Book of panels and abstracts
Law’s Time: the temporal dimensions of responsibility and vulnerability in law
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- The Precarity of Judgment: Temporal Spectrality and the Legal Subject
- Locating the temporalities of vulnerability
- Panel 2.
- Against and with all odds: Foucauldian perspectives on time and temporality in family migration.
- Multiple Parents and the Temporality of the Family
- Panel 3. Spaces of precarity: race, belonging and temporality
- Cashless Welfare Transfers for ‘Vulnerable’ Welfare Recipients – Law, Ethics and Vulnerability
- The body that loses its chair”: ‘New’ legal temporalities and the racialised subject
- Panel 4. Courts and the multiple temporalities of vulnerable bodies
- The (In)Vulnerable Female Asylum Seeker in Strasbourg
- Childhood and vulnerability in ECtHR immigration cases
- Panel 5. Vulnerable subjects: timely construct against persistently unequal relations
- Future Generations as Vulnerable Subjects: Out of Sight, Not Out of Mind
- The subject or object of law: a trap of civil law equality.
Law’s Time: the temporal dimensions of responsibility and vulnerability in law. Jill Stauffer, Assoc. Haverford College, Haverford In this paper I’ll use two cases—ex-child soldiers brought to justice as perpetrators and indigenous people using oral history to make legal claims—to show how law’s account of time begins to fray wherever its rules and procedures meet the limits of an assumed linear legal time. These limits draw the contours of some otherwise unseen vulnerabilities—of persons and populations made marginal by legal forms, but also of the law itself. A more expansive description of time and temporality, relying on phenomenology and testimony, can both make that clear and point toward a new way of thinking about vulnerabilities, the formation of legal claims, and the aims of law. International law tends to hold that children under the age of 15 or 18 cannot be responsible for their actions. But what happens if a child who was abducted at age 10 is indicted by the International Criminal Court 20 years later? At what point did s/he pass the line between too young to be responsible and old enough to have known better? Law’s answer seems to be that time itself should have made them responsible. But that answer can’t capture the vulnerabilities of ex-child soldiers, their victims, or of the law to its own impoverished view of what it means for time to pass. Both Canada and the U.S. have begun to listen to oral history as legitimate evidence rather than hearsay in cases involving indigenous peoples. This is an issue of justice and difference, but also of time. Oral history isn’t an account of past events; it is itself the event. When courts allow evidence in that form but then judge it as if it were western history, they find a new way to fail to do justice to other ways of conceiving time, and they create new vulnerabilities to harm in an already oppressed population. The Precarity of Judgment: Temporal Spectrality and the Legal Subject Thomas Giddens, St Mary’s University. In Derridean thought, the spectre is an absent presence, an invisible image—it is by very definition (in)visible. The idea of a legally constituted person is widely recognised to be linked with the concept of persona; it is a mask we wear to come before the law as its subject. And masks are haunted by that which they obscure; they make present that which remains absent and inaccessible behind the mask. But distinct from the revenants or ghosts that return from the past, the Derridean spectre is also intricately linked with concerns of vision—it is that which can see but remain unseen. As found in Hannah Berry’s graphic novel Adamtine, the panoptic presence of the law over the legal subject—which is always behaving in relation to the regulations that constitute it—is arguably a haunting one. Just as our humanity remains spectral behind our masks of subjecthood, as legal subjects the source of law’s authority is always present to us as an absence we cannot access. The legal subject is thus caught, trapped, between two spectral fronts. Time is also spectral. The present moment, including the moment of judgment, is always a play of traces; it is the absent presence of past and future. As satirised in the instant justice of Judge Dredd, the point of judgment is a closing down, a coming to a point, a denial and a repression of any further or other interpretation. The crystallisation of a judicial decision is thus also a play of traces: of the preceding deliberation and interpretive considerations, as well as of possible futures, of continued interpretation. The moment of juridical closure is thus a spectral one, haunted by that which might precede and follow it. The legal subject, already doubly spectral in its constitution, is thus maintained through an on-going string of spectral moments. And this deeply engrained spectrality brings with it significant epistemological connotations. For the spectre, as something that watches, always implies the existence of another perspective, of an other scene of viewing and knowing the world. The spectral quality of law thus reflexively embeds the potential for law to be disfigured, disintegrated—undone