervention prompted changes in the medical system. Importantly, it led to a
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shortened temporal focus. Whereas previously a child would be treated only if a long
term quality of life could be achieved, now the system concerned itself solely with
what should happen in the short term. Now, if the child had a ‘treatable condition’ it
became axiomatic that he should be treated.
Treatment can be seen to secure time for the system. Treatment becomes the
functional equivalent of time; it buys time. It buys time so that time duration
becomes the overarching value. As more and more complex conditions were now to
be treated, the patient would inevitably spend more and more time in the system
receiving treatment. The system thereby created exponentially more time and more
opportunity for itself to do more, to learn more and to extend its influence.
Accordingly, with less time the system gained more time. By reducing the temporal
focus and so gaining more time for the system, massive gains are made for the
system in terms of increased capacity and learning potential.
If treatment is time and duration is a value, then treatment is a medium of decision
deferral. For as long as an end--‐‑ of--‐‑ life decision may be deferred, treatment may
continue. This is particularly problematic in the child context in which system
rationality has free reign. It is here that we see the full normative effects of the
change in medical rationality, reinforced by legal decision--‐‑ making.
Law plays a reactive role in this sphere. It negotiates, without fully understanding,
medical constructivism through the paradox of the best interests standard, which is
also a paradox of time. It is entirely indifferent to the best interests of the child,
focusing solely on the best interests of the infant, or even the neonate. Thus, law too
exploits the functional uses of ignorance through the creative exploitation of time.
Constructing the International, Temporalising Development (Clagett
Auditorium)
1. Jill Stauffer (Haverford College): The Temporality of Judgment: Law,
Aging and the Responsibility of Child Soldiers
2. Virginia Stephens (Goldsmiths, University of London): The Time of
Closure in Development Practice: Time as a matter of (re-)prioritisation
and (re-) negotiation in the European Union Rule of Law Mission in
Kosovo
3. Tatiana Waisberg (Minas Gerais, Brazil): The Treaty of Tordesillas and
the Making of Modern International Trade: a reassessment of the
invention of International Law in the sixteenth century
4. Jobien Monster (Tilburg): Time, Agrarian Change, and Development in
Rwanda and Cambodia
Chair: Sian Beynon-Jones (York)
Jill Stauffer: The Temporality of Judgment: Law, Aging and the Responsibility of
Child Soldiers
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
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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.
Virginia Stephens: The Time of Closure in Development Practice: Time as a
matter of (re-)prioritisation and (re-)negotiation in the European Union Rule of
Law Mission in Kosovo
This article engages with emerging themes in the sociology of time (Adam, 1990,
2005, 2008; Mische, 2009, 2014) to offer an empirical analysis of how time is (or
becomes) an ordering feature of interaction (Rawls, 2005) in short-term missions,
drawing upon ethnographic fieldwork of EULEX, a short-term European Union
Rule of Law mission deployed to Kosovo. I start from the premise that
development practice is about working oneself out of a job; once a development
organisation has achieved its goals and objectives there should, in theory, no
longer be a need for it, and the organisation can close and withdraw from a host
country. In this sense, if the ordering principle of a mission becomes about its
very end – symbolized by what I term its ‘closure’ – the influencing role of time
becomes ever more important to examine, particularly when that mission is
short-term, and time becomes an ever pressing resource the closer to the end the
mission gets.
In this paper I argue that temporal tensions between long-term goals and shortterm presence lie at the heart of a temporary short-term mission like the
European Union Rule of Law Mission in Kosovo (EULEX). I explore how EULEX
manages time during a downsizing exercise, and consider the impact this has on
the collective development endeavor. To do so means looking at the temporal
conflicts that emerge as organisational time horizons are adjusted and regulated.
With the rethinking of priorities, and the revision of future goals, the
contradictions of time are rendered visible.
13
The underlying claim is that whilst downsizing encourages different activities and
rhythms of time, it also creates a particular environment of internal and external
(dis)connect that is detrimental to development practice and to the goal of ‘closure’.
Tatiana Waisberg: The Treaty of Tordesillas and the Making of Modern
International Trade: a reassessment of the invention of International Law in the
sixteenth century
The Treaty of Tordesillas underscores a blatant contrast to the Westphalia Treaty, signed by
Portugal and Spain, in 1494, almost 150 years before Westphalia Treaty ruled out religious
strife shaking continental Europe during the seventeenth century. Unlike Westphalia, as a
peace agreement among equals, Tordesillas revealed the absence of agreement, imposing to
all European states a decision to share America with Spain and Portugal. It was contested
soon by France, challenging Portugal conquest of Brazil, sending soon its representants to
the Antartic France. Nevertheless, despite Westphalia tradition, the Treaty of Tordesillas
may not be regarded as something else than a treaty signed by two European sovereign
states, Contrasting to modern international law official foundations, the sixteenth century
international commercial law included the possibility to trade with many actors, states and
non-state, non-Europeans alike .
This oblivion may not be unintentional but rather bound to produce an artificially uniformed
international law, excluding Latin and East Europe, as well as other systems of law, already
known by European jurists. Unlike Westphalia international law, there is no recognition of
equality, and international trade is the center of gravity, where states and non-state actors’
interests may converge. It means that international commercial trade could flourish despite
of mutual sovereignty recognition, employing international mechanisms to foster the search
for economic profit. By denying the sixteenth century international order its legal legitimacy,
Europe’s Peace of Westphalia actually ostracized the participation of non-European counterparts, lately introduced to modern international law as equal sovereigns. This order also
ignored the potential role of international law as a mediator between different cultural
traditions, able to produce a dialogue even when the parties were at war.
This denial of the sixteenth century international law role in the making of modern
international law may have pervasive effects to this field of study. The legitimacy of
international law discourse is especially controversial in human rights issues, pretending a
universalism that is contested by non-European states. This universalism approach, in this
sense, may be perceived as a reminiscence of Westphalia misleading conception of
sovereignty, enhanced at the notion of state’s independence and autonomy, as well as at the
moral superiority of European states. Shifting the focus of modern international law
foundation from sovereignty to modern international trade custom, also offers a less state
centered perspective to approach international norms, understood as pluralistic, dynamic
and essentially controversial.
Against this background, this proposal aims to investigate the some of the main
features of sixteenth century international law, challenging traditional modern
international law foundations as a result of Westphalia Treaty. By exploring concrete
cases, and indicating situations in which state and non-state actors resorted to
international norms in order to justify its actions, this paper will assess whether
some pre-Westphalia international commercial practices may be defined as the
beginning of “modern” international law.
