Book of panels and abstracts
Repairing the Migrant ‘Crisis’: Counter-Solidarity and Friendship
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- Navigate this page:
- Nation, Home and the Body
- Trafficking in Persons and the Rule of Law: Looking for a “Victim”
- Panel 5: Islamic Law: Contemporary Reconfigurations
- The Colonial Crafting of Islamic Law: Anglo-Islamic Jurisprudence
- Islamic Law and Gender Equality: A Critical Analysis
- Against Public Policy: Dutch courts dealing with Islamic Family Law
- The Position of the Organization of Islamic Cooperation on Abortion: Not Too Bad, Yet (Mystifyingly) Non-Existent
- Panel 6: Re-sistance, Re-expropriation and Re-enclosure
- Space, abstraction and appropriation
- Contesting Commoditisation: Property, Certainty and Emissions Trading
- From Property to Territory – The Alchemy of State Formation
- Panel 7: Recasting Rights
- Self-Determination of Indigenous Peoples under the Socialist Perspective
Repairing the Migrant ‘Crisis’: Counter-Solidarity and Friendship Bal Sokhi-Bulley, University of Sussex - b.sokhibulley@qub.ac.uk Friendship. A new ethical relation that respects alternative modes of being and counters the narrative of solidarity (between states) – can this be the ‘solution’ to the EU’s chronic migrant crisis? ‘Crisis’ is a seductive term and creates an imperative to ‘do something’. The aesthetic of the so-called ‘migrant crisis’ in the EU has seen increased participation by expert actors promoting good governance using the language of rights discourse. This focus on rights allows the EU to present itself, and to be seen as, a virtuous, even right-eous actor in the ‘migrant crisis’. But rights are increasingly insufficient and being supplemented by other values, notably solidarity. The aesthetic of crisis demands a common response where states fairly share responsibility and are in solidarity – and here is the point: the EU can only see solidarity as between states; it can do solidarity between states. But this way of conceptualizing solidarity as a tool to respond to the crisis is not the only way to use this tool – in fact, it is not the most effective, promising, friendly or right-eous way. The EU cannot do solidarity with migrants – solidarity human to human; it cannot calibrate this. I want to highlight in this paper that the migrant crisis is a crisis in solidarity and to ‘repair’ it call for a new ethics of solidarity, what I call a counter-solidarity. A counter-solidarity celebrates the human to human affective relation and represents something we might even call friendship, and so counters the negative impact that solidarity (between states) can have on the migrant as a legitimate rights claimant. The idea of friendship here is an ethical relation – and a reading I take from Michel Foucault’s later work on the thematic of friendship and relational rights. Nation, Home and the Body Brigitte Nicole Grice, Independent Scholar - brigittenicolegrice@gmail.com Mihaela Varzari, History and Philosophy of Art at the University of Kent - mihaela_varzari@yahoo.co.uk
Anette Sikka, University of Illinois Springfield - Asikk2@uis.edu This paper examines the role of anti-trafficking efforts as a measure of compliance with “the rule of law”, and the potential harms inherent in such assessments. Using the framework of Critical Legal Pluralism, I argue that an image of a paradigmatic “victim” has been created to supplement the legal vacuum created by the vagaries in the definition of “trafficking” in the Protocol to Prevent, Suppress and Punish Trafficking in Persons and that this paradigm has provided a politically useful symbol used to support only tangentially-related domestic criminal and immigration reform in the U.S. I suggest that there are highly gendered and racialized historical underpinnings to the fight against “trafficking” and that the use of this paradigmatic “victim” symbol further ensconces such biases. As a consequence of such political maneuvering, sex workers, migrants and people of color are subjected to increased oversight and the rights of these groups are truncated, rather than protected. Thus, I argue, establishing anti-trafficking efforts as a measure of compliance with “rule of law” assessment serves to internationally replicate and perpetuate the system of marginalization, surveillance and criminalization inherent to anti-trafficking programs in the United States. This outcome is antithetical to the perceived goals of rule of law programming. Although the “rule of law” is still a somewhat amorphous and under-interrogated concept by its practitioners, particularly when related to transitional justice, programming that serves to perpetuate further marginalization of vulnerable groups cannot be taken to be a meaningful assessment criterion for rule of law compliance. And yet, anti-trafficking efforts are a feature of many U.S. led rule of law assessments and programming. Furthermore, through the use of the Department of State’s Trafficking in Persons Report, such compliance is sought not only in places in which the U.S. specifically implements rule of law programming, but worldwide, and this paper suggests that such criteria have detrimental, rather than progressive impacts. Panel 5: Islamic Law: Contemporary Reconfigurations Chair: Qudsia Mirza Panel organisers: Qudsia Mirza (Birkbeck Law School) and Komal Patil (Divya Shah Associates) The increased presence of Muslims in Europe in recent decades has resulted in calls for the 'assimilation' of diasporic Muslim minorities in non-Muslim majority societies. This has often been associated with calls for changes within national legal systems to respond to, and accommodate, Muslims. Throughout the Muslim world, there are also calls for the ‘re-Islamisation’ of legal systems and laws. Both these developments take a variety of different forms, ranging from a re-institution of 'original' Shari'a precepts, or a re-configuration of Shari'a norms into more progressive contemporary forms, or simply a