Parallel Session 1:
Thursday 2 September
1000 to 1130 (UTC+1)
Panels in this session:
- The Agency of the Artist Scholar 1 (Room: LT1)
- Critical Legal Approaches to Data 1: Epistemologies of Data (Room: 2S13)
- Critique and the Corporate Image 1: Corporate Imaging and Identity—Art, Brand and Nation (Room: 2G14)
- Ecocide/Speciesism: Legislating Hierarchy, Interdependence, Death 1 (Room: 2S12)
- Frankenhistories: History, Historiography, and Undead Law 1 (Room: 1G10)
- General Stream 1: Institutional Themes (Room: 2F14)
- General Stream 2: Law and Inhumanities (Room: 1G05)
- The Monstrosity of Legal Form 1: Turning into Monsters (Room: 1G06)
- Theatrical Jurisprudence 1: Performing the Body and Identity (Room: 2F11)
The Agency of the Artist Scholar 1
Chair: Gavin Keeney (Independent) and Andreas Philippopoulos-Mihalopoulos (University of Westminster)
Digital Legal Performance and the Kinesphere in the Era of Coronavirus
Sean Mulcahy (La Trobe University)
The liveness of “legal performance” is being reshaped by the introduction of video-link testimony and other technology that distorts the unity of shared time and space between testifier and spectator (Auslander 1999). The emergence of the “videosphere” in court trials demands greater attention (Goodrich 2009). Whilst research indicates that the use of video-link in court does not alter jurors’ perceptions as to the veracity of testimony, there is less research on how the distortion of time and space caused by the use of video affects the legal performance and its reception by the wider public audience. / This performative paper, through advancing an interdisciplinary methodology of law as performance, contributes new insights into the existing scholarship on video-links in court proceedings. It explores how the “videosphere” of the court impacts legal performance; in particular, its impact on the notion of bodies together in space and theatre practitioner Phillip Zarrilli’s idea of the “kinesphere.” / Performed through video-link itself, this paper also raises broader questions of why liveness and the moment of shared time and space between actor and audience matters to legal performance and what the breakdown of the “kinesphere” might mean for legal performance post-pandemic.
At the Spectral Threshold
Emma Patchett (Independent)
In seeking to deconstruct cinematic interpretations of immigration detention, I have found myself confined in an endless system of enclosure, limited by the formalist constraints of discourse and dissemination. The “inter” of interdisciplinarity in this context so often seems to mean little more than an attempt to deny the badly stapled together mess of monstrous creation, a stitching together of disfigured parts, rather than actively working to construct new spaces of emergence that contend with absence/presence and the haunting of what is to come. Embracing radical spatiality provides the opportunity to consider the depth, complexity, weight, and dark corners of the scene of waiting, as I have conceptualised it as an entanglement with spatial vulnerability at the spectral threshold. My performance, therefore, will hope to contend with disruption and temporal distortion by inviting an eradication of the boundaries of authority – between performer and audience, between film and law, between a single moment of textual translation – in order to evoke critical reflection not simply on but through the spectral threshold.
Critical Legal Approaches to Data 1:
Epistemologies of Data
Chair: Aitor Jimenez (University of Melbourne)
Expanding the Understandings of Data in Legal Research to Increase the Knowledge of Dominating Perceptions of Law
Elin Sandegård (University of Gothenburg)
The perception of concepts of/in law is important to understand, in order to increase the knowledge of the broad understanding of law and how the legal landscape is constantly undergoing transformations. In relation to an epistemological perspective an important starting point for this examination is to reflect upon the perception of data within the legal community. We know that there are not one legal conceptualization of data, but many. One initial and broader question is: what do we want to know more about within legal studies and why? This question leads to the next one: what can we know or what kind of data can give us knowledge, and a deeper understanding of law? In this paper my main aim is to approach the use of data in order to expand the understanding of data in legal research.
My thesis project is a theoretical exploration of the right to choose a c-section in Sweden today. In a part of my dissertation I use discussions and posts on Facebook and other social media as data in order to map different kind of ideas of the “right” to choose a c-section and how these ideas correspond to legal change in Sweden.
