Parallel Session 4:
Friday 3 September
0930 to 1100 (UTC+1)
Panels in this session:
- Critique and the Corporate Image 2: Constituting the Corporate Image—Theory and Fiction (Room: 2G14)
- Ecocide/Speciesism: Legislating Hierarchy, Interdependence, Death 3 (Room: 2S12)
- Feminist Judgments as Frankenlaw Experiments 2: Constitutional Courts (Room: 2S13)
- FrankenEurope 1: Theorising Law and Central Europe (Room: 2F14)
- Law and Literature—Themes from Frankenstein 1: Gender on Trial in Frankenstein (Room: 1G05)
- The Monstrosity of Legal Form 4: Lives of Legal Forms (Room: 1G06)
- Theatrical Jurisprudence 3: Performing Trials (Room: 2F11)
- Through a Glass Darkly: Illuminating the Horrors of Frankenlaw via the Lens of Dystopian Fiction (Room: LT1)
Critique and the Corporate Image 2:
Constituting the Corporate Image—Theory and Fiction
Chair: Grietje Baars (City Law School)
The City as Corporation and the Corporation as City: A Relational Critique
Isolde de Villiers (University of the Free State)
“In Ersilia, to establish the relationships that sustain the city’s life, the inhabitants stretch strings from the corners of houses, white or black or gray or black-and-white according to whether they mark a relationship of blood, of trade, authority, agency.” (Calvino, I (1972) Invisible Cities p76)
The aim of this paper is to engage in critique of the images of the corporation and the city and the inextricable link between them. How we conceive, construct and imagine the corporation in law, theory and fiction is often an urban image. On the one hand, the city is imagined as a place of high-rise office block and on the other hand, the corporation is imagined as constituted by these high rises and could be spread between global cities across the world. One of the categories in Italo Calvino’s Invisible Cities is trading cities. He imagines the trading city of Ersilia in terms of its relations, of which trade forms but one relation. Coming from a background of research in spatial justice, I used to think about the ways in which the city is production by the corporation and corporate relations. Finding myself currently in the department of Mercantile law, I shift my focus to how the corporation is produced by urban relations. In doing so I want to explore the disruptive potential of thinking about the corporation along the same lines as Iris Marion Young’s conception of city life and difference.
Corporate Monsters and Questions of Legal Personality: WandaVision, the Ship of Theseus and Concepts of Corporate Identity
Jordan Belor (University of the Sunshine Coast)
Much of the rhetoric critical of corporations positions the corporate body as something monstrous, taking the form of Frankenstein’s Monster, an alien or a multi-headed hydra. These descriptions and analogies are deployed to raise concerns about the nature and effects of the corporation, seeking either its reform or complete destruction. Such critiques question the identity of the corporation within law, its artificiality and incorporeality, and whether rights and privileges should be reserved for natural persons. This paper explores these ‘inhuman’ aspects of the corporate form, by a consideration of the Ship of Theseus thought experiment and its recent rendition in Marvel’s WandaVision. This approach aids an understanding of the nature of corporate identity as constituted by its artificiality that allows it to achieve immortality. The corporation, therefore, cannot simply be seen as Frankenstein’s Monster born into existence by a body of people or an organic entity that emerges as a hybrid of individual activity. Instead, the corporation’s legal personality consists in a fund that is constituted by its separation from the natural person. It is in understanding this artificiality of corporate personality, and how corporate identity functions through the image of the corporation attached to its fund, that we can critically understand and potentially rethink the monstrous nature of the corporation.
