Image by Sarah Riley Case, ‘In/human presence’ (2014)

The second roundtable of the Law and the Inhuman workshop was entitled ‘The Inhuman as the Human’, and was curated and chaired by Afshin Akhtar-Khavari. The two speakers were Matilda Arvidsson and Connal Parsley.

Afshin Ahktar-Khavari: In this roundtable we focus our attention on the technological and infrastructural inhuman that tacitly operates as the human. We want to explore the idea of the reconfigured human as a hybrid or cyborgian form of being in a context of plural cosmotechnics. To introduce the discussion, I want to think through the idea of the cosmotechnics, which Yuk Hui has coined. Connal will also talk about Bernard Stiegler’s work, which is aligned with Simondon’s scholarship, and the inspiration behind Yuk Hui’s work on comotechnics.

Cosmotechnics refers to the idea that human beings are intimately interconnected with the world and the cosmos through their technological endeavors. Simondon suggests that technology is not merely a tool or an extension of human activity but rather a fundamental aspect of human existence that shapes our relationship with the world and with ourselves. Within the framework of cosmotechnics, humans are seen as co-evolving with technology, constantly transforming and being transformed by it. This perspective emphasizes the mutual influence between humans and their technological creations, suggesting that our understanding of ourselves and our place in the world is deeply intertwined with the tools and systems we create.

In the context of discussions about identity and the self, cosmotechnics could prompt questions about how technology mediates our understanding of ourselves, how it shapes our identities, and how it influences our sense of agency and autonomy. It invites reflection on the ways in which technological advancements both reflect and shape our cultural, social, and individual identities. This concept offers a thought-provoking framework for exploring the complexities of identity in the modern world. It helps create porous boundaries between the human and non-human.

Rather than suggest that the inhuman is not or is always in totality a part of the human, I wonder if that entangled relationship is constantly changing and developing. The inhuman is entangled with the human in different ways at different times and in varying spaces. Three ways we might see this is: human co-evolving with technology; technology mediating life; technology shaping how we are entangled with and within the cosmos. We need more conceptual, theoretical, and pragmatic interventions that help us better understand the porous nature of the human and our entanglements in the world, which include technological arifacts. They will help us question, critique, and reimagine legal concepts and ideas.

With that in mind Matilda Arvidsson and Connal Parsley will help us unpack and develop ideas around the ‘inhuman as the human’. Starting with a more general question: what is the inhuman to you and how would you characterize its entanglement with what you understand the human to be? Do you think all inhuman/non-human are similarly entangled/defined in relation to the human? Specifically, Matilda: can or should the law be concerned with the inherently inhuman violence that constitutes part of what the human is? What does this say about the human that is the subject of the law?

Matilda Arvidsson: Let us start by considering who or what the human is or can be in relation to law, technology and ‘others’.

Figure 1: The in/human in action: Matilda’s notebook with the notes taken during our conversation at the workshop.

Who am I? Can I fully know myself and decide on my life? Can I breathe and in that become ‘other’? As nitrogen and oxygen (with argon, carbon dioxide, neon, helium and hydrogen) fill my lungs and body keeping me alive, and as the gas I exhale (nitrogen, oxygen, carbon dioxide, water vapor) leaves my body: who do I become in this constant exchange and becoming with humans and non-humans alike? What is my responsibility as the ‘other’ impinges on me, becomes me, and I become other? I have approached these questions through Rosi Braidotti’s posthuman feminism and Judith Butler’s use of psychoanalytic theory. Just like breathing is fundamental for life – it is material, yet unconscious: I become both by and as that which I breathe – so is, Butler argues, the way in which ‘the other’ becomes part of my own psychic self, remaining with me as untranslated messages through which ‘I’ irreversibly become other, also to myself.

The constant yearning for translating the untranslated, for understanding the un-understandable, and to become in difference and relationality to the ‘other’ who is also me, is the human condition: this is also where violence and law enters. Violence is part of life. Often when we use the word ‘inhuman’ it denotes acts that are inherently human: genocide, torture, sexual violence. This, to be clear, is not how Kathryn Yusoff invokes the ‘inhuman’. Yet, the common understanding of the inhuman is what humans do and what law is concerned with: violence. Am I violence? Yes. Am I responsible for the violence that I did not will into this world? Yes, I am. Am I part of a colonial history of extractionist oppression? Yes, I am. I am a lawyer – it is part of my profession to use law’s violence to curb violence. It is on me to act responsibly in this world – in relation to humans, non-humans and other ‘others’, because they are part of me, although we are not one and the same. I breathe, I am part of the human condition: it is my responsibility.