14
Jobien Monster (Tilburg): Time, Agrarian Change, and Development in Rwanda
and Cambodia
The paper gives an analysis of the configuration of the relationship of time and the
concept of law. The inquiry is situated in the context of agrarian change and law and
development in Cambodia and Rwanda. An analysis of rule of law reform in these
two countries reveals that the instrumental future oriented ‘thing’ character of law is
not effective and results in a lack of responsiveness in the relationship between law
and dispute resolution and learning in the challenge to find sustainable and inclusive
solutions for conflicts that rise in the processes of agrarian change. Yet, also the
increasing emphasis on informal dispute resolution to facilitate more problem
solving approaches has shortcomings because it denies the relationship between
cases over time by reducing conflict resolution to interest based problem solving in
which neither past nor future cases play a role in the considerations. How can that
be ‘empowering’?
Reflecting on the suppositions underpinning these norms and the rule of law
interventions of which they form a part, the hypothesis is made that the
shortcomings of the current paradigm can be attributed to a lack of understanding
and reflection on the complex relationship between law, legitimacy and time. The
instrumental view is offering a blueprint for the future. The mediation approach in
turn is time-naïve. Three questions would need to guide further inquiry. The first
question concerns the relationship between time and the modern paradigm of law. A
better understanding is needed. The analysis is that the modern paradigm of law is
grounded in a dualist perspective on time and the distinction between eternity and
chronology. Many of the modern dualist dichotomies, such as the separation of
emotion and rationality, mind and matter, nature and culture or the public and
private sphere have been challenged and each critique has had a resonating impact
on legal theory. However, the dualist understanding of time, as a distinction between
eternity and chronology seems to have largely escaped scrutiny. In law, time is still
largely understood as a chronological arrow, a movement from past to future. As
such it has a large normative bearing on law. As Mellisaris writes, ‘the perception of
time or, more precisely, making sense of the ability to grasp and control time
normatively, which I shall term as the chronos of the law, constitutes part of that
shared normative experience. Chronos is built in the normative content of the law
and is inextricably linked to it.’7 The importance of this normative relationship is
clearly visible in the doctrines of legitimacy. The doctrine of legality is past oriented,
the doctrine of instrumentalism is future oriented and doctrine of positivism is
concerned with a notion of eternal truth. The doctrine of positivistic
instrumentalism combines all three in a narrative of ‘validity’, ‘legitimacy’ and ‘truth’.
Arguably, what we see happening in rule of law reform in the countries of research is
an orientation on the future to source the legitimacy for legal interventions, because
an orientation to the past obviously doesn’t provide a strong footage. Also the strong
emphasis on mediation can be understood against this horizon. Only the outcomes
matter, the results legitimize the practice.
Recognising the importance, even centrality of the perception of time, within the
core doctrines of law, gives reasons to reflect. Can legitimacy be sourced from results
and future promises? Or should it be recognised that law itself is a temporising
praxis and that thus at all time, the relationship to time, should be as rich as possible,
7
E. Melissaris, The Chronology of the Legal, McGill Law Journal, vol 50, 2005, p. 846
15
including past, present and future, rhyming cases over time to enable the evolution
of legal meaning. Even more fundamental and relevant to the two countries of
research that both do not share the ‘modern’ perception of time, it is possible to
conceive of theory of law that relies on an alternative, non-dualist perception of
time? This in turn gives rise to the final question, what view such a non-dual theory
of time and law then offer on the challenges in agrarian reform in the countries of
research?
The paper argues that exploring a non-dualist view on time is both needed and
possible. Legal theory offers several heuristic tools. Most importantly, systems
theory is based on a monist foundation and allows for the non-dual understanding of
temporality in its core definitions. In addition, Heidegger’s phenomenological
hermeneutics and rhetoric offer elaborate monist ideas. To make a step, a
framework for understanding law is proposed that consists of ten ‘time conscious’
suppositions. This framework is referred to as a framework of Law as Care, in which
the word ‘Care’ implies a reference to Heidegger phenomenological perception of
being and time.
Philosophies of Time and Power (Common Room)
1. Kathrin Braun and Jürgen Portschy (Vienna): Beyond authenticism
and apocalypticism: time, temporalities and power from a
governmentality perspective
2. Riccardo Baldissone (Fellow, Uni of Westminster Law & Theory Lab):
Behind the facade of time? Towards a genealogy of Western
temporalising processes
3. Giorgio Astone (La Sapienza, University of Rome): Searching for a lived
subjective temporality. Nine philosophical bases of Hartmut Rosa's
Acceleration Theory.
4. Danilo Mandic (University of Westminster) Copyright Law and its times
Chair: Emily Grabham (Kent)
Kathrin Braun and Jürgen Portschy: Beyond authenticism and apocalypticism:
time, temporalities and power from a governmentality perspective
The paper suggests a Foucault-inspired political science perspective on issues of
time, temporality and governmentality, discussing current debates on the
relationship of time and power in social and political science more
broadly.
Currently, much of the philosophical and social science literature that
theorizes profound ongoing changes in time and temporality is preoccupied with the
rise and decline of “clock time”, seen as a characteristic of modernity. Various
approaches building on different philosophical traditions suggest that the dominance
of “clock time” is giving way to a sort of postmodern “event time”, a point often
aligned with the generalizing claim that history is coming to a close. The paper
addresses this literature, focusing specifically on its theorization of time, temporality
and power, but will also go beyond it.
We contend that current debates on the transformation of time, temporality and
power are characterized by two tendencies: authenticism and apocalypticism. While
the former assumes some substantial temporal force or dynamic that gets blocked
16
up by the dominant mechanisms of organizing time and hence must be recovered or
restored, the latter totalizes the heterogeneity of temporal forms from the
standpoint of its own present, which is conceived as a fundamental break in time and
tends to miss the contingent and contested nature of the various conflicting
temporalities.
While both tendencies see themselves as being critical, we will point out some
problems when it comes to formulate a critical perspective on issues of time,
temporality and power. We will contrast these tendencies to a Foucauldian
approach, which 1) also accounts for the specificities of the present situation, while
2) introducing a reformulated concept of history built on contingency and conflict,
and 3) shifting the analytical focus on genealogies of governmental techniques,
rationalities and mechanisms of temporalisation, which effectuate different forms of
time and temporality.
Riccardo Baldissone: Behind the facade of time? Towards a genealogy of
Western temporalising processes
Among the three elements of the modern conceptual trinity, namely subject, object
and time, the last notion seems to be the most resistant to reconsideration. Whilst
Foucault powerfully construed the subject as the effect of subjectivation processes,
and Latour narrated both the fabrication of the object and the erasure of the traces of
its production, time is yet to be fully reconfigured as the result of temporalising
activities. By recasting the entity ‘time’ as the effect of temporalising processes, we
would instead be allowed, for example, to construct the unified time of financial
markets as both the outcome of ongoing synchronizing practices and the condition
for the production of future temporal layers. Actually, already in the 1930s Bloch
wrote about these layers of time, whilst attempting to import Riemann’s manifold in
the construction of history. Nevertheless, I would not propose another synchronic
theorization of time, but a genealogical exploration of the Western concept(s) of
time.
