Parallel 6

Parallel Session 6:
Friday 3 September
1400 to 1530 (UTC+1)

Panels in this session:

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The Agency of the Artist Scholar 5

Room: LT1
Chair: Gavin Keeney (Independent) and Andreas Philippopoulos-Mihalopoulos (University of Westminster)

Sketch as Resistance

Santiago León Gómez (Independent)

Colombia is suffering a historical crisis in which there are ideas of renovation that are pacified by conservative forces. We are in a social explosion that has put the law at the limit, both in its foundations and in its means. / I do not see possible solutions other than violence, physical or symbolic; neither academics nor avant-garde politicians can find a way to confront this generational change. That is why I decided to paint, I make sketches. I am not an artist; I am a lawyer who “makes art.” / I am a Constitutional lawyer, but I can’t write any more. I prefer to draw sketches. I use ink, and sometimes watercolour or gouache. I will use a picture from police brutality, and then I will speak about its legal interpretation/adjudication. / My work is really simple. I just try to “sketch.”

Critical Legal Designers

Sankalp Bhatnagar, Jules Sievert, Dan Jackson, and Miso Kim (Northeastern University)

Legal design is an emerging effort led by legal professionals applying design methods to challenges people face navigating legal systems, accessing legal services, and interacting with legal products. However, much of the work in this space has tended to rely on commercial methods, often developed in corporate contexts where designers are focused on solving problems, rather than asking questions. Thus, legal design projects tend to be narrow in scope, reductive in nature, or constrained in capacity. We see an opportunity to advance legal design as an expanded practice of inquiry, critique, or debate by drawing on the theory and practice of critical design, a conceptual approach to design that works by prompting critical reflection on everyday beliefs, values, or worldviews with speculative proposals. This paper summarizes a year-long endeavor of introducing the methods and insights from critical design and design studies into the legal design pedagogy at Northeastern University School of Law. We describe steps taken, challenges faced, and lessons learned pursuing this approach, which we call critical legal design, before discussing roles for critical legal designers in the academy and profession.

The End of All Things

Thomas Giddens (University of Dundee)

“Everything thou has set up… shall be torn down.” / Extravasating forth, John Hicklenton’s violent and graceful 100 Months tears down the world. Created in Hicklenton’s final moments before ending his own life at Dignitas, the world his masterwork attacks is one that has become dehumanised, commodified, devoid. 100 Months portrays the journey of Mara, and in her relentless attack the destructive violence of critique can be encountered. She may be the “feminine destructive principle,” the “end of all things” – but amidst the blood and horror, the splatter and sinew, a change emerges. Mara is destructive, but also temporary: “You may call me … the destructive interim formation.” Her violence thus signals the transient constructs of critique that deconstruct and destroy, the violence from beyond that tears down what has come before, in order to rebuild and recreate anew. / “Hush little one… Shh… I am a harsh midwife.”

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Criticizing the Criminal Law: Rejoining a Severed Corpse/Corpus 2

Room: 1G10
Chair: Blake Wilson (California State University)

Capital Punishment and the Law of Affective Enchantment

Sabrina Gilani (University of Sussex)

This paper examines the ethics of capital punishment by focusing its analysis on the vibrancy and vitality of the executed corpse. It argues that, for the most part, American constitutional jurisprudence has evaluated the cruelty of different modes of punishment by focusing only on human actions leading up to the death of the inmate. In these legal narratives the executed corpse takes a backseat, treated as the passive, inert, object of punishment.  In this paper I argue that the corpse can function as a generative site for rewriting the relationship between the living (human) body and the non-living (non-human) world. Grounding my analysis in the work of new materialists and posthumanists, I explain how a law attuned to ‘affective enchantment’ (Bennett 2001) reinvigorates the corpse with a kind of ‘thing-power’ that helps us to develop a more ethically sound way of thinking about the death penalty (and death penalty abolition).

On the Very Thin Line: Between Criminal Law and Cultural Patterns of Risky Behaviours

Katarzyna Grotkowska (University of Wrocław)

In the European and American culture, certain behaviors – despite the fact that they are hazardous to health – are acceptable, e.g. drinking alcohol, participating in gambling. One can say even more, deviation from these patterns is treated as something almost unnatural, e.g. voluntary abstinence. The phenomenon of social acceptance of certain behaviors is puzzling because society’s preferences are not ranked according to the harmfulness of these actions. For example, a person is more likely to be aggressive after alcohol than marijuana, however alcohol is culturally acceptable and marijuana is not (and also possessing marijuana is illegal).The law also does not allow for the reconstruction of the content of the standards of a uniform evaluation system in the field of addictions. The justifications to the acts often refer to the will to prevent addictions, to protect the addicted person, and to protect the family. Unfortunately, many legislative solutions contradict the theses from the justification. The aim of the paper is an attempt to indicate the probable reasons for the ineffectiveness of some legislative solutions. Research leads to several conclusions. Firstly, in some cases, the legislator proposes obtaining certain revenues to the budget at the expense of an increase in expenditure from a different category. For example, for the legislator it was more important to obtain financial support for the development of sport from brewers than to maintain the absolute ban on advertising alcoholic beverages. Secondly, in some cases, for example, the lack of the declared protection of the addict’s family results from the interpretation of the law commonly adopted by courts and doctrine. For example: if the spouses have had a property separation system from the beginning of the marriage, and during the marriage one of the spouses becomes addicted to gambling and incurs high financial obligations, the other spouse in many cases cannot rely on separation (as it is rather doubtful that of gambling, the spouse informed about the separation of the creditor). It is also not possible to establish judicial separation, the great benefit of which is the erga omnes effectiveness – and it is not possible not because the law provides so expressis verbis, but because such an interpretation was adopted by courts and doctrine.

