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Abstract: Abstract In this paper, I elaborate a Derridean deconstruction of law through the lens of Lacanian psychoanalysis. Derrida only focuses on jurisprudential law enforcement in his famous ‘Force of Law’ lecture, leaving corporeal law enforcement untouched. In turn, I explore the irresolvable conceptual tensions within corporeal law enforcement from the standpoints of (a) individuals rationalizing their obedience to law enforcement and (b) the legal system rationalizing its circumscription of acceptable law enforcement. To support my analysis, I examine landmark court cases and their deleterious effects on accountability for law enforcers. In particular, I track the progression from the legal standard of ‘shock of conscience’ (i.e., established by Rochin v. California (1952)) to that of ‘objective reasonableness’ (i.e., established by Graham v. Connor (1989)), which reinforces the legal protections for and libidinal features of police brutality. In this sense, I seek to clarify the dimensions of the libidinal economy belonging to policy brutality, namely its components of sadism and superegoic enjoyment. PubDate: 2023-04-01
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Abstract: Abstract Normative theories of law conceive the courtroom as a geometrically delineated, politically neutral, and linguistically transparent space designed for a fair and orderly administration of justice. The trial, the most legalistic of all legal acts, is widely regarded as a site of truth and justice elevated above and beyond the expediency of ideology and politics. These conceptions are further underpinned by certain normative understandings of sovereignty, the subject, and politics where sovereignty is conceived as self-instituting and self-limiting; the subject is understood as an autonomous and rational being capable of self-consciousness and self-representation; and politics is posited as the exercise of reason in the public sphere. In this article, I argue that such a normative conceptualization of the criminal trial and the courtroom not only ignores structures of power and privilege that produce inequalities but also forecloses possibilities for transformative judicial praxis. Drawing on the 1969–1970 trial of eight radical activists accused of conspiring to incite a riot at the 1968 Democratic National Convention in Chicago, the article argues for a performative re-conceptualization of sovereignty, the subject, and the law as indeterminate, unpredictable, and open-ended discursive formations. The article demonstrates how the accused, working with and against legal doctrines, norms, and discourses, rethought normative conceptions of sovereignty, law, and subjectivity as contingent power-knowledge constellations that are open, unpredictable, and un-closable. PubDate: 2023-04-01
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Abstract: Abstract This article analyzes India’s Traditional Knowledge Digital Library (TKDL) as a potential intervention in the administration of patent law. The TKDL is a database including a vast body of traditional medical knowledge from India, aiming to prevent the patenting and misappropriation of that knowledge. This article contextualizes the TKDL in relation to documentation theory as well as to existing research on the uses of databases to protect traditional knowledge. It explores the TKDL’s potential consequences for India’s traditional medical knowledge and the wider implications that traditional knowledge databases can have for the safeguarding of traditional knowledge in general. The article concludes that on the one hand the TKDL bridges the gap between the main branches of Indian traditional medicine and the formal knowledge system of International Patent Classifications. Furthermore, it has also inspired revisions of the International Patent Classification system, which makes it better adapted to incorporate traditional medical knowledge. On the other hand, critical research on traditional knowledge documentation argues that traditional knowledge databases, like the TKDL, can decontextualize the knowledge they catalogue and dispossess its original owners. The TKDL, however, also fits into a national, Indian agenda of documenting and modernizing traditional medicine that predates the formation of the TKDL by several decades and challenges the dichotomy between traditional and scientific knowledge systems that originally motivated the formation of the TKDL. PubDate: 2023-04-01
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Abstract: Abstract Calls to decolonise the curriculum gain traction across the academe. To a great extent, the movement echoes demands of the decolonisation era itself, a period from which academics draw both impetus and legitimacy. In this article, we examine the movement’s purchase when applied to the teaching of international law. We argue that the movement reinvigorates debates about the origins of international law, centring its violent foundations as well as its Eurocentric episteme. Yet, like many critical approaches toward international law, the movement is smitten with itself and with the regime. As a consequence, the outcome of its activism and critique is predetermined: both must redeem the Eurocentrism of international law and its associated pedagogy. Calls to decolonise the curriculum ultimately validate the epistemological limitations inherent to a stratified, international order, failing to offer a genuine alternative framework or epistemology. PubDate: 2023-04-01