Crisis and the Apparatus of Corporate Personhood in Mark Russell’s Prez
Timothy Peters and Michaella Duggan (University of the Sunshine Coast)
A US Presidential election driven by extreme claims on social media, a pandemic ravaging the country and globe, incentives for pharmaceutical companies to produce vaccines at record speeds, and untrammelled corporate influence over the political process. These statements, whilst reflective of the experience of 2020 all describe Mark Russell’s 6-issue mini-series Prez, released by DC Comics in 2015. A re-envisioning of a short-lived 1970s comic about a teenager elected president of the United States, Russell’s satirical narrative depicts 19-year-old Beth Ross winning the 2036 American election, after the Hacker Collective ‘Anonymous’ enters her into the presidential race under her internet persona ‘Corndog Girl’. Whilst prescient of our current times, Russell’s brilliant comic (drawn by Ben Caldwell) provides a satirical critique of not only the US political process, but, as will be our focus in this paper, the nature, function and image of corporations and corporate personhood. Our argument is that Prez not only provides a critique of corporate personhood, but renders visible the way in which corporations function in, through and as images projected by both the law and the people who interact with them. Our paper proceeds in three parts: first, an introduction to and examination of Russell’s Prez and its satirical take on US politics; second, a consideration of the way in which Prez appears to fit within a critical discourse around the extension of rights to corporations and recent US supreme decisions relating to corporate personhood; third, the way in which the comic presents a critical interrogation of the nature of the corporate image as an apparatus which both projects a particular corporate persona whilst at the same time subjectifying and hiding the identity of the individuals who own, run or otherwise engage with it.
Ecocide/Speciesism: Legislating Hierarchy, Interdependence, Death 3
Chair: Fred Motson (Open University)
ANThropocene: Embracing Trouble
Jane Michaele Cameron (University of New South Wales)
In January 2020, some of the most catastrophic bushfires in recorded history occurred in Australia, killing around one billion animals and hundreds of billions of insects, not to mention plants. Scientists mostly agree that such environmental disasters are increasingly caused by human-induced climate change. Artworks addressing topics such as ecocide risk repelling audiences that are already desensitised by relentless predictions of catastrophic demise. In response, ANThropocene: embracing trouble is inspired by multispecies feminist and authorDonna Haraway, whose positive writings, while rejecting speciesism, embrace our predicament to work in symbiosis with other living things. Also informed by the contemporary philosophical framework, Object Oriented Ontology, the film speculates on a snapshot of time following an ant through a lush post-human landscape. The cooler climate, reduced carbon dioxide and increased oxygen have enabled this ant to develop large pores on her exoskeleton and become rat-sized. She also seems to have developed a third eye, but why? Although we are gone, remnants of artificial intelligence, human infrastructure and plastic remain. Through imagining one detailed aspect of this future world, it is hoped that the viewer will look upwards to experience life as that ant, stirred with renewed optimism and responsibility for now.
The Rights of the Living Dead
Fred Motson (Open University)
A short story which follows a number of actors in the justice system in an alternate England a number of years after a zombie apocalypse. In the world of the story, the original zombie outbreak conformed to classic tropes of widespread death and destruction, with humans and zombies alike dying in considerable numbers. However, as months went by after the initial outbreak, increasingly it was realised that the undead had retained an element of intelligence and sentience. Now, ten years after the initial outbreak, zombies are begrudgingly accepted as part of society although considered by many to be less than human. The story explores issues of speciesism and how the legal system reacts (or fails to react) to “others”. It questions whether the inhuman or non-human should be considered a legal subject or merely subject to the law. The story is inspired by both my love of genre fiction and academic research I have been undertaking into the legal personality of animals and ecosystems.
Feminist Judgments as Frankenlaw Experiments 2:
Chair: Elena Caruso (Kent Law School)
The Construction of the Identity of Sentenced Women with Disabled Children in Judgment n. 18 of 2020 of the Italian Constitutional Court
Costanza Agnella (University of Turin)
My paper intends to reflect on the jurisprudential pronouncements of the Italian Constitutional Court regarding measures of home detention for inmates that are mothers of children with severe disabilities. The judgement n. 18, 2020 of the Court has provided for the possibility for detained mothers of children with severe disabilities to obtain a special form of home detention. The law provides for the application of this measure for fathers only in exceptional conditions. However, the Constitutional Court did not extend the possibility of requesting this measure to fathers of severely disabled children. The cited ruling therefore constitutes an opportunity to reflect on the construction of the identity of women found guilty of a crime in the jurisprudence of the Constitutional Court, but also in the Italian penitentiary law. The latter tends in fact to reproduce a woman ideal centered on motherhood. This ideal of motherhood is particularly present in relation to inmates that are mothers of disabled children, also because of the indifference of the cited ruling towards the father figure. The main theoretical concepts that will be used to analyze the Court’s ruling come from legal feminism, sociology of law and disability studies.