Legal Personhood in European Privacy Protection
Susanna Lindroos-Hovinheimo (University of Helsinki)
This paper analyses the philosophical foundations of privacy rights drawing on Foucault, Rancière and Nancy. The focus is on legal subjectivity and the key question concerns what it means to be a person according to EU privacy law. In difficult cases, the European courts face the ungrateful task of outlining various aspects of a private person in the connected, digitalised and globalised world. There is no unambiguous definition of privacy to be found in European law or in political philosophy, and the openness of the concept makes it such an interesting instrument in legal regulation. As a result, European case law offers compelling material that can be studied in fruitful ways as one index of legal constructions of personhood. The study shows that the legal subject is often constructed in European privacy law according to individualistic views of personhood. This is the main critique put forward in the analysis. The paper will consider alternatives to the individualising tendencies that are present in privacy and personal data regulation.
What Data is Not
Aitor Jiménez (University of Melbourne)
For some, data has become a form of capital, a commodity to be traded and exploited. For others, private data is undetachable from the dignity of the person, a fundamental right, and, in the words of the European Data Protection Supervisor, a social value. However, in the practise, data has become both, something to be rightfully protected by authorities, and a raw resource, necessary for the development of avant-garde technologies. Despite its technological character, data is also a social, political, historical and ideological product, and hence irreducible to a one single meaning. The way data is defined, conceptualised and instrumentalised is determining the kind of policies, technical instruments and socioeconomic solutions that are being provided to the citizens. In this paper I will explore the theoretical and sociological background underlying the concept of data commons. For that, I will articulate this paper around the following question: What are the genealogies, ideas, theories and concepts behind the notion of data commons?
Critique and the Corporate Image 1:
Corporate Imaging and Identity—Art, Brand and Nation
Chair: Timothy Peters (University of the Sunshine Coast)
Art, and Corporate Imaging: Then and Now
Lorraine Talbot (University of Birmingham)
In this paper I examine how historically corporations have sought to construct and control their image through the possession and patronage of art. Utilising a series of art pieces, I discuss the success of this approach in creating a particular corporate identity and the role of counter-imaging.
The Meaning of Branding Revisited: Dutch Corporate Capitalism 2.0
Grietje Baars (City Law School)
This paper starts with two images from The Netherlands anno 2021: the first, is the image used by Dutch environmental NGO Milieudefensie to promote its climate change litigation against Shell: the image of a woman holding up her hand, which is covered in a dark brown substance, as if to say “stop”. The case ended on 26 May with the Court decision ordering Shell to reduce its CO2 emissions in line with the Paris Accords. The second image stems from the recent wave of interest of Dutch public institutions including museums and universities, in the role of The Netherlands, its national heroes and companies, in the transatlantic trade in enslaved people. The image is of this: an iron which was used to brand the tens of thousands of enslaved people it owned and traded with the logo of the Dutch East India Company.
Cynics have said that Shell (which is appealing the decision) will not be forced to materially alter its modus operandi as a result of the decision, while it *could* use it to polish up its corporate image, or brand. If it did, that would be an example of what former prime minister Jan Peter Balkenende called, ‘VOC mentaliteit’, Dutch creative entrepreneurship, the can-do attitude that led the small but tenacious country to dominate the seas in the no-longer so-called ‘Golden Age’, now simply known as the 17th Century. Royal Dutch Shell originates in Dutch-colonised Sumatra from where it became the largest extractor of oil in the world.
The final image is of a statue of JP Coen, the VOC officer who perhaps best embodies the VOC mentaliteit. Coen was responsible for instigating the VOC’s colonisation of what is now Indonesia, and one of the worst atrocities, the Banda Massacre, 400 years ago. On the plinth of Coen’s statue, the O of VOC has been turned into a noose in red spray paint, and the word ‘genocide’ is added. The direct action group ‘Grauwe eeuw’ (Grey Century) has claimed responsibility. In 2018 Grauwe Eeuw was involved in a negotiation to redefine the terms of the Dutch government-ordered research project into the Dutch slave-trade history, insisting attention be paid to the economic aspects of corporate colonialism. Grauwe Eeuw is concerned the project exists mainly to whitewash the Dutch state’s image and ‘brand’.
In this paper I will raise the thorny questions of a nation’s reflection on its past, what images express that are not and perhaps cannot be said in words, what once seen cannot be unseen. It reflects on the word and practice of branding, what was expressed through such branding and whether and how the branding of bodies perished long ago still reflects in Dutch corporate capitalism’s branding today.