Thucydides struggled to reconcile the plurality of Greek calendars in order to
produce his unified history of the Peloponnesian wars. However, since Eusebius’
production of a linear chronology, Christianities subordinated the various human
temporalities to god’s immediate grasp of the totality of time. Newton restated this
distinction as the opposition between the relative, apparent and common
temporality, and absolute time. In turn, this absoluteness of time was granted by
god’s omnipresence, which also guaranteed absolute simultaneity. The latter concept
survived the secularization of physics until it was rejected by Einstein, who
nonetheless restated against Bergson the distinction between the objectivity of
physical time and the subjectivity of the psychological construction of time itself.
Bloch then applied Einstein’s curvature of space to time, which he imagined as
deformed by the material movement that took place in it. Nevertheless, we are yet to
take account of the production of time as the result of processes of temporalisation.
On the one side, a genealogical reconsideration of Western temporalising processes
would help to trace back the pairing of time and money up to the formulations of
medieval juridical theologians. On the other side, this retrospective construction of
temporalising processes as chronological and monetary quantifications of time
would open the way to alternative temporalisations. This alternative may be
conceived of both as the redirection of the benefits of temporal quantification, and as
the more radical decoupling of money and time, which may instead be accounted for
17
in qualitative terms. Most important, I would argue that such construction of a noncomputable time would contribute to the containment and, hopefully, the decrease of
commoditization practices.
Giorgio Astone: Searching for a lived subjective temporality. Nine
philosophical bases of Hartmut Rosa's Acceleration Theory.
In the following paper I will attempt to make a list of what could be considered the
“philosophical basis” or “elements” of Rosa's Acceleration Theory, as they transcend
the sociological level and they are close to the levels of subjective temporality and
phenomenology. They are: 1. The “slippery slope” phenomenon, 2. the contraction of
the present (or Gegenwartsschrumpfung), 3. the Non-Contemporaneity of the
contemporary, 4. the ideal model of «fulfilled life», 5. the creation of «short-term
desires», 6. situational and predicateless identities, 7. the implication of
synchronization and desynchronization, 8. the dichotomy Erfahrung and Erleibnis
and 9. the concept of rasender Stillstand. The last section will deal with different
ways of tackling temporality in the present day, referring to the studies of Bob
Jessop, John Urry, Herfried Münkler, William E. Connolly, William E. Scheuerman,
Massimiliamo Tomba, Galen Strawson and others.
Danilo Mandic: Copyright Law and its Times
Copyright law is one segment of the broader intellectual property law recognised as
an instrument for promoting and protecting works of creation and knowledge. While
copyright’s functioning is based on a property principle, it is an exclusive right that is
also time-restricted and lasts 70 years after the author’s death. Once copyright
expires the work falls in the public domain. Although copyright’s duration is often
seen as secondary to the very actualisation of copyright, it is nevertheless one of the
main principles that was recognised in the world’s first copyright act known as
‘Statute of Anne 1709’. The recognition of copyright duration as an ordering
principle for regulating property rights has ever since been continuously extended,
which has recently been subject of criticism about law’s response to the current
technological advances and its potential to undermine the public interest.
Copyright, based on a property principle, is often conceptualised in spatial terms,
subjecting the duration of protection only to the pragmatics of its functioning.
Demonstrating that copyright law is a product of an occularcentric understanding of
the world introduced with the Enlightenment, and that property is a visual category
that eradicates the sense of time, this paper contends that copyright law considers
time as something given and naturalised. Furthermore, it demonstrates how
copyright is embedded in the Newtonian linear and continuous understanding of
time, which resonates with the way in which it conceives itself and regulates. Thus, it
is not surprising that copyright manifests itself as a ‘timeless category’: for the law to
maintain its image as a guarantor of stability, according to the French philosopher
Michel Serres, it must stop time. This paper argues that copyright is essentially a
temporal category, and that regulating time is the device to materialise the
‘intangible’ property that copyright protects.
18
Panel session 3
Technologies of Time 2 (AV Theatre) – Convened by Lucy Welsh (Sussex
Temporal Technologies of the Court
1. Sinead Ring (Kent) and Penny Crofts (UTS): Temporalities of Suffering
and Justice
2. Sonal Makhija (Helsinki): Temporality of Law and Waiting
3. Lucy Welsh (Sussex): Title TBA
Sinead Ring and Penny Crofts: Temporalities of Suffering and Justice
This paper explores the temporalities of suffering and justice in law’s encounters
with adults who report being sexually abused as children. Focussing on the legal
responses to adult victims of abuse, we consider the plurality of temporalities
involved and explore what they reveal about law’s construction of victims and the
challenges of justice.
We trace the construction of various temporalities in two instances of legal
responses to claims of child abuse: criminal prosecutions of alleged abusers in
Ireland and the reports of the Royal Commission into Institutional Child Sexual
Abuse in Australia.
We explore how notions of ‘blameworthy delay’ and ‘reasonable time’ are employed
in constructing law’s temporality, which fixes the abuse, its effects and, crucially,
responsibility and accountability for it, firmly in the past. This linear temporality
assumes that, given the passage of time, law cannot be expected to rationally
discover the truth of past events. Thus, law’s temporality orders justice and silences
some victims. This temporality comforts spectators as something that has occurred
in the distant past, for which apologies might be made, but legal change is no longer
necessary.
We show that victims’ testimony before courts and the Royal Commission disrupt
law’s synchronic conception of child abuse. The testimony springs from another
kind of temporality, one that breaks apart presumed fixed boundaries between past
and present. The temporality of victims’ suffering is demonstrated as being (a)
productively traumatic in its linking of past and present and (b) politically powerful
in its emphasis on victims’ resilience, endurance and agency. Connected to this, we
consider also what justice might require as a response to institutions and individuals
who have been revered in the past, but have later been revealed as perpetrators or
complicit in the abuse.
Sonal Makhija: Temporality of Law and Waiting
Drawing on eight months of ethnographic fieldwork in a court in the city of Mumbai,
this paper explores women litigants’ lived experiences of law, temporality and
indeterminate waiting in courts. The paper demonstrates how the tension between
cyclical everyday time in courts and women’s expectations from the law wedged in
linear time not only inform their experience of law and waiting, but also how they
measure time and understand the passage of time. In law, time is often the only
measure of efficiency. From the bureaucratic numbering of cases in courts that are
annually earmarked, the limitation period set in law, the linear narrativisation of
time in court petitions into dates and events and the expectation of temporal
19
accuracy in cross-examinations – time is central to law. But, how does the
temporality of law and waiting differ? The paper argues that the temporality of law
and temporality of waiting are ‘out of joint,’ and women’s waiting exists in multiple
temporalities. I argue that the everyday life of the law exists in a different
temporality from that of waiting.
