Welcome to the Molsymocene

As environmental law reveals, we now live in a new era: the Molysmoscene, a geological era shaped by human waste and its management. The climate talks of 6–17 November 2017 in Bonn are now over. This 23rd Convention of the Parties of the United Nations Climate Change Conference (COP-23) was tasked with the implementation of the Paris Agreement, which entered into force on 4 November 2016. Despite the renewal of past commitments rebranded as new alliances [see the “Powering Past Coal” initiative led by Canada & the UK; the transfer of the Adaptation Fund from the ineffective Kyoto Protocol to the Paris Agreement], the COP-23 has failed to match global environmental commitments with a commensurate action plan. Little has been achieved…

Michel Foucault: Discourse

Key Concept The idea of discourse constitutes a central element of Michel Foucault’s oeuvre, and one of the most readily appropriated Foucaultian term, such that ‘Foucaultian discourse analysis’ now constitutes an academic field in its own right. This post therefore sets out to describe Foucault’s notion of discourse, and to define in broad terms the task of Foucaultian discourse analysis. Foucault adopted the term ‘discourse’ to denote a historically contingent social system that produces knowledge and meaning. He notes that discourse is distinctly material in effect, producing what he calls ‘practices that systematically form the objects of which they speak’.1 Discourse is, thus, a way of organising knowledge that structures the constitution of social (and progressively global) relations through the…

Michel Foucault: Archaeology

Key Concept In 1968, Jean Hyppolite,1 chair in ‘The History of Systems’ at the Collège de France, died. By 1970, Michel Foucault had been elected into Hyppolite’s vacant position, as the Chair of ‘The History of Systems of Thought’.2 It was a position he, too, remained in until his death in 1984. But it was a title, unlike many others, that Foucault readily accepted.3 Moreover, it was a title which stood at the midpoint between his work on archaeology and that of genealogy, two concepts he developed as tools to for conducting a historical analytic. This post sets out Foucault’s ideas on archaeology. Foucault’s notion of archaeology can be broadly understood as an analytical tool for uncovering alternative and disturbed…

Private Security: Twin Indignities

The privatisation of criminal justice practices is an affront to human dignity. When we are acted upon for profit as well as for justified ends, the proper link between coercion, rights, and authority is lost. Ministry of Justice proposals could mean that all collection of court fines — powers normally exercised by Civilian Enforcement Officers, employees of HM Courts and Tribunals Service — will be granted to private contractors. There is extensive evidence of how private contractors (principally G4S, Serco, and Sodexo in the UK) are both systematically failing in the provision of public services and are too big to fail. Despite high-profile cases of failure in standards, of deaths in custody, misuse of restraint techniques, provision of abhorrent accommodation conditions,…

Britain: The Empire that Never Was

Why Brexit is the culmination of a British national project which weaponises imperial amnesia and nostalgia. Brexit sold the country a dream; ostensibly a project built on anti-migrant sentiment, it also invoked delusions of grandeur, rooted in reanimating the glorious days of imperial rule and global British hegemony. Prime Minister Theresa May’s Brexit speech announced a vision for a ‘Global Britain’ – ‘a great, global trading nation that is respected around the world and strong.’ Boris Johnson, Secretary of Foreign Affairs, hammered home the image of an ‘astonishing globalism, this wanderlust of aid workers and journalists and traders and diplomats and entrepreneurs.’ In a speech promoting ‘Global Britain’ to the Commonwealth trade ministers’ meeting, Secretary of International Trade Liam Fox…

Radicalizing Women’s Rights Internationally

The recent “burqa bans” in Austria and Quebec appear to be troubling legal manifestations of the rising tide of Islamaphobia in Europe and North America. The news coverage of the bans coincided for me with a bout of reflexive angst regarding the recent publication of an article on Shari’a based reservations to CEDAW. I wrote the article years ago while working in women’s rights as a non-Muslim in Egypt and having to struggle with problems of the intersection of international law and religion. The desire to further crystallize assumptions behind my approach and articulate the politics of my position prompted this reflection. My feminist approach aims at the perpetually shifting mark of solidarity with women across borders and in very…

