Book of panels and abstracts
Intervention and Dispossession: Biopolitics and Indigenous governance in (post)colonial Australia
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- Three great men sit in a room, a king, a priest and a rich man with his gold…” Or How to
- Panel 6. Bodies. Borders. Bio-Politics
- Healing the North Korean Skin: Somatechnics of Sovereignty in South Korea
- From Worker to Entrepreneur of Himself; The Transformative Power of the Homo Economicus and the Freedom of Movement
- Panel 1
- The Blockchain and European Union Private International Law
- Between Scylla and Charybdis: Lessons From A Comparative Analysis of the Regulation of Bitcoin in the United States and the United Kingdom
- Organic Digital Contracts – Organic Digital Things
- Panel 2: Blockchain Roundtable
- 4. The Crisis of Democracy in an Antipolitical Age
Intervention and Dispossession: Biopolitics and Indigenous governance in (post)colonial Australia Mark Harris, University of British Columbia, Canada - mark.harris@ubc.ca This paper is concerned with two moments in Australia in the last decade that reflect the extent to which Indigenous Australians are caught within racist and biopolitically administered forms of power; the Northern Territory Intervention of 2007 and the decision made by the Western Australian government in 2015 to close 150 remote Aboriginal communities. Central to both moments is the framing of the Indigenous communities in the respective State/Territory as being either morally dysfunctional or economically unsustainable. The governance measures introduced in the respective territories are based upon funding cuts and legislative measures which have the effect of erasing Indigenous difference. In short the exercise of bio-power within the context of the Northern Territory intervention and in Western Australia are predicated upon a moral alibi for what is seen as the ‘necessary’ rehabilitation and recuperation (to within the nation) of the Indigenous presence. The moments are ultimately concerned with the creation of acquiescent, co-operative populations; the intervention replacing Indigenous self-government and control of their lands with government oversight (following the invasion by the Army and Federal police) while the remote communities are forced off their traditional lands into town camps. In the control and regulation of Indigenous communities the effect is to simultaneously erase or obliterate (borrowing from Wolfe and Ferreira da Silva) the Indigenous Other whilst simultaneously seeking the preservation, regulation and control of the biological beings within, as Berlant would have it, ‘the embrace of the nation’ –yet always no longer Indigenous and always less than a citizen. “Three great men sit in a room, a king, a priest and a rich man with his gold…” Or How to Answer a Riddle and use Biopolitics to deconstruct Private Law in the Post-colonial context Giacomo Capuzzo, University of Perugia, Italy - jackcapuzzo@gmail.com Drawing from Koskenniemi’s idea of Law as a discourse aimed at persuading individuals to behave in a determined way, this paper will deconstruct private law as a biopolitical mechanism designed to capture, control and transform the reproduction of life within a social body. In this sense, Law affects the multiplicity of force relations among different individuals and groups that constitute society, it may intervene within social conflicts calling winners and losers, but it also impacts on the processes of knowledge production that characterized a particular social, cultural and political context. According to this critique, a specific legal model is not just a set of formal rules about property or contracts, rather it is a mix of legal arguments and technicalities elaborated to frame, structure and re-shape the way in which life is socially and politically organized, perceived and represented in a given legal system. This is particularly evident in the colonial and post-colonial context, where legal instruments were used to promote a certain kind of social organization (market and state dichotomy) and social groups (white, men, colonizers) and to marginalize other types of structures (traditional and customary laws) and social formations (non-white, women, colonized). In particular, the paper deepens how property rules and family law were deployed to create, organize and define the legal, social and political space of the colony. The western concept of private and public property was employed both as a tool to re-think rural and urban life and as an ideal of progress and modernity. Through Property colonizers re-framed social hierarchies, re-imagine colonial cities and changed the general economic and political background. Similarly the implementation of western marriage laws aimed at completely transforming the social constitution of the colonized family in order to create a more favorable environment for the free market. Panel 6. Bodies. Borders. Bio-Politics Chair: Tiia Sudenkaarne Women Instigating Conflict - Poetic Imperative versus Command Responsibility - Civilians or Combatants in an NIAC Lucy Mathieson, Glasgow Caledonian University, Scotland - lucy.mathieson@gmail.com Biopolitical violence plays out in very gendered ways, both in terms of the commission of the conduct of hostilities and war crimes, but also in attempts to prevent reoccurrence. The violence of applied legal paradigms becomes apparent, in steps to tame aspects of the state of exception, whilst destroying others – biopolitics and humanitarian law and resultant disarmament, demobilization and reintegration (DDR) programming offer insights into the gendered nature of the nation state and steps to maintain its equilibrium even with porous and nomadic subjects crossing its border regions. This paper examines an interesting case study from the peripheral regions of Sudan, states of exception, where women singers and poets, female bards, known as the Hakamat, loosely translating as “judge”, have a traditional role in instigating violence. Through the study of crime in poetry, traditional Hakamat discourse can be connected with