The Uncanny Object in Canada’s R v Barton (SCC 2019) and the Implications for Indigenous-Canadian Relations

Patricia Weber (York University)

What happens when an uncanny ghost haunts a Supreme Court decision, distracting the Court from addressing a key legal question and causing the Court to reassert an imagined national identity? I will follow this theory of the uncanny in the Canadian court decision, R. v. Barton (SCC 2019), a decision about Ms. Cindy Gladue, an Indigenous woman who was found dead in a hotel bathroom. The white man accused of killing her, Bradley Barton, argued that her death was the result of consensual rough sex. As other legal scholars have noted, the Court did not address the legal question about the extent a victim could authorize consent for the use of force. However, the Court did explore to the idea of stereotypes and Canadian identity throughout the judgement. I will suggest that the Barton decision can be understood by utilizing Julie Kristeva’s reading of the uncanny, a theory based on Sigmund Freud’s uncanny as applied to the idea of the foreigner Other in the Western state (Strangers to Ourselves, 1993). I will argue that the Supreme Court’s majority decision in Barton is the instance of the Nation encountering the uncanny object of the Indigenous woman, and this caused the Court to see a double of itself, one jury that reaffirms Canada’s position in the Western empire and the other jury that places Canada outside this tradition. This causes the Court anguish, which it expresses in the judgement, and motivates the Court to read the Barton trial as emplacing Canada within the Western empire. This reading of Barton suggests that the uncanny ghost that haunts Canada is the racialized or Indigenous body, which shows up in this criminal law case, distracting the Supreme Court and causing the state to reaffirm Canadian identity.  

She Sleeps, He Rapes

Chris Lloyd (Oxford Brookes)

In June 2021 Ministers of Boris Johnson’s Conservative Government apologised, unreservedly, to the victims of rape, noting that they were ‘deeply ashamed’ of the woeful efforts made to deliver justice to the victims of sexual violence. Whilst this apology was seen as surface-level accountability by some, others saw it as deliberate masking the perpetual male violence which has now, arguably, escalated to the reality whereby rape is no longer a criminal offence in England and Wales. This reflects a lineage, and inheritance, of what Ngaire Naffine has identified in her 2019 book Criminal Law and the Man Problem as a societal reality whereby ‘[t]he men of law positively licensed male intrusion into the bodies of unwilling women. Positive male self-interest went into the crafting of the laws of rape, as well as associated criminal laws controlling the lives of women in the interests of men.’ This paper aims to begin a project of addressing this sordid history via the following process, as explained by Naffine: ‘..men need to become aware of the need for self-analysis – for both a stepping back, from their initial working assumptions, and then a coming forward, as men, as the subjects and objects of knowledge.’ To enact this process, Jacques Derrida’s work on inheritance and responsibility will be utilised, paying heed to his claim that ‘it is necessary [il faut]’ that we receive the heritage of that which came before us: ‘[n]ot choosing it (since what characterizes a heritage is first of all that one does not choose it; it is what violently elects us).’ In receiving such a heritage, Derrida argued that reaffirming it ‘means not simply accepting this heritage but relaunching [relancer] it otherwise and keeping it alive.’ As Samir Haddad has explained: ‘Derrida does not inherit from others by merely describing the aporias that inhabit their work. Rather, he goes beyond description to actively amplify the tension in these aporias through the movement of surenchère, or upping the ante.’ Adhering to this ethos of surenchère, this paper begins the project of responsibly inheriting what Ngaire Naffine has powerfully identified as ‘the man problem’ of English and Welsh criminal law. The starting point for this responsible inheritance lies in an analysis of a paradox at the heart of the Sexual Offences Act 2003, which once again illustrates the perpetuation of male violence over women’s sexuality in the 21st century. This paradox relates to consent to sex in the context of sleep.

