Parallel Session 7:
Saturday 4 September
1030 to 1200 (UTC+1)
Panels in this session:
- Feminist Judgments as Frankenlaw Experiments 5 (Room: 2S13)
- FrankenEurope 4: Legal Duets—In Search of Lost Central European Legal Identity 2 (Room: 2F14)
- General Stream 6: Commercial, Financial, and Human Themes (Room: 1G06)
- Law and Literature Themes from Frankenstein 3: Monsters, Machines, and Murderers (Room: 1G05)
- Taking Stock: Critical Constitutional Scholarship in 2021 and Beyond (Room: 2G14)
- Theatrical Jurisprudence 5: Performing Truth (Room: 2S12)
- The Threat and Promise of Law and Horror (Room: 1G10)
Feminist Judgments as Frankenlaw Experiments 5
Chair: Elena Ghidoni (University of Deusto)
Non-Discrimination on Grounds of Gender: Female Under-Representation in Parliament
Fabiana Félix (Università degli Studi di Perugia)
From the study of antidiscrimination law, a corollary of the principle of equality, it seeks to analyze gender discrimination in politics in a scenario where women, who compose more than half of the Brazilian electorate, are underrepresented in Parliament, despite the adoption of affirmative action. It discusses gender discrimination and, consequently, the presence of women in politics, a necessary condition for the realization of contemporary democracies, marked by diversity, pluralism, and the realization of the right to citizenship. It is not enough that women, who comprise more than half of the Brazilian electorate, have the right to vote, if they do not participate in the decision-making arenas in an equal manner with men. Based on the analysis of the effectiveness of the quota law for candidacies in Brazil – a measure aimed at overcoming formal equality and promoting material equality – it proposes a discussion already widespread in Latin America, but still little addressed as a measure of female inclusion in Brazilian politics: the institution of parity in the composition of the Legislative.
Constitutional Feminism: The Dawn of a Liberal Feminist Jurisprudence in India looked through the lens of a Postmodern Feminist – A Common Law Experience
Aman Mehta (Jindal Global Law School)
Indian Constitutional Jurisprudence in the past few years has seen an interesting development with an increasing number of feminist judgements furthering women’s rights and upholding gender and sexual equality. Even though Indian Constitutional Jurisprudence has seen primarily feminist judgements delivered in the past as well like the likes of Shah Bano & Vishaka, to name a few, the recent trend of this new constitutional feminism marks a certain departure from the past with the increased frequency of progressive feminist judgements being delivered by the Court in what the author terms as ‘the dawn of a liberal feminist jurisprudence’ in India.
This dawn of this new Liberal Feminist jurisprudence consists of various progressive feminist judgements of which the paper would be focussing primarily on three, the Shayara Bano judgement declaring instantaneous Triple Talaq under Islamic Law as unconstitutional, the Sabarimala judgement which deemed the custom of prohibiting women in their ‘menstruating years’ in the Sabarimala temple as unconstitutional and the Navtej Johar judgement which struck down S.377 of the Indian Penal Code, in so far that it criminalized sexual conduct between adults of the same-sex. The paper aims to bring out the common-law experience with regard to feminist judgements and engages in a post-modern feminist critique of three much-celebrated liberal feminist judgements and argue that all three judgements missed out on the opportunity to further feminist jurisprudence as they did not engage in an intersectional feminist analysis of the issues at hand.