and remade in different forms. The processes of bringing justice, the ‘final’ judgments of legal adjudication, are thus always ingrained with their vulnerability, their potential to be otherwise. Locating the temporalities of vulnerability Tiffany Page, Goldsmiths University Vulnerability has come to prominence within North American and Western European feminist theory through its ethical potential as a shared condition connected to exposure and risk of injury and wounding. One of the difficulties in working with conceptions of vulnerability is the way in which it is understood, both singularly and simultaneously, as an embodied, ethical and political term. Within this motif of vulnerability, I want to remain with the tension that exists between vulnerability as a universal, bodily ontology, and the way it is simultaneously differentially experienced and distributed across particular bodies. Being able to speak of something shared, that is distinct from the specific conditions and ways in which bodies are impinged upon, suggests a temporal primacy to an ontological or foundational condition as a means of connection, which occurs prior to any form of injury that might be inflicted upon certain bodies and by certain bodies. I suggest that thinking through the time of vulnerability and examining the temporalities invested in universal and local imperatives might help to work at and through the tensions of the shared and the specific. In this paper I will address how different temporalities might play out across particular bodies, and how this might enable the emergence of elements or qualities of vulnerability that are transposed unevenly across bodies and locations as people make lives and endure particular conditions. Panel 2. Time Disjunctions and Temporalizing Regulations Chair: Thomas Giddens The Times of Ort des Erinnerns: Walter Benjamin, Memorials, and the Nuremberg Race Laws Tiffany MacLellan, Carleton University in Ottawa, Canada Renata Stih's & Frieder Schnock's de-centralized memorial simply titled Ort des Erinnerns, or, Places of Remembrance, made its public debut in 1993. Spread across the Schönenberg district of Berlin, the memorial consists of eighty signs, each expressing a different, single provision from one of the 1933 – 1945 Nuremberg Race Laws. In this paper, I adopt Walter Benjamin’s acerbic critique of historical time and approach Places of Remembrance through his methodology of historical materialism. Interpreted from this vantage, I argue that the past is re-staged and made new again and again in the present by Places of Remembrance, continually interrupting liberal notions of law as the guarantor of rights. In doing so, the memorial illuminates the imagined relationship between rights and the protection of vulnerable communities in the present. Against and with all odds: Foucauldian perspectives on time and temporality in family migration. Alexandra König, Birkbeck School of Law, London; MA in Gender Studies and Political Science, University of Vienna. Set against the background of an interest in the de-/construction of family migration, this paper develops a reading of Foucault’s notion of governmentality and biopolitics. This contribution particularly aims at exploring the role of time and temporality in Foucault’s power analysis and its potential connection to law. In particular, this paper will discuss the role of normative constructions of time and temporality in the regulation of family migration through law. As will be argued, law is a vehicle to fixate specific notions of family and migration over time and space. But, moreover, specific constructions of time and temporality contribute to the stabilization of notions of family and migration. This analysis thereby aims to contribute to a deeper understanding of the role of space and time for the re-/production of heteronormative and racist social orders in the governance of the so-called "migration crisis". In particular the discussion will flesh out how time and different notions of temporality inform the biography of the “other” (i.e. of migrants-as-populations and migrants-as-subjects). The argument will unfold along the discussion of empirical examples. These include amongst others how a notion of hegemonial biography of the “other” is unrolled through articulations of specific temporal horizons in the realm of how integration trajectories and related legal regulations are construed in the context of Austria. Multiple Parents and the Temporality of the Family Haim Abraham, University of Toronto Recently, multiparental family structures, in which there are more than two parents, have become common. As these families are not recognised by formal law, they resort to using parental agreements to gain social status and define rights and obligations. Generally, such agreements are not recognised by states, meaning that parental status is awarded to two individuals at most, leaving the family unit vulnerable with many issues uncertain – e.g. custody, citizenship, holding and succession of property, social support and legitimacy. Previous papers addressed the ways in which multiparental families should be recognised (e.g., Baker, 2008; Bartlett, 1984; Jacobs, 2007), but they have not taken into account