On the one hand, the Act legally inscribes consent as a ‘choice,’ made with both the ‘freedom,’ and the ‘capacity,’ to make such a choice. On the other hand, the Act is crafted in such a way that it is not impossible for a defendant, subject to a charge of rape, to successfully argue that there was consent – as per the above legislative definition – when the complainant was either unconscious or asleep. Seemingly, she can make a choice whilst unconscious, or asleep, thus acquitting him of a charge of rape: once again female sexuality is framed by male, patriarchal, self-interest. And it is here that the project of responsible inheritance begins. As Naffine states: ‘The choice, the decision, for the man to make, implicitly guided by or at least informed by the law, is whether or not to rape.’

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Ecocide/Speciesism: Legislating Hierarchy, Interdependence, Death 4

Room: 2S12
Chair: Fred Motson (Open University)

Redefining Personhood in the 21st Century

Arianne Conty (American University of Sharjah)

If non Western peoples have always included non-human others as persons, and attributed culture to the entire living world, the culture of Western modernity is known to have reduced personhood exclusively to the human species, persons being “individual human beings.” Later, under the aegis of the dominant capitalist ideology, Modernity added corporate personhood, giving individual rights to the non-living social organizations of profit-seeking corporations.  Only very recently, under the influence of indigenous peoples struggling to protect their life-worlds, have we seen Nation-States granting legal personhood to rivers (the Whanganui river in New Zealand, the Ganges and Yamuna rivers in India) and to entire ecosystems (in Ecuador, Bolivia and Colombia).  Such a generalization of personhood to non-living entities radically undermines modern definitions of personhood, and requires that the notion of the person be entirely reconceptualized.  Such a reconceptualization can have important consequences in configuring the Anthropocene paradigm beyond the modern constraints of nature/culture, and beyond the modern tendency to limit reality to intrinsic essences, leaving room for a new ideology of inter-dependent relations in line with 21st century earth science and capable of redressing the oppression, destruction and expropriation of the non-human world.

New Materialist Subjectivities: Resisting (Neo)Liberal Law’s Human-Nature Dichotomy in the Necrocene

Hannah Blitzer (University of Sussex)

This paper critically reflects on neoliberal environmental jurisprudence in the ‘Necrocene’ (McBrien, 2016). It assesses the extent to which the normative commitments resulting from modern law’s human-nonhuman dichotomy have legitimated speciesism and carved a space for the violently marketized, disciplinary and corporatized practices of the jurspathic, neoliberal state and its enclosed, anthropocentric subjects. It concludes that law reinforces the legitimacy of human exceptionalism, and of subjugation and objectification, thus shaping the human relationship with the more-than-human through hierarchies of exploitation.  Under the rights-duties dialectics of the (neo)liberal Western constitution, the rights of non-human entities rely upon the interests of capital, thus causing a selective extinction event of the dynamic assemblages of ‘more than human’ life. The paper recommends that critical resistance to neoliberalism in the Necrocene requires the design of new legal imaginaries that redefine the human relationship with the more-than-human. Particularly, it calls for a jurisprudential ‘turn to matter’, and to build a New Materialist ‘nomos’ (Cover 1983) that embraces ‘tentacular thinking’ (Haraway, 2016), through expanded forms of legal rights and subjectivity that counter the existential and ethical issues presently threatening the ability of human and non-human nature to thrive as an interconnected assemblage of ‘vibrant materialities’ (Bennett, 2009).

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Feminist Judgments as Frankenlaw Experiments 4:
Gender-Based Violence 2

Room: 2S13
Chair: Claudia Amodio (University of Ferrara)

A Case of Femicide: Tracing the Gendered ‘Others’ of the Greek Legal Order

Athina Papanagiotou (University of Thessaly)

Law has been assumed as one of the most efficient mechanisms to achieve social equality in modern democracies. However, law does not always recognise evenly and protect equally all the subjects it includes. In the midst of the current intense public dialogue regarding sexism, patriarchy, sexual abuse and gender exclusion within the Greek context, a dynamic claim for legal recognition of ‘femicide’ has emerged. In 2018, 21-year-old Eleni Topaloudi was brutally raped, tortured and murdered by two young men on the island of Rhodes. The perpetrators proved to be involved in several cases of gender-based violence. The two men were convicted of manslaughter and sentenced to life in prison. The closing statement of the prosecutor who had taken over the case highlighted the gender dimensions of the case and the sexist arguments of the defense strategy. Her statement was considered by feminist organisations to be crucial for the two men’s conviction. However, the prosecutor was fiercely criticised for unacceptable emotional involvement with the victim and its family. According to this critique, court officials must be “cold and impartial”. Through the reading of the prosecutor’s speech and the severe criticism she received, I will try to answer questions related to the political demand for a special category of crime —a ‘delictum sui generis’, that of femicide: Why is homicide as described in article 299 of the Greek Penal Code, the ‘murder of the universal man, unable to cover those cases when the deprivation of life has misogynist/sexist motives? Is the letter of the Penal Code able to convey the sexist environment, prejudices, emotional economies and gender roles, in other words the productive conditions within which gender–based violence takes place? In the aforementioned case, the prosecutor’s oratory was indeed unfamiliar, unrecognisable as an ‘institutional voice’. But what does this voice say regarding what is ‘proper’ (subject, argument, interpretation) before the law and what remains outside the ‘universality’ of Greek legal codes? A feminist legal approach can trace, in these ‘other’ voices, reflective openings and agonistic alternatives against the rigid epistemological legacy of a civil law jurisdiction.