Legal Duets—In Search of Lost Central European Legal Identity 2
Chair: Alexandra Mercescu
Legal Identity of Slovakia and Slovenia in a Central European Picture
Tomáš Gábriš (Trnava University), Matej Horvat (Comenius University in Bratislava) and Marko Novak (New University, Slovenia)
Legal identity (identity of law) of countries of Central Europe (CE) is an object of interest for scholars from both inside and outside the region, hoping to find common traits of this part of Europe, making its identity specific in comparison with the rest of Europe and of the world. CE thereby clearly inherited and shares some common features dating back to the times of historical Habsburg Empire (and the heritage of ius commune, with the tradition of Roman law, canon law, and local customs) but also back to post-war “communist” experience. Taking into account its legal past and present some authors suggest that legal culture of this part of Europe is characterized by formalistic and bureaucratic elements, on top of being a double periphery of communist East and capitalist-bourgeois West. What makes Slovakia and Slovenia specific in comparison with the rest of CE, rather seems the fact of being an example of a “mediated periphery” – due to the fact of traditionally always being a part of a bigger frame of Hungary or Czechoslovakia in the case of Slovakia or Austria or Yugoslavia in the case of Slovenia (although during Yugoslavia Slovenia has been its most developed part), both of them somewhat being peripheral to the scene of great world history. Even today, it seems to be an inherent part of Slovakian legal identity to take over elements from the West only after being already tested and recognized in Czechia, or simply to transplant Czech legal solutions to Slovakian problems, or Slovenia looking for examples to use to Austria or Germany. If it is possible to claim that a copy of a copy, or a periphery of a periphery, might hence be the actual identity of law in Slovakia, on top of other features common to CE countries, it works differently in the event of Slovenia. If it itself often copies Austrian or German solutions, its solutions are then frequently copied by other former Yugoslav republics.
Legal Culture in Montenegro
Marko Dokić and Danijela Vuković-Ćalasan (University of Montenegro)
Since law is not just a set of legal norms, the paper tries to show the basic features and specifics of legal culture in Montenegro through the value framework found in the foundations of Montenegrin society and legal system. The authors will not exclusively use the researches related to certain issues of Montenegrin legal culture, they will also focus on the place that Montenegrin legal culture has in European legal culture and compare its characteristics to the characteristics of legal cultures of other major legal systems. Hence, we will not only focus on the „micro“ level, but we will also use the “macro” level of analysis and research of legal culture. As the main subject of discussion in this paper is the legal culture in Montenegro, the first part of the paper discusses the historical and ideological transformations of Montenegrin society and changes in understanding the role of the state, which were of great importance for shaping legal awareness and building legal and political institutions in Montenegro. For understanding the legal culture, Montenegrin history is divided in five sections: 1) the period until gaining the independence at the Berlin Congress in 1878; 2) the period from gaining the independence to the Great War; 3) the inter-war period; 4) the post-war era of real socialism; and 5) the transition period. The authors describe in detail the characteristics of each period with special reference to the basic socio-legal values that were dominant in them. The second part of the paper discusses the characteristics of the legal culture in Montenegro today as well as the main elements of its political culture, relevant for the main subject.
General Stream 6:
Commercial, Financial, and Human Themes
Public Interest Conundrum in South Africa’s Competition Regime: Exploring the Bar on Burger King Transaction
Ayushi Shrivastava (ILS Law College)
This paper aims to discuss the recent blocking of a merger by the Competition Commission of South Africa. The transaction involved disposing of their shareholdings by Grand Parade Investments Ltd (owned by Historically Disadvantaged Persons) in Burger King South Africa and Grand Foods Private Ltd to ECP Africa. This led to a reduction in their shareholding from 68% to 0% which was poorly caught in the hands of the Commission.
The Competition Act of 1998 has special provision for historically disadvantaged persons which runs alike with the Constitutional provisions of South Africa. It aims to protect and encourage greater spread of ownership of Historically Disadvantaged Persons and appraises it as a public interest consideration which must be scrutinised while approving a merger. However, the decision of the Commission seems to be based on unfound rationale because it attached excessive value solely to this particular consideration while ignoring the rest. This is where the controversy arises which the paper tends to explore. It advances into this aspect by looking critically at the legislation, the jurisprudence and the competing public interest considerations which haven’t been examined enough.
The Material Constitution of International Investment Law
Tom Flynn and Jessica Lawrence (University of Essex)
When an owner of capital invests in the state of their citizenship or nationality, this ‘domestic’ investment is governed by the ordinary rules of national law. But when an investor exports their capital, investing it in a state in which they are legally a foreigner, a whole extra body of law supplements, and in some cases supplants, these domestic arrangements. This is international investment law (IIL): the vast and ever-growing body of international investment agreements (IIAs); arbitral decisions; and other forms of law—formal and informal, ‘hard’ and ‘soft’—that seek to protect the rights of foreign investors against the actions of ‘host’ states. Flynn and Lawrence critique IIL from a material constitutionalist perspective, which reveals an order bound up in fundamental ways with the history of imperialist expansion; the inscription of the particular rights of the investor class as general and international; and a desire to protect capital and markets from state interference. IIL is currently undergoing a ‘constitutional crisis’, but though reforms may improve certain serious flaws of ILL, material constitutionalist analysis reveals inherent features of the system that cannot be reformed without a fundamental reconfiguration of the material relations between international capital and state constitutional orders.