Lucy Welsh: Title and Abstract TBA
Experiments: Spaces, places and architectures of time (Clagett
Auditorium)
1. Olivia Barr (Melbourne): 40,000 years is a long, long time
2. Thanos Zartoloudis (Kent): Temps opératif: the experimental
architecture of time within time
3. Carey Young (independent artist) In and Out of the Law
Chair: Sian Beynon-Jones
Olivia Barr: 40,000 years is a long, long time
Redfern is an inner-city suburb of Sydney, Australia that hosts many stories of
migration, political contest and ongoing relations between Aboriginal and AngloAustralian laws. A collection of these are captured in the ‘40,000 years is a long, long
time’ mural. Painted in 1983, and designed by artist Carol Ruff, a series of panels
stretch across a long bridge wall, above the Redfern train station, with the Sydney
skyline as backdrop.
While undoubtably iconic, the mural deteriorates. After decades of bureaucratic
dead-ends, a 2016 pilot project is funding Carol Ruff to undertake a feasibility study
as a precursor, perhaps, to its restoration. Amongst many involved in the restoration
is an artist-based research group called ‘Space, Place, Country’ from Sydney College
of the Arts, University of Sydney, led by artist Bianca Hester and writer Saskia
Beudel.1 Reflecting on my involvement with this group, and this project, I seek to
place the question of time in circulation with concepts of space, place and country by
telling stories: law stories.
For me, the mural is a law story that holds time in at least two ways. The first is the
visual and material telling of a narrative history of Aboriginal peoples in Redfern:
selecting events, ignoring others, and celebrating what is important to this place.
While lightly linear, this is not the progress narrative of the State, and arguably
reshapes a certain form of colonial legal time. The second is the way the mural holds
other, less visible, law stories and other, less visible, permutations of time. Looking
beyond the shades of paint, even as they peel, this is the mural as a story-gathering
device that shares, hosts, holds and refracts stories of how we live together, with law,
and in place. Through acts of story-telling and story-gathering, the mural is, I
suspect, a lawful place. But is it a lawful time?
20
Thanos Zartoloudis: Temps opératif: the experimental architecture of time
within time
How to speak of time? As a container? It occurs within time. A measure? The time is
takes to end. Perhaps as a substance. The “only time we have.” Maybe also as a place, a
point in history. Can “time” be an operation? Such questions, inter alia, necessitate a
rethinking of time as a thinking that confronts a problem rather than a dogma.
It is particularly instructive to refer to the French linguist Guillaume’s notion of
operative time (temps opératif) in this regard. According to Guillaume, thinking takes
place in time. In other words, the conception of ideas is an intellectual process, which
requires a certain, even if at times minimal, lapse of time. To think about a notion
means to construct it and the time needed for it is called operative time (temps
opératif). For Guillaume the human mind experiences time, “but it does not possess
a representation of it, and must, in representing it, take recourse to constructions of
a spatial order (a time-image).” But such representations, for Guillaume are too
perfect because they do not show time in the act of being constructed in thought (it
the temps opératif). Hence Guillaume will define this time as operational time,
“meaning the time the mind takes to realize a time-image”. On this basis Guillaume
will invent what he calls a chronogenetic time following Aristotle’s theorisation of
potency in its relation to an act. Guillaume’s psycho-mechanic approach is engaged at
the level of the word; actualization is consequently a process that concerns the word
which, by virtue of the article, is activated in discourse; its status changes from
puissance in posse (potential meaning) to in esse (meaning in discourse).
While this paper takes some inspiration from the above-mentioned reflections its
aims will not be as abstract. This paper shall consider the ‘making of time within
time’ in relation to the project called Fun Palace (1961) by one of the most visionary
architects of the 20th Century, Cedric Price (1934-2003). Price, incidentally, espoused
that time was a critical yet forgotten component of architecture. In an interview with
Hans Ulrich Obrist Price stated that “movement implies a measurable interval,
always in time and frequently in distance… mobility describes the capacity for
movement.” If law necessitates as well as prefers temporal closure at least to an
extent, the Fun Palace can be seen as an architectural experiment that necessitated
as well as preferred temporal openness or play. Neither law nor architecture are
ever as successful as they aspire to be, so one has to continue to find time to ask why.
Carey Young: In and Out of the Law
Since 2003, visual artist Carey Young has developed a number of works that are
also functional legal instruments, and which propose law as an artistic medium.
Young works with a legal team to make works in installation, video,
performance, print, sculpture and photography which also operate as bespoke
legal instruments. These have taken such diverse forms as disclaimers,
contracts, offers, licenses, cautionary statements and other legal devices. These
works have addresed and critiqued disparate legal fields including human
rights, inheritance law, intellectual property and ‘outer space’ law. The works
experiment with ideas of time, space and physicality in relation to law, and
explore law as a separate kind of ‘reality’, one with its own inherent
subjectivities and points of breakdown. Young will present today on elements of
her work that engage with themes of law, time and temporality.
21
Temporalities of Labour (Common Room)
1. Lydia Hayes (Cardiff): Material technologies of time: Zero-hours
contracts and electronic monitoring in homecare
2. Heather McKnight (Sussex): Unionising the Future? Mapping Radical
Utopian Temporalities of resistance between Trade Unions and Students’
Unions
3. Ugo Orazulike (Manchester): The Temporal Dependencies of Formal
Rules for Occupational Safety and Health
4. Emily Grabham (Kent): What Time(s) for Resistance? ‘Remaindering’
and ‘Fate-Playing’ in Precarious Work
Chair: Emily Grabham
Lydia Hayes: Material technologies of time: Zero-hours contracts and electronic
monitoring in homecare
The UK was the first state in Western Europe to develop markets in social care.
Homecare services, providing low cost, community based care to older and disabled
people living at home, is largely state-funded. However, 97 percent of homecare
employment is located with non-public and private-sector organisations that
contract with local authorities for the delivery of these services. In law, social policy
and lived experience, homecare is located within competing discourses about time;
whether those of intergenerational competition for resources, of legal disputes about
paid and unpaid working time, or of insufficient time allocated for meeting individual
care needs (itself a statutory duty). This chapter is based on data from an
ethnographic study of homecare workers. A central theme in the data is the
subjective experience of working time; including a situated and heightened
awareness of temporal discourse and concerns about time in the management,
organisation and performance of care-giving in private domestic homes. It would
seem that, at the level of lived experience, time is understood as the product of caregiving. In this chapter I address the question as to how time is materially produced
in and through care-giving. I build on scholarly interest in working time in homecare
(Rubery et al., 2015; Bolton and Wibberley, 2013; Hayes and Moore, forthcoming) to
now consider the material fabrication of care as time.