God Is Male And Women Are Demons’: The Maria Da Penha Law Presenting Ancient Threats To Yahweh Sovereignty

Amanda Muniz Oliveira (Universidade Federal do Pampa) and Rodolpho Bastos (Universidade Federal de Santa Catarina)

In 2007, in Sete Lagoas – MG (Brazil), a peculiar sentence was handed down. Written by Judge Edilson Rodrigues, the decision attacked the Maria da Penha Law, related to domestic violence against women, under the argument that the norm would be a “manifest heresy against the logic of God”. Using the Judeo-Christian religion, based on the mythology attributed to the Hebrews to support his convictions, judge Rodrigues evokes arguments such as the masculinity of the god Yahweh and the necessary submission of women to disqualify the Law. It thus appears as an echo of an older narrative: the demonization of the ancient goddesses worshiped in the Fertile Crescent region. This rupture had disastrous consequences for women: tried and convicted, they are the ones who will be viewed with suspicion: said to be responsible for the expulsion from Eden, lustful and weak; they must submit to man even if this implies in various forms of violence. One could think that such practices would be outdated, since there were significant achievements with regard to women’s rights. Judge Rodrigues’s sentence, however, alerts us to the scope of this imaginary, since female emancipation is understood by him as heresy against a male God.

Sexy Private Life and Other Monstrous Myths: Revictimization in Italian Rape Trials

Claudia Amodio (University of Ferrara) and Camilla Crea (University of Sannio)

The endorsement of negative attitudes towards women by societal and institutional structures is frequently coupled with the acceptance of a wide range of ‘monstrous’ rape myths (that is, stereotyped and/or false beliefs about rape, rape victims, and rapists) that shift the blame for sexual assault from perpetrators to victims.

When these biases enter into rape trials, the focus is sluggishly turned away from a factual inquiry into the event, and the victim’s claim becomes a test of her character and credit, particularly in relation to her sexual behavior and moral integrity.

The Italian judgment we will discuss is paradigmatic in this regard, for the court’s legal reasoning and the arguments used, resulting in the acquittal of the defendants, reveal some of the most recurring patterns that are at the heart of the rape myths acceptance, including the idea that ‘many women have an unconscious wish to be raped, and may unconsciously set up a situation in which they are likely to be attacked’.

Prejudices existing in Italian society regarding the role of women are ontologically and legally incapable of justifying judicial decisions. However, as recently acknowledged by the ECtHR, they do have the potential to influence the decision-making process and to transform the criminal justice system into a system of secondary victimization for raped women.

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FrankenEurope 3:
Legal Duets—In Search of Lost Central European Legal Identity 1

Room: 2F14
Chair: Piotr Eckhardt (University of Wrocław)

The Ever-Blurred Features of the Rule of Law in Albania and Bulgaria

Rezarta Demneri (University of Tirana) and Anastas Punev (Sofia University)

Rangelov argues that nationalism and the rule of law are mutually constitutive in a nation-state.It can be argued that it is possible for a country to possess a national identity that is not “the fruit of its own labor”. The legal identity of a country does not necessarily form free of external influences, in fact, it can draw inspiration from or even mimic that of others. The paper seeks to answer this question by describing the evolution of the rule of law of Bulgaria and Albania since the establishment of their statehood in 1878 and 1912, respectively. Although the Albanian legal identity was formed through customary law, the establishment of the rule of law was precluded by the dictatorship of the proletariat which ensued in 1945 and still remains a hope for the Albanians after the advent of democracy in 1990. The Justice Reform approved in 2016 provided for elaborate and detailed amendments to the Albanian Constitution of 1998. As pointed out by the Venice Commission, the extent to which the elements of the rule of law are expressed explicitly in written law depend on the presence or absence of a shared political and legal culture within a society. Unlike other Central Eastern European countries which have been largely influenced by a specific legal tradition, Bulgaria is constantly receptive to different sources of influence. This is conducive to Bulgaria reaffirming, albeit, in the background, its Eastern European legal identity, all while suffering from a sense of abandonment and lack of mentorship in the process of incorporating external norms in its national legal order. As a result, if we are to find a common thread linking Bulgaria and Albania is that their legal identity and evolution of the rule of law mirror their geographical position as peripheral States.

