Parallel 2

Parallel Session 2:
Thursday 2 September
1200 to 1330 (UTC+1)

Panels in this session:

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Critical Legal Approaches to Data 2:
Data and Political Economy

Room: 2S13
Chair: Aitor Jimenez (University of Melbourne)

Neo-Liberal Business-As-Usual or Post-Surveillance Capitalism with European Characteristics? The EU’s General Data Protection Regulation in a Multi-Polar Internet

Angela Daly (University of Strathclyde)

One highly prominent event in the last ten years thrusting the EU into global prominence is its data protection legislation update, with the introduction of the General Data Protection Regulation (GDPR), widely believed to be the international ‘gold standard’ in privacy and data protection standards, holding actors in the digital economy to account for their (ab)use of personal data and empowering users thereby seemingly placing some limitations on unfettered digital capitalism and surveillance.

Can the GDPR developments be understood as an attempt by the EU to forge a different political economy of digital technology to neo-liberal capitalism whereby large companies are constrained in their actions and EU citizens’ rights upheld? Or can these developments be seen through another lens, that of varieties of capitalism, whereby the European Union, in the context of growing geopolitical multi-polarity, is leveraging its large and attractive market and the ‘Brussels Effect’ to become a ‘regulatory superpower’ after having lost the tech superpower battle to the US and China?

The GDPR exposes the nature of contemporary EU internet regulation as a contested and hybrid site, containing both capitalist impulses and overtures to protect aspects of individuals’ privacy and data protection. This latter aspect of protecting privacy and data protection is diminished to the extent that the GDPR facilitates much data gathering and use, and seems to have the effect in practice of consolidating US tech giant Google’s corporate power. Thus, the GDPR seems more an example of EU regulatory capitalism, ‘constraining and encouraging the spread of neo-liberal norms’, rather than an attempt to move to digital post-capitalism. Nevertheless, the external-reaching aspects of the GDPR make it an example of the ‘Brussels effect’ and contribute to shoring up the EU’s regulatory power in a multi-polar Internet by proactively setting de facto standards. In this way, the EU ‘remains relevant as a global economic power’ through its regulation, rather than through its technological innovation like the US and China.

Your Data is S**t

Robert Herian (Open University)

“If your data is shit, your campaigns will take a hit.”1 This ribald adage from one US firm of sales consultants describes the sort of commercial attitude driving burgeoning global data marketplaces. Learning or knowing what data to use and to discard, including what data to buy and sell in the market, now defines many cross-sector commercial strategies that are a product of decades of mass personal and non-personal data gathering and storage (surplus). Putting this data “to use” is key. The tension with regulatory concerns of putting unused or unwanted (waste) data “beyond use” is, therefore, also clear. Data strategies at national and supra-national levels (e.g. European Union), international corporate level, or local commercial level predicated on economic and legal (regulatory) harmony and certainty are the aim and the norm.

As a seemingly unargumentative source of value, personal data has become the chief commercial and informatic industrial raw material of the last forty years, an asset class par excellence, and a basic requirement fomenting Central Bank Digital Currencies (CBDCs), to name but a few domains of operation. In this paper I continue a discussion started in my book Data (Routledge, 2021), on business models built on and around personal data. Models that do not want or need the messiness or inefficiencies that accompany individual people, only simple input/output risk defiant certainties concerning population types and cohorts. And I continue to address how the ways we view and understand “our” data is changing and needs to adapt within the purview of law of regulation.

Posthuman Data

Jannice Käll (Lund University)

Datafication runs through our posthuman times. To refer to posthuman data helps to understand both the critical stakes in gendered and racialised practices of AI and the progressive possibilities in affirming different futures. This includes understanding how data-based societies turn both humans and nonhumans into sensorial and affective nodes (c.f. Massumi, 2015) or data points in a manner which runs contrary to the idea of subjects and objects vested in liberal concepts of society, including law (Lessig, 1999; Hildebrandt, 2015). As Crawford and Joler (2018) put it, the current form of data extractivism reaches “into the furthest corners of the biosphere and the deepest layers of human and cognitive and affective being.” Training data is however needed for teaching our smart environments and machines how to behave. How the collected data is to be put in use, whether it is big, personal or relational, determines which forms of futures are prescribed. Very little legislative intervention on which data can be used to create automation has been carried out so far even if change might be on its way in the EU, via the recently proposed Regulation of Artificial Intelligence (EU 2021). As for now, we however find ourselves living under a system where the free flows of information are captured by private property regimes whether via explicit intellectual property right claims or via the contracts and technologies sustaining platform power (c.f. Srnicek, 2017). Furthermore, the recent proposals of how to govern data, points at a reaffirming of the human, or as the recent EU proposal suggests: to put the human in the centre for evaluating AI, meanwhile keeping the aspects of data as a capitalist resource intact.