If you think this has nothing to do with ‘the self’ and technology, then consider how you use your smartphone, your email, or your daily medicines: is it you, or is it yours? Do you drink water? Are you water? Are you the microbes that your body hosts and without which you cannot live? Braidotti’s posthuman feminism brings clarity to this, as Emily Jones and I describe it in International Law and Posthuman Theory:

‘We define posthuman theory as sitting between the convergence, on the one hand, of critical posthumanism, that is, the critique of the white, heterosexual, able-bodied man as the central focus of Western thought (including legal thought) and post-anthropocentrism on the other, that is, the idea that the human sits in hierarchy over nature, matter, nonhuman animals and machines’ (p. 4).

Jones further notes that posthuman feminism ‘calls for an account of subjectivity that includes non-human entities, including a better understanding of the agency of matter’ (p. 6).

Yusoff, drawing on Sylvia Wynter’s scholarship, reminds us of racial capitalist and colonial history being part of our present material condition of the Anthropocene. While historically, geo-social forces have continuously been equated with ordering, civilizing the uncivilized, weeding and cultivating and ‘developing’, with ‘whiteness’ and the colonial ‘right’ to land and natural resources, geological forces are other to anthropocentric violence: there are ‘inhuman’ forces. Volcanoes erupt. Photosynthesis transforms the sun’s energy, with water and carbon dioxide, into oxygen and sugar. Water gushes forth.

In being material – all atoms, all carbon, all matter – we ‘humans’ are inhuman too. We are entangled bodies. We are other, also to ourselves, as Butler reminds us. We are, as Braidotti points out, in ‘this’ together, but we are not – because of the materialities, differences, inequalities and violence through which we all exist – the same.

Yusoff’s work on the ‘inhuman’ reminds us of the critical vulnerability of our geology and environment while Jane Bennett reminds us of the gendered forms of violence that accompany the anthropocentric extractionism, petro-capitalism, colonialism, and racism causing this vulnerability. Feminist politics of hope and actions is the way forwards: not to fear technology, humans or other ‘others’ but to learn how to live responsibly and non-violently together.

The inhuman, the more-than-human, the posthuman, and other feminist figurations are helpful as navigational tools offering, as Donna Haraway explains, ‘condensed maps of contestable worlds’ (p. 11). They allow, in Braidotti’s words, ‘the complexity of the differential, materially embedded subject positions they represent and account for’ (p. 213). Invoking the inhuman to think through relations, responsibilities and our actions may be helpful towards more hopeful present-futures. Feminist figurations help us decentering the human in law towards less hierarchical, exclusive and violent legal orderings, politics, and practices.

Afshin: Taking this further, can technology – e.g. frontier technologies in warfare – make humans less inhuman and therefore more ‘humane’? And if so, should law – IHL, and other laws – be designed towards that end? Should law be designed to make us more humane or less inhuman? Could it even be designed that way?

Matilda: Let’s be clear: warfare is human-inhuman. Frontier technologies in warfare are invented by humans for human necrotic, predatory, fascist and violent purposes, colonizing inhuman forces and agencies. IHL does not make warfare unlawful. Rather, it aims to normatively organize conduct in warfare. It puts ‘the human’ in ‘the loop’ central to, e.g. lethal targeting operations. As long as a ‘human’ is in ‘meaningful control’, then weapons systems are lawful if meeting all other standards of IHL. IHL is not a successful tool for curbing violence because human control was never a guarantor for less violent, necrotic or predatory ends.

Knowing (with Butler and Braidotti) that one cannot answer to who ‘I’ am, and that ‘I’ am nonetheless responsible towards myself and others, I have explored human-insect relations in human-inhuman nexuses of warfare frontier technologies. Warfare technology often draws on insect technologies in military tactics ­– such as swarming and sensing – and, as Gina Heathcote has shown, in the exoskeletal design of military uniforms. Insects have extraordinary inhuman capacities and forces.

Military AI swarming drones interact with each other and their environments in their military missions. In this, swarming drones are, I have argued elsewhere, becoming-human as they integrate within the human telos of warfare, acting as tech-upgraded human warfighters. Frontier technologies designs in warfare make, in my view, humans as human as ever and technological entities and other ‘others’ more human – which is not a hopeful future.

What role is there for law in this? In search for a more hopeful future of human–non-human relations of mutual care, non-violence, and non-fascist living, law can be a helpful tool for re-organizing oppressive hierarchies, and especially for decentering the human. As Jones points out, there is an ‘inherent tension between wanting to work within international law but then having to accept international law’s constraints when doing so’ (p. 155). There are constraints, and there is only so much we can do within the framework of law as a tool for non-anthropocentric, non-violent change. Yet, as Jones, Heathcote and van Eijk, show: to exchange law’s ‘common heritage of (hu)mankind’ to a common heritage of kin-kind does miles to decenter the human from law’s anthropocentrism. Why make more (hu)man when there are so many kin in the world? Similarly, I have suggested a posthumanitarian international law that aims towards the safeguarding of human-inhuman-more-than-human entities without any pre-given priority to humans. Together with Britta Sjöstedt I also argued for a further integration of international humanitarian and environmental law in warfare and beyond; and with Gabriela Argüello and Niels Krabbe, I cautioned against the use of airborne drones in marine environments, since the ‘benevolent’ character of ‘eco protection’ drones are often mingled with human teloses of necropolitics, extractionism, and predatory exploitation.

