Exploring System Boundaries

Autopoiesis is normally considered to be the systems theory in law. In this paper complexity theory is presented as an alternative systems approach. In order to position complexity theory as a plausible alternative to autopoiesis I discuss the differing understanding of boundary within each theory, and use this as a vehicle to critique autopoiesis. My critique is situated within systems theory thinking but is external to both autopoiesis and complexity theory (although I must oscillate between the two objects of critique). Because both approaches possess an understanding of boundary it provides an effective tool to contrast their differences, while permitting each to be described in its own language. It is argued that complexity theory offers an approach to boundaries as contingent, emergent interfaces, which the autopoietic construction of boundary can learn from in several ways. More generally it is suggested that the complexity approach to boundaries offers lawyers engaging with systems theory a new critical perspective to assess legal constructions.     

Don’t Occupy This Movement: Thinking Law in Social Movements

Reflecting on the Occupy movement, particularly Occupy Wall Street, this article begins by addressing two major questions: how are social movements understood by legal academics; and how do social movements engage with law? Our aim is to present an alternative frame to understanding law and social movements. We draw on the work of Jean-Luc Nancy to explore law as both present and constituted in the coming together of persons in common which occurs in social movements. While the Occupy movement does engage with a form of law that is legislated and enacted through the government and legal system of a nation-state, the movement also forms and enacts law as part of its own processes. In this article we shift perspectives and attempt to think law within social movements. This involves a critical reading of some dominant approaches that explore social movements and law. Rather than situate our discussion within boundaries that seek to identify what is inside or outside a law and legal system that is determined and enforced by a nation-state (government and judicial system), our discussion of law involves a re-thinking of law. This law is part of a constant negotiation and it is involved in the dynamic processes of movements. Law involves establishing a limit and tracing this limit, but this limit is un-working itself as soon as it is constituted. The Occupy movements live law by existing not outside the law, but by rethinking the role and function of law in the movement and processes of community.     

Kairós and Clinamen: Revolutionary Politics and the Common Good

This article sets out to offer a new reconceptualisation of the common good as the mechanism providing the temporal coordinates for revolutionary politics. The first section investigates the pairing of commonality and goodness, revealing its nature as a synthesis of apparently irreconcilable opposites. The second section examines how this irreconcilability is overcome, advancing the argument that to heal the divide, a double movement of definition and concealment is necessary, whereby the process of definition of what constitutes the common good is accompanied by an expropriation, or hollowing out, of meaning. The third section offers a proposal for overcoming this epistemological impasse about the nature of the common good, by contrasting chronos and kairós, chronological time and what in English can be translated as ‘opportune time’, and offering kairós as the chance to create, within the fissures of the totalitarianism of chronological time, the timescape for revolutionary politics. This proposal is carried on in the second part of this article, starting with ‘ Chronos and Kairós ’ section, where the concept of kairós is expanded upon and coupled with the Epicurean and Lucretian idea of the clinamen, the swerve of the atoms that introduces the element of chance against Democritean determinism. With the support of Antonio Negri’s reading of kairós and clinamen, the article argues in ‘Alma Venus: Love, Desire and Revolution’ section that these two concepts provide the spatial and temporal coordinates for revolutionary politics, in tension and critical engagement with Ackerman’s idea of constitutional moments, to conclude in ‘Conclusions: Kairós and Revolutionary Politics’ section, that the common good is to be defined as that which takes place and is identified/identifiable within these coordinates.     

A Manner of Speaking: Declaration,Critique and the Trope of Interrogation

In this paper I will argue for the ethical and political virtue of a form of critique associated with the work of Michel Foucault. Foucault’s tryptich of essays on critique—namely ‘What is Critique?’ ‘What is Revolution?’ and ‘What is Enlightenment?’—develop a formulation of critique understood as an attitude or disposition, a kind of relation that one bears to oneself and to the actuality of the present. I suggest that this critical attitude goes hand in hand with a mode of intellectual practice realized rhetorically in the form of the interrogative and methodologically in ‘problematology’. But, in addition to highlighting the habitus of critique suggested by Foucault, I also want to consider the entanglement of this critical enterprise in the conditions of the present that it attempts to diagnose. Specifically, I ask, in what way is a critical enterprise in the interrogative mood itself imbricated in the trope of interrogation that fills so much of our current political and public landscape?     

