We have put together a stream of exciting papers that explores the effects of legal materials, techniques and visibilities at the upcoming annual Law, Culture and the Humanities conference in Ottawa. In the previous years’ meetings, we had explored legal materialist approaches in a paper panel and a roundtable. This March, we look forward to continuing the conversation in different areas of legal scholarship of the LCH community.
Here are the abstracts of the stream:
Panel 1: Legal materiality – part 1
Chair: Genevieve Painter
i) Hyo Yoon Kang and Sara Kendall: “Legal Materiality”
In this presentation we reflect on developing legal materiality as an approach in legal scholarship, which we have explored in the last two years at the ASLCH. Legal materiality recognises law as both a hermeneutic and a material phenomenon: as uniquely engaged with issues of writing, reading, interpretation and judgment, yet also as mediated by and produced through material techniques and practices. It is attuned to the ways in which materials come to be enlisted as ‘matters of concern’ for law: that is, how the interpretive and text-based practices of law are informed and mediated by material conditions. Rather than taking ‘law’ as a premise, it interrogates the contribution of materials and things to the making of legal meaning. We illustrate this approach in case studies drawn from intellectual property and international law.
ii) Zachary Reyna: “Two Models of Contracting and their Implications for Legal Materialists”
Contracting has been a central device in modern political and legal theory since at least Hugo Grotius and Thomas Hobbes. This paper explores the legal concept of contracting through two of its most profound and original thinkers: Thomas Hobbes and the less-known Leopold von Sacher-Masoch. The goal is to use these two thinkers to uncover two models for thinking about the meaning of legal materiality—a topic that has generated increased interest in recent years. The paper argues that Hobbes and Sacher-Masoch offer two divergent accounts of the contract that have important consequences for how we think about legal materiality. Hobbes deploys the contract as a corrective to fix—through means of “artifice”—a lack in the world as it is given to us. Legal materialists have drawn on this model both to call us to include and re-vitalize the stuff left outside the space opened by this contact and alternatively to focus on the specifically legal hermeneutic practices that govern and produce legal forms within this space. In contrast, Sacher-Masoch’s contracts are aimed at disclosing “the ontological intimacy between language and matter.” Sacher-Masoch achieves this through various contractual devices of drawing together (con-trahere): drafting a contract, pen strokes, whip strokes, draft animals, contracting flesh, and storytelling. Ultimately, while Sacher-Masoch encourages legal materialists to focus on the matters of law conventionally left out of the Hobbesian model, he is simultaneously critical of any naïve appeal to simply let these matters “speak for themselves.” For Sacher-Masoch, the legal device of contracting is a crucial—and underthought—process whereby matter comes to matter.
iii) James Martel: “’God is Change’: anarchist prophecy, and radical ways of seeing in The Parable of the Sower.”
This paper is about anarchist forms of prophecy. My argument is that archist prophets claim to have special sight and see things that no one else sees; they assert the truth of invisible things like heaven and the law, things which they insist are more tangible and real than reality itself. Anarchist prophets, on the other hand, simply point out what we already know but don’t want to acknowledge; the non existence of the very things that archist prophets claim to be able to see. In this way anarchist prophets don’t have special sight but the same sight as everyone else. What they do is to get others to acknowledge what they are seeing (that is, to stop seeing things that aren’t there). I will make this argument based on a reading of science fiction novel by Octavia Butler called “The Parable of the Sower” where the main character is a prophet named Lauren Olamina. Lauren creates an entirely new religion in a time of the total breakdown of US society (in ways that are terrifyingly plausible these days). She fights all the false hopes of being rescued by the state (which is totally and hopelessly corrupt and violent) or the law (which is effectively nonexistent except for the very rich) and instead embraces change and human agency, two things that archist forms of seeing try to undermine and supersede.
Panel 2: Legal materiality – part 2
Chair: James Martel
i) Jill Stauffer: “You people talk from paper”: Indigeneous law, western legalism, and the cultural variability of law’s materials.