Corporate Image and the Covid-19 Crisis: A Critical Legal Analysis of Australia’s JobKeeper Scheme
Vincent Goding and Timothy Peters (University of the Sunshine Coast)
The critical features of our pandemic times have included extreme biopolitical measures to manage the health crisis, but also unprecedented political responses aimed at regularising or stabilising the economy. Many such measures are explicitly aimed at consumers, workers and employers. However, as the Australian JobKeeper scheme has demonstrated, these measures have also provided significant protections and even windfalls to investors. In this context, the measures deployed to return economies to (a new) normal, would seem, rather, to perpetuate the underlying paradigms of neoliberal corporate legality—including investor protections, corporate personhood, enforcement of contracts and the sanctity of private property. JobKeeper delivered millions in welfare to corporations whose revenues grew despite the pandemic. This paper seeks to analyse the image of the corporation in the context of the political responses to the pandemic. It considers the relation between corporations and the crisis by juxtaposing the image of corporations as an essential part of, and vehicle to, our post-covid economic recovery, with the image of monstrous and parasitic corporations profiteering from the crisis at our collective expense. The paper will conclude by considering whether the current crisis also provides the possibility for a more fundamental disruption of the dominant paradigm of corporate legality.
Ecocide/Speciesism: Legislating Hierarchy, Interdependence, Death 1
Chair: Thomas Aiello (Valdosta State University)
Improving Protection Against Severe Damage to the Environment: The Potential of Ecocide Law
Judith Alkema (Wageningen University)
A case study on the potential of a domestic crime of ecocide to contribute to legal protection against severe environmental damage in the Netherlands.
Ecocide, currently under consideration as an international crime at the International Criminal Court, provides great potential to increase environmental protection to sustain our planet for future generations. It amounts to human-induced, severe damage to the environment, often committed by industrial actors. Although the criminalization of ecocide is gaining more political and academic interest, it is still unclear how ecocide crimes can be effectively translated to national jurisdictions and to what extent such a crime contributes to existing legal protections for the environment. My MSc thesis explores how a crime of ecocide can be conceptualized within the Netherlands. It focuses on: 1) to what extent the current legal framework protects against severe environmental damage within the Netherlands and in foreign territories; 2) if these protections are sufficient, and if not, whether a crime of ecocide can improve these protections; 3) creating a proposal for a Dutch crime of Ecocide. Due to key weaknesses in the Dutch legal system, current legal protections are insufficient to deter Dutch actors from committing severe environmental destruction in the Netherlands and in foreign territories. I indicate how a crime of ecocide can be conceptualized to improve these weaknesses.
The Elephant in the Room: Comparing the Natural Behavior of Elephants in Circuses and Zoos in Sweden with a Critical Legal Perspective
Celia Karlin O’Sullivan (Åbo Academy)
According to certain actors Sweden has one of the world’s best animal protection legislations. However, criticism and opinions about urgent measures to improve legislation has been voiced. One of these being a ban on the use of all wild animals for entertainment purposes. Thus, when the new Swedish Animal Welfare Act 2018:1192 was revised in 2019, a supplementary Animal Welfare Ordinance 2019:66 also followed which now added elephants to a list of eleven other kinds of wild animals prohibited to be displayed at circuses or similar operations. Notably, the new ban did not prohibit the exhibition of elephants at zoos in Sweden. The Animal Welfare Act contains the contingent of ´natural behavior´ as a stipulation for a good animal environment and according to the responsible minister, it was obvious that the elephants’ natural behavior could not be satisfied in a circus. This critical animal law analysis will therefore focus on the issue of elephants and their prospects of natural behavior also in a zoo environment. By this example and by comparing these two different institutions of entertainment, a systematic study with both ethological and critical perspectives will illustrate an inconsistent use in the application of the legal requirement ´natural behavior´.
Frankenhistories: History, Historiography, and Undead Law 1
Chair: Jen Neller (Manchester Metropolitan University)
When a Periodical Becomes a Book
Benjamin Goh (LSE)
Since the first copyright statutes of Western Europe, the figure of the author has been unevenly enshrined as the rightful proprietor of the literary work. The modern recognition of authors as possible copyright holders in common law systems, and as bearers of natural rights in their creations under civil law regimes, responded to the problems of reprinting in the late seventeenth to early nineteenth centuries. And yet, in the fields of book history and print culture, we often see more complex depictions of literary production that exceed the dyad of author and work. This paper resumes the critical-historical task of problematising the modern concept of authorship by turning to Kant’s essay, ‘On the Wrongfulness of Reprinting’ (1785). Our study of this essay in the Berlinische Monatsschrift—including not just the ‘text’, but also those liminal matters that Gérard Genette has called the ‘epitext’ and ‘peritext’—suggests the periodical to be deeply involved in the operations of a print machinery that preceded the authorial figure.