This paper suggests a posthuman understanding of data which emerges from the view that data extraction runs on capitalist, colonial and sexist practices that link processes of extraction to the bodies from which it was derived and depends upon. As such, this paper draws both on relational accounts of data already present in legal theory as well as placing such relationality further within a framework of posthumanist ethics and justice.

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Ecocide/Speciesism: Legislating Hierarchy, Interdependence, Death 2

Room: 2S12
Chair: Nick Piška (University of Kent)

Darwin’s Outcasts: The Intersection of Race and Species in Late-Nineteenth Century Intellectual History

Thomas Aiello (Valdosta State University)

On April 9, 1865, the American Civil War ended, and, with it, chattel slavery and the property status of humans. Four days prior, on April 5, the Supreme Court of Iowa issued a ruling in Anson v. Dwight that “dogs may be personal property and have value.” It was the first decision in American jurisprudence to formally recognize the property status of nonhuman animals. Neither of the seminal events were directly dependent on the other. But they were related. Throughout the 1870s, during the transition from slavery to freedom, the first animal testing laboratories opened, replacing one form of social engineering with another. In 1873, southern states began passing restrictive race statutes as the federal congress passed the “28-Hour Law,” mandating animal transport vehicles stop every twenty-eight hours to provide food, water, and exercise. It was a law rife with loopholes, but it demonstrated the continued cascade of temporal interactions between race thinking and animal thinking in American postwar legal and social thought. When combined with early social applications of Darwinian evolutionary theory, such intersections established a scientific and legislative backing for human assumptions about species and race that would carry through the twentieth and twenty-first centuries.

Ecocide Law and the Conversion of ‘Justice’

Wendy Wiseman (University of California Santa Barbara)

This paper argues that the proposed law of Ecocide as an addition to the Rome Charter of the ICC has the potential to fundamentally alter public perception of acts of destruction of the biosphere, even if its implementation suffers from bureaucratic delay. Naming Ecocide as a punishable crime, and not merely a “violation” subject to fines, would, in a single movement, catalyze a decisive shift from the neoliberal effacement of environmental harms as “negative externalities” to the recognition of harm to nature as a form of egregious criminalityon a par with genocide. The emphasis on “superior responsibility” for wanton destruction under Ecocide law does not exonerate those of us whose ways of life all but ensure the annihilation of more-than-human species—along with their habitats—in the coming decades, but it does properly attribute the weight of guilt onto those whose power to effect “severe,” “irreversible,” and/or “widespread” damage to the environment is extraordinary. Merely initiating the formal criminalization of catastrophic harm to the biosphere promulgates a notion of justice that values life in its manifold forms over the modern, liberal focus on property rights that has contributed so fundamentally to our current crisis.

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General Stream 3:
International Themes

Room: 2F14
Chair: Tony Meacham (Coventry University)

A Global Fankenlaw

Jason A Beckett (American University in Cairo)

Public International Law is dead, vastly and exponentially more dead than it has been for some time. We could even say that it has passed on to the spiritual world, where its narratives and fantasies float in spectral form around von Jhering’s heaven of legal concepts. But there is another Global Legal Order, a true Frankenlaw, pieced together from the dead corpses of PIL. This order was founded within international law, based on treaties and legally binding agreements, but immune to the theatrics of performative international law.  

It is an institutional order with the coercive power to enforce its demands, but operates quietly, in the shadows of the discourse of ethical law. A spectre, a myth, a bogeyman – a conspiracy theory. But an all too real monster, sucking the life blood out of the Under-Developed states. It is formed of the IMF, the World Bank, the WTO, and the systems of international investment arbitration; and it governs its world of bloody oppression imperiously. I hope to expose it to the light, and begin the quest to discover its garlic, crucifix, or stake.

Beloved Monsters of the So-Called ‘Rules-Based World Order’

Fernando Gómez Herrero (Birkbeck / La Vanguardia)

I engage with G John Ikenberry, close to the current Biden administration. I look critically at this “rules-based world order” and “liberal internationalism” in the vicinity of the possible reset or upset of the US-dominated (liberal) world order and what that might for the West at large. I declare typical schools of idealists and realists insufficient.