Visual attention and expertise for forensic signature analysis

Eye tracking was used to measure visual attention of nine forensic document examiners (FDEs) and 12 control subjects on a blind signature comparison trial. Subjects evaluated 32 questioned signatures (16 genuine, eight disguised, and eight forged) which were compared, on screen, with four known signatures of the specimen provider while their eye movements, response times, and opinions were recorded. FDEs' opinions were significantly more accurate than controls, providing further evidence of FDE expertise. Both control and FDE subjects looked at signature features in a very similar way and the difference in the accuracy of their opinions can be accounted for by different cognitive processing of the visual information that they extract from the images. In a separate experiment the FDEs re-examined a reordered set of the same 32 questioned signatures. In this phase each signature was presented for only 100 msec to test if eye movements are relevant in forming opinions; performance significantly dropped, but not to chance levels indicating that the examination process comprises a combination of both global and local feature extraction strategies.     

A critique of the Global Pact for the environment: a stillborn initiative or the foundation for <Emphasis Type="Italic">Lex Anthropocenae</Emphasis>?

In May 2018, the process which may ultimately lead to the negotiation of a legally binding Global Pact for the environment formally commenced under the auspices of the United Nations General Assembly. Expectations for the Pact are high, evidenced in particular by its multiple and overlapping objectives: to serve as a generic binding instrument of international environmental law (IEL) principles; to integrate, consolidate, unify and ultimately entrench many of the fragmented principles of IEL; and to constitute the first global environmental human rights instrument. In the wake of the impending intergovernmental process, the paper offers a thorough critique of the draft Pact in its present iteration. We do so with the aim of evaluating the strengths and weaknesses of the present draft Pact by interrogating: (a) its diplomatic and symbolic relevance and possible unique contribution at the policy level to global environmental law and governance, and (b) its potential at the operational level of IEL and global environmental governance, focusing on the extent to which the draft Pact accommodates both existing and more recent rules and principles for environmental protection. As the Pact’s primary ambition is to become a universally binding global treaty, it would be churlish not to recognise its potential for innovation, as well as the considerable opportunity that the negotiation of the Pact will have to generate broad-sweeping and positive impacts. However, our central thesis is that only if the Global Pact were to incorporate ambitious normative provisions to strengthen those public and private global governance efforts that aim to halt the deterioration of Earth system integrity, as well as to maintain and improve integrity, will it be able to offer a firm foundation of the type of Anthropocene Law, termed here as the Lex Anthropocenae, required to confront head-on the deep socio-ecological crisis of the Anthropocene.     

Experiencing Critique<Superscript>⋆</Superscript>

Over the past two centuries, criticism has assumed an indispensable role in the production of truth in many academic contexts. Furthermore, a dominant conception of critique emerged out of disciplinary truth regimes – evident as much in right wing think tanks as in critical theories. This ‘grammar of critique’ requires critics to judge specific contexts against founded criteria. However, in an epistemological ethos beset by obdurate uncertainty, where disciplinarity is increasingly under attack, a judgmental grammar faces intractable challenges. For one thing, intransigent ambiguities defy the silencing required to achieve certainty, or universal agreement, on ‘founded criteria’. This predicament creates a distinctive semantic disquiet and a unique opportunity to prize critique loose from its previously privileged grammar. Allegorically referring to Derrida’s images of hospitality, this paper offers a different grammar of critique as an experience of imagined prospects, a promise that rallies against ossified thought systems of the now. This experience is structured through the impossible to the extent that it defies absolute definition, finitely encounters infinite possibilities, involves preconceptions, and opens critics up to promises that never fully arrive. As such, critical experiences invite existential anticipations whose contours, paradoxically, are imagined from within, and yet promise an escape from, local historical circumstances.A version of this paper was presented at Birkbeck, University of London, 24th September, 2004. I would like to thank Peter Fitzpatrick, Claire Valier, Ronnie Lippens, Costas Douzinas and Julia Chryssostalis for their helpful comments.     

