Critical Legal Theory

Alternate Title: Five Ways of Looking at a Queue

Paper presented at the Law, Literature and Humanities Association of Australasia Conference of 2013, held at the Australian National University.

In the poem, ‘Thirteen Ways of Looking at a Blackbird’, Wallace Stevens moves through his thirteen stanzas presenting the different ways that blackbirds can be seen and evocatively links the image of the blackbird with differing knowledges it is possible to have about the blackbird. The image of the blackbird shifts from dark to light in mood, and from a physical image to shadow depending on the surrounding lines. The blackbird of the title is singular and yet its meaning contains multiple evocations that play into an ever-shifting body of the bird. The blackbird acts as a metaphor – for vision, for beauty, for fear – but is itself is transformed by the associations around it so that the stanzas infect one another through layering the meanings of the blackbird.

A metaphor too, is an image that describes something else, but in that transfer of the image, marks out new knowledge of the subject. The context that surrounds a metaphor can shift our perception of it. This paper examines the metaphor of the ‘queue’ in refugee discourse as presented in Parliamentary debates, looking at the different meanings that it represents and how those layers of meaning come together to construct an irresistible demand for law to be made in order to affirm its existence. The concept of the refugee ‘queue’ has been a prevalent one since asylum seekers started arriving in boats in the 1970s, persistently appearing throughout political discourse and shaping legal action.

Gelber has attempted to establish an accepted usage of the term in the asylum seeker discourse by looking at its features (fairness, equality, objectivity, ‘first-in-first-served’/priority of service principles) and the reaction to its breach (‘queue jumping’ is a violation of priority of service based on waiting time).  Every and Augoustinos have touched upon the use of the ‘queue’ and ‘queue’ jumper rhetoric in Parliamentary debates as part of a broad range of tactics to construct racist discourse whilst denying racism at the same time.  However, as seen in the other ideas explored below that function around the metaphor of the ‘queue’, the concept of the ‘queue’ is one which goes across all aspects of Australia’s response to refugees. Its usage cannot be pinned down to just an idealised representation of bureaucratic fairness or to hidden racism alone, but also relates to the decision-making power and control of the State, the ‘queue’ as a marker of acceptability and deviance, the ‘queue’ as a representation of the migration system and the ‘queue’ as a marker of Australia’s compassion. There is not one usage of the word, but multiple uses containing borrowed meanings, which layer upon each other to construct a vision of the refugee ‘queue’ and the Australian migration system.

This reading of the ‘queue’, which in deconstructing the different presuppositions and assumptions about the refugee law system, Australian sovereignty and the refugee subject that the metaphor invokes, will look at how a vision about an idealised vision of the queue and its breakdown are constituted in discourse. The domain of meanings which the metaphor of the ‘queue’ leaves us with, forms the foundation for legal policy and tactics, which go towards addressing the problems constructed by the image of the ‘queue’. What we need to be reminded of, is that this particular metaphorical vision of the ‘queue’, although it has multiple facets, is only one way of looking at the issue. The persistence of the ‘queue’ limits other ways that political discourse and law can react towards its own power and responsibility and towards Others. In examining the logic and the meaning behind the ‘queue’, we can start to uncover other potential visions that could disrupt the dominance of the ‘queue’ discourse and remind us of refugee law’s humanitarian aims. 

This paper provides a summary of the second chapter (“Laws, Commands, and Orders”) of H.L.A. Hart’s The Concept of Law (1994).  In Chapter II, Hart searches for “a plausible model of the situation where there is law”, grounding upon the larger positivist theory of law. Part I situates the chapter in the larger argument of Hart’s book. Parts II and III condense the ideas of this chapter based on Hart’s analysis of the simple imperative theory, where he works towards a more complete description and operative definition of this theory which will be central to his new perspective of law in the next chapters and the book itself.

The existence of supervisory regimes for financial markets is a tacit acceptance that regulation – understood as the creation of market spaces – is in fact pro-cyclical, i.e. regulation, which as privilege is necessary for all markets to exist, can actually cause or exacerbate crises.
It is the creation of space, or better a certain flexibility in the mass of interactions, which unites the considerations of Leibniz and Deleuze around the idea of chaos.  Marx’s thought allows us to link these ideas to capital markets, though this latter only marvelled at the lawlessness of self-valorising capital.  Leibniz’s theory of compossibility turns out to be a powerful but deceptive way of thinking about this effusive chaos.  In his Le Pli, Deleuze takes up the Leibnizian model of the fold of compossibility and critiques its ethical and juridical claims to rationality and liberty.
This paper asks in particular:
a) What are the deficiencies of the fold-model of chaos highlighted by Deleuze, and might a twice-folded model be advanced which remedies this utopian vision in the case of crisis?
b) How has the fold-model of chaos underpinned beliefs about market rationality, what might it tell us about the current supervisory regimes, and would the twice-folded model mark an improvement.
Note by fold we translate Zweifalt, so-by twice-folded we imply Zweimalzweifalt, Vierfalt and so also Vielfalt.