recognition that the practice of Islamic legal principles are based upon a navigation between 'secular' norms and religious standards. Consequently, there is a growing body of evidence that points to the development of new, hybrid forms in Islamic social and cultural practices, customs and laws, arising from the presence of diasporic Muslim communities in Europe. Muslims are negotiating their way through state 'secular' provisions and requirements which conflict at times with their 'Islamic' values and ideals. This process of negotiation has involved identifying those aspects of life which are culturally relative – and open to jettisoning or modification - from core 'Islamic' values, which are seen as inviolable and absolute. This process is, at times, problematic as can be seen with the need to reconcile gender equality and certain (conservative or orthodox) interpretations of Shari'a precepts. This panel invites participants to submit proposals to investigate the nature, scope and operation of Islamic Law in contemporary European societies. We encourage papers that address this issue from a theoretical or doctrinal level as well as papers that address specific areas of law. The Colonial Crafting of Islamic Law: Anglo-Islamic Jurisprudence John Strawson, University of East London, UK - J.Strawson@uel.ac.uk Guy Burak’s ground-breaking book, The Second Formation of Islamic Law (Cambridge University Press, 2105), offers a fascinating account of the transformation of Islamic law by the Ottomans from the 16th century (CE) with the adoption of the Hanafi school as the official jurisprudence of the Empire. The wielding of Islamic law for state purposes was a new development, which has many implications of contemporary legal and political enquiries. In this paper I want to turn to a parallel development within the British Empire, the Imperial practices of constructing an official Anglo-Islamic law (sometimes called Anglo-Mohammedan Law) from the 18th century. The focus will be on the way in which the Judicial Committee of the Privy Council was used to develop and Empire-wide form of Anglo-Islamic law. In the Bakhshuvem case in 1951, the Privy Council revealingly rejected arguments requesting a judgment to take into account classical positions of Islamic law and explained that on “a question of Mohamedan law decisions of the Privy Council in appeals from India must bind them.” In other words the official Islamic law of the Empire derived from British Courts not Islamic authorities. Taking a Saidian approach this paper will analyze the text of such judgments and other relevant case papers in order to reflect on the persistence of colonial influence on Islamic law in 21st century. Islamic Law and Gender Equality: A Critical Analysis Qudsia Mirza, Birkbeck, University of London, UK - q.mirza@bbk.ac.uk The emergence of Islamic feminism within the broader reformist movement is committed to the re-conceptualisation of gendered social, legal and political rights within Islam. The feminist project locates women’s rights within an exclusively Islamic discursive framework. It offers both a trenchant critique of orthodox Islamic thought as well as opening a new phase in the politics of gender and of feminist theorisation in diasporic Muslim communities in Europe as well as in Muslim majority societies. The reform of Islamic law is seen as one of the principal means by which the inequalities and discrimination women have suffered under 'incorrect' interpretations of Islam can be addressed. Implicit in any form of Islamic feminism is the understanding that law is highly gendered and that it plays a significant role in constructing and underpinning gender hierarchies. Islamic feminism is predicated upon identifying such laws and offering suggestions for reform by which gender equality can be instituted in the areas of marriage, divorce, child custody, inheritance and evidence - the key areas that are considered most problematic in terms of gender equality. In this paper I will explore key Islamic feminist positions and their implications for the reconfiguration of Islamic Law and gender equality. Although such theorizations offer great potential for change, there are certain substantive and methodological issues which revolve around the notion of gender equality that I will critique in this paper. Against Public Policy: Dutch courts dealing with Islamic Family Law Iris Sportel, Lichtenberg Kolleg, Georg-August University Göttingen, Germany - Iris.Sportel@zentr.uni-goettingen.de Through private international law, European courts can come into contact with a wide range of “foreign” family laws and concepts. When migrants aim to register their marriage, divorce or take family disputes to court, courts in the country of residence may apply the laws of their country of origin. In the context of increasing migration from the Middle-East to Europe, European courts are confronted with a growing number of disputes which involve aspects of Islamic family law. In the Netherlands, where views of Muslims and Islamic family law are highly politicised, the application of sharia-based family law systems by Dutch courts is especially controversial. This paper will be based on an analysis of court cases, both published as well as collected in a research project on transnational Dutch-Moroccan and Dutch-Egyptian divorce, in addition to interviews with Dutch lawyers, translators, NGOs, and other professionals involved in court cases of migrant minorities. I will focus on Dutch courts dealing with shari’a-based legal concepts in family law cases. How do professional actors see Islamic family law, and what does this mean for contested topics as polygamy and talaq (repudiation)? How do judges and lawyers appeal to public policy in these cases? If and how do actors in the legal system take into account the effects of Dutch court cases on the legal situations of family members in the country of origin? And how can this be connected to general discourses on Islam, Muslims, family