Croatia and Poland: Legal Identity between Legal Transplants, Legal Survivals, and Original Legal Institutions

Hano Ernst (University of Zagreb), Rafał Mańko (University of Amsterdam) and Mirosław Michał Sadowski (McGill University)

Alan Watson famously claimed that transplantation has been the vehicle of legal development since the Roman times to date. Building on these ideas, we attempt to define the legal identities of Croatia and Poland via their entanglement with legal transplants, focusing on on selected areas of both private and public law. For private law, the paper traces the journey of Poland’s legal transplants since 1918 (the regaining of independence), throughout the crucial reforms of 1930 (new code of civil procedure), 1946 (new property law), 1950 (‘Sovietization’ of the civil procedure), 1964 (introduction of the new civil code and the new code of civil procedure), 1982 (changes to the property law) and those after 1989.. Similarly, the paper analyses Croatian tumultuous legal transformation after World War II, and subsequent reversals in the transitional period after independence. In particular, we cover notions of social and private ownership, tenancy rights, and security interests. For public law, the paper discusses the Polish 1997 Constitution and the organisation of judiciary, with the country’s legislators trying in both instances to reconcile the various legal transplants with Polish peculiarities. The paper compares and contrasts these issues in the Croatian legal system under the Constitution of 1990, and later developments.  Our comparative exercise demonstrates how legal transplants form a fundamental part of these countries’ legal cultures, and suggests that this phenomenon is not limited to them, but rather exists as a trait of the legal identity of the entire broader region.

Questions of Legal Identity in Czechia and Hungary

Markéta Štěpáníková and Martin Škop (University of Brno) and Márton Matyasovszky-Németh (Hungarian Academy of Sciences/Eötvös Loránd University)

Czech Republic and Hungary have many things in common: they are situated in the centre of the Central Europe, have similar experience with Communist regime, are members of the Visegrad group and became members of the European Union at the same time. Moreover, they both recently struggle with their identity as democratic states (see e. g. Přibáň, 2016). However, the main focus of this paper is the Austro-Hungarian heritage in their legal and constitutional identity and its influence on their legal system today. In the first part, the historical roots of this heritage will be introduced and demonstrated on legal, social and artistic examples. But while both states originally shared the status of an oppressed nation within the Austrian empire, after the creation of dual monarchy through Austro-Hungarian Compromise of 1867 their paths differentiated dramatically (see e. g. Szijártó and Evans, 2020). Both similarities and differences between Czechia and Hungary in their standing within the monarchy will be highlighted and explained. In the second part, different modes of dealing with Habsburg legal heritage after the World War I and in recent legal system in Czechia and Hungary will be introduced, demonstrated mostly on legal rules and legal cases. The main argument will emphasize a label of the “Golden Era” as a key to understanding opposing approaches to Habsburg heritage concerning Czech and Hungarian legal identity. In the final part, reasons for these differences and their consequences will be explained through arguments based both on legal theory and Law and Literature perspective.

The Outside Influence on the Constitutional Identity: Estonia and Serbia

Katre Luhamaa and Merike Ristikivi (University of Tartu) and Marija Vlajković (University of Belgrade)

The presentation deals with the aspects of constitutional identity in Estonia and Serbia. Our primary focus is to analyse the “outside influence” on the legal culture of both countries during the transition. We particularly look at the contribution and impact of experts and countries, regions, and international organisations invited or came by themselves to give legal advice to legislators during the transition to democracy. Estonia regained its independence in 1991 and is an EU member since 2004. In the 1990s, during the drafting of the Constitution as well as all the other central legal acts (Criminal Code, Civil Code, Administrative Law), legal experts, mainly from Germany, Nordic countries, the US, and the Council of Europe, advised on the draft legislation as well as trained legal professionals. From 1997, the importance of EU law and the opinion of the European Commission and their exports increased. Serbia is, as a candidate country, currently in the EU integration process. In 2006, the Republic of Serbia adopted Constitution, which introduced Article 1 that defines the state and, for the first time, underlines its “commitment to European principles and values.” In addition, it is currently undergoing Constitutional changes and drafted Constitutional amendments that are guided by the Venice Commission and the EU Commission. In addition, one of the most critical negotiating chapters is Chapter 23 (Judiciary and Fundamental Rights), which is monitored by both bodies and dictates the overall progress of the negotiation process. Overall, the Europeanisation process, as part of the internalisation of European constitutions, is very dominant.

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General Stream 5:
Roundtable on Ricardo Sanín Restrepo’s Being and Contingency

Room: 1G06
Chair: Sarah Hendry (University of Dundee)

This session is a roundtable discussion on Ricardo Sanín Restrepo, Being and Contingency: Decrypting Heidegger’s Terminology (Rowman and Littlefield International 2021). Below is the abstract of the book.

Heidegger’s construction of Being is paramount in Western philosophy and arguably the most enduring effort to construct a presupposition-free ontology. Nevertheless, using the theory of encryption of power, we can discover that the result of his effort is a sophisticated perpetuation of a kind of knowing (epistemology), of counting (politics) and of doing (ethics) that alienates the possibility of any kind of politics as a commonality of differences.