The Enduring Spell of Kantianism and the Presentism of International Legal Theory
Nico Roman Weber (European University Institute)
This paper places the dominance of Kantian theories of international law in the context of the history of scientification of the legal discipline. One of the founding stories of the international legal profession is the narrative of the 19th-century transition from the metaphysical claims of natural law to the scientific method of positive law. Complicating this explanation of the decline of ‘doctrine’, I focus on how the process of scientification and compartmentalisation put significant constraints on how legal theories could be formulated. In doing so, I draw on Adorno’s theory of the totalising tendencies of modernity.
I argue that constructing the discipline’s identity around particular ideals of science shaped how and what we research. Eclectic or dialectical philosophies became marginal while central tenets of Kantian philosophy (including Rawlsian and Habermasian proxies) such as its critique of traditional metaphysics and rigorous formalism ensured its enduring attractivity. Whether following cosmopolitan public law or global pluralism paradigms, many legal theories remain underpinned by Kantian philosophy. Consequentially, legitimacy and public management concerns take centre-stage, while a thorough historical analysis is deferred to other (sub-) disciplines. Their reform proposals resemble Frankenstein’s work: caught within the present, they reproduce the present by means of the present.
Time, History, Revolution and the State
David Thomas (Birkbeck)
Histories are animated by their creators within temporalities, and help to create and recreate them, and both histories and temporalities constrain and shape what we may do and think. In the seventeenth century, Gerrard Winstanley and the Diggers tried to think and enact revolutionary change in society. In the absence of any conception of a temporality of progress in human happiness (a creation of the next century that constrains and shapes our thinking still), they sought to make such ideas thinkable using the temporalities of Christian eschatology and of what Foucault conceptualised as ‘race war’.
However, another Frankentemporality was being constructed at the same time, that of sovereign power, natural rights and the early modern state. In this paper Hobbes stands for these busy Frankensteins, who tried to cancel other histories and temporalities in favour of the endless time of the state and the sterility of what Rancière called the ‘royalist-empiricist’ tradition of history.
The Diggers, while using the temporalities referred to, also sought to escape from them towards a more universal and egalitarian framework. This paper reflects on the continuing power of Hobbes’ temporality, and on the way that the Diggers’ thought may point to more rebellious histories of the past and the future.
General Stream 1:
Chair: Rob Herian (Open University)
‘Hunch’ in a New Light
Linda Tvrdíková (Masaryk University)
The aim of this paper is to connect the old and the new and to defend and interpret the “old“ by the new – in this paper I would like to present some ideas of american legal realists in its uncaricated form – especially those of Joseph C. Hutchenson. After that we will move to the part where we look at intuitions through the eyes of cognitive science – we will see that intuitions are part of every thinking and decision-making, including the legal one, so according to the author of this paper, it is not appropriate to ignore them by saying that they have nothing to do in legal thinking. What is more, we will also see that american legal realists had good insights while speaking about judicial decision-making, hunches, intuition – their observations and ideas are consistent with the view of modern cognitive science. Thus, American legal realism can be seen as a successful descriptive theory and thus it is quite surprising that we do not pay more attention to their ideas – at least in our continental legal theory and philosophy.
A Fictional Monster or a Lawmaking Metaphor? Aesthetic Considerations about the Law during a Pandemic with Frankeinstein in the Background
Aleksandra Guss (University of Gdańsk)
The aesthetics of law appears as the fifth branch of the philosophy of law, next to ontology, epistemology, logic and ethics. It can be perceived in three dimensions: external, internal and one called as “law as a tool of aestheticization”. The subject of the aesthetics of law in the internal dimension is the law itself, treated as a carrier of aesthetic values. Aesthetic law can be considered not only in the context of its visual beauty, as an effect of legislative art, but also its “spiritual” one, understood as morality, social utility, and compliance with the legal order and the system of the state. What is more, aesthetics of law may have its practical significance in all five phenomena of law, that is: creating, binding, observing, applying and interpreting
Reflection on the COVID-19 pandemic and its effects in various spheres of our lives can also take place on the basis of law, in reference to its aesthetics.