law and rights in the Netherlands? The Position of the Organization of Islamic Cooperation on Abortion: Not Too Bad, Yet (Mystifyingly) Non-Existent Ioana Cismas, University of Stirling, UK - Ioana.cismas@stir.ac.uk In the wake of the “Arab Spring”, Shereen El Faki explains that if the latter is understood as a contestation of power relations, alongside political, economic and social elements, sexuality as an instrumentalizable element of such relations cannot be neglected. This paper subscribes to such understanding in as far as sexuality is regarded as an element of power relations, “bound up in religion, tradition, culture, politics, and economics”. At the same time, it seeks to avoid essentializing any of these factors. Built on such premises, the aim here is to explore the Organization of Islamic Cooperation (OIC) on one of the features of sexuality: abortion. The study is driven by a doctrinal legal approach and draws on socio-legal insights which together permit an examination of the dialectic interplay between the OIC and its member states. This methodology also allows for an exploration of the relation between the OIC’s normative position and the discourses made on the global stage by OIC representatives. In terms of structure therefore, abortion is first placed within the context of feminist thought and the current international human rights law framework. Second, relevant provisions of the OIC Cairo Declaration on Human Rights in Islam and the Covenant on the Rights of the Child in Islam are examined. Third an overview of the practice of member states is provided, whereby practice is understood to comprise domestic legislation and policies on abortion, and their consequence on the lives on women. Fourth, the normative position of the OIC and member states’ practice are contrasted to the stance adopted by the Organization in relevant UN fora. The conclusion assesses the findings and inquires in what ways the OIC’s institutional voice on abortion could be shaped in the future. Panel 6: Re-sistance, Re-expropriation and Re-enclosure Chair: Olivia Barr Panel organisers: Lara Montesinos Coleman, Robin Dunford and Lucy Finchett-Maddock (University of Sussex) New waves of primitive accumulation or accumulation by dispossession are occurring, in Europe and beyond, through, amongst other things, land grabs, water grabs, resource grabs, urban gentrification, the clearing of social housing, mortgage foreclosures, financial regulation and authoritarian responses to capitalist crises. This panel explores the intersections between these logics of (re)expropriation and forms of struggle, resistance and (re)appropriation that have arisen in response to them, such as (amongst much else) land occupation, urban squatting, or appeals to rights, demands for judicial and non-judicial remedy. Space, abstraction and appropriation Chris Butler, Lecturer in law, Griffith Law School - c.butler@griffith.edu.au Explorations of the social, embodied and imaginary dimensions of space have been a consistent feature of the successive waves of theoretical innovation that have accompanied the spatial, relational and material ‘turns’ in the humanities and social sciences during recent decades. Two important background influences for much of this scholarship have been Henri Lefebvre’s account of the abstract constellation of spatial tendencies that characterise contemporary capitalism, and his concept of the ‘right to the city’, which opens up possibilities for the reappropriation of space. However there are a number of limitations to the reception of his work within legal theory and the interdisciplinary field of law and geography studies. Perhaps the most obvious of these problems is the way in which the right to the city has been increasingly subsumed within a positivist and bureaucratically reformist agenda, which inevitably undermines its most radical implications. In this paper, I will suggest that an alternative to such anodyne formulations lies in a rethinking of the relationship between abstraction and appropriation. It is only through understanding the right to the city as a demand for the political and aesthetic appropriation of space, which rejects both the violent abstractions of juridification and the moralistic repudiation of abstraction as such, that it might be possible to deploy this concept as a ground for resistance to dominant forms of spatial production. Contesting Commoditisation: Property, Certainty and Emissions Trading Bonnie Holligan, Lecturer in Property Law, University of Sussex - B.Holligan@sussex.ac.uk The proposed paper investigates the process of “propertisation”: the placing of legal and material boundaries around a (corporeal or incorporeal) thing to allow it to become the object of property rights. As David Harvey, among others, has argued, what counts as an individual resource is both a matter of convention and a socio-technical achievement. The extension of property rights plays a crucial role in the creation of new commodities and the extension of markets, but this process also engenders resistance on a variety of levels: material, social and legal-technical. The paper focuses on the creation of property rights in environmental goods, in particular rights under various “emissions trading” schemes, and the specific role of property law in creating what Scott Prudham terms “social relations of abstraction”. In Armstrong DLW GmbH v Winnington Networks Ltd, an allowance under the EU Emissions Trading Scheme was held by the High Court in England to be “property” on the basis that it was definable, identifiable, transferable to third parties and had sufficient permanence and stability. The paper seeks to unpack some of the contradictions within this analysis, arguing that the certainty necessary to create stable and secure property rights runs contrary to the complex and chaotic nature of biological systems. There is a fundamental question about the extent to which one unit of ecological function in one