Showing papers in "Law and Critique in 2018"
TL;DR: In this paper, the authors treat these developments as law-making practices that are constitutive of an emerging legal field, and draw on historic examples from the common law and international arbitration.
Abstract: A new legal field is emerging around blockchain platforms and automated transactions. Understanding the relationships between law, legal enforcement, and these technological systems has become critical for scaling blockchain applications. Because ‘smart contracts’ do not themselves constitute agreements, the first necessary ‘legal’ development for transacting with these technologies involves linking computational transactions to natural language contracts. Various groups have accordingly begun building libraries of machine readable transaction modules that correspond to natural language contracting elements. In doing so, they are creating the building blocks for ever more complex transactions that will ultimately define the entire envelope of computational legal conduct in these environments, and likely standardise the field. However, also critical to emerging blockchain ‘legalities’, is the capacity for dispute resolution and legal enforcement. Beyond the performance of parties, or the quality of goods and services transacted, new mechanisms are also needed to address the performance of the computational transaction systems themselves. Such mechanisms are necessary to address the reality that smart contracts cannot be forced to perform actions beyond the parameters of their coding, even by a judicial order. Legal tools, both technological and institutional, are thus being developed to ‘soften’ the effects of self-executing transactions. In this article we treat these developments as law-making practices that are constitutive of an emerging legal field. Legal engineering exercises of this kind are not novel, and by drawing on historic examples from the common law and international arbitration, we gain insights into the competitive dynamics likely to be shaping legal engagements on the blockchain.
36 citations
TL;DR: The future of sovereignty in a blockchain world will be articulated in the conjuncture of social struggle and technological agency and a stronger alliance between technologists and democrats is called for.
Abstract: The building of the blockchain is predicted to harken the end of the contemporary sovereign order. Some go further to claim that as a powerful decentering technology, blockchain contests the continued functioning of world capitalism. Are such claims merited? In this paper we consider sovereignty and blockchain technology theoretically, posing possible futures for sovereignty in a blockchain world. These possibilities include various forms of individual, popular, technological, corporate, and techno-totalitarian state sovereignty. We identify seven structural tendencies of blockchain technology and give examples as to how these have manifested in the construction of new forms of sovereignty. We conclude that the future of sovereignty in a blockchain world will be articulated in the conjuncture of social struggle and technological agency and we call for a stronger alliance between technologists and democrats.
26 citations
TL;DR: Transitional justice has been used to bring conflictual, traumatised, societies back together, whilst doing so on terms that do not threaten but instead prefigure the individualising demands made upon subjects at the sites of neoliberal transition as mentioned in this paper.
Abstract: First developed by human rights lawyers and activists, transitional justice emerged from the so-called third wave of democratisations in Latin America. Over the last 30 years, transitional justice has risen to become a ‘global project’ of global governance. Locating the emergence of transitional justice within the global rise of neoliberalism, this article shows that transitional justice serves an important function in regards to the particularly neoliberal contours of many transitions. Understanding this relation, the article argues, is best served with recourse to what Wendy Brown describes as neoliberalism’s practice of omnus et singulatim, a double process through which ‘communities’ are gathered together as stakeholders to take part in economic activities whilst simultaneously being individualised as ‘responsibilised’ and self-sufficient entrepreneurial units. Taking this concept, I argue that transitional justice also undertakes a process of omnus et singulatim that usefully prefigures and supports processes of neoliberalisation during ‘transition’. Transitional justice, it concludes, does the necessary work of bringing conflictual, traumatised, societies back together, whilst doing so on terms that do not threaten but instead prefigure the individualising demands made upon subjects at the sites of neoliberal transition.
22 citations
TL;DR: In this paper, the authors draw on a close reading of Pierre Bourdieu's works, and offer five lessons for a science of crime and punishment: always historicize; dissect symbolic categories; produce embodied accounts; avoid state thought; and embrace commitment.
