Friday the 13th of October, 2023
12:00 – 19:00
Cornwallis George Allen Wing 205/206
University of Kent
Organised by José Antonio Magalhães, Alexander Damianos and the Centre for Critical Thought at the University of Kent.
The Speculative Legal Theory Network began in 2022 to explore the implications of theoretical currents for legal theory. The Network provides an international platform for scholars to share their work and consider the application of contemporary theory to law.
The workshop brings together scholars from across the world to consider what it means to adopt a speculative approach to law. What does it mean to think about law on a speculative register? How is it different from other ways of approaching law? What might the Speculative Legal Theory Network become? Participants are invited to approach law as a speculative exercise, folding in theoretical movements from accelerationism, new materialism, feminist epistemology, actor network theory, assemblage theory, and beyond; while also attending to the practical consequences of such an approach to law. How might law emerge from ongoing changes in technology, ecology and the theoretical contexts legal scholars and practitioners operate in?
Each participant will contribute a 15 minute paper in response to the question: what is speculative legal theory? The event concludes with a response from Connal Parsley, followed by Q&A.
Titles and abstracts
Reading material: reading Ferreira da Silva reading Dana of Kindred as the wounded captive body
Kindred by Octavia E. Butler, published in 1979, is generally considered to be a work of speculative fiction. For radical black feminist and philosopher Denise Ferreira da Silva, the main character Dana in Kindred is a referent of the violation of post-Enlightenment thinking and offers a method for reading scenes of subjugation. Following this method of reading, in Unpayable Debt (2023) Ferreira da Silva decomposes and recomposes Hegelian dialectics and Marxist theory of capital. This paper is less interested in these engagements and disengagements with European continental philosophy (though admitting it draws heavily from Jacques Derrida), but more interested in the reading of materiality as Ferreira da Silva describes. I read ‘beside’ her to think more on what conditions this reading of materiality and consider the notion of reading materiality. Contrary to Ferreira da Silva’s position that the figure and reading tool of the wounded captive body is without necessity and thus without subjecthood, essentially my argument is that the reading of materiality – that really is an act of writing – is related to testimony, to belief and faith. This is not to defend the (post-Enlightenment) subject but to underscore how integral faith is to Dana’s account and to Ferreira da Silva’s reading.
Anxious geologists: normative rocks
Following Niklas Luhmann’s assertion that anxiety is the modern a priori, this paper considers the Anthropocene as a symptom of generalised ecological anxiety disorder. Yet that disorder is characterised by a persistent effort to apply geological practices of measurement speculatively, asserting a normative trajectory that would substitute an impasse perceived to be characterising legal and political responses to “climate crisis.” How do rocks, sediments, and fossils come to articulate geo-juridical normativities? In responding to this question, I develop a pragmatist critique of Meillassoux’s ancestral thought. The geologists pursuing the formalisation of an Anthropocene unit are correlationists insofar as they appear to believe that measurements provide an appropriate technique of articulating ‘ontologies’ of the pre and post human. But their approach is, in practice, pragmatist, insofar as they understand that the meaning of fossils, rocks and sediments, can be re-fashioned toward the articulation of normative trajectories, appropriating habits of communication that characterise the communicative function of those artefacts. Far from existing ‘in themselves’, rocks, sediments, and fossils serve Anthropocene geologists as communicative techniques, which, through novel applications of incumbent geo-scientific methods, articulate not just scientific “truth”, but juridical normativities. This is a paper, in other words, about how and why anxious geologists are appropriating geological techniques to advance a normative vision of society.
Speculative Normativities: Web3 and the State(s) of Nature
This short talk provides a glimpse into emerging modes of speculative and critical legal theory at the intersection of web3 and what is broadly referred to as “nature.” It shows how such theories are negotiated and materialized far off university campuses and are urging legal theorists to update analytical tools, confront questions of complicity, and develop modes of collaborative and matterphorical concepting.