A First Nations elder from the Yukon, criticizing a group of scientists at a joint conference of scientists and indigenous persons involved in environmental issues facing the polar and sub-polar regions of Canada, said this: “You people talk from paper. Me, I want to talk from Grandpa.” When Mrs. Annie Ned says this, she’s not only voicing a criticism of how western knowledge is conveyed but of how those who are embedded in its ways learn to think and listen. They think indigenous stories are based in myth but that western legalisms are not. They look for universal truths, controlled experiments, think data answers every question. They may not see that it is fully possible to have a deep understanding of how the world works that emerges differently. And so they tend to listen to an oral narrative in order to turn it into a text that can then be read like any other text. But that is exactly the right way to never understand. In this talk I’ll use Mrs. Ned’s observation to think about the ways settler colonial courts fail to hear indigenous claims about land and justice. To do this, I’ll consider the materiality of “talking from paper” alongside assertions that a song, a story, a ceremonial robe, or a totem pole, could be law or legal title rather than evidence of those things.
ii) Genevieve Painter: “Law, History, and Things”
The ‘law and …’ field of legal scholarship verges on consensus about the co-constitution between law and nearly everything else. Co-constitution raises questions about how to differentiate law from other things. The contemporary turn from words towards the material brings fresh perspective on these questions by suggesting that law’s differentiation is fabricated through materiality. This project concerns how material techniques differentiate law, how material techniques differentiate history, and how these processes may produce ideas of ‘law’ and ‘history’ as distinct and separate. Inspired by the Legal Objects Workshop, I draw on work in which I examine the material, archival, and museum techniques that fabricate the difference of a thing not commonly understood by Western law as law. My focus is an object created in Haida Gwaii in the late nineteenth century and now displayed in the British Museum. I consider how jurisdictional choices are embedded in the fabrication of this thing’s difference. I juxtapose the analysis of this thing-that-is-not-law with another thing-that-is-not-law, a photograph from the official archives of an international organization. Contemporary historians of law spend their times in archives taking photographs (rather than reading or taking notes), meaning that the raw material of history has become photographs of documents. While the historian’s role as just one more actors in a long chain of archivists constructing an archive has been explored in the archival turn, legal scholars have paid less attention to the action of photography as a material practice. I hope to juxtapose the apparent ‘thing-ness’ of a sculpture in the British Museum with the apparent ‘non-thing-ness’ of a photograph, its apparent status as pure representation, to see if that can tell us anything about what legal historians do when they trace the line between law and history.
iii) Daniela Gandorfer: “Law of Life Writing”
Autobiography is commonly understood as a literary genre that grants an individual the right to narrate a life. As such, the genre – deeply embedded in Eurocentric ideas of subjectivity, self-awareness and the Cartesian body/mind dualism – serves as framing device which legitimately cuts out a life from a continuum, and renders its remainder objects, plot, space, or prey. Critical post-humanist and neo-materialist theories have exposed the shortcomings of the genre and proposed a shift to life writing, which adumbrates a different subject – multiple, materially embedded, embodied and relational.
Life writing, however, does not only pertain to the representational sphere, but becomes inscribed in and on the level of matter – and with it its anthropocentric, liberal and neo-humanist implications. Scientific breakthroughs in biotechnology, genetics, synthetic biology, and computer technology altered our conception of what life is and provide legal tools to invent or efface life forms. This urges us to address the right to life, as well as the right to write and narrate life on a molecular level. Life – actually and legally – seems to come after the cut.
In my talk I aim to look closer at how law performs these ontological surgeries (Jasanoff) as Cartesian cuts (Barad) that sharply separate legal subject from object, commodity, and property. Are there alternative ways of thinking the right to life, apart from the Cartesian cut and its anthropocentric legacy? Can law narrate life symbiotically, rather than autobiographically? And if so, who or what can have a right to life?
Panel 3: Legal materiality – part 3
Art, Law, Materialism: A Discussion on Objects, Aesthetics and the Juridical
Chair: Sara Kendall
Engaging with what has been termed the recent ‘affective turn’ in the social sciences and humanities, this discussion seeks to unravel some of the ways in which objects and materiality, affect, determine and produce laws and aesthetics – and the juridical production of matter and art, in turn. How have artists been engaging with the developing philosophies of speculative realism, object-oriented-ontology (OOO) and new materialisms and how can their works inform understandings of the ethico-juridical? What role does the object play in law? Is materialism the same as aesthetics, following from Harman’s argument that aesthetics is the basis of all philosophy? What role does art play in law’s materiality? What are the affective practices of artists and lawyers? And what potential does a material understanding of art/law hold for the futures of legal theory?