the various types of multiparental families, how the status of the child (planned, conceived, or born) should influence parental recognition, nor did they compare how different jurisdictions recognised and regulated multiparental families. This paper analyses the instances in which legislatures and courts of England, California, and British Columbia treated multiparents. This analysis shows that this treatment varies from non-recognition of any status, through regulation of the multiparental family (i.e. determining who is a parent and what is the scope of the parent’s rights and responsibilities), to the recognition of the multiparental family by giving legal force to parental agreement. Drawing on this analysis, the paper suggests that parental agreements of multiparental families should be recognised by the state while the family unit is functioning, taking into consideration the family’s past and present. However, dysfunctional families should be regulated similarly to “traditional” families, placing more emphasis on the child’s current and future best interests. Furthermore, the history of families as an institution, alongside possible future implications to society, should be ignored while determining who is a parent. Thus, a proper balance is struck between the vulnerabilities of the family unit, its individual members, and the child. Panel 3. Spaces of precarity: race, belonging and temporality Chair: Arturo Sanchez Garcia From Land to Futures: Are Title Registries like Time Machines? Sarah Keenan, Birkbeck School of Law While conveying land through title deeds was reproductive of the land’s local history, conveying land via title registries frees title from the land to which it pertains. Registered title can then be reformulated into securities and other speculative financial instruments which are conceptually and practically located in the future. This reformation and temporal relocation is made possible via the mirror and curtain principles which underlie Torrens and other contemporary title registration systems. The mirror and curtain principles create an enforceable legal fiction that land has no history and no life beyond what is recorded on the register. The results this legal fiction makes possible include landscapes that are reminiscent of dystopias previously confined to the realm of science fiction - life-filled suburbs become derelict, tent cities appear beside rows of vacant houses and flower farms appear where rice once grew in areas where residents die of hunger. Engaging with literary and philosophical understandings of time (Bastian, Greenhouse, Mawani) and with critical finance studies (Alessandrini, Poovey, Riles), I argue that title registries might be understood as time machines. Cashless Welfare Transfers for ‘Vulnerable’ Welfare Recipients – Law, Ethics and Vulnerability Shelley Bielefeld, School of Regulation and Global Governance (RegNet), Australian National University. Feminist scholars have elaborated an ‘ethics of vulnerability’ with an emphasis on respecting and fostering autonomy, highlighting that concepts of vulnerability can be used in ways that perpetuate institutional harm, deny autonomy, and constrain capacity. Catriona Mackenzie explains that ‘pathogenic vulnerability’ can result in ‘interventions designed to ameliorate inherent or situational vulnerability’ which produce ‘the paradoxical effect of increasing vulnerability’ (2014: 39). This framework will be used to analyse cashless welfare transfers for recipients defined by the Australian government as ‘vulnerable’ who are subject to coercive income management. Income management (IM) originally targeted Indigenous welfare recipients as an element of Australia’s 2007 Northern Territory Emergency Response. Under this scheme 50 per cent or more of a welfare recipient’s income was subject to compulsory IM, with funds generally spent using a government issued BasicsCard. The scheme has been extended by legislative amendments (2010, 2012, & 2015), resulting in a range of specific IM categories, most of which automatically apply to welfare recipients residing in government targeted geographical locations. ‘Vulnerable’ welfare recipients are an IM category under the Social Security (Administration) Act 1999 (Cth) s 123UGA, and those in this category are likely to be income managed indefinitely. IM prohibits expenditure of income managed funds on alcohol, tobacco, pornography and gambling products, and the scheme has been broadly associated with these stigmatising prohibitions. The BasicsCard requires welfare recipients to spend income managed funds at government licenced retailers on legislatively defined priority needs, which limits consumer choice. Empirical research indicates that those subject to vulnerable IM are experiencing a range of negative outcomes yet to be addressed by law and policy makers responsible for the scheme. These include increased financial hardship, misrecognition of budgetary capacity, mental health problems, diminished well-being, restricted travel capacity, barriers to accessing housing and ongoing racial discrimination. “The body that loses its chair”: ‘New’ legal temporalities and the racialised subject Nadine El-Enany, Birkbeck College, University of London.