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Abstract: Abstract Three-dimensional ‘bioprinting’ is under development, which may produce living human organs and tissues to be surgically implanted in patients. Like tissue engineering and regenerative medicine generally, the process of bioprinting potentially disrupts experience of the human body by redefining understandings of, and becoming actualised in new practices and regimes in relation to, the body. The authors consider how these novel sociotechnical imaginaries may emerge, having regard to law’s contribution to, as well as its possible transformation by, the process of 3D bioprinting. The authors draw on Gilbert Simondon and corporeal, material feminists to account for these disruptions as ‘ontogenetic,’ in the sense that technology can produce new ontologies or beings. The authors focus namely on ontogenesis, individuation and the pre-individual forces that comprise, and yet remain inexhausted by, the process of 3D bioprinting. The authors argue legal phenomena are pre-individual forces that ‘in-form’ ontogenesis. These pre-individual forces are indistinguishable from those implicated in the individuation of the body’s physical form; thereby, the individuation of the bodily material through 3D bioprinting may be expressive and generative of sociolegal phenomena, at least as those relate to the body. The authors conclude that 3D bioprinting shores up conventional, liberal conceptions in law of the human body as individual, bounded and primarily contractual. Three-dimensional bioprinting may introduce ontological difference to the extent it promises and realises a new temporality of the human as a species- and legal-subject, although such a development would only seem to expand, rather than attenuate, a biopolitical regime. PubDate: 2023-04-01
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Abstract: Abstract Cesare Beccaria’s On Crimes and Punishments has had a profound impact on, and made significant contributions to, among others, the study of law, justice, crime, and punishment. Unsurprisingly, there is a voluminous literature on this text. This article subjects Beccaria’s treatise to an exegetical reading and focuses on the aesthetic inquiry at heart of the text. Beccaria professes to undertake a rigorous scientific inquiry into crime and punishment. He repeatedly invokes language from modernity and the enlightenment—e.g., probability, correlation, and other mathematical tools (e.g., geometry)—to ground the scientific nature of his treatise. Yet, what Beccaria engages with is aesthetic and what is produced is not scientific knowledge but aesthetic knowledge. Rather than read this as a criticism, the article highlights how the concept of justice—like beauty or virtue—is, and can only or largely be, a matter of aesthetic inquiry, and explicates why Beccaria’s text ought to be read as an aesthetic inquiry into justice. PubDate: 2023-04-01
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Abstract: Abstract The article addresses the role of scarcity in negotiating the relationship between intellectual property, particularly from a legal-economic perspective, and property rights, as understood by transaction cost economics, to shed light on the deadlock faced by those suffering from neglected tropical diseases (NTDs). The consistency of the law and economics fundamentals that support the trade on knowledge goods, namely patents on essential medicines, is put under check by Scott Veitch’s scholarship on legal irresponsibility. The damages that emerge from the operations of the intellectual property system are registered in the novel concept of negative public domain, and are due mainly to the lack of access to treatments that end up being unaffordable, or to innovation that leads to new drugs that is not sufficiently incentivised though price signals. The accountability for such damages is taken into consideration by arguing that the disavowal of responsibility is made possible by the negative public domain, which is balanced by the construction of a positive response through the language of rights. As such, responsibility per se is preserved, evading one instantiation of Teubner’s legal paradoxes, but rendered ineffective by design. In other words, even if the harms endured by those affected by the NTDs can be traced back to the operations of the intellectual property system, there is no one to hold accountable. The main goal pursued through the article is to make such an arrangement explicit, by giving centrality to the notion of scarcity and its interplay between legal and economic theory, alongside the novel concept of negative public domain as a site where the actual consequences of irresponsibility lie, to hopefully inform further critique in subsequent works. PubDate: 2023-04-01