Pornography, Pragmatism, and Proscription

The Criminal Justice and Immigration Act 2008 criminalizes the possession of extreme pornography, namely, images of bestiality, necrophilia, and life-threatening or serious violence, and is the immediate context for this article which seeks to present a pragmatic liberal humanist critique of pornography regulation. Such a critique, derived in particular from the writings of Nussbaum and Rorty, presents an alternative case for regulation, eschewing the visceral competing fundamentalisms which characterized the 'porn wars' of the 1980s and 1990s. Whilst moral and epistemological philosophers squabble with radical feminists and radical libertarians, extreme pornography can nurture real injustice and ruin real lives. A pragmatic liberal humanism demands a pragmatic response to extreme pornography. The first part of this article will revisit the longer history of the 'porn wars'; the second describes the parameters of a pragmatic liberal humanist critique; the third examines the shorter history of pornography regulation written into the provisions now enacted in the 2008 Act.     

The Question of Political Responsibility and the Foundation of the National Transitional Council for Libya

In March 2011 Jean-Luc Nancy published an article entitled ??What the Arab Peoples Signify to Us?? in the Libération newspaper. The article supported the NATO-led military intervention in Libya that followed the anti-government protests of 15?C16 February 2011. It is in the name of ??political responsibility?? that Nancy makes his intervention. I want to explore the question of ??political responsibility?? in light of Nancy??s work, and his Libération article in particular. I do this by first assessing one of the distinguishing features of the uprising in Libya: the emergence of the National Transitional Council (NTC). By setting Nancy??s response against Derrida??s work on spectrality and his critique of the founding declaration (in ??Declarations of Independence??) we can more clearly appreciate the scope that Nancy??s account of responsibility entails. I suggest that Derrida??s logics of spectrality help not only critique Nancy??s response but also understand the conditions that make his account of political responsibility possible.     

Post-Marxism and the Politics of Human Rights: Lefort,Badiou, Agamben,Rancière

Recent histories of human rights have shown that the turn to human rights as a form of politics occurred as a placeholder for utopian energies at the end of history, coinciding with a retreat of the organised left, the abandonment of the theme of revolution, and the pluralisation of political struggles. This essay examines the way that radical continental theory has responded to the political hegemony of human rights by focusing on ‘post-Marxist’ thought. Examining the work of four influential critics of human rights—Claude Lefort, Alain Badiou, Giorgio Agamben, and Jacques Rancière—I argue that post-Marxist thought provides two very different approaches to the political possibilities offered by human rights. The first retains a fidelity to the revolutionary critique of rights by rejecting the language and conceptuality of human rights as too deeply implicated in the liberal political order that needs to be resisted. The second acknowledges the limitations of human rights while arguing that they also offer important tools for democratic political struggle. The essay draws upon these analyses to consider the contemporary political meaning of human rights. It argues that the latter of these strategies is problematic because we now face a radically different political conjuncture to the one in which the politics of human rights first emerged: human rights have played an important role in the project of post-historical reaction; the political space in which the politics of rights once made sense has collapsed; and we have seen substantial political upheavals in the wake of the crisis of capitalism.     