Ethnographic data centrally implicates two artefacts: telephone technology to
electronically monitor working time, and contractual technology to reduce/constrain
workers’ pay. My analysis focuses on understanding these tools of law and social
ordering as material technologies of time production. Electronic monitoring
provides employers and contracting local authorities with real-time data about the
performance of care. Homecare workers interact with software that tracks their
location and arrival/departure times through data entered into each landline
telephone or a GPS enabled mobile. This technology creates time writ large in
homecare workers’ material experience of entering the private home of each serviceuser. It establishes that time itself is the basic productive output in the relational
interactions which then ensue as the worker performs (her) care-giving routines.
Meanwhile, contractual technologies establish that the legal relationship between
homecare workers and employers is formally devoid of temporal wage
commitments. However, the ethnographic data reveals the contract itself as
technology of time. Time is fabricated at points when the contract is materially
22
activated and retained as the latent output of the contract when it is otherwise
dormant. Electronic monitoring and zero-hours contracting are in widespread use
across the UK homecare industry, yet there has been little prior attention to the
temporalisation of care. In this chapter I suggest these material technologies of time
have been central to the commodification of state-funded homecare. They transform
community orientated, embodied and relational care-giving, into a material, yet fluid,
commodity of transactional exchange.
Heather McKnight (Sussex): Unionising the Future? Mapping Radical Utopian
Temporalities of resistance between Trade Unions and Students’ Unions
The current Green Paper on Higher Education places Trade Unions and Students’
Unions side by side, situating a question around the transparency and accountability
of Students’ Unions in the context of the recently proposed reforms to Trade Unions,
legislation designed to restrict powers. However, alongside these impending
legislative changes, a recently renewed agreement between the National Union of
Students and the Trade Union Congress states that they will jointly campaign under a
“shared vision of a society based on the principles of social justice where all people
have access to quality education, decent jobs and individual and collective rights at
work.”
Ernst Bloch’s utopian temporality considers the past, present and future as
coexistent, radicalising the way we think, through viewing time as the creative
epistemology of the possible, presenting an epistemology that is both utopian and
deconstructive. He speaks of multi-layered dialectics that involve people existing in
different times, experiencing forms of resistance and oppression in differing ways.
For Bloch contradiction with the overarching ideology is both contemporaneous and
non- contemporaneous; both conflicts create revolutionary potential. These ideas
will allow us to trace and contextualise the potential in the Trade Union and
Students’ Union movements, addressing how they could potentially disrupt each
other in ways that create the potential for resistance to happen.
This paper looks at the utopian horizon drawn by the shared vision of the TUC and
NUS, and troubles how possible this is. It begins to analyse relationships between
Trade Unions and Students’ Unions, to identify potential resistance or reinforcement
to the effects of the marketisation of education, which threaten both the access and
quality of this education, and the experience of the workers within it. It looks to
identify what commonality of purpose exist and which conflicts of interest, and how
or if they can be overcome as they disrupt each other’s conception of the now. It will
draw on legislative changes from 1970 onwards, addressing what is currently
happening in and between these movements dissecting current understandings of
the strengths and weaknesses of these potentially powerful partners, and of their
speculative futures.
Ugo Orazulike (Manchester): The Temporal Dependencies of Formal Rules for
Occupational Safety and Health
What the author sets out to achieve here is simple, namely, to provide a descriptive
account of the temporal dependencies of occupational safety and health (OSH) rules
in terms of the time-bound conditions inherent in formal OSH rules. And also
temporal dependencies in terms of the temporally interdependent characters of
formal OSH rules, or the fact that certain formal OSH rules possess variant temporal
dependent meanings. The paper considers the significance of temporality to
statutory rules and judicial decisions concerning the occupational safety and health
23
protection accorded to workers in law. It presents the temporality of OSH law and
policy proclamations in three ways: in terms of time of the past, that is, presenting
workers OSH entitlements in law as formal protection that are determined by
historical interpretations or meanings; in terms of time as the present, that is,
explaining the rights of workers based on the existing positive rules of OSH law; and,
in terms of time in view of the future, in which case OSH law and policy are
presented in view of futuristic OSH rules, yet to be established OSH rules, and the
preventative paradigm to regulating the health and safety entitlements of workers.
The temporal dependencies of the three canons of regulation are further presented
by analysing how recent European case laws and regulations influence these rules:
occupational exposure limits (OELs), statutory time-bar, direct effect, the Francovich
liability, and (quantum of) OSH liability. The paper concludes that i) looking at
temporality from these three canons of regulation is crucial for better forms of OSH
regulation, and ii) that time is central to most OSH rules which are declared by
formal authorities.
Emily Grabham: What Time(s) for Resistance? 'Fate-playing' and 'Newness' in
Precarious Work
In a recent article published in South Atlantic Quarterly, Neferti Tadiar describes the
experiences of apparently 'unskilled' women labourers in manufacturing centres in
Mexico and China as the 'remaindered lives' of global capital. Tadiar's forceful and
eloquent account contrasts with the stories of capital's total seizure of life that can be
found in much global north thinking on the present economic moment, stories
dominated by entrepreneurs, artisans, and cultivated selves. Arguing that the new
political economy of life overlooks the racialised 'broader immiserative logic' that
creates experiences of life as essentially ongoing degradation, Tadiar reminds us of
the surplus and waste that is needed for capital to expand. Life, experienced by some
as a project, portfolio or career in particular economic contexts, is experienced by
many instead as 'fate playing' and wastage.
Yet 'remaindered lives' are legally as well as politically or economically achieved.
Drawing on interviews of women in precarious work in the UK, this paper traces the
'remaindered lives' produced in, alongside, and through UK labour legislation, which,
in key respects, excludes and marginalises precarious workers. Unlike the 'orderly
career' imagined by so-called 'family-friendly rights', with its implied temporalities
of progression and investment, women in precarious work experience their lives
through temporalities of what Tadiar would term ‘fate playing’: clusters of
provisional orientations, chances, half-made decisions, and degrees of subjugation in
conditions of uncertainty and lack of meaningful choice. For racialised and
immigrant women, obtaining permanent or semi-permanent work is fraught with
particular difficulty. Yet resistance is ongoing in these women's lives: they often
report challenging their employers for better terms and conditions; they educate
themselves and others about legal rights; they save against the possibility of future
lack of work - in short, they deploy a series of tactics and strategies to continue in
work and continue providing for dependents that points to the generative potential
of alternative temporal frames of working and living. Through a renewed focus on
time, experiences of time and the time(s) of legal technicalities, my hope is that we
can continue the work of accounting for the production of 'remaindered lives'
through the regulation of labour. More specifically, by focusing on the disruptive
'other side' of the orderly career, and its temporal dimensions, the everyday
resistance practices of precarious workers emerges.