Before the Law, after the Human
Ashley Woodward (University of Dundee)
This paper focuses on some transformations of the idea of the human in contemporary critical thought, and how the concept of law is implicated in these. ‘After the Human’ in my title indexes the double figure of the posthuman: on the one hand the transformation of human existence through developing sciences and technologies, and on the other, the continental philosophical tradition’s critiques of humanism. ‘Before the Law’ indexes a debate between French philosophers Jacques Derrida and Jean-François Lyotard which allow us to frame an approach to the implications of the posthuman for law. In particular, this debate poses the question of how law and the human are constituted in relation to each other, and their respective limits. The second aspect of the posthuman, that of the scientific and technological, may be approached via the work of Bernard Stiegler (who was a student of both Derrida and Lyotard). Stiegler argues that the development of sciences and technologies effects some fundamental displacements of the related conceptual distinctions between law and fact, and between the transcendental and the empirical. Tracking these themes through Derrida, Lyotard, and Stiegler will allow a novel way of questioning who (or what) comes before the law, after the human.
Law and Literature Themes from Frankenstein 3:
Monsters, Machines, and Murderers
Chair: Tony Ward (University of Northumbria)
The Image of Defendants as Protagonists of Czech Court Stories
Ondřej Glogar (Masaryk University)
Legal culture in sense of ‘ideas, values, opinions, and attitudes of some population with regard to law and legal systems’ (Lawrence, 1975) may be reflected in various sources. During the First Czechoslovak Republic many readers sought in newspapers a section called the Courtroom. These columns contained stories on the border of journalism and belles-lettres, drawing on themes from real contemporary court proceedings. The main characters of these court stories usually come from minor classes (housemaids, bourgeois etc.). Thus, they do not follow the “prototype” of a person that law was counting with, nor are they common heroes or villains of topical literature. Nevertheless, many writers were drawing on their stories and giving them the floor in this genre. As Frankenstein’s monster, the protagonists of court stories have some romanticistic features (or narrators at least show them in such spotlight). In particular, the defendant is generally an individual who does not quite fit within legal framework. Submitted contribution aims to describe how the court stories presented these defendants. Based on presumed fascination with uniqueness of criminals and pop cultural aspect of the stories, I will examine how they could influence the public opinion on these protagonists as marginalized group of people.
‘Frankenpods’ and Other Machines in Peter Carey’s The Chemistry of Tears (2012)
Katharine Cockin (University of Essex)
The influence of Mary Shelley’s Frankenstein persists in contemporary fiction. Laws are broken and ethical constraints are dismissed by the obsessive scientist in pursuit of their dangerous experiments with new life forms. The Creature’s story has become more interesting in the re-telling. In Margaret Atwood’s Oryx and Crake, Eva Hoffmann’s The Secret, and Kazuo Ishiguro’s Never Let Me Go, the experiences of the posthuman or human clone rather than the scientist who creates them, dominate the plot.
Peter Carey’s The Chemistry of Tears (2012), concerns the construction and reconstruction of an automaton, that is a clockwork machine which simulates signs of life. Critical illness, death and intense experiences of grief inform the contexts in which the automaton is originally created in 1854 and brought back to working order in 2010. Carey’s novel addresses the disturbing effects of grief. in the process of alienation, disintegration, reintegration. His protagonists come to an awareness of the function of ‘the chemistry of tears’. Catherine Gehrig, the curator, absorbs herself in work to restore herself to health, after bereavement. This work involves the restoration of other objects, lives, and stories. Gehrig’s contention that humans are ‘intricate chemical machines’ (p. 19), is the lens through which the novel assembles—in the same plane rather than in a hierarchical structure—a variety of machines and objects, some of which are broken, like the automaton, an old car, and the bereaved Gehrig, and others are curiously adapted or generate ambivalence, such as the ‘Frankenpod’ and the ‘cube’.