Speculating beyond the automated state(s)
Automation brings forth new forms of speculation to both Western forms of law and how it is organized via the nation-state. A bundle of AI related technologies is now being developed, if not already in place, to automate traditional state-based practices, as well as new ones. This includes automation of everything from filing taxes and migration applications to chatbots for health services, waste management and (other) urban logistics as well as for old and new forms of bordering inside and outside of the state territory. The envisioned purpose of these technologies is often to speculate about a safer, more efficient, cleaner and altogether better future for the nation-state’s citizens. This speculation in turn rests upon the turning of both persons and things of the state into data points to enable predictions towards such futures.
In this manner, the automated state showcases new forms of matter of “nonhuman” bodies inhabiting its entangled outline. Where there used to be a government official, there might now be an algorithm embedded in information infrastructures, mediated by digital devices. The way these bodies become connected, or withdraw from each other are by necessity different from how the state previously became operative towards its subjects. This consequently creates new forms of sensations as well as affective becoming compared to before. At the same time, it also operationalizes another form of law compared to many theories of law, as the legal decision-making is to a larger degree made by a nonhuman body (or at least by a body further removed from a human body). Such agential capacity of “nonhuman” bodies can fruitfully be explored by both object-oriented and new materialist perspectives of law, seeking to explain more-than-human philosophies or speculative theories regarding what legal theory is, and can become.
A turn towards in particular new materialist feminist theories of law can furthermore point at the importance to consider which forms of speculative thinking about matter have the capacity to move through new assemblages of matter, while preserving a critical outlook. In this paper, I therefore use such theories to speculate what a more-than-human understanding of the automated state(s) could entail.
José Antonio Magalhães
On Speculative Legal Theory
A number of theoretical currents, emanating from the humanities and social sciences, which may be grouped under the rubric of “speculative theory”, have been progressively making themselves felt in the field of legal theory, especially critical legal theory. This coincides with a growing concern with contemporary problems that displace humanity, culture, society and language from the center of attention, notably technological acceleration and ecological catastrophe. In my presentation, I will seek to define what we may call an emerging “speculative legal theory” that both continues the tradition of critical legal theory and contrasts with it in a number of key points. I will structure my argument around two senses in which the difference between critique and speculation may be interpreted, and how they translate to legal theory: a philosophical sense, in which Kant’s legacy is central, and a more colloquial sense, in which the importance of criticising actually-existing legal institutions and thought is supplemented by speculating about what law may become (or turn out to be) in contexts of radical and accelerating change.
Speculative Legal Theory as a Practice of De-Worlding
I am interested in practices of speculative theory that are ‘of’ but not ‘in’ the world (Ferreira Da Silva). Most speculative (legal) theories make interventions ‘in’ the world by re-calibrating the ‘real’ to make on see the actual ‘truth’ of the world. Speculative theories, in this sense, propose distinct perspectives on ‘reality’ that go beyond traditional, conventional, or established viewpoints, thereby providing new, better, or more accurate ways of understanding the world. What is at stake, in other words, is an attempt at better articulating how the world is constituted, perceived, and known. While multiplying perspectives ‘of’ the world, these theories intervene ‘in’ the world by expanding on the scope of what constitutes it. Inspired by the work of Barad and Ferreira Da Silva, I want to think with speculative (legal) theories that are ‘of’ but not ‘in’ the world. As Ferreira Da Silva puts it: ‘[t]he particle “in” remains in the field of knowledge and presumes that is has or can obtain what is needed for a definition, explanation, or interpretation to arise. The particle “non”, in contrast, opens up a whole range of unknowable im/possibilities and virtualities as well as actualities; it is not in the order of the form (concept, category, definition) but in the register of matter as pars (the plentitude of existence), namely corpus infinitum’ (Unpayable Debt (2022), at 291). This understanding reveals an absence of onto-epistemological grounds. The goal, here, is neither to produce novel or multiple alternative onto-epistemologies ‘of’ and ‘in’ the world, nor to create new concepts, theories, or categorizations (as speculative theories usually tend to), but to reveal a mode of critique oriented toward refusing, desedimenting, and ending the world as such. I focus on a number of distinct ‘paraontologies’ where an absence of onto-epistemological grounds is at stake, to explore the figural, aesthetic, and negative nature of their critique and the distinctive practice of de-worlding it opens up.