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Abstract: Abstract The article addresses Giorgio Agamben’s critical commentary on the global governance of the Covid-19 pandemic as a paradigm of his political thought. While Agamben’s comments have been criticized as exaggerated and conspiratorial, they arise from the conceptual constellation that he has developed starting from the first volume of his Homo Sacer series. At the centre of this constellation is the relation between the concepts of sovereign power and bare life, whose articulation in the figure of homo sacer Agamben traces from the Antiquity to the present. We shall demonstrate that any such articulation is impossible due to the belonging of these concepts to different planes, respectively empirical and transcendental, which Agamben brings together in a problematic fashion. His account of the sovereign state of exception collapses a plurality of empirical states of exception into a zone of indistinction between different exceptional states and the normal state and then elevates this very indistinction to the transcendental condition of intelligibility of politics as such. Conversely, the notion of bare life, originally posited as the transcendental condition of possibility of positive forms of life, is recast as an empirical figure, whose sole form is the absence of form. We conclude that this problematic articulation should be abandoned for a theory that rather highlights the non-relation between sovereign power and bare life, which conditions the possibility of resistance and transformation that remains obscure in Agamben’s thought. PubDate: 2023-04-01
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Abstract: Abstract This is an account of a reading project that began in February 2020. Australia was burning, a pandemic was simmering, the two of us were early in our PhD journeys at the Melbourne Law School. Already, we felt exhausted by critical theory which seemed to amplify the affects we felt all too intensely. Our reading project began as an attempt to find and inhabit texts that might move beyond critique, that might allow us to find wonder and vitality in legal theory. Taking up the literary critic Rita Felski’s invitation to craft a post-critical reading practice, our reading list evolved iteratively to encompass themes and concerns that we identified as possibly correlating with said practice. It evolved too, in conversation with Melbourne, as the city journeyed through different stages of the pandemic. Constantly changing restrictions changed the ways in which we met and conversed, influencing in turn the texts we chose to read and the manner in which we read them. In this account, we pay attention to the time and place of our encounters with these interlocutors, and to the feelings these encounters generated. As such, this article takes the form of a series of (revised) diary entries: first written in 2020, then revisited in the corresponding months of 2021. What we hope emerges from these entries is a sense of how these theoretical texts train us to live in a world undergoing a compounding series of crises – and, perhaps, to imagine that world otherwise. In a more jurisprudential register, we hope that our experiment will identify the methods these texts might give us for (re-)engaging with law in a spirit of wonder and vitality. PubDate: 2023-02-01
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Abstract: Abstract Adopting Kantor’s Masochean turn within Levinas, this article challenges the anthropocentrically limited purview of Levinas’s ethical relation. Incorporating Kantor’s legalistic reading of Levinas, informed through his literary analysis of Sacher-Masoch’s ‘Venus in Furs’, the article details the inescapable, legalistic plight that is to be the Levinasian ethical subject. Extending upon Kantor’s introductory conceptualisation of the Levinasian subject through Masoch, reveals a subject for whom suffering and sacrifice must be embraced; necessary acts of penitence before an irrepressible Other who they adore. The Other is presented through Masoch’s text as an insatiable, inescapable deity of Law who cannot be refused and demands subservience. A god manifest in Exteriority whose influence upon the subject extends beyond the frame of the interhuman relation and is a necessary component of the subject’s existence and, more broadly, their world. The Levinasian subject’s relation with alterity poetically portraying all the potency, affirmation and urgency of dear Severin’s with his Venus, a relation which destroys, haunts and affirms the subject completely as only Law can. PubDate: 2023-02-01
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Abstract: Abstract For critical legal scholars, the ongoing far-right assault upon the liberal status quo poses a distinct dilemma. On the one hand, the desire to condemn the far-right is overwhelming. On the other hand, such condemnations are susceptible to being appropriated as a validation of the very liberalism that critical theorists have long questioned. In seeking to transcend this dilemma, my focus is on the discourse of ‘white genocide’ — a commonplace belief amongst the far-right/white nationalists that ‘whites’, as a discrete group, are facing demographic destruction as a result of deliberate policy choices. Such a belief has motivated acts of extreme violence. While libel to dismissal by experts on mainstream understandings of genocide, namely international criminal lawyers, I argue that this ‘white genocide’ discourse deserves careful scrutiny as a jurisprudential and socio-legal phenomenon that reveals key weaknesses in present modalities of liberal justification. Drawing upon an array of recent critical theories, I show how a liberalism unable to face its own decline enables the very far-right assertions it purports to oppose. Thus, given liberalism’s failure to act as a neutral arbiter, an alternative approach for those opposing the far-right is to develop a vision of politics and society that confront believers in ‘white genocide’ on a more substantive level. This, I argue, forces the far-right’s opponents to disavow liberal scepticism towards utopian transformation as well as the juridical understandings and institutions that allow this scepticism to durably persist. PubDate: 2022-12-30 DOI: 10.1007/s10978-022-09337-y