The ‘Schwangerschaftsabbruch II’ Decision and its Aftermath: A Feminist Perspective
Carolin Lerch (European University Institute)
In 1975 and 1993 the German Federal Constitutional Court (FCC) decided about the constitutionality of criminal laws regulating abortion. Each time the FCC overturned a liberalized law which had just been adopted by the majority of the German Parliament. When taking a closer look especially at the “Schwangerschaftsabbruchs II” decision from 1993 it stands to reason that the judgement is based on outdated gender bias. The analysis will proceed in three parts: First of all, the focus will be on the content of the judgement and its historical context. Subsequently, the influence of the FCC’s jurisprudence on the following legislative process in between 1993 and 1995 and on contemporary abortion debates will be analyzed. Afterwards, a feminist critique will emphasize why the apparent unanimous acceptance of the jurisprudence should be called into question through critically investigating the “Schwangerschaftsabbruch II” decision through the lens of the concept of reproductive autonomy originating from international human rights law.
A Feminist Review of SK(B) Judgment of the Constitutional Court of Turkey: Redefining the Scope of the Right to Respect for Private Life with a Focus on Sex Work
Başak Ekinci (Istanbul Bilgi University)
In its judgement of 4 July 2018 (Application no. 2014/18275), the Constitutional Court of Turkey examined for the first time an allegation that rejection of a request to be registered as a sex worker constitutes a violation of the right to respect for private life. S.K.(B.), the applicant in the individual application, claimed that she fulfilled all conditions set in the relevant legislation, and the rejection of her request to work in a brothel forced her to engage in illegal sex work within a dangerous environment. However, the Court held that it did not have jurisdiction ratione materiae to deal with such claim because, despite being legislated, sex work was a degrading activity which could not be considered within the scope of the alleged right. This paper will review the Court’s judgement from an intersectional feminist perspective and discuss that sex work falls within the scope of the right. The paper hopes to contribute to feminist jurisprudence by revealing the patriarchal reasoning intrinsic to the judgement of the Court and by providing an alternative feminist judgement.
Theorising Law and Central Europe
Chair: Mirosław M Sadowski (McGill University)
Judicial Formalism and Regional Legal Identity in Central and Eastern Europe
Péter Cserne (University of Aberdeen)
Post-communist Central and Eastern European legal cultures in general and judicial style in particular are often characterised as formalistic, mechanical or (hyper-)positivistic. In this way, judicial method (seen internally or doctrinally), attitudes and style (seen externally or sociologically) are taken as characteristic of a regional legal identity, representing the distinctness of CEE legal cultures. The paper distinguishes two ideological narratives about the formalist heritage of CEE judiciary, variants of which have dominated academic and policy debates about rule of law, judicial reform, and European integration in the last three decades. The first narrative condemns judicial formalism as a feature of backwardness, the other celebrates it as a Sonderweg of CEE legal culture. While comparative research on judicial reasoning is yet to show, empirically, how distinctive CEE judicial reasoning is, these narratives construe the debate ideologically: as battleground for controversies about collective (political or legal) identity. While it might not be wise to identify formalism as a central feature of CEE legal cultures, the idea of distinctiveness is so widespread that it calls for an explanation. The paper discusses what might lie behind the search for such a distinctive feature, i.e. the urge to belong to a special regional group, defined in relation to “the West”. The pattern of ideological thinking can be seen as symptomatic of CEE political cultures yet also exemplifies a broader phenomenon of weak or peripheral cultures defining their identity in opposition to a regional/imperial/global centre. This urge may be overcome pragmatically or performatively by either zooming in: paying attention to intra-regional differences or zooming out: noticing that while the non-democratic character of adjudication invites a formalist rhetoric, formalism is one of the techniques in the argumentative repertoire of modern courts around the world which they deploy for various purposes.