Chair: Carolina Y. Farusho The court as the narrator: narrative strategies in the construction of children as legal subjects Kristina Hultegård, University of Gothenburg, Sweden. In this paper, I argue that written verdicts, in its descriptions of the world arisen in the legal case, is severely limited by narrative writing techniques. The verdicts, read through traditional narrative techniques, is found to contain characters and dramaturgical twists and clichés which we know from fiction rather than the physical world. This is seen not least through the way in which the Court uses chronology, causality, rhythm and metaphors to write up a description consistent with the argument. In recent years, written judgments in Swedish courts have increasingly been seen to be written according to the “woven” technique. This occurred after direct guidance from the Court authority. Thus, the Court weaves together the described chain of events with the legal argumentation. The descriptive part of the verdict is not separated from the argumentative, presumably causing the Court’s descriptive writing to adapt to its purpose. This gives rise to an interest in the descriptive part of the verdicts, not least with regard to those legal subjects that only to a small extent will be heard in the proceedings of the Court. I myself have come to develop a special interest in the Court’s descriptions of children. I am interested in the extent to which the Court's description of the child reflects known narrative patterns and to what extent it reflects actual children. My study is conducted through the reading of verdicts, in which the child and the child's life is up for review, along with the theories of narrative techniques developed within the narrative discipline. The (In)Vulnerable Female Asylum Seeker in Strasbourg Lourdes Peroni, Human Rights Center, Ghent University, Belgium. Using feminist analysis, the paper will discuss problematic lines of reasoning in the European Court of Human Rights’ (the Court) Article 3 case law concerning women whose asylum applications were unsuccessful at the domestic level. First, the paper will show that the Court often under-scrutinizes the structures that heighten women’s vulnerability to gender-based violence in their countries of origin. In particular, the Court does not meaningfully examine state incapacity/unwillingness to protect women against violence by non-state actors in such countries. Rather, it readily scrutinizes women’s ability to protect themselves or their children. Thus, women’s strength, independence and education are implicitly taken as indications of their invulnerability to violence. Implied in this line of reasoning is an exclusionary ideal of vulnerability as inherent helplessness that simultaneously obscures the role that state institutions may play in reducing or increasing vulnerability. More fundamentally, this line of reasoning overlooks the ways in which vulnerability and agency, rather than opposites sides of a dichotomy, may be mutually enabling. Second, the paper will problematize the Court’s reliance on women’s male protective network when assessing the risk of ill treatment in their countries of origin. In these cases, the Court usually concludes that expelling women would not be contrary to Article 3 because they have male relatives who can protect them against gender-based violence back home. The paper will argue that this line of reasoning risks entrenching the gendered structures at the root of women’s vulnerability while overlooking that the threat often comes precisely from male relatives. Ultimately, the paper will explore the underlying links between female asylum seeker’s self-reliance, male protection and (in)vulnerability to gender-based violence in Article 3 ECHR case law. Childhood and vulnerability in ECtHR immigration cases Ellen Nissen, Centre for Migration Law/ Institute for Sociology of Law. Various scholars have examined the notion of vulnerability in human rights law (Turner 2006, Morawa 2003) and particularly the case law of the European Court of Human Rights (ECtHR)(Peroni 2013). Building on these contributions, this paper examines the relationship between the notion of vulnerability and the social construction of childhood in immigration cases ruled by the ECtHR. It does so by looking at children both as a group and as individuals, with the aim to tease out explicit and tacit conceptions of the vulnerability of children. The concept of childhood is a modern phenomenon that has resulted in a separation of the world of children from the world of adults. Justification for this different treatment is grounded in ideas of children as vulnerable and in need of protection. The Convention on the Rights of the Child (CRC) is an example of how the law reinforces the idea of childhood as a separate category. The CRC recognizes the vulnerability of children, while at the same time promoting an image of the child as an autonomous agent, in order to counter misplaced paternalism (Peroni 2013). This paper uses the vulnerability lens to scrutinize the Court’s use of the best interests principle and children’s rights which are grounded in these somewhat contradictory images of the child. It furthermore examines which conceptions of the vulnerability of individual children emerge in the Court’s case law and how this vulnerability is connected to time, e.g. time spend apart from a parent, removal after having spent a certain period of time in a country, time away from the country of origin. By making tacit notions of vulnerability more explicit the paper aims to facilitate debate on children’s rights and make their presuppositions arguable (Reynaert et al. 2008). Panel 5. Vulnerable subjects: timely construct against persistently unequal relations? Chair: Lourdes Peroni How do intimate relationships make us vulnerable and why should the law respond? Ellen Gordon-Bouvier, University of Birmingham My paper focuses on the legal response to unmarried cohabitation and considers the issues from a vulnerability perspective. My main argument is that the current legal regime (the constructive trust and proprietary estoppel) is based on a fictitious image of the liberal, autonomous subject. This imagined legal subject is rational, economically self-sufficient and self-interested. The legal subject is, as Jennifer Nedelsky has argued, “bounded” and unconstrained by the complex network of relationships