This paper will reflect on the points of connection between Frankenstein and The Chemistry of Tears. Chris Baldick identifies the ubiquitous monstrous imagery for labour and working-class people in his influential study, In Frankenstein’s Shadow, when automation was creating new modes of labour that had distorting and alienating effects on society. In the twenty-first century, Peter Carey invites the reader to contemplate what it means to be a machine. In Frankenstein, the Creature demands a place in the world and expects social duty and responsibility from Victor Frankenstein. Peter Carey’s novel explores the idea that we are all Creatures now, but no more nor less than ‘intricate chemical machines’.
The Last Stand of the Exhausted Luddite
Nico Buitendag (North West University)
Legend has it that Mary Shelley received the inspiration for Frankenstein during a sleepless, distressing night during the “year without a summer.” At the same time, across the channel from her Gothic surroundings, a revolutionary movement was brewing in the shadows of the industrial textile factories of Britain.
The Luddites have subsequently become synonymous with opposition to technology and by extension, progress. A perceived inability to adapt to the times, a failure to become what we now call the “entrepreneur of the self,” led to the seemingly petulant and futile destruction of knitting machines. Soon brutal penalties were legislated against any who broke a stocking frame. Yet why at the time did Lord Byron, the initial provocateur of the novel, publicly defend the Luddites in the House of Lords? And is there a connection between the Luddites’ seemingly hopeless sabotage and the gothic-romantic tale written by an anarchist’s daughter?
Deleuze claimed that monsters were born not from reason, but “insomniac rationality,” perhaps comparable to Shelley’s fit of horrible inspiration. Elsewhere he describes insomnia as the dreamless state of the exhausted – the limit where all future possibilities have vanished. In their exhaustion, both the anonymous assembly of Luddites and Frankenstein’s nameless, composite creature turned to destruction.
But have we dismissed the Luddites too easily? A revision of the Luddites are presented by observing through Shelley’s novel as if through a kaleidoscope. What lay at the heart of their grievances? And while their destruction seems irrational, is it possible that it was belied by reason? Why was the iron fist of law brought down on them so brutally? What constitutes the machinic today, and is there anything that we in the Technocene can learn from them?
Taking Stock: Critical Constitutional Scholarship in 2021 and Beyond
Chair: Brian Christopher Jones (Sheffield Law School)
The Legitimacy of Transformative Constitutional Adjudication
Gaurav Mukherjee (Central European University)
This paper develops a typology of threats to the legitimacy of judicially led transformative constitutionalism. This is necessary because courts in the Global South, especially in South Africa, Colombia, and India, are increasingly criticized on their adjudication records for their inability to address issues of systemic material deprivation, inequitable and discriminatory access to public goods, and the broader political economy within which the constitutionally bounded social transformation is meant to operate. If not engaged with, these systemic deficiencies in judicial practice and institutional design threaten to undermine both the legitimacy and effectiveness of the transformative constitutional project, escalate inter-branch tension, and consequently expend the courts’ limited institutional capital. The typology, which is organized along moral, doctrinal/interpretive, sociological, and institutional dimensions – most of which usually tend to vary across time – has implications not only on doctrinal coherence and the perceptions of the role of courts across the polities under study, but also their relationship with the coordinate branches as agents in the broader process of legally bounded social transformation.
Refusal and Critical Constitutional Scholarship
Karin van Marle (University of the Free State)
The aim of my paper will be to consider the gist of the call for papers, namely the future of critical constitutional scholarship drawing firstly on conversations on constitutionalism taking place within the South African context. South Africa is a fairly young constitutional democracy having shifted from a Westminster style of parliamentary supremacy to Constitutional supremacy in the mid-nineties. What was initially described and lauded as a legal revolution soon has become the centre of harsh critique of the slow pace, if any, of ‘real’ change in the country. A specific feature of constitutionalism in the South African context, and maybe of all constitutions that came to light in a post-cold war period in Central Europe and a ‘postcolonial’ period in Southern countries, is the coupling of ‘constitutionalism’ and ‘transformation’. As commentators have noted (Van der Walt) the idea of a transformative constitution (or transformative constitutionalism) (Klare) relies on a paradox or maybe even irreconcilable tension between stability and change. I will unpack various takes (Ngcukaitobi, Madlingozi, Ramose) on the South African constitution and ask to what extent these positions reflect or draw on critical theory. Secondly, I am interested to compare the South African discourse with recent reflections (2017) on the work of Martin Loughlin and in particular the description by Johan van der Walt (2020) of the distinction between ‘political right’ and ‘political jurisprudence’ as a reflection of the ‘The Romantic allure of Old-Europe’. Thirdly I want to consider, revisit and explore the possibilities of theoretical tropes like refusal, resistibility, augmentation, translation (Honig, Arendt, Derrida) for critical engagements with constitutionalism.