Symbolic Violence and Comparative Law: Plea for a Central European Legal Family
Rafał Mańko (University of Amsterdam)
The act of grouping legal systems together by comparative lawyers is usually treated as an ideologically and politically neutral exercise, governed by certain objective features of legal culture, such as notably the historical roots of a given legal system, the prevailing legal style, the acceptable sources of law and, in some approaches, also the role of law in society and the ideological (including philosophical, religious) background of the legal system. In my paper I will claim that this taxonomic exercise is not neutral neither ideologically nor politically. Whereas the criteria applied by comparatists are seemingly objective, they do not lend themselves to a mechanic application but rather leave a broad margin of apprecation. One and the same legal system, depending on which criterion is given priority, could be grouped with various others under various labels. The so-called ‘legal families,’ a notion familiar to comparative law scholarship, are in fact contingent constructs, forged within the discourse of comparative law not without a certain hidden political and ideological agenda (which is not necessarily consciously applied by the scholars but belongs to the doxa they tacitly accept). Following that theoretical introduction, I will draw attention to the countries of Central Europe which, during the communist period, were classified as the Socialist Legal Family, but ever since the dismantlment of the Soviet bloc have been mechanically incorporated into the Romanic and Germanic legal families, as if the 45 year period of socialist legal history could be simply erased. Drawing on all the criteria usually taken into account by comparatists in constructing legal families, the paper will conclude with a strong plea in favour of Central European legal identity which entails the recognition of a distinct Central European Legal Family.
Central Europe: Conceptualising Regional Identity for Better Cooperation
Mirosław M Sadowski (McGill University)
What does Central Europe actually mean? Western Europeans, not to mention non-Europeans, often feel confused when people of the region insist they do not come from Eastern Europe. However, while each Central European knows for sure that they are not Eastern European, the answer to the eponymous question is neither easy nor simple. How to delineate the region? Which countries to include and which to exclude? What basis should one use: geographical, cultural, social, legal…? The purpose of this paper is to focus on three most vital areas in the author’s opinion – culture, law and politics – in the hopes of not only uncovering what constitutes Central Europe and its identity – but also to show how this identity may help or hinder regional cooperation. In the introductory part of the paper the author delineates the realms of his research, then moving, in the first part, to the analysis of the theoretical aspects of the concept of identity. In the second and third parts of the paper the author investigates how regional cooperation works in Central Europe, looking into three major forms of collaboration – the Visegrad Group, 16/17/16 + 1 and Three Seas Initiative – from the point of view of regional identity. Ultimately, in the concluding part of the paper the author shows how a better understanding of the Central European identity could help regional cooperation, proposing the Three Seas Initiative as a way forward for the region.
Law and Literature—Themes from Frankenstein 1:
Gender on Trial in Frankenstein
Chair: Tony Ward (University of Northumbria)
Tragedy and the Feminist Queer in Frankenstein: Adapting Elizabeth Lavenza and Justine Moritz
Emily Wotherspoon (RMIT University)
This paper forms one part of an endeavour to explore the feminist queer in the novel Frankenstein through the methodology of creative adaptation practice. Through a focus on the relationship between Elizabeth Lavenza and Justine Moritz, my PhD project explores the significance of relationships between women in the novel, how they can be read through the lens of queer theory, and offers a new perspective on how tragedy is portrayed in the text through these relationships. The trial and wrongful execution of Justine Moritz constitutes a key part of Volume 1, yet in film and television adaptations is frequently altered or erased altogether. These adaptation decisions seem to be reflective of a pervasive adaptation practice of heteronormalisation, which devalues and refocuses the plotlines and relationships of female characters to uphold heteropatriarchal norms. This paper will demonstrate how my project uses Frankenstein-as-method to draw attention to acts of reading in the adaptation process, and, in doing so, to resist the heteronormalisation of Elizabeth Lavenza and Justine Moritz by recognising their queer potentiality in the novel, particularly through the trial and execution sequence.
‘The Harsh, Unfeeling Reasoning of these Men’: Law, Revolution and Feminism in Frankenstein
Tony Ward (University of Northumbria)
When Justine Moritz is condemned to death for the murder of Victor Frankenstein’s brother William, Victor denounces the ‘harsh, unfeeling reasoning’ of the judges who relied on circumstantial evidence of Justine’s guilt rather than the eloquent character evidence of Victor’s fiancée, Elizabeth Lavenza. When Victor confronts the real murderer, the Creature to whom he gave life, the Creature denounces him as an ‘unfeeling, heartless creator’. It is widely acknowledged that the Creature is a symbol of the French revolution – and of the revolution that engulfed Geneva in 1792 and swept away the regime in which Victor’s father Alphonse was an eminent figure. Contrary to what some scholars assert about the dating of events in the novel, the murder of William and trial of Justine clearly take place before the revolution, most likely in 1789, and are portents of the violent upheaval to come. In showing the shared flaw of Victor Frankenstein – a personification of the radical intelligentsia – and the ‘enlightened’ elite of the Genevese city-state to be their neglect of the ‘domestic affections’, the novel implicitly embraces the romantic feminism espoused more explicitly in Percy Shelley’s contemporaneous poem Laon and Cythna.