location can ever be equivalent to another and the extent to which, by isolating particular functions from their ecological and social context, we risk legal and ecological incoherence and the severing of important connections between people and places. From Property to Territory – The Alchemy of State Formation Henry Jones, Lecturer in Law, Durham Law School - h.r.g.jones@durham.ac.uk This paper is about the creation of the two modern legal systems for ordering and controlling space: property and territory. These ideas are political technologies for ordering space, controlling actions within that space, and ultimately shaping the subjectivity of the people in those spaces. It takes an historical and literary approach to these developments. The historical study will explore the creation of these methods of legally constructing space. The literary study gives access and understanding to different forms of organising space which have been lost. I am looking at the indigenous stories of England, English property law, and English colonialism. Cumulatively this paper reconnects property and territory, and therefore private and public social and spatial ordering through law. The argument is in four parts. The first uses Jim Crace’s novel Harvest to illustrate the process of enclosure in England, as well as understanding pre-enclosure life. The second internationalises this process by connecting these practices over private property with similar international processes of state formation seen in Stuart Elden’s book The Birth of Territory. The third illustrates how this connection can be seen in the work of John Locke. Locke’s writings on property in particular show a connection between domestic enclosure and colonialism. The final part returns to literature, looking at Brian Friel’s play Translations, in which the violence of cartography is laid bare in a setting which is at once domestic and colonial. This purpose of this argument is to draw together the concepts of property and territory, to understand that both these legal concepts are important political concepts, and potential sights of contestation. Panel 7: Recasting Rights Chair: TBC A Right-Claim as a Political Challenge Konstantine Eristavi, University of Edinburgh - s0962815@sms.ed.ac.uk The main objective of my paper is to capture the radical dimension of human-rights-claims through the example of a transnational movement of peasants, La Via Campesina, which makes an extensive use of the language of rights. I will demonstrate how the leading conceptualisations of human rights fail to explain the transformative core of the movements like La Via Campesina. For this purpose, I will classify the leading theories in terms of how they understand the performativity of rights-claims. The latter are usually considered to be either commands, the recognition/enforcement of which is authorized pre-politically (e.g. naturalistic and functionalist conceptions); demands which lack such prior authorization (e.g. Lefort, Ranciere); political proposals made to co-citizens (e.g. Arendt); declarations which constitute new political subjects (e.g. Gündoğdu); or some combination of the latter three. While rights-claims understood as commands and demands cannot exceed the possibilities provided by the extant order - insofar as both of these speech acts presuppose the capacity of the addressee to realize the content of the issued speech act, - rights-claims as proposals and declarations fail to capture the conflictual nature of rights-claims. My contention is that the radical dimension of a right-claim can be grasped only if we understand it in terms of the speech act of challenge. A right-claim as a challenge intends to demonstrate the extant order’s incapacity to realize the right in question. This is an act of provocation that questions and politicises the fundamentals of the existing system and, thereby, initiates a political space where a new alternatives can be deliberated and contested. Going back to my main example, the theory of rights-claims as challenges helps us rethink La Via Campesina’s call for the right to food sovereignty as precisely such a challenge; a challenge to the current systems of production and distribution of food, which triggers a radical discourse capable of transforming prevailing social relations. Self-Determination of Indigenous Peoples under the Socialist Perspective Chris Chu Cheng Huang, Institute of Law for Science and Technology, National Tsing Hua University, Taiwan - itic.adhoc@gmail.com Peoples as social creatures endowed with the right to self-determination are limited in modern international law. Culturally or politically cogent communities resided in colonies before the two World Wars, or even the dependent and auxiliary nation-states per se were admitted as peoples to that collective rights under ICCPR. Yet neither treaties nor judicial practice recognized indigenous peoples of the existing states are entitled with the same right until the 2007 UNDRIP were adopted. In fact even under this innovative instrument if the oldest polities have the right to cession is still contentious, though which is conceived as an indivisible leverage to implement the right. It is therefore necessary to understand the factors either in the form of national policies or judicial practice that shaped the right before we can describe its context. Leaving the Latin-American states which developed the right under an alternative Monroe’s legacy, it is to our surprise that since its drafting stage the UNDRIP was supported by many socialist states including China. Without doubt the socialist’s international law scholarship (SILS) played important roles in formulating source of current international law, yet the study of which values did they focused upon and rationale to implement for the UNDRIP may provide a real picture of the residual impact of SILS in modern days. 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. 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