Abstract: Drawing on a close reading of Pierre Bourdieu’s works, I offer five lessons for a science of crime and punishment: (1) always historicize; (2) dissect symbolic categories; (3) produce embodied accounts; (4) avoid state thought; and (5) embrace commitment. I offer illustrative examples and demonstrate the practical implications of Bourdieu’s ideas, and I apply the lessons to a critique of orthodox criminology.
21 citations
TL;DR: In this paper, the authors introduce some of the problems in the regulation of blockchain and offer counter-narratives aimed at cutting through the hype fuelling the ascendency of this most contemporary of technologies.
Abstract: In the present techno-political moment it is clear that ignoring or dismissing the hype surrounding blockchain is unwise, and certainly for regulatory authorities and governments who must keep a grip on the technology and those promoting it, in order to ensure democratic accountability and regulatory legitimacy within the blockchain ecosystem and beyond. Blockchain is telling (and showing) us something very important about the evolution of capital and neoliberal economic reason, and the likely impact in the near future on forms and patterns of work, social organization, and, crucially, on communities and individuals who lack influence over the technologies and data that increasingly shape and control their lives. In this short essay I introduce some of the problems in the regulation of blockchain and offer counter-narratives aimed at cutting through the hype fuelling the ascendency of this most contemporary of technologies.
19 citations
15 citations
TL;DR: In this paper, the authors examine the history and use of the figure of Bharat Mata or Mother India and how it influences the Indian subject's relation to law, and analyse a defining Indian political trial, the Gandhi murder trial, in which the accused justifies his decision to murder the father of the nation in the name of the motherland.
Abstract: Psychoanalytic jurisprudence attempts to understand the images used by law to attract and capture the subject. In keeping with the larger psychoanalytic tradition, such theories tend to overemphasise the paternal principle. The image of law is said to be the image of the paterfamilias—the biological father, the sovereign, or God. In contrast to such theories, I would like to introduce the image of the mother and analyse its impact on the subject’s relation to law. For this purpose, I examine the history and use of the figure of Bharat Mata or Mother India and how it influences the Indian subject’s relation to law. When the subject is torn between his loyalties to the lawmaker–as–father and the nation–as–mother, who does he side with? Eschewing Greek myths and the Oedipus complex, I focus instead on Hindu mythology and the notion of an oedipal alliance to understand legal subjectivity in India. Lastly, I analyse a defining Indian political trial, the Gandhi murder trial, in which all these notions come to play and the accused justifies his decision to murder the father of the nation in the name of the motherland.
13 citations
TL;DR: The Handmaid's Tale as discussed by the authors is a U.S. television series adapted from a popular novel by Canadian author Margaret Atwood (1985), which is widely understood as a feminist intervention that speaks to ongoing struggles against gender oppression, but in this article I consider the invitations that the show offers its viewers in treating race the way that it does, and consider what it means to refuse these invitations in pursuit of a critical feminist understanding of authority, legal subjectivity, and violence.
Abstract: This article investigates the critical potential of a contemporary dystopia, The Handmaid’s Tale (Miller 2017-), a U.S. television series adapted from a popular novel by Canadian author Margaret Atwood (1985). The text is widely understood as a feminist intervention that speaks to ongoing struggles against gender oppression, but in this article I consider the invitations that the show offers its viewers in treating race the way that it does, and consider what it means to refuse these invitations in pursuit of a critical feminist understanding of authority, legal subjectivity, and violence. Drawing on the recent turn to genre, my reading focuses on how whiteness is reproduced through this cinematic text and its inculcation of particular ways of seeing, modes of identification and attachment. The Handmaid’s Tale’s post-racial aesthetic means that its thematic engagement with gender, sexuality and resistance actively disavows national and international histories of racist state violence and white supremacy. Its problematic feminism is thus uniquely instructive for understanding how whiteness is reproduced in contemporary (neo)liberal configurations of legal subjectivity and state authority.
10 citations
TL;DR: In this paper, a critical contextualisation of Vilhelm Lundstedt's thought under processes of globalisation and transnationalism is presented, and it is argued that the demise of the jurist's function is related to law's scientification as brought about by the metaphysical construction of reality.
