Parallel Session 5:
Friday 3 September
1130 to 1300 (UTC+1)
Panels in this session:
- The Agency of the Artist Scholar 4 (Room: LT1)
- Criticizing the Criminal Law: Rejoining a Severed Corpse/Corpus 1 (Room: 1G10)
- Feminist Judgments as Frankenlaw Experiments 3: Gender-Based Violence 1 (Room: 2S13)
- FrankenEurope 2: Central Europe as a Particular Socio-Legal Space (Room: 2F14)
- The Monstrosity of Legal Form 5: Capitalist Legal Forms (Room: 1G06)
- On the Lives of Others: Refusal, Abolition, Survival 1 (Room: 2F11)
- Theatrical Jurisprudence 4: Performing International Conferences and Future Justice (Room: 2S12)
- Transforming the Law to Tackle Climate Change 1 (Room: 2G14)
The Agency of the Artist Scholar 4
Chair: Gavin Keeney (Independent) and Andreas Philippopoulos-Mihalopoulos (University of Westminster)
A Hundred Years Hence …
Ishita Jain (Jindal Global University)
In 1895, “with an iota of joy,” Rabindranath Tagore wrote The Year 1400 to artist-scholars of the future of “his excited heart filled with songs, with ardour, anxious to express so many things.” / This theatrical-cinematic, literary presentation is a response to this exalted call by Tagore. It reached me through Otolith Group’s “O’Horizon” – a speculative study of Tagore’s Santiniketan as home for truly polyphonic and holistic learning. I encountered the Otolith Group’s work accidentally in a conference on modern heritage – where this work, distinctly meta-modern in its approach, stood out. The meta-modernity was a latent subjectivity fed by the desire to map a place that was entangled in deep ecological time, infinite folk time, and quotidian lived time. / The dynamism of the dance between the discursive and the non-discursive agency of place, as represented by a small Himalayan village called Garli, finds expression in polyphonic worlds – expressed as “art as scholarship” and not scholarship about art, or art about scholarship. This performative presentation offers an intellectual wandering as demonstration of an iterative methodology of engaging with sites to access the “presence” of the place. Through its place-based ecologies, the ungraspable time-senses and propositional carnivalesque imaginations of Garli, as subjective state, become present as absences.
Museums and Prisons
Aurelia Guo (University of London)
In this 20-minute presentation/performance, I will discuss two charts presented as artworks by Andrea Fraser: Index (2011), demonstrating that the greater the divide between rich and poor, the higher the price of art sold on the market; and Index II (2014), demonstrating a 700% increase in museums and prisons built in the United States since 1980. My presentation will discuss the role of the maker and consumer of culture against the backdrop of increasing inequality and social exclusion. Specifically, it will discuss the role of the self-identified progressive. In an American context, Naomi Murakawa demonstrates how mass incarceration was built and justified as much by Democratic Party as by Republican Party initiatives and administrations (The First Civil Right: How Liberals Built Prison America, OUP, 2014). This was mirrored in several respects in the UK and in Australia, both of which experienced parallel booms in prison populations in this time period, and as much under “New Labour” progressives as under the Conservative Party in the UK and under the Liberal Party in Australia. I will present my reflections on the post-1980s, concluding with a collage of quotations.
Exploration or Exorcism: Should the Art-scholar Eat the Law in Order to Taste It?
Nicole Zilberszac (Goethe University Frankfurt am Main)
In my performance, I want to show how the perspective of the art-scholar enables a radically embodied experience, through a process of appropriation of the law and a subsequent exorcism of its internalized traces. This illusion of an exorcism, of an unleashing of the legal demons, enables a temporal, spatial, and embodied experience of the law, and makes it communicable in a sensory and experiential way. Therefore, I will perform a self-exorcism. The result of this exorcism will be an illusory post-legal-being. As a post legal being I will try to communicate my existence within the realms of my inexistence. This will create an atmosphere of radical honesty and vulnerability – an experience that usually gets veiled and/or overshadowed by subtle layers of micronormativity. / A video will serve as a trailer for the performance, showing the beginning of a legal self-exorcism.