FP7-PEOPLE-2010 IRSES
Marie Curie Irses

The event is organized by

gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

Institutions organizing the Workshop within the LIBEAC Consortium:

University Institute of European Studies (IUSE) in Turin, Italy
University of Piemonte Orientale, Novara, Italy
Peking University, School of Government, Center for European Studies (China)
Tsinghua University, Department of Philosophy (China)
Tsinghua University, School of Public Policy and Management (China)
Aix-Marseille University, CEPERC (France)

        Project LIBEAC
Liberalism in Between Europe and China

    WORKSHOP ON

SOCIAL, CULTURAL AND LEGAL PERSPECTIVE ON CHINESE –POLITICAL AND ECONOMIC – LIBERALISM TODAY

held at
Peking University, School of Government, Center for European Studies (China)

                                    Time: Morning, 8 Aug. 2014
                               
                      Beijing, China

8:00 - 8:30 Registration

8:30  Welcoming speeches

8:30 – 8:40
Addressing – Paolo Davide FARAH, West Virginia University (WV, USA), LIBEAC Legal Work-package Leader & Research Unit Coordinator at University Institute of European Studies – IUSE (Italy), gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

Addressing – Jean-Yves HEURTEBISE, LIBEAC Vice-coordinator at Aix-Marseille University, CEPERC - Research Center for Comparative Epistemology and Ergology (France); FuJen Catholic University (Taipei), Department of French Language and Culture; Kozmetsky Global Collaboratory in Stanford University (KGC, USA)

SESSION ONE

Chair and Moderator: Paolo Davide FARAH, LIBEAC Legal Work-package Leader & Research Unit Coordinator at University Institute of European Studies – IUSE (Italy)

8:45 – 9:25

LI Qiang, Assistant to the President, Peking University, School of Government,  Center for European Studies (China), LIBEAC Research Unit Coordinator at Peking University

The Influence of Liberalism in China

9:25 – 9:40  Discussants of the Paper – Vanessa KOPEC, Aix-Marseille University, CEPERC - Research Center for Comparative Epistemology and Ergology (France) & EU Commission Marie Fellow

Questions and Answers

9:40 – 10:20 Cui Zhiyuan, Tsinghua University, School of Public Policy and Management; LIBEAC Research Unit Coordinator at Tsinghua University, School of Public Policy and Management

Understanding Xi Jiping's Grand Strategy".

10:20 – 10:35 Discussants of the Paper – Jean-Yves HEURTEBISE, FuJen Catholic University (Taipei), Department of French Language and Culture; LIBEAC Vice-coordinator at Aix-Marseille University, CEPERC - Research Center for Comparative Epistemology and Ergology (France); Kozmetsky Global Collaboratory in Stanford University (KGC, USA)

10:35 – 11:05 ZHU Tianbiao, Peking University, School of Government

Neoliberalism and China’s Compressed Development

11:05 – 11:20  Discussant of the Paper - Paolo Davide FARAH, LIBEAC Legal Work-package Leader & Research Unit Coordinator at University Institute of European Studies – IUSE (Italy)

11:20 - 11:40  Zhang Xiang, Tsinghua University, School of Public Policy and Management

K’ang Yu-wei's Thoughts about the Problem of the Relationship of Politics and Religion

11:40 – 12:00 Roundtable Questions & Answers

12:00 – 12:15 Break




Chair and Moderator: ZHU Tianbiao, Professor of Peking University, School of Government

12:15 – 12:30
Paolo Davide FARAH, West Virginia University (WV, USA), LIBEAC Legal Work-package Leader & Research Unit Coordinator at University Institute of European Studies – IUSE (Italy), gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

Advantages and Disadvantages of Globalization and Liberalism toward Social, Economic, Environmental and Cultural Rights

12:30 – 12:45
Jean-Yves HEURTEBISE, FuJen Catholic University (Taipei), Department of French Language and Culture; Aix-Marseille University, CEPERC - Research Center for Comparative Epistemology and Ergology (France); Kozmetsky Global Collaboratory in Stanford University (KGC, USA)

The future of Chinese liberalism and the limits of Developmentalism

12:45 – 13:00
Fernando DIAS SIMOES, University of Macau, Faculty of Law (China) & Member of the Scientific Committee of gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

From Civic Behaviour to Environmental Citizenship

13:00 – 13:15
Round Table Discussion with all the participants

LI Qiang, Assistant to the President and Professor of Peking University, School of Government,  Director of the Center for European Studies (China), LIBEAC Research Unit Coordinator at Peking University