The book proposes the ‘X’ game of language as a hypothesis that allows us a radical reconsideration of being and nothingness, of identity and multiplicity, of existence and meaningfulness, of contingency and necessity and of potentia and actuality that will reveal a new and unsuspected relation between being and power. Through contingency we will reinstitute power as the very limit of what is possible and impossible, of what can be, what cannot be, and, fundamentally, what may become to be from ‘feigned’ regimes of impossibility. Thus, the book unfolds a novel theory of being where the only necessity is contingency and thus where being can only be deemed as a becoming from immanent collective difference. Thus, through an alliance of the theory of encryption, mainly with Wittgenstein´s philosophy of language, but also with the likes of Kripke´s theories of naming, Latin American literature, Actor Network Theory, Deleuze´s and Guattari´s Assemblages, Quentin Meillassoux´s speculative turn and Hugh Everett´s Multiple World Interpretation (quantum mechanics) we will push ‘being’ to its political and phenomenological limits revealing, in the very same act, a new way of considering it and difference. However, the aforementioned theories will not remain immune to decryption, on the contrary, they will be deeply pressed and filtered in order to obtain a theory of being that is not merely political but where politics (the immanent collective order of difference) defines being.

Author

Ricardo Sanín-Restrepo (Pontificia Universidad Javeriana)

Discussants

Stacy Douglas (Carleton University)

James Martel (San Francisco State University)

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Law and Literature—Themes from Frankenstein 2:
Monstrous Justice

Room: 1G05
Chair: Tony Ward (University of Northumbria)

Lord Justice Frankenstein: Substituting Dworkin’s Hercules for Frankenstein’s Creature 

Adam Ramshaw (Northumbria University)

Ronald Dworkin’s legal intrepretivism conceives a judge as one link in a line of chain novelists constructing the law incrementally. In explaining this approach Dworkin introduces the hypothetical judge of superior legal intellect – Hercules. Dworkin’s Hercules is required to carefully balance his own political and legal convictions with which interpretation of law is the ‘best fit’ under the weight of extant law and traditions of the jurisdiction in which the judge operates.

The purpose of this paper is to examine Dworkin’s conception of legal interpretivism with regards to human dignity by utilising a law and literature lens. For this work Dworkin’s Hercules will be replaced by Franktenstein’s Creature. Milestones in the Creature’s maturation will serve as comparison points through which to assess the effects of dignity upon the Creature’s character and how this might colour one’s interpretation of the law. 

The paper will illuminate how an intelligent layperson without knowledge of legal reasoning might approach adjudication alongside a demonstration of the manifest consequences of the dignity afforded to us by others and the consequences in a lack thereof.

Equity as Monstrous Offspring? Trusts, Estoppel, and other Horrors

Fleur Lawrence, Sofia Cavandoli, Sara Stirk and Alice Diver (Liverpool John Moores University)

As Canguilhem (2008) has observed, ‘the monstrous [was] initially a juridical concept’ but has been ‘gradually made into a category of the imagination.’ This paper will argue that Equity’s most monstrous ‘children’ are those devices and doctrines that have served to address or resolve injustices within familial contexts. Secret trusts for example, and to a lesser extent the doctrine of promissory estoppel, have long been used as remedial tools to restore lost legacies, fix broken promises, and prevent the disingenuous from reneging upon assurances to their disappointed kinfolk. The case law analyzed here looks also to the monstrous actions of those ‘settlors’ who, much like Dr Frankenstein, flee from their responsibilities and deny their role as creators with obligations. The notion of familial injustice has been explored elsewhere e.g. in relation to the ‘compassion, sadness, revulsion, and rage’ (Shaddox, 2013:455) that attaches to abandoned duty. Jurists tasked with deciding such cases could therefore do worse than to look to those Gothic fiction tropes that have dehumanized or demonized the vulnerable. Put bluntly, Equity – itself a ‘monstrous child’ of the common law – remains well-placed to bring redress to those who have been cast aside, disinherited, or dispossessed.   

Contemporary Iliad’s Chimeras: Cognition Commodification of Monstrous Frankensteinian Entities, Human Stewardship, and the Law’s Dilemmic Response

Pin Lean Lau (Brunel University) and Mirko Đuković (Central European University)