Genre Trouble, or How I Learned to Stop Worrying and Love the Law
Danish Sheikh (University of Melbourne)
In 2017, I wrote and staged a play titled Contempt. The play was a response to the Section 377 hearings in India that concluded with the Supreme Court confirming the criminalization of queer intimacy. With Contempt, I restaged these hearings as a form of dissent, drawing out ways in which the judges had failed to listen to the voices of queer persons. At the same time, I interleaved the hearings in the play with those very lived narratives that the court had ignored. I called them affidavits. These affidavits of mine were a response to the affidavits crafted by lawyers and placed before the Supreme Court in the Section 377 hearings. / In this presentation, I describe the movement of one particular affidavit across different sites – from its first manifestation in a written submission before the Supreme Court, to my own rewriting of the story in theatrical form, to its subsequent adaptation by a different set of theatre practitioners. Multiple acts of translation take place here, the genre of the affidavit changing to accommodate the shift in each site. The lawyers in the first instance translate life into law; I translate that legal form into a theatrical form; my theatrical form is once again translated into a different kind of theatrical form. / We tend to think of translation work as an act that reduces – something is lost each time we attempt to translate. Perhaps, if we think of the act of translation as enabling, as productive, we might train ourselves to ask what is found in translation? I locate such an ethos in James Boyd White’s Justice as Translation. Guided by White, I turn to the initial affidavit in this story to think through what forms of life the legal affidavit might capture, what it is that this legal form makes possible. I turn also towards the subsequent translation of my work to tease out the distinct vision of law captured by the theatre practitioners. In this telling of the story, each genre of writing and crafting language allows for certain visions of law and life to flourish.
Criticizing the Criminal Law: Rejoining a Severed Corpse/Corpus 1
Chair: Blake Wilson (California State University)
Between Torts and Criminal Law, Between Harm and its Punishment: Structural, Procedural and Functional Dilemmas in the Representation of Victims of Sexual Assault
Yifat Bitton (Achva Academic College)
This Article seeks to expose hidden aspects of the torts and criminal law intersection. Acknowledging their distinctiveness, these fields are perceived as reciprocally enriching one another in a paradigm identified here as “complementarity and endorsement.” This customary paradigm is challenged in this article, showing how torts stand, at times, in grave and acute tension with the criminal law. The Article’s assertion is presented through various challenges faced throughout litigation proceedings of civil suits in Israel brought by victims of sexual assault against their perpetrators, exemplifying this clash in all its fury. In these suits, criminal actions of sexual assaults are translated into civil claims for liability, for what is often termed “Crim-Tort.” Perceiving torts and criminal law as separate fields, yet strongly connected to each other, warrants critical analysis of the connection-friction arenas, and acknowledgment of the constrictions and hurdles they impose on the victims of “Crim-Torts” suing for civil compensation in courts. In view of these difficulties, this article proposes a restructuring of the reciprocal relations between the two sets of laws using a theory of “power relations in torts,” with the goal of reducing the tort costs that the negative points of friction between the two sets of laws exact.
The Living (and the) Dead: Race, Class, and Drug Control in an Age of Crisis
Matthew DeCloedt (Central European University)
The Covid-19 pandemic has exacerbated tensions in the international drug control system (IDCS). The differential treatment of cannabis and opioid users during this time in particular evidences deep inequalities of health, wealth, and power. Indeed, we now have regimes of civil regulations for “good” drug users and criminal laws for “bad” ones. Those with job security and means purchase or grow cannabis without undue interference from the state, often to pass the time spent in socially distanced isolation, while the impoverished and unemployed turn to the illicit market in synthetic opioid drugs to cope with the crisis of the present, causing a very public epidemic of overdose deaths in several jurisdictions; even though the two types of substance are subject to the same strict regulation under the IDCS’s treaties. This paper questions the extent to which neoliberal consumer capitalism drives drug control reform, shielding certain socioeconomic and racial groups from/with the law while reproducing what Piketty calls the inequality regime. Drawing on case law from apex courts in the US, Canada, South Africa, Georgia, and Latin America, as well as comparative constitutional scholarship, I explore how certain (interest) groups have won constitutional protection for their drug consumption – purporting to right the system’s wrong – while leaving the prohibition-oriented, criminal law enforcement approach of the IDCS intact; to be faced by those at the bottom of the social hierarchy. Drug control, I argue, engages what Mbembe termed necropolitics: that is, the sociopolitical power of the state over life and death. And Covid-19 brings into sharp relief how law shapes markets and rights as well as life and death. The strategic deployment of rights and freedoms arguments has allowed litigants of acceptable persuasions to medicalize substances like cannabis – paving the way for its legalization or decriminalization – and left users of other drugs to languish with minimal state protection: a Frankenstein of a legal constellation causing both “deaths of despair” and an increase in recreational use; and dependence. The pandemic makes all too clear that equality, not economics, needs to be put back at the center of drug reform efforts.