Swastee Ranjan (University of Sussex), Connal Parsley (University of Kent) and Lucy Finchett-Maddock (University of Sussex), will be discussing their own research on affect, aesthetics, non-representational theory, and entropy in relation to the art, law and materiality.
 Patricia Ticineto Clough, Jean Halley (eds.), The Affective Turn: Theorizing the Social, Duke University Press, 2007; Paul Hoggett, Simon Thompson (eds.), Politics and the Emotions: The Affective Turn in Contemporary Political Studies, Bloomsbury, 2012.
 Harman, Graham, Object-Oriented-Ontology: A New Theory of Everything, Penguin, 2018.
i) Swastee Ranjan: “Object’s Law – On affective traces that constitute legal meaning”
This paper emerges at the intersection of legal aesthetics and legal materiality wherein it seeks to understand and develop the juridical role of ‘physical’ things in constituting our normative environment. The argument follows that physical objects generate and constitute legal meaning that are not often mapped within the traditional understandings of law, instead they appear as fleeting trails of affective resonances. Inspired by the recent scholarship on new materialism and object-oriented ontologies, this paper seeks to extend the category of legal aesthetics to not only include the physicality of things and argue for their ability to generate normative values but also suggest an expansive understanding of aesthetic that is construed both in representational and non-representational terms. This paper works to expand the nature of legal pluralism by drawing on materiality and affect as significant registers through which legal meaning is constituted. Emerging out of my ongoing doctoral research, in this paper, I will use illustrations from the built environment of Delhi, to substantiate the relationship between affect, aesthetics and materiality and seek to show that law is both constitutive of and constituted through them.
ii) Lucy Finchett-Maddock: “A Theory of Art/Law”
This piece seeks to account for an increased interest in the intersection of art and law within legal thinking, activism, and artistic practice, arguing there to exist the phenomena and movement of ‘Art/Law’. Art/Law is the coming together of theory and practice in legal and political aesthetics, understood as a practice, (im)materially performed. It is seen as a natural consequence of thinking law and resistance in terms of space and time, accounting for a turn towards the visual, practical, and the role of affect, within ways of knowing. Art/law is a symptom of the end of art and end of law, synchronically rendered. Divisions between legal and aesthetic form have been well rehearsed within legal aesthetics scholarship, from law and literature, to critical legal studies’ work with images, text and performativity, and now law’s Anthropocene. Art/Law as a practice, however, is argued as an emergent onto-epistemic-ethics of necessity, a movement of seeing, being and knowing in response to the advancement of spectacle. It is the simultaneous reunion of law, art and resistance as one, breaking down the institutional artifice of art worlds and law worlds, offering a form of ‘resistant (in)formalism’, that accounts for matter and change. It is an inclusion of the uncertain and the disordered, as an opening of justice. This resistant (in)formalism describes the role of form, audience and practice within property, legal and aesthetic establishment, offering a countering of separatism at the end of art and the end of law, through a praxeology of Art/Law in seeing, thinking and action.
iii) Connal Parsley: “Contemporary Art / Towards a Material Praxis of Jurisprudence
This paper will think through some examples of contemporary art that address legal thematics in order to take seriously the knowledge about law that they contain. Despite repeated aesthetic and then materialist moves in critical legal studies away from the positivist understanding law as its normative or conceptual content, little ground has been made in diminishing the aura around law as a privileged textual object. Law remains conceptually presupposed even and especially by many apparently materialist approaches, which insist on locating and nominalising law. This paper will distance itself from this preoccupation with the pluralisation and proliferation of law and normativity, asking instead after the praxis and generation of knowledge about law. Key currents in contemporary art—particularly those drawing on post-aesthetic and post-autonomous practice—move past the social and cultural representation of law, as well as the concern with law’s aesthetic life and method of taking purchase on its subjects. The examples considered will ask what is at stake in taking legal forms, institutions and habits as art’s material; whether such art works can take the double step beyond both the objectification of law, and a mere provocation to see law “critically”; and whether we can understand the post-autonomous impulse in law art as a collapse between the “thought of law “and the “work of law” (for example, in self-consciously instituting relations). What emerges is the figure—perhaps impossible in both the positivist and “critical” legal traditions—of a material jurisprudential praxis that reconciles the subject of thought with its object.