‘Ten Thousand Times more Malignant than her Mate’: Critiquing Provocation, Loss of Control, and Gendered Criminal Behaviour through the lens of Mary Shelley’s Frankenstein
Barbara Hughes-Moore (University of Cardiff)
The feminist legacy of Frankenstein is one which paints unfettered male ambition and the systemic subjugation of women in shades of horror. Given the preponderance of men and the layers of male testimony within the text, it is notable that Frankenstein was written by a woman, Mary Shelley, whose mother, Mary Wollstonecraft, was a pioneering feminist and writer of one of the earliest feminist texts in British literature.
Utilising interdisciplinary literary-legal methods, this paper uses the text as a lens through which to critique and destabilise the ways in which the criminal law reproduces and perpetuates gendered notions of behaviour in the provocation and loss of control defences, where the law creates its own doubles between the conceptual and the actual. It analyses how crimes of passion in English and Welsh common law have been historically gendered as male-perpetrated, and premeditated spousal killing predominantly as female-perpetrated, and explores the discrepancy between defendants motivated by spousal infidelity and those motivated by spousal abuse.
The paper conducts a reading of the creature as Victor’s double, considers how the creature exhibits feminised and masculinised forms of crime, and interprets the quasi-sexual subtext between them in relation to spousal infidelity and mariticide case law.
The Monstrosity of Legal Form 4: Lives of Legal Forms
Chair: Simon Lavis (Open University)
The (Dis)figure of the Archipelago in International Law
Alex P Dela Cruz (University of Melbourne)
The Dictionary of Physical Geography defines the word ‘archipelago’ as a ‘sea or lake containing numerous islands or a chain or cluster of islands’. In contrast, Article 46(b) of the 1982 Law of the Sea Convention as ‘a group of islands… interconnecting waters and other natural features’ so closely interrelated that they ‘form an intrinsic geographical, economic, and political entity’. In this paper I describe the form of the archipelago as it transitioned from ‘sea of islands’ to ‘intrinsic entity’ using the example of the Philippines before and after its independence from the United States in 1946. I argue that the claim to form an intrinsic entity, smuggled into the current legal definition of an archipelago, embeds and rehearses the administrative practices that forcibly and violently integrated the islands of the Philippines as a single colonial unit of a succession of Spanish, US, and Japanese empires. After independence, the fledgling Philippine state-making project used the law of the sea as a technical vocabulary to conceptualise the received administrative form of the archipelago according to the principles of territorial sovereignty. This is a form that continues to haunt today’s struggles for the South China Sea.
‘Does Magna Carta mean Nothing to You? Did She Die in Vain?’ Freemen on the Land and the Mutilation of the Legal Form
Jack Head (Birkbeck)
In recent years, ‘freemen on the land’ have become a notable feature of proceedings in the lower courts. These individuals, who adopt an ‘alternative’ understanding of law, have been the cause of much consternation and have been variously described as ‘loony’, ‘parasitic’, and ‘crazy’. Why, then, are these ‘freemen’ seen as such an aberration? As such an affront to the normative legal order? In answering that question, this paper will draw on a year’s worth of socio-legal research to offer an account which eschews the pathologising tendency of conspiracy theory literature, and instead makes use of a variety of perspectives including social contract theory, the history of antinomianism in England, and the analysis of the legal subject offered by Pierre Legendre. Like the Critical Legal Studies movement before it, the freeman on the land ‘movement’ calls into question law’s certainty, law’s self-assuredness. The freeman, by invoking a strange form of legal mythology, makes modern law’s own mythology even more intelligible, to use Fitzpatrick’s phraseology. But unlike CLS, the rise of the freeman within the courts unsettles and disturbs the legal practitioner absent the safety afforded by the distance between courtroom and academy; that is, the freeman operates at the coalface, where it really hurts.