Pure Compensation, Mass Incarceration, and the Abolition of Criminal Justice
Blake Wilson (California State University)
What kind of legal system, if any, can replace criminal law and procedure (in the abstract), and the American criminal justice system in particular? Why do these systems need replacing? The criminal justice system ought to be replaced because of its unethical and illegal reliance upon differential punishment, and, moreover, because punishment (even without claims that it is unfairly imposed due to racial or differential considerations) in general is ineffectual and morally unjustified. A justice system should have, as its primary focus, the reduction of unjust harm, and it should ensure that persons who are unjustly harmed be compensated by those who harm them. Here, I argue that a civil justice system, predicated on the goal of pure compensation and operating not unlike the present American civil justice system, can act as a practical replacement for a system of punitive criminal justice, which does not focus on compensation of victims but upon punishment of wrongdoers.
Feminist Judgments as Frankenlaw Experiments 3:
Gender-Based Violence 1
Chair: Djemila Carron (Université du Québec à Montréal)
Women’s Politicization of Asylum: A Feminist Perspective on the Impact of the Border Crisis on Italian Jurisdiction
Enrica Rigo (University of Roma Tre)
The border and refugee ‘crisis’ of 2015 has had a marked impact on Italian civil courts responsible for asylum cases. The paper presents research conducted between 2015 and 2020 on court judgments about asylum claims based on gender violence. By examining how lowest grade of jurisdiction decisions have influenced the legal interpretation of highest courts, the paper aims to underline the role of the struggle of the peripheral subjects of international law in the reconfiguration of borders and the politicization of asylum.
Although there has been an important debate on gender and asylum at international level, the discussion in Italy has mainly focused on legal and procedural technicalities that relies on a positivistic faith in law. On the contrary, the case law discussed in this research shows that the issues at stake are not limited to the truth of facts and the objectivity of legal method but rather encompass the very definition of gender and gender-based violence. Moreover, by placing courts’ decisions within the political context of migration reforms that have been introduced during recent years, the paper argues that a political conflict between legislative and judicial bodies has occurred in the shadow of chamber decisions. Finally, the paper analyses some landmark decisions taken by the Italian Court of Cassation on gender-based violence asylum claims between 2020 and 2021 and discusses from a feminist perspective the different outcomes of alternative definitions of violence and vulnerability.
Toxic Masculinities in the Swiss Armed Forces Boys’ Club: How a Civil Law Jurisdiction could (have) Provide(d) a Remedy to the Failures of Anti-Discrimination Protection
Djemila Carron (Université du Québec à Montréal) and Nesa Zimmermann (Université de Genève)
What protection against discrimination does the swiss legal framework offer to a gay man working for the Swiss Army ? Very little, it turns out. Switzerland is regularly criticized by international and European human rights bodies for the limited scope of its anti-discrimination law, and most notably the absence of a general law protecting against discriminations. A rare exception is the Federal Act for Gender Equality (GEA) that prohibits discrimination in the workplace based on gender. It has long been debated whether this law also protects against discriminations for reasons of sexual/affective orientation or gender identity/expression. Recently, the Swiss supreme court has answered this question in a landmark judgement, albeit very unsatisfyingly, providing little protection against toxic masculinities in the Swiss Army’s “boys club”. In our contribution, we start by critically reviewing the judgment before rewriting it from a critical feminist and queer perspective. This allows us to question the hidden stereotypes and assumptions that guide the court’s analysis and showcase how civil law jurisdictions could extend sex anti-discrimination protection to queer bodies.