This paper puts forward a novel reinterpretation of existing legal boundaries to formulate sui generis legal protections for the misconceived ‘monstrous’ human-nonhuman hybrid entity, the chimera. Traditionally, the aim of creating chimeric entities was to assist in therapeutic scientific and medical interventions, such as tissue bioprinting and xenotransplantation, that would alleviate the global human organ or tissue shortage. In Frankensteinian fashion, the chimera, in reality, is birthed of both human and animal parts (the Monster), simultaneously evoking the wisdom of repugnance and the Promethean hubris of man’s desire to defy the laws of natural selection. Firstly, we postulate that notwithstanding the perceived altruistic intentions in the creation of chimeras in contemporary medical science, this has the effect of commodifying chimeric entities beyond the welfare and goodness perspective. Using a broad approach of legal commodification theories: for example, the concept of commodities as fungibles, we seek to address serious implications of treating chimeras (particularly those that may be regarded as chimeric monstrosities, such as the ‘Frankenswine’) as disposable commodities. Secondly, we argue for a recognition that cognition commodification in chimeric entities can occur through the projection of cognition and sentient characteristics onto chimeric entities (we term this process ‘cognition transference’). Finally, we assert that existing legal boundaries that concatenate human nature with human beings (human ‘citizenship’) and thus, provide the space for their fundamental legal protections with legal personhood, become blurred when we consider the status of a Frankensteinian chimera imbued with cognition characteristics.

Frankenstein: Creation, Adaptation and Copyright Law

Melanie Stockton-Brown and Katharine Cox (Bournemouth University)

This paper is a transdisciplinary consideration of literature and copyright law through an analysis of adaptation, Mary Shelley’s Frankenstein and its afterlives. Using contemporary literary theory we challenge the structuralist basis of copyright law that had traced the moment of copyright origin as the physical expression in a lasting record. Adaptation studies and copyright law share a common foundation with concepts of fidelity. Whilst the analysis of adaptation has developed beyond fidelity criticism, copyright law remains devoted to an authorial moment of creatio ex nihilo. Our analysis of the Frankenstein phenomena emphasises that this is a story about creation, birth and origins. Frankenstein has a transcended life of its own which has continued to multiply through transmedia adaptations.

Whilst postmodern cultural production has stressed literary echoes, loss of an origin text, importance of the critic and displacement (or ‘death’) of the author (see Derrida, Barthes), this is not yet woven into copyright law. Our methodological approach develops Deleuze and Guattari’s concept of assemblage both to articulate an original theory of adaptation studies and challenge the boundaries of derivative work in copyright law. In taking this transdisciplinary approach we are stitching together concepts of origin, creation and recreation from our respective disciplines and remaking these anew.

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On the Lives of Others: Refusal, Abolition, Survival 2

Room: 2F11
Chair: Ozan Kamiloglu and Petero Kalulé (London South Bank University)

Strange Refugees at our Doors: Aliens, Strangers or Just Humans?

Allana de Freitas Lacerda (University of Coimbra)

This paper covers a discussion involving strangers/monsters and the forms of capitalist and colonialist domination that mark the abyssal line between strange refugees and “citizens” of rights. Being a stranger to the society (Ahmed, 2009; Le Blac, 2010), culture or country means most of the time not being included in the “human category”.  The space lines that define the right and belonging between “non-humans” and citizens are constantly demarcated (Giuliani, 2016; Erle and Hendry, 2020). A single line has the power and control over life and death, restarts and finishes (Mbembe, 2003). That is the situation for refugees (Bauman, 2016). However, even after crossing it, there is still an invisible line within society that separates citizens from strangers marked by stigma and exclusion (Santos, 2018; Goffman, 2004). Those aliens who failed to assimilate the desired norms, conduct and were unable to control their barbaric nature, are nothing more than “monsters” and are therefore expendable. In view of these discussions and analyses, the methodological approach will be qualitative through bibliographic research. Perceiving them as “monsters” rather than “another”, diverse and different from that group is the discussion to be analyzed, taking into account points such as belonging/exclusion and stranger/citizen.  

Agamben, Slavery and Resistance

Tom Frost (University of Leicester)

Giorgio Agamben references slavery and its cognate terms in thirteen of his works. For Agamben, the slave is a transformative figure, a form of life which can resist biopolitical domination. We read in Homo Sacer that “slavery is to ancient humanity what technology is to modern humanity” – both watch over the threshold that allows access to the ‘truly human condition’. Slavery (and Agamben’s examples are drawn primarily from ancient Greece and the Roman empire) retains a memory of the “original anthropogenetic operation” of what is properly human. This operation, we read, is perverted when slavery is appropriated juridically as a ‘social institution’. This paper aims to explore Agamben’s choice of the slave as a figure of resistance. It is a curious choice, not least because slavery has always operated as a social institution. What is missing from Agamben’s analysis is the biopolitical experimentation of slavery, exemplified in the Atlantic slave trade. Using slavery in England as an example, I show how slave resistance to the institution and slave trade helped bring it to an end, which is a much better example with which to illustrate Agamben’s claims.  

Being Right-With: On Human Rights as Unfreedom

Petero Kalulé (London South Bank University)

This paper explores two cases pertaining to Stella Nyanzi, an outspoken critic of President Museveni’s administration who was charged with cyber-harassment and offensive communication under the Computer Misuse Act based on a poem she had posted on Facebook. In reading these cases, I consider the different human rights arguments that Nyanzi’s legal team considered. The rights in question were the right to freedom of expression and the right to a fair trial.  