I consider the re-arrangement of Area studies at a moment of apparent debilitation of the civilisational language. I see insights and blindness. I build one connection with Arnold Toynbee when global history of civilisations combined easily with international relations. I bring Ortega y Gasset’s criticism of Toynbee to illustrate deficiencies that remain in place today. Samuel Huntington’s Clash of Civilisations happens in the 1990s and we are seeing a resurgence of it now. What ‘competitors’ (‘monsters’) are out there? I synthesise the findings of think tanks, embassies and universities.  

I present a few ‘monstrous’ demarcations responding to the mainstream narrative amply circulating in the Anglo Zone. If it is true that the civilisational language of the West has lost traction, what is the official discourse saying instead? What symbols, competing narratives, global colour lines are already visible? What is yet invisible?

The OIC and Women Rights: Representation at the UN

Richa Chaudhary (SGT University)

The Organisation of Islamic Cooperation (OIC) is the second largest international organization with a membership of 57 states. Established in 1969, it is the first intergovernmental organization of Muslim states. Hence, the OIC provides a huge platform to the states (members) to speak and deliberate on issues such as terrorism, environment and human right. One of the issues on which OIC is quite vocal about is women rights. From holding conferences focusing on women to placing women rights as one of the central tenet of its Charter, OIC’s role has been quite instrumental in raising voice on the rights of women, especially when comparing with many right wing organizations and states. However, at the global level, OIC has been criticized for not being at par with the UN while representing the issue at the global level. While the UN and the West advocate for absolute or Universal rights, the OIC talks about the rights from the cultural relativist point of view. Therefore, it keeps religion or culture above the human rights. The article is an interesting read on the role of OIC, its take on the women rights within the organisation, their representation at the international level.

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Frankenhistories: History, Historiography, and Undead Law 2

Room: 1G10
Chair: David Thomas (Birkbeck)

Undead Myths vs Futuristic Fantasies

Jen Neller (Manchester Metropolitan University)

Myths of national identity present fictions of unity, coherence and historical stability, which are drawn on to justify persisting entitlements in the present and the future. Interference with these entitlements is thus an affront to the amalgamated history and destiny of the nation. Yet, since they are mythical entitlements, interferences and frustrations are inevitable. (This can be said about liberal nationalist myths of tolerance and meritocracy as much as those more overtly claiming ethno-nationalist supremacy.)

Myths are therefore parasitic and undead. They are dead because they are born of repetition and thus can admit no new possibilities; yet undead because they lumber on regardless, stitched back together, reincarnated and reanimated. And myths are parasitic because they drain the imagination: such energies are required for the sustenance of the myth that none remain for the imagination of alternative futures.

In contrast to myth, fantasy is proffered as the imagination of futures that consciously break from rather than reiterate the past. In a modest attempt at fantastical imagination, this presentation includes a reworking of nationalist myths, subverting the tropes of infamous right-wing discourse to present nationalist myth itself as the enemy of all we are entitled to.

Manhandling the Goddess: The Thuggee Archive as a Sum of (Male) Parts

Adimaya Keni (Birkbeck)

Every archive holds many stories; my paper looks at the treatment and socio-political role of the goddess icon, Kali, in the early nineteenth century thuggee archive and the story of legal subjectivity through her changing depiction and her worship. As the icon of thuggee, an early codified crime in colonial India, this paper follows Kali through her journey as she was, both to her Indian followers and then colonial governance officials and wider public. Kali was transformed into a figure of hate and fear, of depravity and unchecked female sexuality, and the anti-thesis of morality, by the East India Company officers who compiled this archive.

I analyse the change in Kali’s iconography under the gaze of the law and the advent of a new colonial branding through which the introduction of a standardised legal framework forced Kali to become secondary to paternalism, a role that split her feminine aspect into two. Also in this paper, I will discuss how the repercussions of this split and the repression of the female voice in the thuggee archive echo in the current socio-political climate in the difficulties faced by the law in its protection and service to the (female) citizen.

Counterfactual Legal History

Russell Sandberg (Cardiff University)

Counterfactual history involves asking ‘what if’ developments had occurred differently and comparing that with what actually happened. Though common in works of popular history and science fiction, counterfactual history remains controversial within the academic discipline of history.   Drawing upon this debate, this paper distils eight main rules of counterfactual historical analysis.  It then explores how lawyers use counterfactual analysis and the advantages and disadvantages of using counterfactual history in a legal context. The paper introduces and explores, for the first time, Counterfactual Legal History, to see how asking ‘what if’ question can shed light upon how law actually developed and how it could develop.  It argues that a counterfactual approach provides an assault on a deterministic interpretation of law as being fixed. It provides an opportunity to question and indeed depart from the progress narrative of evolutionary functionalist accounts as identified by Robert Gordon.  The paper draws upon my recent monograph – Subversive Legal History: A Manifesto for the Future of Legal Education (Routledge, 2021) – to suggest that Counterfactual Legal History seemingly has the potential to unlock the subversive nature of Legal History in a way that would underline the importance of a historical approach for all who study or research law.