About Gendered Criminal Judgments from Hungary
After years of lawyering and an MA in Gender studies /CEU, Budapest/ I sunk into the world of feminism and law. My first impression was that on the whole, in European legal culture there is no tradition of examining law from a realist, sociological perspective. I found no author I could connect to in this field, therefore I turned to Anglo-American authors and theories that can provide a foundation for a legal discourse exceeding the boundaries of rigid positivism.
Because of the lack of any knowledge on this field in my geographical area, the aims of this dissertation were twofold. Thisis a review of the conceptual framework, authors and methods of feminist analysis of law and legal practice and of feminist legal theory, as well as analyzing a small slice of Hungarian legal practice /judicial decision making on criminal courts/ in the spirit of a specific feminist legal practice.
I would happily talk about my theoretical dilemma with regard to the foundations of the research was: how can ’feminist legal thought’/’feminist jurisprudence’, an originally Anglo-American school of thought and its analytical schemes, developed in a legal environment of precedent cases grounded in judges’ decisions and criticizing the American liberal interpretation of law, interpreted in a completely different legal environment?
I weld two methods when analyzing court cases: I perform critical discourse analysis from a feminist perspective, and from the stance feminist legal scholars take to texts produced by judges in feminist judgment writing. All of the five judgments I analysed came from the area of violence against women. I would happily share my critical thoughts; observations emerged and show the experiments of reconstruction. I am planning to collect and explain those alternative feminist arguments which could have been incorporated into the original proceedings or judgments. A glimpse of my insights: there are cases when it is openly said, and not only filtered through the victim-blaming mantras, that a virtuous woman would never put her body on sale, as this would be self-degradation. There is no way to imagine a woman who, as a victim of her fate, takes agency and uses her limited possibilities when forced to do so. There is no mention of the fact that when a woman in a tight situation is asked to provide sexual services, it is coercion, not a gift from a man to a woman he likes, but a form of exercising his power. The woman’s morals are defiled, her personality degraded, while parallel to this the respectable man is framed as a hero.
Central Europe as a Particular Socio-Legal Space
Chair: Rafał Mańko (University of Amsterdam)
Bringing International Humanitarian Law Home In Central And Eastern Europe: The Case Studies Of Polonia, Bulgaria, Romania
Gianluigi Mastandrea Bonaviri (‘La Sapienza’ University)
This presentation aims at analyzing the relations between Central and Eastern Europe and International Humanitarian Law (IHL), in particular its national implementation by Poland, Romania and Bulgaria. The analysis will take into account the progress achieved by those States over the last years, highlighting what could be further improved in order to guarantee a comprehensive and effective implementation of IHL. In December 2019, the 33rd International Conference of the Red Cross and Red Crescent adopted Resolution 33IC/19/R1 (“Bringing IHL home”), which provides a road map for a better national implementation of IHL. The resolution calls upon States to adopt necessary legislative, administrative and practical measures at the domestic level, also fostering initiatives to disseminate IHL knowledge, by raising awareness among civilians and military personnel. Poland, Romania and Bulgaria seems to be already compliant with the Resolution. Not only are they Parties to most important IHL treaties, including the Geneva Conventions of 1949 and the two Additional Protocols of 1977, but they also count on IHL National Committees. All though the Committees are advisory body of the Government, without legal capacity, they plays a crucial role, for instance, in the enhancing of the coordination between the respective national institutions in charge for IHL. Moreover, Poland, Romania and Bulgaria recognized the competence of International Humanitarian Fact Finding Commission (IHFFC), according to the provisions of article 90 of the Additional Protocol I to the 1949 Geneva Conventions. In the occasion of the 33rd International Conference of the Red Cross and Red Crescent, Bulgaria, together with its National Red Cross, also presented an official pledge to promoting knowledge and implementation of rules and principles of IHL. This paper will also highlight the historical background of the Central and Eastern Europe’s approach towards International Humanitarian Law (IHL), taking into consideration other countries such as Hungary and the Czech Republic. Some innovative proposal will be also put forward, in particular to further strengthen national implementation of IHL in the region.