Using the British Empire and the British Slave Trade to Frame Teaching Constitutional Law in a UK Law School
Tom Frost (University of Leicester)
This paper outlines my attempt to redesign a compulsory first-year Constitutional and Administrative law module to include critical constitutional scholarship, and to try and start decolonising the module. Given the introduction of the Solicitors Qualifying Examination, academics at law schools have a chance to redesign key modules without the constraints of a Qualifying Law Degree. Half the module is redesigned to focus on the role of the individual in the modern administrative state, looking at the principles underpinning judicial review rather than its content. Then the dual constitutional systems of the UK are explored, looking at how the rights guaranteed in the metropolis have not historically been replicated in the colonies (exemplified in the Bancoult litigation). Finally, the aim is to historically situate the development of the modern (wealthy) British state with respect to the abuses, excesses, killings and thefts of the empire, and the central role the slave trade had in this country’s development. This is my first opportunity to change this module, so I want to ask – how critical can we be with first-year law students, and how far should we go in transforming traditional modules?
Theatrical Jurisprudence 5:
Chair: Sean Mulcahy (La Trobe University)
Theatre and the Law: A Dramaturgical Analysis of Comcare v PVWY
Ryan Roberts (University of Wollongong)
The law and theatre share a human connection. To look at the law from an entirely intellectual perspective limits its purview. There is a need to realise ‘knowing in and through the body’ by engaging with theatrical techniques to better understand the legal principles that underlie the law.
This article exposes the laws connection to humanness to effectively function within society. It focuses on the use of dramaturgical techniques to reappraise the case Comcare v PVYW. This involves looking at the role of emotion, silence and interpretive assumptions that are imbedded within court judgements. It also analyses the concepts of precedence, court hierarchy and inducement, and attempts to represent these ideas with physical embodiment. This workshopping process has exposed that the application of theatrical techniques to these legal concepts can act as a bridge to close the gap between the obscurity of the law and the people that interact with it. This challenges the assumptions that are made about the law and, more broadly, it has promoted the importance of legal practitioners to look beyond their own experiences to better understand the holistic effect of the law.
Foucault and the Dramaturgy of Law
Deirdre McGowan (Technological University Dublin)
In lectures delivered at Louvain in 1981, Michel Foucault uses a re-telling of Sophocles’ Oedipus Rex to illustrate the relationship between subjectivity, legal process and social power relationships. In his interpretation of Oedipus Rex, legal process becomes a dramaturgical display of social power relationships with the subject who tells the truth about herself as one of its most intense elements. Foucault’s aim in the Louvain lectures is to explore the role of individual truth telling in the production of legal truth and he produces a rich set of resources for understanding the relationship between individual subjectivity and legal process. In this paper, I consider the connection he makes between legal process and individual subjectivity in Oedipus Rex, and how his idea of legal process as dramaturgy, or liturgy, of social truth illustrates the limitations of legalised rights claims as instruments of individual liberation or radical contestation.