Abstract: This article aims to contribute to the academic debate on the general crisis faced by law schools and the legal professions by discussing why juristic practice is a matter of experience rather than knowledge. Through a critical contextualisation of Vilhelm Lundstedt’s thought under processes of globalisation and transnationalism, it is argued that the demise of the jurist’s function is related to law’s scientification as brought about by the metaphysical construction of reality. The suggested roadmap will in turn reveal that the current voiding of juristic practice and its teaching is part of the crisis regarding what makes us human.
10 citations
TL;DR: In this paper, the authors argue that the current debate over the hijab is often understood through the lens of a "clash of civilizations" between a tolerant "secular" "West" and a chauvinist "religious" "East" and argue that this polarization is the result of a specific secular semiotic understanding of religion and religious practices which is nowadays embedded in western law.
Abstract: The current debate over the hijab is often understood through the lens of a ‘clash of civilizations’ between a tolerant ‘secular’ ‘West’ and a chauvinist ‘religious’ ‘East’. The article argues that this polarization is the result of a specific secular semiotic understanding of religion and religious practices which is nowadays embedded in western law. In my analysis, secular’s normative assumptions, played around the control of women’s bodies and the definition of religious symbols in the public sphere, work as a marker of ‘citizenship’ and ‘racialized religious belonging’. Through women’s bodies, western/secular law creates a link between gender, religion, ethnicity and belonging which forms a specific law and religious subject. Thus, secularism emerges not as the separation between private and public, state and religion, but as the reconfiguration of religious practices and sensitivities in the public secular space through the control of the visible.
9 citations
TL;DR: In this article, the authors explore the possibility of a different aesthetic in the context of the university and explore the way in which a certain neoliberal logic and rationality have become common-sense.
Abstract: The main objective of this article is to reflect on the way in which a certain neoliberal logic and rationality have become common-sense and to contemplate the possibility of a different aesthetic. The tone or mood of this piece draws on recent work on atmosphere, affect and complexity, which will be used to explore the theme of neoliberalism within the context of the university. In the course of this discussion, I will consider questions such as: how could a different aesthetic influence the university as public space; the curriculum and academic community and friendship? How could a different aesthetic respond to epistemic, ontological and, inherently tied to them, spatial injustice?
TL;DR: Asylum law functions through a dichotomy between an idealized notion of Europe as a site characterized by human rights, and non-European countries as sites of oppression as discussed by the authors, which is seen as legitimizing European dominance and exclusion of non-Europeans.
Abstract: Asylum law functions through a dichotomy between an idealized notion of Europe as a site characterized by human rights, and non-European countries as sites of oppression. In most social sciences and humanities literature, this dichotomy is seen as legitimizing European dominance and exclusion of non-Europeans. However, it is the same dichotomy which is used by asylum seekers to claim inclusion through the grant of asylum. Focusing on the inclusive potential of this exclusive dichotomy allows us to explore the ambiguities inherent in the dichotomy. In asylum claims based on persecution on account of gender and sexuality, it becomes evident that not all human rights are considered equally fundamental. In many cases, asylum seekers are required to renounce human rights in order to prevent persecution, for example by complying with patriarchal family norms. Even where this requirement is rejected, asylum law illustrates the ambiguous relation between Europe and human rights.
TL;DR: In this article, the authors introduce the recent work of Maurizio Lazzarato, who has argued that the asymmetrical creditor-debtor relationship is now the archetype of contemporary, neoliberal social relations, and suggest that aspects of Nicos Poulantzas's concept of "authoritarian statism" can be used to both strengthen our understanding of the authoritarian characteristics of the neoliberal state, and to imagine possibilities for resisting its expressions of power.