24
Panel session 4
Technologies of Time 3 (AV Theatre) – Convened by Lucy Welsh (Sussex)
Temporalities of Housing and Property Development
1. Helen Carr (Kent): Housing Space: Governing Bodies through Time and
Stuff
2. Edward Mitchell (Sheffield): Timely property development: can a date
be unconditional?
Chair: Lucy Welsh
Helen Carr: Housing Space: Governing Bodies through Time and Stuff
The distribution of housing space acts as a significant disciplining of the bodies of
those who are marginal to the housing market. In this paper I argue that this
discipline increasingly has a temporal element. I draw on two contemporary housing
initiatives to demonstrate this, the ending of lifetime tenancies and the introduction
of starter homes, both provided for in the Housing and Planning Bill 2015-16. I then
turn to the role of domestic storage in the governing of bodies. I argue that the
ability to store stuff in the home is crucial to the temporality that is inherent in the
notion of home. I look at the waxing and waning of storage requirements in council
and social housing, the relationship between technology and storage, and the
extraordinary phenomenon of self storage units, which not only intensifies the
commodification of storage space and removes stuff from the home but impacts in a
particular and arguably neoliberal way upon the meaning of home.
Edward Mitchell: Timely property development: can a date be unconditional?
This paper is part of PhD research into large-scale urban property development and
discusses aspects of that research. Local authority officers and councillors, and their
private sector property development partners, often emphasise that this type of
property development is a process. They imply that it involves continuous action and
a series of events that take place at key moments on a pre-defined development
trajectory. These moments appear to be keys in that they seem to have the power to
provide access to future opportunities while also locking out other possibilities. And
they appear to be a key in that they offer a way for the parties to clarify what has
gone before, consolidate their understanding of the present, and map their next
steps. Passing through each moment is also presented as key to completing the
development process. In this paper I analyse an apparently key moment in that
process.
To facilitate a current development project in Winchester, the city council and its
development partner entered into a development agreement that obliges the council
to transfer publicly-held land to the developer and the developer to carry out the
development. But these obligations were conditional. The council refused to transfer
its land until it felt assured that the developer was committed to develop it. And the
developer refused to commit to develop until it had obtained planning permission,
secured agreements with tenants and funders and was confident that the
development would be profitable. Despite this complexity, the parties chose not to
postpone their agreement but made it conditional on satisfaction of those
25
preliminary matters by a pre-defined date. The parties duly satisfied the conditions
and the agreement became unconditional. The agreement calls the date on which it
became unconditional, ‘the unconditional date’, and passing through that date
triggered the full range of obligations.
I explore some of the outcomes of this temporal mechanism and show that the
council and the developer idealised the unconditional date as a key moment in the
development process. They looked forward to it as a moment of accession (Grabham,
2010) at which the complexities of planning, viability and funding would recede and
a profitable development would become inevitable. But while the work of the parties
prior to the unconditional date had the potential to condense and cool down (McGee,
2014) the messiness of the various interactions running through the project, the
unconditional date became a moment of contestation and strategic manoeuvring.
Instead of resolving complexity and offering certainty, the need to achieve
unconditionality in a timely manner meant that the developer hurried to produce
evidence that it had satisfied the conditions and members of the local authority were
not united in accepting that evidence. This paper uses that outcome to demonstrate
that this attempt to construct a temporal mechanism created a crossing point at
which complexities collided and could not be resolved through a neat legal trick.
Temporalities of Racialisation (Clagett Auditorium)
1. Nadine El Enany (Birkbeck, University of London): “The body that
loses its chair”: ‘New’ legal temporalities and the racialised subject
2. Connor O’Callaghan (York, Canada): Adjudicating Self-Sufficiency:
Temporality, Indigeneity and Poverty in Canada and Australia
3. Genevieve Renard Painter (UC Berkeley) Speech, Temporality, and
the Land in a Settler Colony
Chair: Sian Beynon-Jones (York)
Nadine El-Enany: “The body that loses its chair”: ‘New’ legal temporalities and
the racialised subject
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
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
26
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).
Connor O’Callaghan: Adjudicating Self-Sufficiency: Temporality, Indigeneity
and Poverty in Canada and Australia
This paper argues that poverty ought to be understood as a form of state violence.
This claim is reinforced by the notion that poverty policy in Canada and Australia,
particularly as it concerns Indigenous poverty, is subsumed by expectations of time,
development, and linearity. Through a comparative time analysis of political
changes in policy pertaining to Indigenous poverty in Canada and Australia
(extending from the late 1960s), adjacent to socio-legal expressions concerning
Indigeneity in courts or ‘official discourse’, this work aims to elucidate the manner by
which the modus operandi that underscores Canadian and Australian discursive
approaches to poverty relies upon a rhetoric of responsibility, guilt, and future
competence (tolerability – as that to be earned). This discourse necessarily impedes
the possibility of a multifarious approach to understanding poverty because, in part,
it presupposes progression out of poverty as a rationalistic process (i.e., the
individual is poor out of choice/failure). Consequently, these discursive projects
extract the individual from community and context, marking the Indigenous
individual in particular (and her status as such) as a ‘thing’ of the past.
The Government of Canada and the Commonwealth of Australia fail to adequately
address poverty in relation to systemic inequality, particularly with respect to First
Nations and Indigenous communities. In both countries these communities
experience exceedingly high and disproportionate rates of impoverishment. The
apparent lack of political urgency expressed by both governments is reinforced by
historical attempts to refuse history, primarily in denying the temporal effects of
colonialism. I argue that these effects, as socio-legal and political gesticulations,
manifest in both material and physical forms, against the backdrop of what Elizabeth
Povinelli terms ‘late liberalism’. These politico-performances reverberate in law:
particularly the failure of law to acknowledge the profundity of a “prior” violence
that encompasses and envelopes contemporary late liberal society, as the attribute
of what Gayatri Spivak refers to as colonial haunting.
Australia has yet to recognize Indigenous status in the constitution, insofar as
sections 25 and 51 (xxvi) still permit racial discrimination. In 2014 George Henry
Brandis, 36th Attorney General for Australia, attempted to repeal section 18C of the
Racial Discrimination Act (RDA) by asserting, “people have the right to be bigots”. In
Canada, historical efforts to ‘absolve’ (as if to pardon and relinquish simultaneously)
First Nations status accompany narratives of self-sufficiency. These stories of
individual performance and progression curiously found placement in Canadian
reports on poverty, particularly in co-operative efforts between the Federal and
Provincial Governments in the mid to late 1960s, delineating poverty as both a
‘disease’ (or social ailment) and equally the consequence of individual failure.