Who Stands in Front of a Mirror and who Stares Back?
Peter Čuroš (University of Oslo)
A spectre is haunting Central and Eastern Europe – the spectre of authoritarianism. A spectre – as living dead represents an entity that did not enjoy the right symbolical end, a funeral. It persists among the living, unable to live and create, however, not capable of dying and disappear. This paper considers living dead to be the phenomenon of formally claimed discontinuity with the previous regime with pertaining continuities under the surface of the social reality. In this paper, I intend to approach narratives we are used to repeating, narratives of clear lines in history, narratives of good and evil, or narratives of distinction of subject acting upon an object. That is our habit. We are always looking for protagonists and antagonists. We like to see clearly, what is right and what is evil with an agency. In this paper, I would like to switch the point of view. I want to present how the community creates its representatives and how governments’ authoritarian backsliding reflects the community’s shift in desire. The concept of backsliding originally representing falling away from the faith, or better – a decline of trust in the righteousness of the authority, that the authority is powerful as it claims to be. Today it represents falling away from the faith that liberal constitutional democracy is even true in what it claims to be. Therefore, the unquenchable desire is still alive – a need for a mighty and invincible state, a stench of living dead is still present. The current situation in the Visegrad countries – Hungary, Poland, Slovakia, and Czech Republic-will, be in focus. Furthermore, returning to central power promising to secure stability in the world that is in constant flow. The spectre of authoritarianism – a living dead survives on the continuities before 1989, unable to live but still capable of haunting. The proper thing to analyze are dominant and minor ideologies, which shape the convictions of subjects. For dismantling these convictions, I will use the theories of Jacques Lacan, Fredrick Jameson, Slavoj Žižek, and many others.
FrankenCollectivism: The Legal Legacy of Socialism and the Institutions of Cooperative Economy
Piotr Eckhardt (University of Wrocław)
Central European really existing socialism is commonly associated with cooperatives. Nevertheless, after the political transformation, such institutions do not do well in the region. Housing cooperatives are in stagnation. The others are gradually collapsing and being liquidated. The prosperous ones are the exceptional. The neo-liberal approach to the economic transformation after 1989 is often blamed for this situation but the reasons lie deeper. In the socialism, the existence of cooperatives was consistent with the official political ideology. Nonetheless, they are usually bottom-up, independent initiatives. The centrally planned economy authorities could not accept the existence of such completely independent organizations. For political reasons, it was not possible to liquidate the cooperatives. On the contrary, it was necessary to create new ones. That is why it was decided to adopt the legal solutions that centralized the cooperative movement and subordinated it to a full state control. The new cooperative law fostered the development of corruption and bureaucracy. After 1989, it was not necessary to intentionally destroy the cooperatives. The organizations in which the socialist order had prevailed for several decades were not able to function without a dominant but also supporting political power. For their collapse, the lack of reforms was enough.
(Beyond) Internalisation of the Framework Convention for the Protection of National Minorities: Lessons from Southeast Europe
Elizabeth Craig (Sussex Law School)
This paper will build on the author’s recent work comparing minority and/or community rights legislation in Bosnia and Herzegovina, North Macedonia and Kosovo. It will focus on questions raised about the role and limitations of such legislation, arguing that there are lessons to be learnt here for deeply divided societies across the European continent. It will address question of universalism v particularism, and focus in particular on the relationship with the Council of Europe’s Framework Convention for the Protection of National Minorities. Whilst this instrument purports to set the European standard, the paper will demonstrate that this is an overly optimistic assessment of its usefulness. What does this mean for the future of minority and/or community rights legislation in the region? Does such legislation still have a meaningful role to play? Or has the minority rights discourse, and the laws linked thereto, become so discredited that a new approach is now needed? This paper will make the case for a more intersectional approach in determining the crucial next steps.