Legal Custom in Legal History: Dead Hand or Thing?

Lorren Eldridge (University of Dundee)

One of the purposes of legal history is describing the law as it once was. How we tell this story impacts on both our understanding of the past, and our contemporary understanding of law. There is a shared tendency amongst some legal histories and contemporary legal theories to regard legal custom as outside this narrative. In modern law, this may have less impact, as social practices themselves are at least live and observable. In history, leaving custom out of the account obscures its important functions and distorts the description. 

This paper will consider some examples from English legal history in order to illustrate the general argument that in order to fully understand the history of the common law, we cannot look only to the common law. Custom can be used to illustrate the lives of the unfree, women, and even aspects of private law which were not regulated in the common law until later periods. In seeking to amputate custom as another legal system, or morality as distinct from legal rules, we leave behind not a severed limb but an active, living appendage which should properly be put to work in our body of scholarship.

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The Monstrosity of Legal Form 2:
Births of Monstrous Legal Forms

Room: 1G06
Chair: Rafał Mańko (University of Amsterdam)

The Coldest of All Cold Monsters: Nietzsche, Sovereignty and the Creation of the Legal Subject

Adam Rowe (University of Durham)

This research aims to extrapolate a Nietzschian theory of sovereign power and its connection to the creation of the legal subject. It does this by a close examination of Nietzsche’s second essay in the Genealogy of Morals and a comparison to Agamben’s theory of sovereign power. For Nietzsche, ‘civilised’ humanity is a sick animal, an unnatural monstrosity created through violence and bloodshed. The tools of civilisation have savagely shaped primordial humanity: investing it with a memory and responsibility, with a consciousness based around the creditor/debtor dyad, suppressing all of its former natural instincts. As this progressed, law became a vital instrument in this surgery. The law entrenched the form of creditor and debtor between individuals and the state, placed the use of power exclusively with the latter, and suppressed the reactive ability of the new legal subject. The promised result is the ‘last man’ or ‘ultimate man’: the last gasp of an atrophied humanity. Thus, for Nietzsche, the state of exception leading to Agamben’s bare life is not found in the law’s withdrawal – but in its advance.

Suspension-by-Ignoring: A New Model of Exceptionality within the Pandemical Legal Form

Przemysław Tacik (Jagiellonian University)

My paper will be devoted to inspecting a new kind of exceptionality within the law bred amidst the COVID-19 pandemic. In many countries of the world, including those that are broadly reputed to be built on a strong culture of the rule of law (such as Germany), legal reactions to the pandemic did not consist in triggering constitutional states of exception, but rather using statutory or even sub-statutory laws limiting rights and freedoms. Compliance of these laws with constitutional and international guarantees of human rights protection was dubious at best. These safeguards, however, were not anyhow officially suspended, but rather ignored in the name of the overarching medical necessity. Occasionally it led to declarations of invalidity issued by courts (for example, the German Federal Administrative Court), but overall this mode of proceeding turned into a new COVID-19 legal normality.

As I will claim, the pandemic inaugurated a new kind of exceptionality which is postmodern by nature. It consists in effective suspension of valid norms of superior rank by ignoring them with invocation of extra-legal argument of necessity. What this mode of operation constitutes is a transmogrification of the legal form of Ausnahmezustand that calls in question one of the most fundamental institutions of the law: recognition. Just as socio-symbolic frames of reference are crumbling in our days, leaving less and less common topoi for the society, maybe the law itself loses its force of integrating various sub-types forms of exercising power. The pandemic may inaugurate a new realm of exceptionality, in which the law’s claim to universality and cohesion would be locally punctured with zones of suspension-by-ignoring that undermine internal recognition within the law. In my paper I will try to provide a theoretical account of this shift.