developments in understandings of war crimes—where a network of interrelated concepts exist. Tracing dialectical links between criminal discourse and poetic representation, this paper examines the ways in which Hakamat poetic form, accommodate not only evolving epistemologies of crime, elaborating the poetics of murder and violence, but also represent a responsible command function, through symbolic power, a nostos in folkloric form. While the themes of murder and sexual violation provide apt demonstration of how Hakamat poetry and song can embed multiple layers of cultural meanings making pointed political arguments, it also accesses multiple questions of power—between perpetrators and victims, between instigators and perpetrators, between victims and instigators, between the state and arguably its biopolitically gendered subjects – namely how responsible or functional command/hierarchy are recognised in interpreting the Principle of Distinction, whilst highlighting gendered norms around concepts of harm, threat and agency in determining civilians versus combatants. Healing the North Korean Skin: Somatechnics of Sovereignty in South Korea Hea Sue Kim, Goldsmiths, University of London, England - hkim048@gold.ac.uk In 2016, the South Korean police started a free cosmetic surgery program for North Korean immigrants. The surgery has to date been performed on 19 North Korean immigrants, and involves removing tattoos, burn marks, and scars. The aim of this program is to “improve the looks of the North Korean immigrants” and “to help heal the physical and psychological wounds inflicted (on them) by the experience of escaping from North Korea.” Instead of repressing life, biopower creates the conditions through which life becomes possible. The life-conditions created in South Korea through the somatechnical erasure of marks on North Korean skins is neoliberalism and militarism: normalization of “abnormal” North Korean bodies into clean, fully-functioning, and docile South Korean bodies by pulling and moving their skins around. I will examine how the clean and sanitized skin becomes a biopolitical marker for belonging to the capitalist South Korean body-politic. South Korea has the highest per-capita cosmetic surgery rate in the world, and thrives on its beauty industry. However, the process of erasure also leaves its mark. Bringing back the past and present of the bodies to a “recording of experience” involves thinking through the skin to invent another notion of relational embodiment. I look at different ways the body can resist the somatechnics of sovereign power to invent another notion of community and sovereignty that critically engages with the limitations of the nation-state and the market ideology. I read this possibility through a Korean novel called the Vegetarian (2007) and a film called The Woman, the Orphan, and the Tiger (2010). I also engage with the works of performance and visual artists who disrupt the stylized repetition of bodily movements choreographed by the police-state. From Worker to Entrepreneur of Himself; The Transformative Power of the Homo Economicus and the Freedom of Movement Dion Kramer, VU University Amsterdam - dion.kramer@vu.nl This paper seeks to make a contribution to our understanding of the development of the EU’s free movement of persons by analysing the internal transformation of the homo economicus. Describing how the subject of EU free movement law is ‘imagined’ in every consecutive stage, it is argued that the instrumentalism of free movement rights shifted from ‘freeing up’ the ability of the economic migrant to respond to the economic mechanisms of supply and demand in the European marketplace to targeting the conduct of the European himself in terms of his free choice, self-sufficiency and self-entrepreneurship. The essence of the ‘new’ homo economicus of EU free movement law resides in the discursive possibility for national authorities, national judiciaries and the European judiciary to assess the economic potential of the individual European in the context of his right to access to nationally bounded welfare systems. 3. BLOCKCHAIN LAW Stream organiser: Rob Herian (Open University) 2016 will be another “turning point” year in which the further development and growth of technology will create seismic, albeit expected, accepted and culturally interred shifts in the consciousness and being of humanity. These shifts both notional and actual will continue to transform existing structures and systems - legal, social cultural, political and economic - otherwise taken for granted in the “real world”. Now is the time of the Internet of Things (“IoT”) and the possibility of “liquefying the physical world” for more effective and efficient digital administration of both tangible and intangible property. Now is the time of smart property and contracts able to facilitate self-executing transactions and conveyance based on technical not legal code. Now is the time of decentralized autonomous organizations that resist and disrupt formal political, economic and legal paradigms. Now is the “end of trust” and the end of the messy morality of the internet of people. These are just some of the changes already under way, and accelerating. This stream will bring together scholars who have an eye on the future of law and equity set against this technically-charged insurgence on mainstream and traditional juridical values, ideas, mechanisms and systems both micro and macro in scope and nature. For example, much has already been discussed with regard to the democratizing global potential of the latest wave of technological developments, but at a more domestic level how does the IoT change notions of ownership and property rights; what impact will smart contracts have on equitable and performative remedial strategies; what use is a trustee or fiduciary in a post-trust world? These questions and more demand attention. As a signifier of this turning point in the life of law and equity, the blockchain – a digital ledger and infrastructure that supports, amongst other things, cryptocurrencies including Bitcoin, and which provides