The Monstrosity of Legal Form 5:
Capitalist Legal Forms
Chair: Cosmin Cercel (University of Nottingham)
The Law of Capital
Dimitrios Tsarapatsanis (University of York)
The aim of the paper is to reconstruct what I propose to term ‘proto-legal normativity’ on the basis of capital’s movement as analysed in Marx’s Capital vol. 1. The discussion begins with a critical reading of Pashukanis. Several criticisms addressed against Pashukanis are deflected by clarifying that the level at which Pashukanis articulates his theory is not that of concrete historical reality but, rather, that of the pure theory of capital, i.e. a conceptual space in which capital’s internal dialectic is allowed to unfold without external hindrances. At that level, in the sphere of circulation legal form necessarily takes the shape of contract between free and equal abstract persons. The paper then supplements Pashukanis by proposing a reading of capital’s authority over living labour within the sphere of production as a proto-normative phenomenon which grounds distinctive legal norms. As the dialectic of capital moves from circulation to production, these norms are justified on the basis of ‘competence’ or ‘expertise’. Thus, the unfolding dialectic of pure capital provides two (rather than one) kinds of justificatory answers to living labour when the latter asks ‘why should I do x?’: first, ‘because as an equal person you consented freely’ and, second, ‘because I know best how to optimally organise production’.
A Threnody for the Legal Form: ‘Vulnerability Theory’ and the Fetishism of Concreteness
Rosie Woodhouse (Birkbeck)
The political salience of an idiom of “vulnerability”, emphasised as the critical undoing of the world, has proliferated in academic and public discourse over the last few decades. For legal theorists (Fineman, Grear et al.), “vulnerable embodiment” necessarily recognises all life forms in a flat universality of vulnerable self-sameness, evoking an ethical plenitude of a responsive state wherein institutional frameworks are brought to bear on the body’s ontic “reality”. In this paper, vulnerability theory’s preoccupation with ontological forms will be read as an anxiety over the state’s inability to protect bodies and social relations from capital’s multiple abstractions, instead pathologizing the exclusionary liberal juridico-political subject as central axiom to a legal form unable to overcome social division, inequality or discrimination. The legal form is re-animated by embodied subjectivity as concrete universal and distinguished from the fragmentations of everyday capitalist life; completing a threnody for the legal form blind to its own mis-comprehensions of the functions of abstraction in social reproduction. In contrast to the theoretical and practical dead-ends of positing vulnerability as substratum, this paper will then draw on multidisciplinary Marxist analyses to think through the mutual corruptions of the legal form and capital relation in re-articulating the disaggregated body.
On the Lives of Others: Refusal, Abolition, Survival 1
Chair: Ozan Kamiloglu and Petero Kalulé (London South Bank University)
Reanimating Matter as Witness
Başak Ertür (Birkbeck)
We have been witnessing a proliferation of aesthetic, scholarly and investigatory practices that seek, identify and analyse the ways in which the material world records evidentiary traces of specific instances of state violence and human rights violations. These practices promise to expand and enhance human sensory capacity through neo-empirical forms of knowledge and media technology to render perceivable that which was meant to have been covered up. On the one hand, it is possible to read this as a form of re-enchanting the world, as a formerly mute and indifferent nature is made to speak the traces of that which it was made to disappear. On the other hand, this constellation of practices can be understood as a rather direct response to legal technologies of evidence and verification that have been perfected to decimate the credibility of the lived experience and testimony of human survivors in the wake of state violence. The so-called post-human, more-than-human, or material turn in aesthetically-informed forensic practices can thus be understood as an apotropaic response: the attempt to weave protective magic around human testimony, which nevertheless remains at the very centre.