The outer jurisprudence of rogue dissipative structures
This paper takes as its starting point the role that determinations of a juridical nature play in ostensibly biological ontologies (i.e. ontologies of organisms, sexes, species and so on). The radical indeterminacy that underpins the juridical nature of these taxonomies of matter is associated in this paper with the underlying physics of life as we know it, insofar as it is a ‘dissipative structure gone rogue’ i.e. emergent complexity far from thermodynamic equilibrium which possesses adaptive machinery such that it is not bound to the specific conditions of the energy gradient from which it arose. The paper proceeds on that basis to identify an inner sphere of juridical taxonomies which recognises its own nature as law and an outer sphere of juridical taxonomies which, mistaking its own nature, strains always towards vitalism or even divine authority, but is human-made law nonetheless. The paper goes on to recognise that there are two ‘dissipative structures gone rogue’ which are known to human science i.e. (a) life as we know it, and (b) the system of commodities being produced by commodities under the capitalist mode of production. What then is the outer jurisprudence of capital, corresponding to biological ontologies and standing in contrast to the capital-constituting regimes with which we are familiar? And what implications are there of the existence of this outer jurisprudence of capital for our current juncture of ecological crisis?
Non-human Objects: ‘Withdrawal’ as site for Speculative Legal Thinking
This paper engages with the definition of ‘speculation’ as it emerges within the theoretical turn of speculative realism. It specifically explores the debates within the scholarship of object-oriented ontologies that seek to centre the role of objects in constituting “reality”. Arguing against the dominance of human experience, scholars identifying with OOO highlight that there is a reality that humans do not have access to – that is, a reality that withdraws from human experience – but are still able to accommodate that reality. Here they particularly emphasise the role of affect, senses, and aesthetics based on withdrawal. Speculation, then, emerges both as a concept that “characterise(s) how objects exist and interact” as well as an epistemological framework that challenges human-centric linguistic and textual traditions.
Drawing on this scholarship, this paper is interested in exploring speculation in the context of legal theory pertaining to environment. While scholars have extended object-oriented approaches to studying the environment, appreciating how it lends itself to understanding it as a more dynamic and processual entity and how law can address its radical vitality, this paper argues that law itself can benefit from speculation as an epistemological exercise that can help reconfigure the question of what the nature of law is when it relates to the environment. It argues for more sensorial and aesthetic based thinking towards the environment that preserves in inquiry the uncertainty of ‘reality’ as well as expand law’s pluralistic sensibilities.
Speculative Legal Theory in a Minor Jurisprudence of Flesh
The author reflects on how ‘minor jurisprudence’—particularly as that attunes to matter, technē and norm-making—can be a speculative mode for legal theory. First, the author provides an account of minor jurisprudence generally and particularly as that has been practised by critical legal theorists of jurisdiction, especially Olivia Barr. Through minor jurisprudence, Barr, for example, describes movement as mediating spacings of the lawful, which renders burial of the dead as a place-making institution for the common law. That account is then redeployed with further examples of the lawful use and disposal of the human body, dead or alive, whole or in parts, within the common law, so to survey instances where the body’s materiality, in addition to the action of others relative to that materiality, participate in the making of their lawful treatment. That enables the author to sketch how material processes of the human body (e.g., decompositions, cleavages and adulterations) factor in their lawful treatment, as well as notions of office by which their jurisgenesis is taken up, regularised and administered for communities of law. Finally, benefited by their example, the author turns his inquiry back onto the method of minor jurisprudence and how it relies on a speculative mode for legal theory to arrive to plausible explanations of normative existence. Like with speculative realism, a minor jurisprudence of flesh supplies a basis to revisit the concerns of pre-critical forms of philosophy, where things-in-themselves are theorised.
The event concludes with a response from Connal Parsley followed by Q&A.