Utter Violence and the Utterance of Facts: The Performative Act of Police Account-Giving in the Inquests of Black People who have Died in UK Custody
Carson Arthur (Birkbeck)
By and large the concept of performance in legal studies has focused on the liturgical, linguistic, or spatial. Actors considered in these studies are usually of the judiciary, legal professionals, or laypeople; in particular victims, who are constricted and required to conform to rules of the court and social/moral conditions. Testimony is an integral part of legal forums. As a speech act or an act of memory it enables epistemology productions, such as evidence and representation, and enacts legal personhood and procedures. This paper argues that one type of testimony is accounting. Focusing on ‘police accountability’, this paper begins by drawing connections between accounting and testimony, yet also distinguishing accounting from testimony as a narrative form that is structured within a decision-making process. It is this administrative, epistemological, and technological process wherein the police produce facts – in particular, for the inquests of Black people who have died in UK police custody. Examining the inquest of Olaseni Lewis, a 23-year-old Black man who died in police custody in 2010, this paper will explicate how accounting is a mode that mediates the production of facts and represents the death of a black person as a social event rather than a criminal act. This mediation is made possible based on the un-decidability of truth and lies. Represented as an aggressive and violent Black person by police accounts, the unfathomable force of Lewis, the monstrosity of blackness was iterated and cited as a social factor. Thus, accounting, as utilised by the police, functions to render racial pathological descriptions as common sensible, working towards the justification of the death of a Black person as unforeseeable, within the genre of tragedy – beyond ethical consciousness. Constitutive of subject-hood, accounting is a performative act, yet also an (anti-black) administrative process and epistemological production.
The Threat and Promise of Law and Horror
Chair: Timothy Peters (University of the Sunshine Coast)
Bodies on the Line
Justine Poon (Australia National University)
Law’s mythology presents the content and institutional processes of law as stable, eternal and abiding by a closed system of logic. Critical cultural legal studies work is a process that reveals the hidden tensions and power relationships of law and imagines the possibility of new relationships. It is a project of demystification and of creatively imagining how law might be otherwise than it currently is. One way of doing this is through critical genre work – where we argue that certain legal texts belong in the same genre as selected cultural texts because of a shared logical framework that is hidden in the former and dramatically laid bare in the latter.
This paper will argue for a creative methodology of reading legal texts with and against the horror genre, building on the literature in this area. It will explore aspects of Australian refugee law with the film Suspiria (2018) to bring to the fore ideas on how law, the body and power interact and how these relationships are embedded in laws that capture bodies within the nexus of the material and the imaginary. Themes and presentations of body horror, what lies beneath and possession can cut through the surface of legal myth and generate a richer understanding of law’s operations and logic.
Aristocracy and Barbarism in the Works of Bram Stoker: Report of an Ongoing Research
Guilherme Alfradique Klausner (State University of Rio de Janeiro)
My paper proposes the exploration of the links between the images of the barbarian and of the nobleman, from the 18th century onwards, with the formula of contempt for the common (bourgeois) man and aristocratic descent in the moral discourse about evil and the gothic trope of supernatural powers, in three works of Bram Stoker (Dracula, The Jewel of Seven Stars and The Lair of the White Worm). Assuming as methodological parameters the conceptual history (R. Koselleck) adapted for the study of literary images (C. Schmitt), I focus on an etymological and philological analysis of certain terms (i.e. berserker, which appears in Dracula and The Lair of the White Worm) and the historical-scientific narratives reconstructed through them. I seek to understand the works in their socio-political and literary context, from two premises: that they constitute a symbolic microcosm whose images overflow beyond the limits of the text, being the intratextual and extratextual understandings interdependent lato sensu, and that these images are built based on models developed in a continuous literary tradition, which, despite being inserted in a narrative structure at least partially developed by authors who were linked to the Gothic novel, precede it.
‘All Monsters are Human’: Terror, Fear and Loss of Rights in American Horror Story: Cult
Amanda Muniz Oliveira (Universidade Federal do Pampa)
In October 2016, the American elections had the surprising results of the election of Donald Trump. Famous for his controversial speeches, permeated with misogynistic and xenophobic opinions, his rise to the presidency, as well as the consequences and political meanings of this act were chosen as the backdrop for the seventh season of American Horror Story (AHS), subtitled Cult. For the first time, the TV show set aside the supernatural elements traditionally represented, to explore more palpable aspects of political and social horror. In a context in which reactionary discourses, such as Trump’s, are able to represent an entire nation, the message becomes clear that demons, spirits, vampires and other supernatural entities are not necessary to instil fear. In this sense, AHS: Cult explores a narrative mode that highlights the fictional character of our society, especially of our laws. During the plot, it is clear that the characters fear losing rights already conquered, something that actually starts to happen, triggering tensions, phobias and even hallucinations. Thus, this proposal aims to demonstrate how legal instability works as an element capable of arousing fear in AHS: Cult.