The Hauntings of Legal Atrocity Archives: The Relationality of Memory, Self and Others
Benjamin Thorne (Independent)
International criminal courts and tribunals generate, through their extensive and often long legal processes, diverse archives relating to conflict/atrocity. This material includes witness testimonies, photographs, videos, audio, letters and diaries. However, the potential value of this material for post conflict communities to aid plural dialogue about contested pasts and intergenerational transmission of memory has received little attention. Taking the archive of the international criminal tribunal for Rwanda as its case study, this paper frames legal atrocity archives as ‘hauntings’: the complexities of experiences of mass violence and the ways in which individuals and communities come to terms with and negotiate these experiences. From this frame it constructs an original theoretical lens as a way to conceptualise the plural stories within legal archival material to interrogate whether these can contribute to plural dialogue about past events and contribute to the intergenerational transmission of memories. For this lens the paper engages with insights from critical theory (Levinas) and memory studies (Wang, Ricoeur). It will be argued that fragments of memories in the archive can contribute to conversations about plural meanings relating to the events of 1994 as well as distinct but connected events in Rwanda’s past, such as colonialism. The latter part of the paper explores the potential of legal archive material to aid conversations between those who experienced the genocide against the Tutsis and those born during/afterwards and thus have no personal memories of the events.
Armed Conflict in the Flesh: The Fractured Body-Schema in the Wake of Dehumanisation
Joy Twemlow (Durham University)
Merleau-Ponty identifies that our consciousness is shaped by our lived bodies; our awareness and engagement with our reality is constituted by the skills and habits of this body we are always located within. Armed conflicts directly engage bodies—often in violent and dehumanising ways—leaving its trace in the form of lost limbs, scarred flesh, and ongoing illnesses. Beyond these immediately tangible impacts, emerging empirical research demonstrates how memories of trauma are encoded onto bodily functions and habits. Put another way, traumatic experiences can change how our body-schema is oriented towards the world: disrupting people’s openness to, and engagement with, the world that they exist within.
This paper will critique international human rights law through discussion of fragmented body-schemas. Human rights law is often presented as a means for individual to respond to historical and ongoing dehumanisation in the wake of conflict. However, common habits developed after trauma—such as withdrawal, hyper-vigilance, silence, dissociation, and hesitation—are discordant with the image of the hyper-rational subject envisaged by human rights law. Considering this, the paper will argue that human rights law fails to take seriously the conditions required for its intended subjects to even imagine the hopeful future it peddles.
Theatrical Jurisprudence 4:
Performing International Conferences and Future Justice
Chair: Sean Mulcahy (La Trobe University)
Staging Grounds: Dialectics of the Spectacular and the Infrastructural in Conference-Making
Daniel Quiroga-Villamarin (Graduate Institute Geneva)
For the international lawyer, the international conference seems to as a rather anodyne and uninteresting place. While much attention has been paid to decipher who partakes in Schachter’s “invisible college of international lawyers,” scant attention has been paid to where and how they sit. In fact, both mainstream and critical approaches to the study of international conferences tend to focus merely on the discursive outputs of these meetings – such as verbatim records, procèsverbaux, treaties, or resolutions. The material, infrastructural, and affective practices of conference-making (or -breaking) are regularly sidelined as epiphenomenal to the grandiose processes of law making. Conversely, in this piece, I suggest that our analysis of where international lawyer-diplomats stand has much to gain from the study of where they sit. Drawing from science and technology studies, the anthropology of infrastructures, and theater studies, I argue we can understand conference tables as stages for global governance. It follows, then, that we should not limit our examination to the spectacular performances that occur in the front-stage of international ordering but also interrogate the (often-hidden) back-stage that allows for such distribution of the sensible.
Imagining Law Otherwise: Theatrical Pre-Enactments and Future Justice
Steven Howe (University of Lucerne)
Pre-enactment is a term that has recently begun to flourish in art, theatre and performance circles. Understood as “the artistic anticipation of a political event to come”, pre-enactments do not merely prognosticate about the future. Rather, they leverage the imaginative force of art to give form to future models of social and political organisation, creating symbolic institutions – tribunals, assemblies, courts – that, in the words of Dutch artist Jonas Staal, seek to “expose, defy, and change” current political structures and practices. Proceeding from this understanding of the pre-enactment as a kind of artivism, this paper considers several recent performance pieces that prefigure, or preform, a future justice as yet unobtainable in existing legal spaces or forms. In particular, it asks (i) how these artistic interventions (re-)work the conventional dramaturgies of law to speculate on, practice, and explore alternative legal futures, and (ii) whether and how the theatrical pre-enactment might help revitalise legal critique as a generative, “possibility-disclosing” practice.