that constitutes family life. I argue that the legal regime in this area is an example of what Martha Fineman terms the “restrained state”. It seeks to reinforce the ideal of the autonomous family, within which vulnerabilities become invisible and privatised. It sends the message that caring work within the family and home is not of equal value to economic contributions. My argument is that the state has a duty to respond to inequalities that are created within intimate relationships. This is because the liberal tradition of the restrained state has forced dependency to become the sole responsibility of the family or the intimate relationship. As a result, parties organise their relationship in a manner that creates vulnerability through unequal allocation of tasks. I term this ‘relational vulnerability’. There are various ways in which relational vulnerability can arise and these vulnerabilities are exacerbated over time and over the course of the relationship. My paper concludes that the state in meeting its responsibility to correct relational vulnerability, needs to focus on enabling resilience through a careful analysis and response to relational inequality. This can be done in various way, but one option is through the allocation of resources and subsidies. Future Generations as Vulnerable Subjects: Out of Sight, Not Out of Mind Michael Monterossi, University of Venice. Starting from a critique of the liberal subject, legal scholars have begun to theorize a multifaceted concept of ‘vulnerable” subject, who is structurally exposed to the risk of being harmed by circumstances which cannot be handled alone by the self-sufficient/autonomous being. Vulnerability has thus become the pivotal point from which to re-think legal policies in a way that forces the state to respond actively to the unequal distribution of material opportunities which impedes one’s ability to be ‘resilient’. Indeed, such issues arise even with respect to future generations, whose lack of autonomy and inability to affect present political decisions make their opportunities/capabilities structurally dependent on the socio-economic resources that states’ policies are able to guarantee them: the deprivation of such assets will increase potential vulnerability over time, creating the premises for a future of greater inequality. Considering the above, this paper explores the possibility of construing future generations as ‘vulnerable-legal subjects’: an expedient to render them visible in legal discourse, thus breaking the legal temporality of ‘here-and-now’ and stimulating positive obligations by the state to ensure the socio-economic environment necessary to express their capabilities when they come into being. This interpretation challenges the modern concept of legal subjectivity, which refers only to anthropomorphic and liberal beings. The historical perspective reveals that they are both ideological results of the legal principle of ‘formal equality’. Making all humans legal subjects has definitely dissolved the original Roman Law separation between ‘natural’ and ‘juridical’ person while leading to the concept of the self-sufficient/autonomous subject. The discourse on future generations can be used as a legal tool to unhinge such a twofold notion, which constitutes a fundamental step in disrupting the private/public dichotomy, untying the subject from an anthropocentric-liberal view, redefining the role of the state and the horizontal time-frame policy and enlightening their reciprocal interdependency. The subject or object of law: a trap of civil law equality. Katarzyna Wojtkowiak, Gdańsk University. The paper explores the problem of mental condition in the light of Polish relations under civil law as an example. As the main principle of Polish relation under civil law assumes equality of both parties it may leave the impression that the act of pursuing free will would be respected and manifested outside in a form of formalized, mutual and fair agreement. Underlying this conception, however, is a wide variety of vulnerable mental states. The question then arises, is the vulnerable party the subject or an object of law. How the vulnerability in the relations under civil law can arise. How law manifests its power and forces the vulnerable to eventually double their vulnerability. Finally, how and why law becomes the oppressive force rather than a carer. The problem needs to be analyzed from different angles, also taking into consideration possible radicalization of political trends. In the background there is the time, the constant change in social needs on one hand and on the other – the bone structure of law, and in the age of multiverse and epigenetics theories it can leave us with even more question – as for ethics of a given legal solution. 1 Cover, “Violence and the Word,” 1601. 2 Interfax, according to Süddeutsche Zeitung, 1./2. September 2007, p.12. 3 N.M. Matte, Outer Space Treaty; In: R. Bernhard (ed.), Encyclopedia of Public International Law, Installment 11, p. 252. David Rome, The Jewish Biography of Henri Bourassa, Part 1, (Montreal: National Archives of the Canadian Jewish Conference, 1988), 94. 4 William T. Cavanaugh, Torture and Eucharist: Theology, Politics, and the Body of Christ (Blackwell Publishing, 1998) 2. 5 E.g. the work on accountability of the Business & Human Rights Resource Centre, at http://business-humanrights.org/en/corporate-legal-accountability (last accessed 4/1/15). 6 Ann Bartow, ‘Janet E. Halley, Split Decisions: How and Why to Take a Break from Feminism’ (Princeton University Press, 2006).’ Windsor YB Access Just. 26 (2008): 391, 395. 7 Stöckl, Heidi –Devries, Karen – Rotstein, Alexandra –Abrahams, Naeemah – Campbell, Jacquelyn – Watts, Charlotte – Garcia Moreno, Claudia: The global prevalence of intimate partner homicide: a systematic review. Lancet 2013; http://dx.doi.org/10.1016/S0140-6736(13)61030-22013. Directory: law law -> Law in American Society Black History Month Essay Contest law -> A brand New Image? Should Personality Rights be law -> Jurisdiction of the Courts law -> Luther V. Borden: a taney Court Mystery Solved law -> ‘Intellectual Property Rights in Sport’ law -> The law of tort introduction a. What is a Tort? law -> Law of Delict Chapter 1: General Introduction law -> Appendix C: Federal and Minnesota Case Law Summaries Download 0.92 Mb. Share with your friends:
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