The basic postulates concerning the law (understood as a lex) come down to those that it be: certa (sure), scripta (written), stricta (exact), praevia (anterior) and finally, thanks to aesthetics of law, also pulchra (beautiful). Nevertheless, a deeper analysis leads to the conclusion that only the fulfillment of these first four features will make the law beautiful.
Only certain, written, exact and anterior law can be perceived as beautiful, which particularly confirms the case of Poland as it moves away from liberal democracy, what is even more noticeable in times of pandemic, primarily through creation of law, which does not meet the above-mentioned features, that’s why is monstrous, ugly, incoherent and with terrifying consequences for society, just like Frankenstein. The aim of this paper is to present the pandemic Frankenlaw on the example of Poland.
The Law on Criminal Trial
Marinella Machado Araújo (Pontifícia Universidade Católica de Minas Gerais)
The global ecological and human crisis that we live in our times compels us to face the challenges of life in a technological and globalized world and confronts us with legal dilemmas of an ethical nature in which Law and Economics are intertwined in a symbiosis, often neglecting our most precious legal asset: life. Law, the various economic activities it covers, its impact on legal relations signed with subjects, hidden by the needs of their own survival, become one of the driving forces that bring to life a series of conflicts of interest. Paradoxically, they call into question the capacity of Law itself to give effectively human responses to the existential and patrimonial dramas that derive from them. If it is certain that the Law can act as an instrument of Justice, the same cannot be said of the result of its action. Usually, we teach for those who operate with the Law, that the basis of the legal system is impartiality, a presupposition of Justice, which, despite being built on the pillar of ethics, objectively does not compromise with it. To overcome this dilemma requires from everyone the acknowledgement of Jean-Luc Nancy’s plural singular subjectiveness and, from operators of the Law, self-knowledge to recognize a disconcerting finding: we, law operators, are part of the solution to the problem of exclusion, misery, violence, inequality in the same measure and proportion in which we are part of its presentation as a problem itself. In this paper I will discuss, applying Sanín-Restrepo’s theory of encryption of power, to what extent the Law we apply can be held responsible for the consequences that derive from its application or for the ‘crimes’ that are committed in its name.
General Stream 2:
Law and Inhumanities
Chair: Daniel Matthews (University of Warwick) and Scott Veitch (Hong Kong University)
Law and Inhumanities
Daniel Matthews (University of Warwick) and Scott Veitch (Hong Kong University)
The “inhumanities” mark the unstable intersection between a range of human and nonhuman forces, practices and relations. They register modes of categorizing and action within which the human and the non-human come into relation in ways that challenge existing conceptions of the humanities and the human which, despite their names, have provided legitimacy for hierarchy, discrimination and subjection. In the context of the Anthropocene and the contemporary climate crisis the inhumanities refer to the modes of understanding and agency that mutually shape, stabilize and destabilize, conventional political, biopolitical and geopolitical forms and forces. In so doing, they variously unsettle, defy, and test the limits of current intellectual and institutional arrangements.
We aim to bring these observations and challenges into conversation with legal and jurisprudential enquiry in an effort to understand the role that legal concepts, techniques and institutions play in variously articulating, shaping and resisting the human and nonhuman forces that are central to contemporary life. We suggest that the intersection of law and inhumanities may be thought of as a contest of legalities, a to-and-fro of jurisgenerative and jurispathic principles and operations within which the dominant categories of sovereignty, property, right, and legal personality are confronted by their complicity or inadequacy in the face of global environmental devastation. What new imaginaries, concepts, or negotiations, are necessary in this setting? What new forms of materialist thinking are required? And how can – if at all – renewed jurisprudential investigations help think beyond current impasses?
Emplotting Non/Life: Law and Nature as Genre
Stewart Motha (Birkbeck)
Climate catastrophes which threaten all life, and the Covid-19 pandemic which has been linked to human dominium over animals and ‘nature’, provoke renewed attention to the distinction between law and nature. In this essay I treat the distinction and hierarchy between law (nomos) and nature (phusis)as a problem of genre. Early in his essay “The Law of Genre”, Derrida refers to ‘nature’ (phusis)as a genre to be distinguished from that which is designated non-natural – that is to say, that which is opposed to phusis, namely technē, thesis, nomos. Bringing the deconstruction of genre-designation to bear on the hierarchical opposition of nomos and phusis foreshadows the need to question the marking out of this foundational difference for metaphysics, law, and politics.