Transforming the Law to Tackle Climate Change 1
Chair: Riccardo Fornasari (University of Bologna)
Gandhi, Serres and the New Social Contract in the Anthropocene
Ishtiaque Ahmed Levin (Jawaharlal Nehru University)
In his influential book The Natural Contract, Michel Serres argues that our current social contract dangerously undermines the agency of the non-human. Therefore, the prevailing conception of the social contract needs to be supplemented with a new arrangement that pays attention to ecological concerns. This paper argues that Michel Serres’s well-known book The Natural Contract is an important document for making sense of the ongoing climate crisis and the recent outbreak of the Covid-19 pandemic. How can Michel Serres’s conceptualization of natural contract help us to encounter the Anthropocene – a new geological epoch in which we find ourselves? This paper will reflect on Serres’s conception of natural contract to understand the limitations of the social contract. To facilitate engagement across diverse philosophical cultures for the purpose of decolonizing the Anthropocene, this paper also seeks to understand possible points of alliance between Serresian ecological ideas and Gandhian ecophilosophy. In the context of South Asia, Gandhi’s concept of swaraj brilliantly depicts the self-governance of people’s social, economic, and environmental affairs. Considering what it signifies to live in the Anthropocene, this paper examines Serres’s emphasis on the natural contract and the Gandhi’s concept of swaraj to understand the ethics of justice in the new climate regime.
Educating Utopia: The School Strike for Climate Crisis and their Legislative Visions
Heather McKnight (University of Sussex)
This essay uses critical utopian theory to interrogate the discourses of school strikes across Europe and their demand for legal reform. The school strike movement is constructed of a critical utopian discourse expressed through complex temporalities, which define the role of resistance as anticipation. Arguably the movement has, even during the pandemic, proven to be self-reflexive and grounded in a broader discourse on politics, oppression, and futurity.
The anxiety in the student strike movement creates a non-violent but militant optimism, and the narratives of cathedral thinking are demonstrative of an open-ended utopian. This paper contends that school strike movements go beyond presenting a vision of an inescapable future, or a simplistic request for adults to listen to science, as suggested by some critics. Instead, their vision is constructive of a better world as they challenge the failures of politicians and the adult public more generally. Young participants and organisers demand to play an active role in policy making when it comes to climate crisis, making specific claims and requests around democratic reform as well as environmental policy. This paper considers how, using activist pedagogies, the school strike movement increasingly centres the interconnection between racism, colonialism and the climate crisis when proposing progressive legal solutions.
Strasbourg’s Climate Experiment: Breathing Life into Climate Human Rights Claims
Corina Heri (University of Zurich)
The European Convention on Human Rights does not contain a right to a healthy environment. Still, the European Court of Human Rights has been seized by numerous cases concerning environmental issues, and has recently received three applications contesting the human rights impacts of anthropogenic climate change. Although Convention proceedings are—strictly speaking—closed to actiones populares, these applications seek to force States’ metaphorical hand in terms of climate mitigation measures through strategic litigation. This stretches every part of the Strasbourg case-law: from the Court’s ability to provide scientific expertise or factual assessments, to its deferential or subsidiary positioning and the foregrounding of the State margin of appreciation, to its admissibility criteria, the established material and procedural obligations of States under various Convention rights, and the Court’s approach to remedies. Perhaps more importantly, however, it invites the Court to address climate change as an urgent crisis of human rights, center socio-economic, welfare and environmental considerations, and revisit its approach to the balancing of economic interests against human, animal, natural and environmental vulnerability. Tackling these issues allows the Court to move beyond ‘monstrous’ protective lacunae, and smooth the Frankensteinian seams in its case-law that currently stitch together competing claims.