Abstract: As an intellectual, economic, political and legal project, neoliberalism is not directed towards the rolling back of the state as an aim in itself. While its deregulatory tendencies, its commodification of public services and the undermining of systems of social welfare superficially suggest a generalised reduction in state power, it has been clear from the early 1980s that one of neoliberalism’s primary concerns has been the authoritarian reshaping of state power to engineer particular social outcomes, whether in criminal justice, the disciplining of organised labour, the militarisation of national territory and migration, or the extension and deepening of regimes of austerity. This article introduces the recent work of Maurizio Lazzarato, who has argued that the asymmetrical creditor-debtor relationship is now the archetype of contemporary, neoliberal social relations. Ultimately, Lazzarato’s perspective tends to exaggerate the totalising powers of finance capital and leads him to endorse a form of political voluntarism, which fails to address the role of the neoliberal state as a site for forms of authoritarianism which are not solely generated by the debt relation. As a response, it will be suggested that aspects of Nicos Poulantzas’s concept of ‘authoritarian statism’ can be used to both strengthen our understanding of the authoritarian characteristics of the neoliberal state, and to imagine possibilities for resisting its expressions of power.
TL;DR: In this paper, a Luhmannian-inspired theoretical framework is proposed for describing the communicative challenges facing law's regulation of transboundary hydropower power dams, where paradoxes are not necessarily negative, as managing them also potentially enlightens and transforms planning systems.
Abstract: Law’s regulation of transboundary hydropower dams is a field of study brimming with paradoxes. The most notable being the paradox of a hydropower dam solving one problem and creating another. From a logical perspective, such a paradox would typically be viewed as an obstacle to be avoided because it brings everything to a standstill. But from a social perspective, paradoxes are not necessarily negative, as managing them also potentially enlightens and transforms planning systems. The latter perspective, which brings to analysis a kind of dynamism, is employed in this text. In order to work out the reoccurring patterns under which law might productively make use of paradoxes, this text therefore proposes the methodological tools of exposing and building upon paradoxes. Exposing paradoxes sets out to make more visible some of the unthought limitations, self-deceptions and self-contradictions which arise in modern planning practices, while building upon paradoxes attempts to open up headways towards a more adequate conceptualisation of the solutions which law can offer. The overall intention here being to offer a Luhmannian-inspired theoretical framework which illuminates the value of social systems theory as a methodological tool for describing the communicative challenges facing law’s regulation of transboundary hydropower power dams.
TL;DR: In this article, the authors consider the relationship between modernity, politics and economy, and the way in which neoliberalism itself functions as a secular religion, one which intensifies liberal individualism and involves a blind faith in the market redefining all social interactions in terms of contract.
Abstract: This article seeks to contribute to the thinking of forms of corporateness, sociality and authority in the context of, but also beyond, neoliberalism, the neoliberal state and neoliberal accounts of the corporation. It considers neoliberalism in relation to the theological genealogies of modernity, politics and economy, and the way in which neoliberalism itself functions as a secular religion—one which intensifies liberal individualism and involves a blind faith in the market redefining all social interactions in terms of contract. I turn to the theological genealogies of sovereignty and economy, and of the corporation, as a way of grounding a radical consideration of collectivity and sociality. For, while the rise of neoliberalism is associated with the growth of multi-national or trans-national corporations, the privatisation of state assets and the corporatisation of public institutions, each of these involve not a diminishing of the state or the project of state sovereignty but rather its reformulation, reaffirmation and intensification. The corporation, despite being redefined as the interaction of fundamentally self-willing and contracting individuals operating in the market, is still fundamentally intertwined with state sovereignty. Attempts to address or respond to corporate power need to go beyond calls for greater regulation of corporations, increased corporate social responsibility or even the desire to eliminate corporate personhood. Rather, what is required is a greater emphasis on the notion of corporateness that undergirds the theological genealogy of the corporation—for if neoliberalism functions as a religion then part of the solution may be a theological one.
TL;DR: In this paper, the authors propose a legal-iconological experiment to explain the disappearance of the slave quarters as part of a racial trope, a foundational and colonial trope, one that is capable of institutionalizing subjects and producing a subaltern mode of subjectivity.