Forward to the past: Organized crime and Cuba’s history, present and future

Before the 1959 revolution, Cuba was virtually a Mafia fiefdom. However, as the future of Cuban leader Fidel Castro—and thus the entire revolutionary regime — becomes increasingly uncertain, there is growing reason to fear that history is about to repeat itself and Cuba will become a focus for organized criminality in the Caribbean, with an impact not just on the regional but global underworld. Cuba and its airspace and territorial waters have become important nodes on smuggling routes into the United States. While Havana may no longer be willing to turn a blind eye to the traffickers’ activities, it lacks the resources to interdict effectively or deter them. However, Cuba is also beginning to suffer from both domestic drug abuse and the first indications of organized criminality at home. This is very limited compared with the strength of Cuban-American organized crime in the United States, but does open up the prospect of these groups exploiting any weaknesses in Cuba to reestablish operations on the island. Although it is possible that the revolutionary regime might survive Castro, at the very least it will experience a turbulent transition, one in which power politics will divert attention from the problem of growing crime. Were the Cuban Communist Party to fall, either to a democratic revolution or a military coup, then either way this would probably generate increased domestic organized crime and open up the country even more rapidly to international criminal influences. Perhaps the final tragedy of the revolutionary regime, born out of a rejection of authoritarian rule and rampant organized crime, is that it will have proven to lay the foundations for an even more dynamic and voracious criminalization of Cuba. This article draws on an earlier, shorter piece: Mark Galeotti, “Organized crime gangs pose threat to Cuban development,” Jane's Intelligence Review, 18, 2 (2006).     

Towards a Transformative Conceptualisation of Violence Against Women ‐ A Critical Frame Analysis of Council of Europe Discourse on Violence Against Women

Much academic attention has been devoted to violence against women (VAW) in Europe and research has focused on the mounting policy reform initiatives and capacity building strategies in the EU. Council of Europe initiatives in this area have, surprisingly, by contrast, remained under‐researched. This paper seeks to fill the gap in the literature by engaging in an examination and critique of the ways in which the Council of Europe has incorporated and framed VAW within various legal and policy initiatives. It will employ a methodology of critical frame analysis as theorised by the literature on social movements, and anti‐essentialist critiques within feminist literature to ask: how VAW is problematised; what solutions are offered; where they are located; to what extent they are gendered; and who has a voice in these policy and legal texts.     

A Marx for the Managerial Revolution: Habermas on Law and Democracy

The early work of Jïrgen Habermas stressed the corrosive effects of the state and the market on the socio-cultural life-world. There could be no administrative creation of meaning. His more recent work argues that the system can redeem itself without sacrificing the emancipatory interests of humanity. However, this shift does not represent an abandonment of the revolutionary project of critical theory. On the contrary, the communicative model of proceduralist law-making is designed to promote the revolutionary transformation of Western civilization under the auspices of managerial and administrative elites. The radical ideal of cosmopolitan democracy becomes an essential ingredient in the effective management of a complex socio-economic system operating on a global scale. The demos in Habermas's vision of radical democracy is not the people of any particular nation but humanity at large. As a consequence, the proceduralist model of law-making provides the philosophical justification for a bizarre social experiment which aims to dissociate Western nation-states from their core ethno-cultural identities.     

From rank-seeking to rent-seeking: Changing administrative ethos and corruption in reform China

There are two contrasting images of the contemporaryChinese bureaucracy: the first is one of stiffrevolutionary cadres working under a marginallyreformed mobilization regime; the second is one ofrationalization of administrative institutions withthe transformation of cadres into modern rule-orientedbureaucrats. By examining some prevailing informalbehaviors of Chinese public officials, this articleoffers an alternative image: a neotraditionalistofficialdom with a reconfiguration of somepatrimonial, revolutionary, and legal-rationalinstitutions, ethos, and modes of operation.     

Punishment and the Duties of Offenders

This paper offers a partial critique of one of the central lines of argument in Victor Tadros’ The Ends of Harm: his attempt to show that a system of deterrent punishment can avoid the objection that it treats those who are punished ‘merely as means’ to our goals, by arguing that we may legitimately use someone as a means if in doing so we are simply forcing her to do what she anyway had an enforceable duty to do. I raise some questions about the idea of forcing someone to do what she has a duty to do; about what duties a wrongdoer incurs towards his victim, and how they may be enforced; and about whether we can move from such duties to a justification of criminal punishment as a deterrent.     