a highly reliable “trustless” witness of digital events and transactions - is playing an important role. There is, however, far more to discuss than the blockchain alone. Although much of the significance attributed to these changes returns to the decisive factor of decentralization and disintermediation that the blockchain in particular engenders. Furthermore, the technology touches and concerns all areas of the global legal landscape and of global juridical life and tradition: public/private; civil/common; international/domestic; jurisprudential/procedural etc. The sheer scale of influence the Internet has had in the last two decades demonstrates the capability, potential and significance the next technological wave will herald. The growth more recently in mobile technology as a decentralizing and democratizing tool is also indicative of the fact that societies and cultures cannot return to the formalities nor the ignorance of pre-homo technologicus.As such, lawyers cannot afford to be complacent and continue to frame concepts, reason and practice exclusively in terms the technology threatens with at best redundancy, at worst extinction in the near future. Law and equity will not cease to be entirely in this brave new world, experience so far tells us that. But neither can they remain fixed on either present or traditional courses in light of the blockchain and other technologies that have the potential to derail them. This stream invites all scholars – theoretical, practical, doctrinal, and critical – to interrogate, discuss and debate what law and equity will look like in the coming years as they negotiate this latest technological turning point. Panel 1 Chair: Rob Herian The Blockchain and Contract Law Claire Sumner, The Open University - claire.sumner@open.ac.uk Smart contracts offer the prospect of cheaper, more secure and quicker legally binding agreements than conventional written contracts but much like all contracts, the strength of the smart contract will depend upon how well ‘drafted’ it is. How far can smart contracts be designed to eliminate the need for existing contract law remedies? The code required to form smart contracts is in its infancy and it is predicted that there will be a need for conventional contract law remedies until technology is able to self-regulate more complex smart contracts. This leads to the question of whether existing contract law is fit for purpose to adequately resolve disputes emanating from smart contracts. Consider the role of equitable remedies such as rescission and specific performance and how and whether they might they be utilised to resolve disputes arising from smart contracts. Will these remedies in fact be made obsolete? Will new remedies be needed which are fit for purpose? Looking ahead, how might an alternative enforcement platform operate alone or in conjunction with conventional contract law remedies and what will human obligations be or look like? The Blockchain and European Union Private International Law Rhonson Salim, The Open University - rhonson.salim@open.ac.uk Use of the blockchain transcends territorial borders. A typical chain can involve computers scattered around the globe. Each computer the location of and the control over, is unknown. This reality raises questions of private international law. Which court has jurisdiction to hear a claim in the event of a dispute? Will any resulting judgment be recognized and enforced? This paper seeks to examine the current application of the rules of EU private international law to the operation of the blockchain. A central tenant in the operation of EU private international law is the existence of mutual trust between jurisdictions. Trust is also a foundational concept of the blockchain. Computers on the chain have to prove that they are trustworthy. Computers stamp that trust on the “blocks” of recorded transactions. As part of an examination of the application of the rules of EU private international law to the blockchain, the utilization of the concept of trust will be interrogated. Between Scylla and Charybdis: Lessons From A Comparative Analysis of the Regulation of Bitcoin in the United States and the United Kingdom Immaculate Dadiso Motsi-Omoijiade, Warwick University - I.Motsi@warwick.ac.uk This paper identifies the lessons that can be learnt from a comparative analysis of the United State (U.S)’s and the United Kingdom (UK)’s approach to the regulation of Bitcoin. The study commences by giving an overview of the Bitcoin ecosystem in order to identify the key regulatory concerns associated with the Digital Currency. Here, it is observed that the key issues Bitcoin regulation need be concerned with are (a) the safety and soundness of exchanges, (b) addressing pseudonymity, (c) harnessing innovation and (d) incorporating the regulation of the Dark Web. The study finds that the U.S’s strategy has robustly addressed the issues of pseudonymity and the safety and soundness of exchanges whilst doing little to harness innovation. By contrast, the UK’s strategy has led to the promotion of innovation without rigorously addressing the concerns about the safety and soundness of exchanges and pseudonymity. In this way, the study’s locus is on the key lessons that can be found on steering this course between the Scylla of weaknesses of Command and Control and the Charydbis of the shortcomings laissez-faire in the regulation of Bitcoin with a ‘Bitcoin enforcement pyramid’ being put forward as a recommendation. Organic Digital Contracts – Organic Digital Things Jannice Käll, Gothenburg University - jannice.kall@law.gu.se The intellectual property right system have long been understood as the legal construction for turning into, as well as limiting, the way that knowledge may be turned into things or indeed, property. Already one decade ago, Margaret Jane Radin however pointed at the fact that this is today not the only legal construct that may be utilized to turn knowledge into tangible matter as both technological design as well as contracts are used to produce effects of property over knowledge in the digital era. Contracts over “digital matter” also entail practices where traditional understandings of contracts are put out of place e.g. as consent to enter contracts has become only fictional through phenomena such as browsewrap agreements. Contracts in this sphere may also include clauses that make it possible for one party to change them after that the contract has been concluded. Digital contracts may also be integrated in network contract structures that can be described as platform-based. I suggest that these developments can be read as a development of what one could call organic contracts. As these contracts form part of what actually defines something as a digital thing, it is suggested that they may be understood as leading to an increased organic capacity of code, property and also things in themselves. This in turn can be understood as a rupture of the person-thing divide continuously reproduced in Western legal theory. Subsequently it is suggested that the legal constructs built along this divide, such as modern contract law, might not be able to respond to the challenges posed by digital things. For this reason, it is argued that new theoretical tools that break with the person-thing divide is needed in order to produce a critical legal understanding of contract practices regarding digital matter. Panel 2: Blockchain Roundtable Chair: Rob Herian Participants are invited to join the roundtable in order to examine the juridical significance of blockchain beyond rules and regulation: to think about and examine blockchain and other associated technologies as juridical phenomena. Panelists:
4. The Crisis of Democracy in an Antipolitical Age Stream organiser: Steven Winter (Wayne State University) Democracy is in distress. The strains can be seen in the threatening fractures in the European Union; in the polarization and political gridlock in the United States; and in the resurgence of populist and xenophobic parties, candidates, and movements on both sides of the Atlantic. We can trace these developments to three, closely-related, long-term trends that characterize our late-modern moment: the hollowing out of politics by neoliberal forms of governance; the atomization and privatization of the social world in a consumer society; and the alienation from the public sphere and concomitant disillusionment with the political classes. The result is an apolitical notion of “politics” as either a zero-sum game between competing interests or a take-no-prisoners, antagonistic struggle founded on the friend/enemy distinction. The crisis of democracy in an antipolitical age is the inability to recognize politics as a collective activity of common constitution and coordination. Politics is the necessary condition of the intersubjective relation between socially-situated selves who need each other to succeed and, inevitably, are not of a single mind. It requires mutual recognition and respect between citizens. And that is, precisely, what no longer seems possible given the degeneration of the social in an increasingly fearful and narcissistic age. Panel 1 Chair: Louis Wolcher The Fundamental Question Louis E. Wolcher, University of Washington, Seattle USA - wolcher@uw.edu Beneath the distress of democracy and the degradation of the social in “our fearful and narcissistic age,” as this stream’s description so aptly puts it, lies another, deeply personal kind of distress: namely, the conscientious individual’s loss of faith in the logical determinacy of universals in the spheres of politics, law and morality. The latter distress, paradoxically enough, comes from the elevation of the merely social to the status of the only remaining “basis” (qua cause, not rational ground) for the projects of law and justice. Nietzsche’s analysis of the rise of nihilism began to expose the destabilizing psychological consequences of our growing awareness of the radical historical and social relativity of universals and the values that underlie them. But so long as the question was limited to whether any given set of universals might or might not be universally binding, one could still believe that the expressions associated with these universals (“justice,” “democracy,” “human rights,” etc.) actually meant something (literally) that could and should be rationally isolated and debated apart from their socially determined applications in this or that particular situation. But the nimbus of prestige which once surrounded the idea of the universal has now been dimmed to such a degree that it is no longer sufficient to secure the possibility of a good conscience for those who undertake, in good faith, to make the world a better place in the spheres of politics and law. The many decent human beings who have noticed and experienced this diminishment of prestige find themselves in a thoroughly disenchanted existential situation. For them the attempt to do justice without the illusion of being grounded in something beyond the sheer facticity of their own performances is a distinctly ethical theme which cries out to be investigated in its own right. Heeding the cry, this paper – which is based on the author’s recently released book The Ethics of Justice Without Illusions – will grapple with the following fundamental question: Is a life in the law - even one spent in the pursuit of justice - worth living, and if so, how can a disenchanted person come to bear the living of it without constantly having to engage in self-deception? If Nietzsche is right that living without illusions is impossible for human beings, then the most important ethical implication of this essentially anthropological fact goes far beyond the question of what illusions we ought to choose. It must also include the question of whether we should succumb to that most seductive and pernicious of all illusions: namely, the belief that exercising great care and responsibility in choosing our illusions – which we might then call our “principles of justice” – excuses or redeems us ethically for what we do to others in their name. 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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