Throughout my discussion, I develop a critical concept of human rights law that I call being right- with. I suggest that being right-with is an indispensable moral-contractual obligation, injunction or imperative that coerces reciprocal self-regulation amongst individuals in the polis on assignment from the sovereign. The concept of being right-with draws my attention to the fact that both law and police are inseparable, in the sense that they guarantee each other’s unlimited survival/immortality and enforceability. Police orders (and indeed the police itself) cannot exist without law and neither can law without the police. Thus, law is imbricated with/in precalculated infinite contours of legal-juridical limits and unilateral coercions of police/d violence.

My main argument here is that in desiring freedoms and rights from human rights law, we are desiring unfreedom from a liberal-utilitarian police order. And so, to hold onto human rights law or to make assertions of autonomy and liberty under human rights law is to suspend oneself within a mode of subjecthood that is always embedded in unfreedom. In using the word unfreedom, I stress that the freedom provided by human rights is not a freedom worthy of its name but merely a paradigm of unfreedom delimited by “the violence, power and authority of law” that intends to make individuals right-with. For this reason, I suggest a departure from forms of freedom founded in human rights law and indeed all law towards modes of being elsewhere after law and beyond all law.   

Human Rights and Revolutionary Ideal: A Theory of Dependency

Ozan Kamiloglu (London South Bank University)

How can we understand, and what can we learn from the multiplicity of the subject that doesn’t necessarily distinguish armed insurrection against the oppressor from human rights struggle against the hegemon? The acceptance of antagonism between the armed (violent) resistance and peaceful (non-violent) rights struggle is clearly a myth as we have learned from many parts of the world (Turkey, Colombia, Sri-Lanka so on) where human rights activists frequently come from previous armed insurrectionary movements. In many places, Che Guevara posters accompany local martyrs and heroes of armed struggles at the offices of human rights activists. Thus, the neoliberal structuring of the world that has shaped the human rights discourses (Brown 2015, Golder 2015, Whyte 2019) is not overarching that conquers all, but one among many discourses of freedom for these activists who carries an assemblage of discourses. Tsing (2015) searches for “non-capitalistic elements on which capitalism depends”; if we translate this to human rights activism, the human rights as a knowledge – an assemblage of power, requires non-neoliberal discourses freedom and justice, because it can’t produce itself that freedom or justice. Therefore, the disciplining power of the hegemonic discourse is not only in conflict with the counter-discourse as theorised by many (Hopgood 2013, Baxi 2007) but also in a relation of dependency. How than we can theorise this dependency? The liberal discourses of human rights, I claim, imitates, exploit, dependent on; a revolutionary ideal. The utopia needs its ruin, pure desires, uncontrollable darkness it claims to conflict with.

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Transforming the Law to Tackle Climate Change 2

Room: 2G14
Chair: Riccardo Fornasari (University of Bologna)

The Invention/Intervention of ‘Duty of Care’ and ‘Standard of Care’ in Climate Change Litigation

Leif Dahlberg (KTH)

The paper explores how recent climate change litigation case law has extended legal statutes, legal principles and concepts as well as conceptual frames/discourses in order to successfully hold both national governments and private companies accountable for failing to act to mitigate dangerous climate change. These extensions regard: the extension of human rights law to climate law; the extension of soft law to hard (case) law; and the extension of international treaties/agreements to national law, for both governments and private companies. The paper analyses how these three forms of legal extensions have been interlaced in legal argumentation, focusing primarily on recent Dutch case law (Urgenda and Klimaatzaak tegen Royal Dutch Shell), both in the argumentation before the court and by the courts themselves in their decisions. A key interpretive device is consistent interpretation, although not used in the top-down sense used in EU law, but as a means to bring various legal grounds together in the argumentation. The outcome of these legal extension is the operationalisation – if not invention – of the two notions ‘duty of care’ and ‘standard of care’ in the context of dangerous climate change.

Reconsidering the Law of Marine Life in Light of Climate Change

Niels Krabbe (University of Gothenburg)

The carbon sequestration performed by marine life represents one of the most important carbon sinks of the planet. Indeed, recent studies indicate that the economic value of these climate services outweigh other instrumental values of marine organisms. Moreover, these carbon sequestration effects could be substantially increased and represents a low-hanging fruit compared to other climate measures. Yet the rules for the management of marine living resources under the law of the sea remains focused on the promotion of food production. In spite of political objectives to combat climate change, efforts to reform the existing rules have been limited to biodiversity conservation considerations.

This paper discusses how the management of living resources under the law of the sea should be remodeled based on the mitigation of climate change as the central objective. It discusses how a transformed perspective of marine life, where organisms are not regarded as a source of protein or biodiversity but as living carbon pumps calls for radically different rules. Law would have to be drafted to incentivize an increased biomass and a remodeling of marine ecosystems, where certain species efficient in binding carbon are multiplied at the cost of less efficient stocks.

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