27
Despite subsequent advances in anti-poverty legislation, the historical anticipation of
a future society free from ‘identity politics’ is reinforced by contemporary political
sentiments in both countries. Crucially, poverty is rendered an acceptable
consequence of individual failure and (almost paradoxically) collective difference,
thereby excusing processes of social, economic and political exclusion, underscored
by white-settler colonialism. As such, poverty ought to be understood a form of state
violence.
Genevieve Renard Painter (UC Berkeley) Speech, Temporality, and the Land in a
Settler Colony
A 19th century encounter between a nascent settler state and two Indigenous
nations offers a setting for exploring the enmeshments between law, time, and
dispossession. In 1887, Nisga’a and Tsimshian chiefs traveled to Victoria to meet
with provincial officials to discuss the land in present-day northwest British
Columbia. This encounter occurred in the context of a recently confederated Canada
and the passage of federal laws aimed at assimilating ‘Indians’ and promoting their
‘advancement’ from the past into modern ‘civilization’. During the dialogue with the
Nisga’a and Tsimshian leadership, officials from the province of British Columbia
declared the Crown’s claim to the territory to be timeless: “All the land belongs to the
Queen.”8 Nisga’a elder Neis Puck replied: “I am the oldest man here and can’t sit still
any longer and hear that it is not our fathers’ land. Who is the chief that gave this
land to the Queen? Give us his name, we have never heard of it.”9 In contrast to
Canadian officials, Nisga’a leaders referenced inhabited time, based on lived
knowledge, and a law-making based on speaking and hearing. By studying the
archive of this encounter, this paper explores two questions. First, I ask how
possession of territory in a newly confederated Canada took place in a context of
diverging understandings of time. Second, in tracing the appearance of diverging
conceptions of time in speech about possession of land, I ask whether assertions of
jurisdiction rely on presumptions of temporal homogeneity and coherence in a
colonial contact zone. Using methods from rhetoric and linguistic anthropology, I
analyze how Indigenous and settler speakers characterized the passage of time, the
pace and directions of change, and the connections between past, present, and
future.
8
British Columbia. Legislature. Sessional Papers. 1887.
British Columbia. Commission Appointed to Enquire into the Conditions of the Indians of the
North-west Coast. Papers Relating to the Commission . 1888.
9
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Panel session 5
Gendered Bodies 2 (Common Room) – Convened by Starla Hargita
(UTS/Kent)
Histories and Transformative Methodologies
1. Kay Lalor (Manchester Metropolitan): Encountering the past: LGBT
rights and contested histories
2. Jane Krishnadas (Keele): CLOCK, Time for Justice; A Transformative
Methodology
3. Jens T. Theilen (Kiel) Gendered bodies and the regulatory corporeality
of time in the case law of the European Court of Human Rights
Chair: Starla Hargita
Kay Lalor: Encountering the past: LGBT rights and contested histories
The view of LGBT (lesbian, gay bisexual and transgender) and SOGIE (sexual
orientation and gender identity and expression) rights in international arenas in
recent years has generally been one of progress. Sexuality and gender identity have
been referenced in UN documents, included in foreign policy discussions and linked
to economic development and foreign aid. The scope of the discussion in which
sexuality and gender identity has a presence is considerably expanded.
However, the presence and intersection of law and time within this framework is not
always acknowledged. Past and future coalesce in discussions of LGBT rights, often
embedded and embodied in narratives of progress, civilisation, colonisation and
emancipation. An understanding of these dynamics can help to illuminate the
complex power relations that currently striate international LGBT rights discourses.
This paper seeks to address these dynamics through an analysis of postcolonial
critiques of the production of collective history and memory, juxtaposed with a
Deleuzian conception of law’s ‘virtual memory’.
In doing so the paper suggests that time and temporality are not simply the medium
within which LGBT rights struggles take place, but are constitutive of both the forms
of these struggles and of the subjectivities and bodies that participate. The risk is
that insufficient attention is paid to the actualisation of the past and the violent
construction of communities, leading to un-interrogated grand narratives of
progress supported by the codification of particular iterations of rights. As such, this
paper suggests that LGBT rights claims can undertake a more nuanced engagement
with present and future only through an attentive encounter with the past.
Jane Krishnadas: CLOCK, Time for Justice; A Transformative Methodology.
This conference provides a timely opportunity to share the application of my earlier
research on ‘Rights as the Intersections; Rebuilding Cultural, Material and Spatial
Spheres- A Transformative Methodology’ (2008) to rebuild a transformative
mechanism for access to justice- CLOCK clock.uk.net.
CLOCK provides an active mechanism centring the vulnerable in society to interact at
different scales of the justice system. This has been evidence by ‘Voices of
Experience’ articulating their rights from the basement of a refuge, to reach the
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Parliamentary Debate for the Civil Motion to Regret. Through an array of legal actors
giving their time according to a set of universal rules and procedures, the CLOCK has
become a sustainable mechanism for assisting, monitoring and promoting access to
justice from the local to inter-national level.
Drawing upon an array of intersectionality theory, ‘Intersectionality and Beyond’
(Grabham et al), I envisaged “the intersection of rights as an axis of social relations in
a three-dimensional model. The vertical axis referred to in Cartesian mathematics as
‘z’ allows an intersectional mapping of a sphere, in which intersections can take place
across different spatial scales of distance, from the inter-personal to the international levels” (2008, 58).
In this paper I draw upon Chomsky’s consideration of Cartesian philosophy and
Cartesian science, to analyse the way individual’s think and act, but within a wider
societal context, a ‘mechanical philosophy’; to act we need to interact.
From exploring ‘Rights in Times of Crisis’, I consider the relational role of rights as
an intersectional mechanism between the individual within familial, societal and
state structures. A Cartesian analysis, can geometrically translate the three strands
of rights claims, recognition, redistribution location to the transformative strands of
reflection, revaluation and revolution. I explore how mapping these intersections,
has triggered an active and regenerative web mechanism for access to justiceCLOCK.
Jens Theilen: Gendered bodies and the regulatory corporeality of time in the
case law of the European Court of Human Rights
This paper proposes to consider the case-law of the European Court of Human Rights
(ECtHR) on transgender rights with a view to uncovering its use of time in the
construction of gendered bodies; the landmark ruling Christine Goodwin and almost a
dozen subsequent cases offer a rich repertory from which the Court’s perspective
may be deduced. It will transpire that despite its ostensible vindication of a right to
gender identity, the ECtHR in fact restricts that right to a carefully constructed group
of transgender persons. With regard to those not included in that group, rather than
wielding the liberating and emancipatory power of human rights, the Court in fact
reinforces and further legitimises the regulation of identities and bodies by national
law.