Abstract: The commemorative edition of the 80th anniversary of Casa Grande & Senzala, the founding book of Brazilian modern sociology written by Gilberto Freyre and published in 2013, shows on its cover a glamorous ‘Casa Grande’ (Big House, the Lord’s house), lit like an architectural landmark, ready to serve as the set for a film or a TV soap opera. What happened to the ‘Senzala’ (the Slave Quarters) that appeared on the covers of the dozens of previous editions? This paper investigates, following some changes in Brazilian Visual Culture in the twentieth century, how such an astonishing disappearance could take place. The paper examines the image of the slave quarters as part of a racial trope: a foundational and colonial trope, one that is capable of institutionalizing subjects and producing a subaltern mode of subjectivity. It also explores connections between critical legal studies and visual and cultural studies to question how and why knowledge produced over the status, nature and function of images contributes to institute—and institutionalize subjectivity. In order to explain this disappearance we propose a legal-iconological experiment. We will enunciate, and attempt to enact, the Statute of Image-nation: the laws of the image that constitute subjectivity in Brazilian racial tropes. In doing so, we might be able to point out the ways in which law and image function together in institutionalizing subjectivity—and subjection.
TL;DR: The form, mode and role of law in neoliberal governance has been examined in the context of the recent Symposium on "Forms of authority beyond the neoliberal state" as discussed by the authors, which explored the wider historical, cultural and sociological contexts which inform the production of neoliberal authority.
Abstract: Critical legal scholarship has recently turned to consider the form, mode and role of law in neoliberal governance. A central theme guiding much of this literature is the importance of understanding neoliberalism as not only a political or economic phenomenon, but also an inherently juridical one. This article builds on these conceptualisations of neoliberalism in turning to explore the wider historical, cultural and sociological contexts which inform the production of neoliberal authority. The papers in this collection were first presented at the symposium ‘Forms of authority beyond the neoliberal state’, held at the Griffith Law School in December 2017. They consider the role of the corporation, the site of the university, the politics of debt, the genre of prestige television, and the archic sources of state violence, in order to imagine forms of authority which lie beyond neoliberalism as an ideology and a set of practices, and the ensemble of institutions which constitute the neoliberal state. The contributions draw on social theory, philosophy, cultural studies, legal geography and political theology in exploring new possibilities for cultivating judgement through and beyond the sovereign, political and aesthetic terrains of neoliberal governance.
TL;DR: The authors argue that the distinction between neoliberalism and the Westphalian order that is said to precede it (along with populism, authoritarianism and other contemporary phenomenon) are all facets of one and the same phenomenon: archism.
Abstract: In this essay I argue that the distinction between neoliberalism and the Westphalian order that is said to precede it (along with populism, authoritarianism and other contemporary phenomenon) are all facets of one and the same phenomenon: archism. Archism is a style of politics based on rule and division. Looking at the work of Derrida, Foucault and Benjamin, I examine the inner workings of archism and how it can be resisted. Above all, I consider the notion of the ‘archeon’; that privileged perch from which the state or law can judge without itself being subject to that judgment. The archeon, I argue is the central node of archism that allows itself to insinuate into any number of myriad forms without appearing to be the same phenomenon. By looking at the way Benjamin subverts the theological origins of the archeon with the idea of a God who abandons the position of judgment, I show a model for how to think differently about archism such that we do not seem eternally fated to choose between the same false dichotomies over and over again.
TL;DR: In this article, the authors examined the form and content of the measures introduced in the Greek legal system to deal with the debt crisis under the concept of "necessity" and argued that this concept, used by the Greek Council of State to justify the constitutionality of these measures, opened a path for a more comprehensive analysis of the reform measures implemented through the mechanism of the Greek Memoranda of Understanding.
Abstract: This paper offers a dialectical analysis of the law relating to the Greek crisis. The form and content of the measures introduced in the Greek legal system to deal with the debt crisis is examined under the concept of ‘necessity’. It is argued that this concept, used by the Greek Council of State to justify the constitutionality of these measures, opens a path for a more comprehensive analysis of the measures implemented through the mechanism of the Greek Memoranda of Understanding. The measures are seen as ‘necessary’: on the one hand in their accordance and basis on principles of the European Union; on the other hand in their class orientation and reflecting of specific social (class) interests. But despite their necessity, neither their content, nor the form of implementation of these measures is fixed; it is rather contingent, i.e. dependent on the level of intensification of social (class and intra-class) and economic antagonisms.