The Semiotic Fractures of Vulnerable Bodies: Resistance to the Gendering of Legal Subjects

While the turn to vulnerability in law responds to a recurrent critique by feminist scholars on the disembodiment of legal personhood, this article suggests that the mobilization of vulnerability in the criminal courts does not necessarily offer female drug mules a direct path to justice. Through an analysis of sentencing appeals of female drug mules in England and Wales, this article presents a feminist critique of the dispositif of the person and its relation to vulnerability. Discourses on drug mules’ vulnerability mobilize the trope of the colonial victim in need of protection, which is often translated into legal mercy. But mercy is rather an expression of biopower which inscribes not only fragility onto the bodies of drug mules by figuring them as exemplar paradigms of colonial subjectivity, but also reinvigorates the dispositif of gender implicit in the legal person. In this set-up, it would appear as if law and politics totalize the registers of life, in this case the contours of vulnerable body. The article suggests we must revisit the image of the wounded body in order to carve out a space for resistance. Drawing on Elaine Scarry and Judith Butler, it suggests vulnerable bodies are marked by a semiotic openness, which renders them subject to appropriation but also able to signify the precarity produced by the law through their resistance to representation.     

The Paternalistic Principle

In this paper, I critique one aspect of Simester and von Hirsch’s, Crimes, Harms, and Wrongs—their recognition of harm and offence principles, but failure to construct a paternalistic principle, despite their willingness to countenance some small measure of criminal paternalism. Construction of such a principle would have clarified the problems of as well as the limits to criminalising paternalism.     

(When) Are Rights Wrong? Rights Discourses and Indeterminacy in Gay and Lesbian Parents’Custody Cases

This paper examines the paradoxical and problematic position of rights discourses in lesbian, gay, bisexual, and transgender (LGBT) parents'custody and adoption cases. In it, I analyze the ways in which different types of rights are framed by the litigants and, alternatively, by the judges, as well as how the same constitutional rights (e.g., the right to privacy) are often deployed both in defense of and in opposition to gay /lesbian parents. An in-depth analysis of judicial decisions over a 50-year period and interviews with key family law players reveal the indeterminacy and therefore complexity of rights as a strategy and a discourse in the family law context. Consistent throughout this analysis are the problematic intersection of the collective and the individual in rights-based claims, and evidence of the distinct nature of LGBT rights claims as revolutionary in both their bases and their implications. The analysis confirms in some ways, but also contradicts and complicates many assertions of the "rights critique" of the past two decades. It also suggests a more complex and less dichotomous relationship between rights, status, and contract.     

‘Those Chosen by the Planet’: <Emphasis Type="Italic">Final Fantasy VII</Emphasis> and Earth Jurisprudence

This article allies the 1997 PlayStation video game Final Fantasy VII with Slavoj ?i?ek’s writings on ecology to critique the area of legal philosophy known as ‘earth jurisprudence’. Earth jurisprudents argue that law bears a large part of the responsibility for humanity’s exploitation of the environment, as law helps to bar nature from subjectivity. However, as ?i?ek warns—and as FFVII illustrates—the desire for meaning incites people to manufacture a harmonious vision of nature that obscures the chaotic forces at work in the environment and ultimately absolves humanity of responsibility towards the world. Therefore, earth jurisprudence’s program of using legal rights to limit human intervention should be rejected in favour of an approach that enables people to take an active role in addressing the ecological crisis.     

Dependent Arising,Non-arising,and the Mind: MMK1 and the Abhidharma

The first Chapter of Nāgārjuna’s Mūlamadhyamakakārikā offers a critique of causation that includes the Abhidharmic category of the ‘four conditions’. Following the South-Asian commentarial tradition, this article discusses the precise relationship between Madhyamaka philosophy and its fundamental Abhidharmic background. What comes to light is a more precise assessment of Madhyamaka ideas about viable conventions, understood as the process of dependent arising. Since this is primarily in the sense of conceptual dependence, it involves sentiency as a necessary causal element, and the relationship between sentiency and conceptuality is highlighted by Nāgārjuna and his commentators. Viable conventions exclude the possibility of a non-contingent core, and the systems and categories that revolve around such non-contingent element (ātman) are discarded by the Madhyamaka even at a conventional level.