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Revisiting Human Rights and Social Contract in the Post Pandemic World 1

Room: 2G14
Chair: Bárbara Natália Lages Lobo (Universidade Autónoma de Lisboa)

Sex Workers, Human Rights and COVID-19: An Invitation to Bio-Political Rethinking about Recognition

Bárbara Natália Lages Lobo (Universidade Autónoma de Lisboa)

The pandemic triggered by the global spread of the COVID-19 virus exposes humanity to death and fear. As recommended by the World Health Organization, the governments of the states were instructed to adopt emergency measures for social isolation and restriction of circulation. Extreme situations such as this, expose even more people who are usually already in situations of systemically imposed social vulnerability. In the case of sex workers, specifically, the affectation of informal work stands out and permeates the intersectionalities resulting from the intersection between race, gender and class. Stigma and social blindness imposes the subjection of sex workers to daily violence, deprivation of human and fundamental rights, discrimination and precariousness of work, which, during the pandemic and the resurgence of the State of Exception, is accentuated. In this aspect, this article intends to offer reflections provided by the diffusion of the “Corona Virus”, in the scope of sex work, dialogue about the impacts for these people, from a biopolitical perspective.

Covid-19 Affected Equality and Human Rights in the Global South: Do they Require to Rewrite the Social Contract?

Jobair Alam (University of Dhaka)

The impact of the Covid-19 pandemic has been enormous, entrenching existing inequalities and widening others. Taking an example from the Global South this paper examines the way it affected the equality and human rights of the peoples of Bangladesh who are constitutionally entitled to these rights. Yet, during the pandemic, the marginalized populations of Bangladesh have unequally been denied these human rights including the right to healthcare and livelihood, which is conflicting with the social contract theory. Accordingly, it is argued that the promise of the social contract between the government of Bangladesh and governed (e.g., marginalized groups) has not been kept during the pandemic. The paper then explores if the pandemic requires rewriting the social contract backed up by NGOs and civil society in parallel with the government, who could help to ensure equality and human rights of these marginalized and vulnerable groups. It finally comments on the desirability and achievability of such a new social contract. The significance of this paper lies in exploring the resiliencies of social contract theory in any critical situation to ensure equality and human rights from a Global South perspective.

Older Persons’ Rights During and Post-Pandemic

Mayra Crowe (University of Dundee)

This paper examines the capacity for ‘public information comics’ to transmit complex information in a clear manner to make socio-legal developments more accessible for a wider public. Syma and Weiner have found that comics can help readers of all ages usefully visualise concepts and ideas that may be otherwise unknown or appear difficult.

The presentation will focus specifically on a public information comic, entitled ‘Older Persons’ Rights: Lessons from the COVID-19 Pandemic’, which forms part of The Pandemic Tales: Responses to Covid-19 and Lockdown comic (2020) and an ongoing series of information comics created by the University of Dundee. There are two versions of the comic, in English and Spanish, and the presentation will address issues regarding language in translation. Currently the Scottish Centre for Comics Studies and Centro Interdisciplinario de Envejecimiento, Universidad de la República, Uruguay are working on a larger project regarding the ‘Inter-American Convention on protecting the Human Rights of Older Persons’.

The need for raising awareness about older peoples’ rights is clear; the World Health Organisation report on Agism 2021 has underlined that “The COVID-19 pandemic has had a devastating impact on older persons”. Furthermore, the United Nations has also reported on the need to support older persons given the disproportionate fatality rates during the pandemic, which has exacerbated the unequal treatment of Older Persons pre-pandemic. The presentation will thus argue for the efficacy of using comics to support greater understanding of older peoples’ rights and enhance awareness and outcomes in a post-pandemic world.

Link to ‘Older Persons’ Rights: Lessons from the COVID-19 Pandemic’ (and the Spanish version)

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Theatrical Jurisprudence 2:
Performing Art/Law in Practice

Room: 2F11
Chair: Sean Mulcahy (La Trobe University)

Live Art and Immersive Re-Enactment: Mustafa Y v Secretary of State for the Home Office, 25th June 2016

Janina Moninska (University of Brighton)

Live Art is a research engine, driven by artists who are working across forms, contexts and spaces to open up new artistic models, new languages for the sphere. The intersection of art/law is also an expanding field, and for my practice led doctoral research, assisted by the refugee lawyer Joe Bryce, the real case of a stateless Palestinian asylum seeker was selected as my case study. After attending Bryce’s Appeal hearing in the Court of Sessions in Edinburgh 2016, I carried out a series of immersive re-enacted Live Art Court hearings. The participants who attended embodied all the roles. In Live Art, bodies are presented as objects situated in a cultural field in order to clarify the complex power-relations between the body and its social context, between the performer and the spectator and between self and other. The word emergence is also a defining quality of Live Art, and due to the contingency of each re-enactment, each court hearing is different. For this presentation, we will watch film documentation of one of the Live Art court hearings. Headphones are recommended in order to fully experience the immersive nature of this Live Art event and film. This will be followed by a panel of respondents to the film (TBC), and a Q&A session.

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