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Abstract: Abstract International economic law is peculiar. It claims universal character, yet eschews engagement with many, if not all, the racialised features of the global political economy. Its scholars mostly ignore imperialism, colonialism, and capitalism; they exclude slavery, predation, and racism altogether. In the following article, we draw upon Walter Rodney’s dialectics of development to offer a racial capitalist critique of international economic law. The disciplinary boundaries and operative logic normalised by its denizens corral us in a white, Eurocentric episteme. Ahistoricism, decontextualisation, and externalisation are three epistemic devices at the forefront of the exclusionary discourse of IEL. In this space, the histories and epistemologies of Black peoples are ghettoised, treated as alien to the framework. After identifying this bias, we use the Black Radical Tradition to evaluate IEL’s amenability to the racial capitalism critique. PubDate: 2022-11-26 DOI: 10.1007/s10978-022-09336-z
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Abstract: Abstract In June 21, 1990, the Joneses, an African-American family living in the mainly white and working-class neighbourhood of St. Paul in Minnesota, saw a small white cross burning in their yard. By placing the burning cross on the yard, the Minnesota Supreme Court argued that one of the accused, Robert A Viktora, had engaged in ‘fighting words’. However, the US Supreme Court reversed this decision, arguing that the local authority in St Paul only legally banned certain ‘fighting words’, but not others. Judith Butler explores this legal case, R.A.V. v. St. Paul. Judith Butler argues in her earlier work that the Supreme Court in effect represented the burning cross as being non-performative and simply a vehicle of expression rather than a historical symbol of hate speech towards African-Americans. In this paper, I look again at the R.A.V. case. But I do so by both drawing on what Butler explicitly says about the case in her early work and integrating this with her later work on the ethics of grief, state hegemony and public assemblies. Furthermore, I also incorporate some of the insights of the Bakhtin Circle into Butler’s work to strengthen her arguments. The paper then revisits R.A.V. v. St. Paul and shows how Reaganite state hegemony effectively transformed issues of racism surrounding this free speech case into ‘monologic’ and ‘ungrievable’ public matters of concern. The paper concludes by briefly discussing counter-hegemonic politics of free speech. PubDate: 2022-11-15 DOI: 10.1007/s10978-022-09334-1
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Abstract: Abstract This paper studies “environmental personhood” legislation as a transitional concept. A transitional concept is one whose originating context sets parameters for its pragmatic functioning even as the eventual coherence of this functioning entails deep change in this originating context. By more explicitly thematizing environmental personhood as a transitional concept, we can acknowledge worries about its entanglement with a rights paradigm emphasizing private property and human exceptionalism while still exploring how it might contribute towards deeper ecological transformation. The paper introduces Nuu-chah-nuulth philosopher E. Richard Atleo’s notion of ‘phase connectors’ as a heuristic for thinking transitional tensions in environmental personhood especially in terms of the gap between its present operative strategy and possible future effects on wider imaginaries. Indeed, this gap indicates how environmental personhood’s transitional potential is entangled with challenging dominant presuppositions in what Anna Grear calls ‘law’s onto-epistemic imaginary’. Using Atleo’s heuristic and drawing on a range of sources, the paper thinks through some of the prominent fault lines and volatile dynamics of environmental personhood as a transitional concept. After establishing these critical tensions, it considers how its conceptualization in domains beyond legislative or academic articulations may or may not help induce ethico-phenomenological changes in constitutive imaginaries. Though such popular presentations are frequently reductive, understanding why and how is important if theorists can contribute to the construction of creative alternatives. PubDate: 2022-11-15 DOI: 10.1007/s10978-022-09339-w