In drawing the line between these two groups, it will be argued, the ECtHR draws
heavily on a conception of transsexuality that uses temporal mechanisms: it
“requires trans citizens to perform (and produce) gender permanence in a way that
non-trans citizens are not required to do” (Grabham). In particular, it will become
apparent that the ECtHR, like many other courts before it, is obsessed with
transgender “authenticity”, the temporal aspects of which are particularly clear in
Sharpe’s designation as “discovery stories”. By thus making the past relevant for the
future, that future in turn influences present behaviour and transgender bodies are
preemptively and inconspicuously regulated under the guise of liberation, strongly
reinforcing a very specific set of gendered expectations.
The main finding is thus that, in the hands of certain social actors, time can become a
subtle but effective instrument of power. Ironically, the ECtHR’s cases on trans rights
are well-known in mainstream legal academia for a different temporal aspect: time
as the chance to move towards enlightenment by developing case-law. The paper
will conclude by contrasting these two perspectives and their respective
implications.
30
Temporalities of Migration (AV Theatre)
1. Yawen Yang (SOAS, University of London): Multifold Temporariness of
the Temporary Foreign Worker Programme
2. Martijn Stronks (VU University Amsterdam) - The recurrence of the onetime exception: An analysis of time and regularization of irregular migrants.
Chair: Emily Grabham (Kent)
Yawen Yang: Multifold Temporariness of the Temporary Foreign Worker
Programme
This paper explores the functions and complexities of temporariness imposed on
temporary migrant workers, examining the Temporary Foreign Worker Program
(TFWP) of Canada as a strategic case study. In the realm of policy talks, employers’
access to foreign labour pools is only legitimate when it is meant as a timely relief of
short-term labour shortages. Temporariness thus legitimatises the existence of the
scheme. It follows that the successfulness of the TFWP is measured against how well
the forced rotation of foreign labour is implemented. A policy goal as such calls for
institutionalised monitoring of foreign workers’ mobility and motivation to prevent
overstay.
As temporariness is deemed a necessary feature of the TFWP, the precarious and
vulnerable circumstances inherent in the temporary status of migrants appear
unavoidable, and even desirable. The regulatory force of temporariness manifests
itself mainly through controlling the life trajectory of individual foreign workers.
When foreign workers become permanently present, and the phenomenon attracts
public criticism, the government responds by imposing more frequent rotation,
which further minimises individuals’ duration of stay, while leaving intact the
demand side of the labour market. Temporariness denotes a sense of choice and
voluntarism from migrants, conveying the impression that foreign workers are
fortunate enough to grab the transitory but lucrative job. The explosive nature of the
TFWP is easily overlooked from this perspective. The TFWP thus becomes a form of
charity—akin to special foreign aid—by offering jobs with conditions unacceptable
to most nationals.
Two subcategories of the TFWP, the Seasonal Agriculture Worker Programme
(SAWP) and the In-home Caregiver Programme (ICP), reveal more complex
relationship between temporariness and permanence. The SAWP demonstrates how
temporariness and permanence are mutually dependent. Entering to meet the surge
labour demand of harvest, foreign agriculture workers are regarded as genuinely
temporary. And yet, the horticulture industry has been structured around the steady
availability of the recurring tide of the foreign labour force, on the basis of the legal
institution of SAWP. Meanwhile, the key mechanism that prevents seasonal workers
from overstay is the long-term prospect of being admitted year after year.
Temporariness is only feasible and desirable when foreign workers are
simultaneously permanent. The ICP facilitates another dimension of the
entanglement between temporariness and permanence. Domestic workers enter
with temporary status but have the prospect of permanent residency. This possible
pathway to citizenship is regarded as a privilege. Yet, observed against the backdrop
of immigration history, the temporary status of domestic workers serves as the
probationary period for citizenship. Domestic workers have to prove that they meet
the criteria of citizenry. They too could be desirable members, despite their sex, skin
31
colour, and devalued labour. Temporariness thus provides a gatekeeping function for
nation-building.
Martijn Stronks: The Recurrence of the One-Time Exception
The recurrence of the one-time exception: An analysis of time and regularization of
irregular migrants. This article starts from two empirical observations. First:
apparently migration flux cannot be fully controlled by mere police force: people
manage to enter and stay within the territory without legal permission of the
authorities. Second: since people can and will reside on the territory without
permission of the authorities, every contemporary migration admission policy
creates irregular migrants. Exclusion seems to be the inevitable opposite of
inclusion. Irregular migration is however a problem for every migration system that
seeks full control over the admission of migrants, for it entails a paradox: How to
accept that those who are legally excluded from the territory are physically present
within the territory of the state? This problem increases over time; the longer an
irregular migrant stays on the territory the more visible the lack of state control over
this crucial divide.
In this article I endeavour to address this problem. First I will trace this problematics
within the structure of the European Return Directive. I will show that this failure to
exclude irregular migrants from the territory, and therefore the failure to enforce
one of the structuring principles of migration law, is one of the central concerns of
the Directive. In fact the Directive has plenty of different tools to enforce the
exclusion of irregular migrants. At the same time it the Directive clearly makes
visible that these attempts can fail: eventually the Directive acknowledges the
possibility that migrants just stay on the territory. In other words, the failure of the
system is build-in the system. Such an explicit acknowledgement of failure of one of
the most central objectives of migration law (legal control of the people within the
jurisdiction) is potentially destructive for the system.
In this article I will argue that if the system fails to remove the irregular migrant
from its territory, there is in fact only one way to restore the initial binary of the
presence of legal migrants and absence of irregular migrants: by regularization,
either in an individual case or in a form of a general amnesty. However, at that point
we are back in the middle of the paradox: regularization restores the assertion of
control over the entry and stay of migrants to the territory by accepting the failure to
control. By a reading of Ricoeur’s Memory, History, Forgetting, in which he discusses
the question of amnesty in relation to forgetting, I will suggest an outcome for this
problem. I will argue that a regularization is based on the interplay of forgetting and
remembering. On the one hand the traces or the failure of the system cannot be fully
erased in a legal amnesty. After all it is precisely those traces that are the reason to
grant amnesty. The fact that the migrant has breached his obligation to leave the
country is the prerequisite for his eventual inclusion. In any regularization proof of
illegal presence over time on the territory is a requirement to be granted such
amnesty. On the other hand, the forgetting of the failure of the system is necessary
for the order to regain the control. This is the reason why amnesties are often
presented as a one-time exception to the general rule, while this one-time exception
returns every time and again. The regularization of irregular migrants is a state of
exception, par excellence, to use Agamben’s terms.
My central claim in this article is that an amnesty consists of a delicate play of
forgetting and remembering in order to regain control, in order to overcome that
this amnesty itself is a testimony of the very lack of control.
32