Vanessa KOPEC, Aix-Marseille University, CEPERC - Research Center for Comparative Epistemology and Ergology (France) & EU Commission Marie Fellow

ZHU Tianbiao, Professor of Peking University, School of Government

Jean-Yves HEURTEBISE, FuJen Catholic University (Taipei), Department of French Language and Culture; LIBEAC Vice-coordinator at Aix-Marseille University, CEPERC - Research Center for Comparative Epistemology and Ergology (France); Kozmetsky Global Collaboratory in Stanford University (KGC, USA)

Paolo Davide FARAH, West Virginia University (WV, USA), LIBEAC Legal Work-package Leader & Research Unit Coordinator at University Institute of European Studies – IUSE (Italy), gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

Fernando DIAS SIMOES, University of Macau, Faculty of Law (China) & Member of the Scientific Committee of gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)


The event is organized by gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom) in collaboration with the following beneficiaries  and partner institutions of the European Union Research Executive Agency IRSES Project “Liberalism in Between Europe And China” (LIBEAC) coordinated by Aix-Marseille University (CEPERC): University Institute of European Studies (IUSE) in Turin, Italy and the University of Piemonte Orientale, Novara, Italy Peking University, School of Government, Center for European Studies (China), Tsinghua University, Department of Philosophy (China). Workpackages 2 and 4

Expertise is now part of the judiciary process – think of forensic experts, but also, and especially, of psychologists whose knowledge has increasingly influenced the legal system in the past decades. What about knowledge or expertise in culture? Famous judicial cases regarding culture show a different status, e.g. Steven Kurtz of the Critical Art Ensemble, arrested for bioterrorism by the FBI in 2004 for possessing biotechnological materials for an art project commissioned by the Massachusetts Museum of Contemporary Art, or in another less known case, Cameron D’Ambrosio, a Boston teenager who posted terrorist threats on Facebook in the aftermath of the Boston Marathon Bombing of 2013, firstly charged then released since they were lyrics for a rap song, and thus fell under the 1st Amendment. I would like to assess the problem of encountering art in the language system of the judiciary by engaging recent developments in the legal system (especially with Mtre Pierre Rainville, working on irony and humour), and a semiotic approach developed by Juri Lotman.
The purpose of this paper is to evaluate the reciprocal reception process between art and law, but also the role of the media (in view of the public’s demands). In Lotman’s theory, the translation process between semiospheres starts at the periphery, and then reaches the center once the signs uttered by a specific agency are acknowledged as legitimate. Using two recent cases in Québec – Rémy Couture, charged then acquitted of obscenity for posting videos online, who used an expert in gore cinema for his defence, and David Dulac, charged and found guilty of uttering threats, even if almost all witnesses were from the institutional art milieu. The question I will be asking is: to what extent have experts in culture impacted, and could have impacted trials of these kinds? What would be the institutional effects of their influence? How is their expertise to be defined, and what would be its limits?

As a concept, contamination is organic, fluid, contagious, and affective. The grammar of contaminating law calls attention to the processes of change and becoming through which legal thought carries valence, effect and violence. And yet, contamination is inherently ambivalent. How might law alter the non-legal dimensions of life? How can the interaction between different legal orders and types of law be theorised through contamination? If contamination is already neutralised of its subversive power, what would it mean to pursue a politics of contamination against structures of domination that thrive on the symbolic idea of purity? Might law be interpreted as irreducibly pharmacological - at once medicinal and poisonous - always on guard against the horrors of an unchecked nature? What work might the unruly, irresponsible and risky body do in unmaking juridical ordering? From epidemics to blasphemy, the corporeal to the ephemeral, the precarious to the undying, to the uncertain horizons of environmental change, mass dislocations, and global financial instability, we invite creative responses to the theoretical problems and potentialities of contamination.

Convened with Thomas Andrews, Josh Paine and Oishik Sircar.

This article explores how, in the context of an unfolding process of
neoliberalisation in India, new terrains of resistance are crystallising for subaltern groups seeking to contest the marginalising consequences of this process. We focus particularly on the emergence of India’s ‘new rights agenda’ through a study of the making of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2013. Conceiving of the emergence of the ‘new rights agenda’ as a hegemonic process, we decipher how law-making is a complex and contradictory practice seeking to negotiate a compromise equilibrium between, on the one hand, subaltern groups vulnerable to marginalisation and capable of mobilisation; and, on the other, dominant groups whose economic interests are linked to the exploitation of the spaces of accumulation recently pried open by market-oriented reforms. The negotiation of this equilibrium, we suggest, is ultimately intended to facilitate India’s process of neoliberalisation.