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Abstract: The primary aim of this article is to present the rule of law universalism as a relevant theoretical and socio-political issue that critical legal thought needs to contend with. In order to do so, this issue is described through a Marxist theoretical framework, which aids in identifying the consequences of this universalism. Furthermore, the Marxist theoretical framework is suggested as a countermeasure that allows for going beyond it. The rule of law universalism is analysed as a process connected to establishing hegemony and status quo that affects both the way the law is thought of and practiced. The post-communist context serves in fleshing out some of these consequences. Although the transition is not the main subject of inquiry, it is a starting point to a set of philosophical questions directed towards the rule of law universalism, mainly regarding historical embeddedness and socio-political dependency of the rule of law. The transitional context illustrates the tension between the rule of law treated as a generalized blueprint and the reality it is introduced to. The method of approach to this tension argued for in this paper is Marxian theorization of concept as an interplay between concrete and abstract that underlies historical materialism. This movement within concept is juxtaposed to the universalism. The philosophical investigations are followed by findings from Marxist legal theory that pinpoint the importance of concrete interventions into the legal theory that abate its ever-growing abstractness. In particular, the import of knowledges and practices divorced from the capitalist system is brought into focus. The paper concludes with a brief assessment of the possibility of overturning the rule of law universalism and a discussion on the emancipatory potential of law. PubDate: 2022-11-10 DOI: 10.1007/s10978-022-09338-x
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Abstract: Abstract ‘[T]he “mainstream” of global governance has changed course’ and in so doing, might well have ‘outrun the standard tools of critical, progressive, and reform-minded international lawyers’, Fleur Johns wrote in Johns, The Modern Law Review 82:833–863, 2019. It is especially the critical tools of ‘appeals to history, context, language [and] the grassroots’ in response to universalist planning that Johns sees absorbed in the turn to prototyping as a new ‘style’ of governance. In this article, we take on this observation and explore how the ‘lean start-up mentality’ that Johns described has taken hold of tech-based climate governance. We base our reflections on the ‘Tech for Our Planet’ challenge that took place over Tech for Our Planet, 2021. https://together-for-our-planet.ukcop26.org/tech-for-our-planet. Accessed 24 June 2022. and was showcased at the UNFCCC COP26 in Glasgow. While a turn ‘from planning to prototypes’ is observable, we question how exactly this ‘change of course’ affects the high modernist style of global governance and its critique by international lawyers. The ‘digital solutions for climate challenges’ that were showcased in Glasgow are indeed based on localized experiments with data science, thereby seemingly overcoming high modernist impulses towards universalist ideals. Yet, these experimental prototypes are developed with the ambition of being replicable and scaled up, to become a stack of tools deployable in any given scenario. This form of scaling up neither breaks with modernist aspirations based on technologically-mediated replicability—of moving the same logic inscribed in code to different sites and contexts—nor with a modernist understanding of knowledge as universal in its application. In our analysis, the determining feature is then not so much a matter of planning or prototyping in ideal type forms, but of replicability of knowledge production and scalability of technological know-how that underpin both planning and prototyping. Prototyping in the start-up space does not depart from, but rather reinscribes, a modernist representation of the human subject that forces its epistemological lens onto a world of nonhuman objects amenable to governance. Critical international lawyers’ toolkits must therefore be reconfigured with a focus on a governance style of disembodied knowledge production that runs through both planning and prototyping. PubDate: 2022-07-31 DOI: 10.1007/s10978-022-09331-4
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Abstract: Abstract Climate change and fourth industrial revolution (4IR) technologies are massively shifting the material and social conditions of existence on Earth and contribute to a state of indeterminacy and increased political experimentation. While various models for what might become the ‘next iteration of governance’ are currently emerging, this essay turns to specific contemporary political experiments which claim to democratize power, distribute and/or share sovereignty, function as peer-to-peer or actor-to-actor, and move beyond criticism—be it to the moon or to soil. More precisely, I look at extropist experiments in competitive crypto-governance and at (post)critical laboratories closer to the conceptual frame of international law, which both, in different ways, rely on a specific practice of determination characterized by binary relations and existential negation. In favor of an alternative approach, I argue for an ethics of legal thought capable of attending to indeterminacy and the relationalities it enables differently. PubDate: 2022-07-19 DOI: 10.1007/s10978-022-09327-0
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