The burgeoning concern with the Anthropocene, and the move to question the differential status of life and non-life in juridical and political discourses, makes the opposition between phusis/nomos or nature/law a productive field of inquiry. However, the trajectories of thought and action that destabilise and unseat this distinction – such as the attribution of legal personality to ‘natural’ formations – anthropomorphise non-life. The technical device of legal personality also summons a jurisfiction that domesticates ‘natural’ phenomena within the available structures of governance. This paper explores narratives and knowledges that disrupt the assimilation of nature with nomos.
The Inhuman in the Human
Kathleen Birrell (University of Melbourne)
The idea of the inhumanities, and the intellectual reorientations it inaugurates, marks a belated apprehension of the inhuman within the human. In the context of the Anthropocene, the epistemological shifts by which the humanities have been reconfigured in recent decades are now surpassed by the collapse of normative ontological distinctions between subjectivity and matter. The geomorphic force of the anthropos – the apparently promethean human subject animating the Anthropocene – emerges from a geological context in which life and nonlife converge. In this paper, I am interested in the ways in which these intellectual reorientations draw upon and extend the geophilosophy of Elizabeth Grosz, in her exploration of the ‘role of the inhuman in the humanities’. For Grosz, the inhuman is always implicit within the humanities, its generative force mediating the relations that constitute geosocial formations. This reading of geopower disrupts the presumed binary relationship between the human and the inhuman, which is fundamental to the construction of the modern legal and political subject, to the extent that the ‘mineral’ is, for Grosz, a condition of life. Situating this reading alongside reflections on the radical political and legal implications of Indigenous cosmopolitics for reimagining the ontological limits of modern legal subjectivity, I explore the ways in which the jurisgenerative capacity of the inhuman might expand rather than contract these limits, acknowledging the inhuman within the human subject.
The Monstrosity of Legal Form 1:
Turning into Monsters
Chair: Rafał Mańko (University of Amsterdam)
Compulsive Legality: The Horror of the Spiral
Ashley Pearson and Dale Mitchell (University of the Sunshine Coast)
Junji Ito’s prominent and prolific oeuvre of horror manga is laden with unsettling imagery, uncomfortable ideas, and unnatural imaginings of the world. Throughout his work, the theme of inexplicable compulsion is recurrent and is nowhere more present than in the manga series, Uzumaki or ‘Spiral’. This paper interrogates the image of the inescapable, hypnotic spiral of Uzumaki as a cipher for the form of law and the compulsive nature of legality.
In Uzumaki, the image of the spiral serves to capture the citizens of the town, the town’s landscape, weather, and anything manipulatable within its borders. Humans entranced by the spiral seek to become it, transforming into snails and centipedes; the town bends cyclical creating whirlpools in otherwise still water and cyclones out of puffs of air; everything is affected, nothing is spared. The spiral can be seen as a structural form that actively transforms people and the world, compelling compliance, and replicating its own structure through its very existence. In this paper, we propose that Uzumaki’s spiral mimics the function of the legal form, endlessly capturing and compelling the transformation of everything it touches into a configuration that conforms to the pattern.
Overpowering the Law: The Making of New Monsters
Amitanshu Verma (Jawaharlal Nehru University)
In contrast to an understanding which sees law as the form which represents ‘the joining together of dead parts to constitute a reanimated whole, brought (back) to life…’, the paper invites us to understand Frankenstein’s monster as unaccounted for by law, an entity which does not even appear as an alien in socio-political laws nor fully understood by scientific laws (as it is an unexpected outcome of known and unknown processes) . The appearance of the ‘creature’ thus is a moment that illustrates the limits of law. As a figure unaccounted by law Frankenstein’s monster suggests a very different possibility from the one indicated in ‘the power of reason to structure and animate otherwise individual and decaying parts’ – The possibility of the ‘decaying parts’ conditioning ‘reason’, law and the form of law itself, and perhaps producing new rationalities. The parts of the body-politic contain the possibility of producing different rationalities, at times in opposition to the ‘reason’ and directive orientation given in the socio-political and governance laws. The overpowering of law by elements in the body-politic, a ‘popular-sovereign’ act, and creation of a new ‘monster’ through law derived from different reasons, is the theme of the proposed paper. The paper examines law in the broad conceptual apparatus of power, democracy and popular sovereignty.