Sustaining neoliberal capital through socio-economic rights

In a 2013 contribution aimed at influencing the post-2015 development agenda, seventeen UN Special Rapporteurs recommended that the Sustainable Development Goals (SDGs) should include a goal on the provision of social protection floors. In April 2015 the UN Committee on Economic, Social and Cultural Rights (CESCR or the Committee) issued a Statement on ‘Social protection floors: an essential element of the right to social security and of the sustainable development goals’. In September 2015 the SDGs were adopted by the General Assembly with the first Goal to ‘End poverty in all its forms everywhere’. Among the key SDG tools to achieve that noble objective is the target to ‘Implement nationally appropriate social protection systems and measures for all, including floors,…

The Fallacies of Neoliberal Protest

This post is an amended version of remarks read at a rally organized by Cornell University’s Black Students United (BSU) on September 23, 2016. Students gathered to protest the recent police shootings of Tyree King, Terence Crutcher, and Keith Lamont Scott. It is reposted here with the kind permission of Black Perspectives. Sisters and brothers: I’m delighted that you are mobilizing. Your demonstration reflects your recognition that the escalating crisis of racial terrorism requires a firm and uncompromising response. Your protest in the face of daily atrocities is a sign of your humanity and your determination to live in peace, freedom, and dignity. But as we demonstrate, we must take pains to avoid certain tactical and programmatic errors that often plague progressive protest…

The Left and Catalonia

How a Left position regarding the Catalonia referendum on 1 Oct 2017 could present itself juridically and politically The Catalonia referendum this Sunday will become part of the history of Europe, possibly for the worst of reasons. I will not discuss here the substantive questions, which can be interpreted as being historical, territorial, respecting internal colonialism or self-determination. These are the most important questions, without which it is impossible to understand the current situation. My opinion on them is unassuming. Actually, many will consider my opinion irrelevant for, being Portuguese, I do tend to feel particularly solidary with Catalonia. In the same year that Portugal got rid of the Phillipes (1640) Catalonia failed the same objective. Of course, Portugal was…

On Marx’s Philosophical Methodology in the Grundrisse

There is a considerable debate about the value of Marx’s earlier philosophical works relative to his mature period writing the three volumes of Capital. Some believe that they are of great importance for understanding Marx, while others such as Althusser[1] famously believed that the early works were mere preparation for presenting the full science of history and philosophy of dialectical materialism in the great work. I fall squarely into the first camp. While Capital is undoubtedly Marx’s masterpiece, there is a great deal in it that remains ambiguous and not always spelled out. This is particularly true of Marx’s philosophical methodology. Capital is the masterpiece of dialectical materialism, and yet there is very little written about that in its pages. Part…

Letter to the Editors of the Journal of the History of International Law

[This letter was sent to the editors of the Journal of the History of International Law on 29 August 2017 and published at Opinio Juris. It is republished here with permission.] Dear Editors, We are writing to express our grave concern about the publication of an article entitled ‘The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention’ in the latest issue of the Journal of the History of International Law. We find the decision to publish this article strange to understand to the extent that it combines dubious anachronisms and legal framings, problematic application of legal doctrine, selective presentation of facts and quotations, and outright contradictions and falsehoods. Notably, it is…

Tenses of Violence: Antifascist Action & Legal Critique in Charlottesville’s Wake

[M]any Trump supporters said they welcomed [Trump’s] visit as an opportunity to express their views.Tim Foley, an Army veteran who leads his own citizens’ border patrol in Arizona, showed his Glock handgun to a reporter, saying he and his comrades had come to Phoenix to ‘keep the peace.’ Ignorance is fueling the opposition to Trump,” Mr. Foley, 57, said in an interview outside the convention center alongside other members of his Arizona Border Recon, which he calls a nongovernmental organization. (Critics call it a militia.) ‘We’re the last line of defense. No one wants another Charlottesville.’ New York Times, August 22 2017 “Police Use Tear Gas on Crowds After Trump Rally” A petition submitted to the White House on August…

The Jamestown Massacre: Rigour & International Legal History

Over recent years there have been significant advances in scholarship on the history of international law. Critical histories, including feminist, Marxist and most productively Third World perspectives, shed fresh light on the history of the discipline and its political frame illuminating contemporary international law in important ways. Amongst the small pond of critical international lawyers, the question of historical methodology, and how to use history as a lawyer is the subject of intense debate, particularly the attendant methodological anxieties inherent to challenging dominant narratives. The Journal of the History of International Law is a key arena where this re-examination of the history of the discipline occurs. The Journal’s mission statement reads as follows: The Journal of the History of International…