This unique work analyzes the crisis in modern society, building on the ideas of the Frankfurt School thinkers. Emphasizing social evolution and learning processes, it argues that crisis is mediated by social class conflicts and collective learning, the results of which are embodied in constitutional and public law.

First, the work outlines a new categorical framework of critical theory in which it is conceived as a theory of crisis. It shows that the Marxist focus on economy and on class struggle is too narrow to deal with the range of social conflicts within modern society, and posits that a crisis of legitimization is at the core of all crises. It then discusses the dialectic of revolutionary and evolutionary developmental processes of modern society and its legal system.

This volume in the Critical Theory and Contemporary Society by a leading scholar in the field provides a new approach to critical theory that will appeal to anyone studying political sociology, political theory, and law.

Critical Theory of Legal Revolutions is a provocative and timely work of great importance to anyone interested in legal development, constitutionalism, the dynamics of globalization and the social conflicts that trigger and are triggered by these. Brunkhorst argues that struggles over power, prestige, and position in multiple social domains trigger legitimacy crises that have revolutionary as well as long term evolutionary effects. The thesis is demonstrated through comprehensive, systematic historical analysis that ranges from the papal revolution of the 12th century  to the egalitarian world revolution of our time. This is a must read for critical social theorists in every discipline.

Jean L.Cohen, Nell and Herbert Singer Professor of Conemporary Civilization and Political Science, Columbia University, USA

Abstract: Boys’ Love (BL) is a genre of manga which portrays sexual and romantic relationships between young, often adolescent, men. Perhaps surprisingly, most BL mangaka (artist-authors) are female and most consumers are teenage girls and young women. However, despite a renowned artistic pedigree and global associated youth subculture - consisting of one of the most sexually-benign demographics - BL distributors and audience are vulnerable to prosecution under recent English prohibited images of children legislation (Coroners and Justice Act 2009). English child pornography laws have become increasingly stringent. Legislation was first against production and dealing and then extended also to possession; moved from a narrow, actual-age-based definition of ‘child’ to a wider, impression-of-age-based one; and expanded the type of prohibited image from the photographic to include also free-hand drawings of fantasy encounters which might involve imaginary beings. This paper argues that BL problematises key assumptions of the prohibited images of children legislation in that the law invites a literal, and privileges a singular, reading of such fantasy, erotic, visual texts. The legislation invites a literal reading through implying that given criteria coherent for the assessment of representational texts (e.g., photographs of real children) can be applied also to non-representational texts (i.e., fantasy drawings): specifically, that protagonist age can, within the ordinary everyday parameters of impression, be determined but also that a series of problematic foci (genitals or anal region) and acts can be described void of context and awarded moral status similar to that of the real. Perhaps even more problematic, the legislation invites a singular reading of texts through priming a search for the specified and reified elements by a defined audience (magistrates, District Judge, or jury) under the remit that a certain constellation may warrant prohibition. That is, it alerts hegemonically-empowered or hegemonically-representational groups to a paedophilic reading and disavows other possible readings as irrelevant if these groups can find that reading. Importantly, as an interpretative community, BL fans’ own reading practices and understanding of genre conventions are discounted. Hence, paradoxically, a demographic the legislation is designed to protect (young people) is now, under its auspices, potentially vulnerable to prosecution through their BL fanship.

In this article I analyse one of the most important claims of the neoliberal policy prescriptions for Central and East European states in the early 1990s, that “communist” property should be “privatised.” My claim is that this neoliberal policy prescription was based on a number of false assumptions about what it was “communist” property, and a number of false assumptions about communist law. As a result of these assumptions, the post-communist process of privatisation was plagued by a host of unintended and negative consequences. Nevertheless, based on these false assumptions, the neoliberal ideology was capable to portray the privatisation as” rights based” and essentially a democratic process. I debunk these pretentions by showing that the reality of “communist property” was totally different than that assumed by neoliberal policies. The distinctiveness of communist arrangements of property resided not in absence of private property, which was tolerated under communism, but in the organisation of property as an administrative matter, based on unwritten operational rules. Moreover, the communist corporate law was more or less the similar with the “western corporate” law, so a simple change of formal law would not lead to the transformation of communist property into private property. If a transformation was desired, what needed to be changed was the operational rules accordingly to which the communist property operated. However, this was a level of “reform” totally ignored by the neoliberal policies, with the result that post “privatisation,” these operational rules continued to apply. The result was the great enrichment of the former communist managers who were able to benefit “privatisation” at the expense of the public, in a process which was not “right based” or “democratic.”

This paper critically examines the principle of uti possidetis, and its use within international law.

Such is currently in the process of being transformed into a chapter to be published within the edited text: The Stability of Borders and International Law: Fairness, Resources and Self-determination, to be published by Martinus Nijhoff, edited by James Summers et al(Lancaster University).