Theatrical Jurisprudence 1:
Performing the Body and Identity
Chair: Hayley Gibson (Kent Law School)
Danish Sheikh (University of Melbourne)
In 1934, an intimate encounter between two men, Nowshirwan and Ratansi, became the subject of a sodomy trial before the High Court of Sindh (now in Pakistan). In 2016, a performance piece titled Queen Size began its run in Delhi. The show featured a choreographic response to the colonial anti-sodomy law that remained in force at that moment.
Robert Cover tells us how the law is one entity in the constellation of a normative universe, a nomos, where it is in constant dialogue with narrative: “no set of legal institutions or prescriptions exist apart from the narratives that locate it and give it meaning”. Nowshirwan and Ratansi’s story offers us one fragment of a nomos of touch, where queer touch is rendered shameful, held to be an object of disgust. The performance of Queen Size offers us an alternative nomos, where queer touch is abundant and joyful.
In this paper, I perform an act of reparative dramaturgy, by restaging Nowshirwan and Ratansi within the world of Queen Size. Both these narratives take place in a world in which a colonial anti-sodomy law exists, where it continues to train queer people towards a particular way of thinking about themselves. But if the story in the 1934 case is one where queer touch is rendered shameful within the dominant narrative, Queen Size allows us to experience a different affective world, a world where we might feel our way to a different kind of law. Through my dramaturgical re-description, I attempt to imagine a different kind of encounter between Nowshirwan and Ratansi, a version of the story where queer touch is reclaimed, where it is repaired.
Breaking Cycles of Subjugation through Bodily Performance: Lived Experience inside Legal Processes at the Marikana Commission of Inquiry
Robyn Gill-Leslie (Kings College London)
On 16th August 2012, the South African Police Service fired live ammunition into a crowd of striking mineworkers, killing 34 men and severely wounding others. Subsequently known as the Marikana massacre, the Marikana Commission of Inquiry was soon instituted to uncover the “truth” about what had happened. This article suggests that such linear attempts at truth-finding excise bodily rhythms, resulting in a truth-finding exercise that risks redundancy and irrelevance for key stakeholders impacted by atrocity.
Using Carrol Clarkson, Marett Leiboff and Henri Lefebvre’s ideas on corporeality, performance and rhythm to critique ideas of legal progress and aims of closure and truth exposition, this paper uses encountered bodily performance as an analytical touchstone to reveal a parallel, cyclical rhythm inside the linear operation of the law.
The paper suggests that a prioritisation of such bodily performance – foregrounding the lived experience inside the law of truth-seeking – can make truth recovery more relevant to key stakeholders. Such bodily performance also demonstrates a pathway to breaking the cycle of bodily subjugation to positivist legal undertakings, by creating sensory bridges between key stakeholders inside the Marikana Commission of Inquiry.
Staging the Law: Shaping Lawyers and Citizens through Ceremony
Heather Roberts and Anne MacDuff (Australia National University)
The meaning of ‘the law’ is not only communicated through texts, it is also conveyed through the way law is enacted. The ceremonies, rituals and habits of law make visible both the law and its legal identities. Legal performances construct many different kinds of identities, both in and outside the courtroom, including ‘the accused, the’ husband’ and ‘wife’, the ‘lawyer’, the ‘judge’ and the ‘citizen’. Each performance conveys values associated with those legal identities, and further, reinforces what constitutes a successful performance of that identity against a normative, ideal benchmark. This paper explores how the legal identities of ‘lawyer’ and ‘citizen’ are performed in two different ceremonies.
Both ceremonies confer on participants a new and desired status, with new social duties, obligations and responsibilities to a community. As such, for those participants in the ceremony, the stakes of both ceremonies are high, and the consequences of failure significant. Both ceremonies are deliberately ‘staged’, in that the ceremonies explicitly strive to convey the importance and special nature of the new status. The taking of an oath is one of the shared ritualistic features used to mark the seriousness of the moment. However, other features of these two ceremonies differ. Whereas the citizenship ceremony is now highly and centrally regulated, the admission ceremony is locally co-ordinated. The presiding judicial officers have considerable freedom to craft their own messages to the new inductees of the profession, and the assembled audience.
The paper interrogates these two ceremonies, drawing out what their similarities and differences reveal about legal ceremonies and their construction of legal identities. We are interested to explore the different ways that the state is involved in giving normative shape to these different legal identities, and subsequently monitoring and enforcing them. These insights may reveal signs of the degree to which diversity is welcomed in the ceremonial construction of these identities. This paper will also underline the important role of ceremonial performance in the study of law and legal systems.