From the Cybernetic World War towards a Cybernetic Civil War

On an emerging phenomenon in the field of political affairs. On the Road to the Cybernetic World War Energy is essential for the production and movement of “things”. Using an assemblage of machines the industrial revolution exponentially increased the energy available to human society; however, such machinery required human supervision and control to attain its objectives. There are basically three “ideal types” of machines: those that convert matter from one form of matter to another; those that convert energy from one form of energy to another; and, those that exchange information. Cybernetics deals with the latter. In that sense, the Internet may be conceived of as an immense machine encompassing the breadth and length of the planet that has the real-time…

Catastrophe at Warwick

A catastrophe is only violent in its uncalled for appearing, and its coming is all around us in the smallest things. This year’s Critical Legal Conference takes place at Warwick under the title Catastrophe.  This is not without reason, for it sees the notion of catastrophe returning to one of its theoretical homes.  It was Warwick thinkers that coined the term ‘catastrophe theory’ for an assemblage of physico-mathematical techniques that explore ruptures, or jumps in behaviour as diverse as stretched elastic bands, ships at sea, human creativity, and stock market crashes.  Led by Christopher Zeeman, from the mid-1960s a team which also included Ian Stewart and Tim Poston married practical applicability of the theory to its popularisation, and may be…

The Razor’s Edge of Politics: Notes on the Meaning of the Encryption of Power

The original theory of the encryption of power was formulated by Gabriel Méndez-Hincapíe and I in an article published in Spanish in 2012. In the following years, several panels regarding the theory where held at the Critical Legal Conference, in 2014 at the University of Sussex and in 2015 at the University of Wrocław, Poland, with another one organized by Enrique Prieto and Lina Cespedes coming up in this year´s conference at Warwick. The concept has also been debated amply in other forums such as the last three meetings of the Caribbean Philosophical Association, among others. In what follows I will procure a simple outline of the core meaning of ‘encryption of power’ that may shed light on its focus,…

The Workerant

In the unfolding drama of work in the digital age, new circumstance demands new language. Gig economy, on-demand work, sharing economy, precarious work, automation, zero-hour contracts, outsourcing, workfare. Whilst the entire stage set changes, the central character of the drama remains. The worker. If this indicates both a resilience yet a revisionism of the worker today, there is the need to probe the worker subject of the new economies through new ones.  Thus here is the Workerant. Who is the workerant? The following are. The Uber taxi driver. The Deliveroo courier. The warehouse picker in an Amazon fulfilment centre. The handyman on Taskrabbit. The workerant is the human tethered to handsets, whose real life boss is an app. Whose labour…

Poverty, Indigeneity and the Socio-Legal Adjudication of Self-Sufficiency

A man who has a language consequently possesses the world expressed and implied by that language.” — Frantz Fanon, Black Skin, White Masks In 2013, Darlene Necan, a homeless First Nations woman from northern Ontario, Canada, began the construction of a modest one-room cabin on an off-reserve Saugeen territory in Savant Lake — land formerly occupied by her parents, and passed down through a verbal agreement recognized by the Anishinabek Nation. The Ministry of Natural Resources and Forestry, however, insisted the ‘Township of Savant Lake’ to be Crown land. Consequently, Necan faced potential charges of thousands of dollars when the Ministry of Natural Resources and Forestry considered her actions in breach of the Ontario Public Lands Act. Subsequently, the government…

What does ‘the crowd’ Want? Populism and the Origin of Democracy

The liberal critique of the recent rise of populism reveals an uneasiness toward ‘unruly’ emotional crowds and their leaders’ anti-democratic postures – albeit these figures have captured political power through democratic means.[i] Trump, Le Pen, Modi, and Erdogan have indeed stirred nationalist emotions and collective energies in explosive directions. Erdogan’s purge of the Turkish state is just one of the recent examples of the potential of bloody nationalist effervescence, while Modi’s anti-Muslim rhetoric has rendered a new life to violent Hindu nationalism in India.[ii] Crowds were objects of scientific fascination and civic concern for the bourgeoisie in nineteenth century Europe, and researchers, like Gustave Le Bon, and later Sigmund Freud, closely studied them. Le Bon postulated that crowd possessed a…