Theatrical Jurisprudence 3:
Chair: Sean Mulcahy (La Trobe University)
Judges’ (Re)presentation of Self
Terezie Smejkalova, Petr Pailsek, and Marketa Stepanikova (Masaryk Univesity)
There are many folk ideas about what a judge is or should be; from images in literature to pop culture or mass media. In an ongoing project, we are testing the possibilities of the methods available within the social representations approach. The social representations approach stems from social psychology and its main benefit is the capability to explore shared folk meanings.
We have conducted a research to determine social representation of ‘a dignified judge’ among practicing lawyers, using hierarchical evocation method. Among the answers, allusions to external characteristics of the performance – manners, appearance, and costume – of a judge emerged.
This paper explores the performative dimension of a judge, a character in a performance of a trial, mostly in Goffman’s sense. We report the initial findings of our research and discuss the shared ideas of external characteristics of such a persona to which the participants tend to anchor the judge’s dignity.
The Violence of the Law on Stage
Shlomit Cohen-Skali (Tel-Aviv University)
Legal docu-performances respond to a tension they identify between law’s aspirations to achieve justice and the power it wields to achieve it. The dislocation of the legal debate to the theatrical space ostensibly frees the viewer from the forced violence involved in court procedure. But a closer look at the legal docu-performances and the performative strategies they adopt shows that often the theatrical reconstruction of a particular trial also recreates some of the violence of the legal process, even if it does so critically. The performance seeks to draw the viewer’s attention to the belligerence of the legal process and the injustice that this belligerence produces, but in so doing it evokes in the viewer the same belligerence – even if at a small scale. My claim is that the performance traps the viewer in conflicting situation – in order to resist the violence that the performance criticizes the viewer must first be pitted against the performance itself. Collaborating with the show puts the viewer on the offending side, guilty of causing the injustice the show criticizes. This catch raises questions about the ethics of watching these performances, how the theatrical language in these performances serves or fails to serve the critical move the performance offers, and at the same time, how these performances undermine or reaffirm the legal system against which they protest and the place of violence in this process. I would like to illustrate my claims through legal docu-performances in the Israeli theatre.
Through a Glass Darkly: Illuminating the Horrors of Frankenlaw via the Lens of Dystopian Fiction
Chair: Julia Shaw (De Montfort University)
Whose Law Is It Anyway? How an “English Apocalypse” Offers Insights into Socio-Legal Foundations
Philip Wane (Nottingham Trent University)
This paper considers how examples of what are widely regarded as classics of the science fiction genre provide insights into the philosophical and socio-legal foundations of modern society. Drawing upon examples from authors such as John Wyndham (Day of the Triffids), John Christopher (The Death of Grass) and Terry Nation (Survivors), it examines the link between law and social structures. How are such structures ruptured by catastrophes and even apocalypses (the end of the world as we know it)? Just who should uphold the law and from where to they draw their claims to power? The chosen authors situate their end times in a very English environment (echoes of an idyllic Albion?) and pose powerful questions about the legal system that normally envelops us. Literature provides an unspoilt lens through which we can focus an unrestrained reflection upon our actual legal system.
Lawlessness and Fear of the Dark in Shadow and Bone
Cassandra Sharp (University of Wollongong)
The rise in popularity in recent times of dystopian fiction is reflective of contemporary anxieties about law: the abuse of power; the lack of democratic imagination despite the desperate need for political reform; and the threat of order imposed through violence and victimisation. Such texts often narrate stories of law’s unsuccessful struggle against unbridled power; or even sometimes of law’s ‘bastardised’ reconstruction. The Shadow and Bone trilogy by Leigh Bardugo has recently been adapted into a Netflix series. In both book and on screen, darkness is law, thriving on collective notions of fear, trembling, trauma, and uncertainty. Yet, the hope of light remains an ever-present possibility of law’s transformation. In this Russian-world inspired fantasy, the social divide is made manifest by an unaccountable and terrifying darkness, and yet one girl provides the promise of light and restoration. Law’s ability to be transformed is thus simultaneously portrayed as society’s downfall (when manipulated and disrupted), AND as the key to enlivening humanity (when redeemed and restored). This paper uses the concept of darkness to interrogate how the images of fear and hope collude to (re)construct law within this dystopian series.