These are a few examples of how technology and the (in)human come together, and of law’s potential as a tool for change. Even if it is much, these are some of the things I tried to contribute to as an international legal scholar being also ‘other’, constantly translating the untranslated and the un-understandable. Of breathing, also when it is difficult – and to enable other’s breathing. It is not a question of arrival – it is a constant becoming.

Afshin: turning to you now, Connal. What is the inhuman to you and how would you characterize its entanglement with what you understand the human to be? Do you think all inhuman/non-human are similarly entangled/defined in relation to the human?

Connal Parsley: The ‘human’ technique and nature in Western legal traditions has been an open question in my research, largely due to close engagement with the writings of Giorgio Agamben and then Roberto Esposito. My interest sharpened while devising an LLM in Law and the Humanities with colleague Maria Drakopoulou, with whom I also co-direct the AHRC Law and the Human network. Despite broad take-up of ideas of the post-human, trans-human, and non-human, legal discourses seemed increasingly to deploy the human to make familiar claims about thought, reason, and nature. This has unpredictable effects where new technological, biomedical and other scientific contexts are concerned. I wrote about how a positive image of an inherently non-technological ‘human’ – a proxy for value, evaluation and reflective wisdom – has suddenly materialized in legal doctrine as legal thought systems encounter automation in decision-making. I also co-organized a summer seminar handling similar themes, AI and Humanity, at the Simons Institute for the Theory of Computing at Berkeley.

In this context, the ‘inhuman’ is a way to get at the dynamic of the human in relation to the process of systematization through multiple factors including law, governance institutions, and technology. As well as understanding legal discourse ‘from within’ (in confrontation with technology), this asks us to see it as a contingent mode or style of institutionalizing value, normativity and ethics within an open ecology (i.e. as itself a technical process). Giorgio Agamben’s approach to this problem draws on Heidegger: he emphasized the lack of a foundation or task ‘proper’ to human life, and identified the logic of ‘anthropogenesis’ (the negative production of a human style of life), as well as the activity of constantly navigating, covering over, and exploiting this lack – which he called ‘the foundation for all legal behaviour’ (Agamben, Language and Death: The Place of Negativity, p. 105). By naming this ‘anthropological machine’, which works on a providential scale, Agamben identifies the human with the much broader dynamics that produce it.

An adjacent configuration is Jean-Francois Lyotard’s ‘inhuman’: what is innermost to the human is something outside or beyond it, that cannot be apprehended. This has a negative inflection – something horrible or cruel – but also a greatness, aspiration or higher order. Yuk Hui identifies this with the Kantian sublime, but also the ‘general process of systematisation’, within which the ‘inhuman’ expresses the human’s condition as an ‘improbable’ complexity that is no longer self-grounding because of its connection with the physical world (waves, particles, matter), and is associated with its own ‘exteriorisations’ achieved through technological invention (Hui, ‘The Inhuman and the Sublime’). As Hui notes, for Lyotard this is partly about limning an ‘unfinished’ metaphysics, and there is positive potential in that. Yet Lyotard’s The Inhuman also points to global technical systems, new flows (capital, information and so on) and new modes of governance by, and of, complex systems(Lyotard, The Inhuman) – a focus of critical approaches to the inhuman such as Bollmer’s (Bollmer, Inhuman Networks).

While these critical insights are important, Negarestani highlights how a fundamentally contingent human makes inevitable the engineering of such systems, making it necessary to underpin them with a set of rational commitments and conducts, and the consumption and production of norms. As problematic as that is as a political project, as a legal scholar I think this what is at stake: pervasive technical systems are being engineered in ways that affect the political ontology of life. What are we supposed to do – in the short term, with actual technical legal systems – with the ‘inhuman condition’, and the unsustainable rhetoric of the human that basically denies and exploits it? How do we take responsibility for this ‘human’ bundle of values, lacks, and agencies without simply reasserting what Donald Kelley called ‘the human measure’? What other images of ethical life can be instituted?

Afshin: Connal, can you give us a background to Stiegler? What do you think is the potential influence and impact of thinking through Steigler and its influence and potential impact on legal discourse? And how is this different to how we have traditionally sought to characterize the inhuman as critical to what it means to be human?

Connal: In a sense Bernard Stiegler’s work suggests a philosophical-normative response to this diagnosis, that challenges legal thinking. A good example is the notion of ‘originary technicity’. In legal thinking, humans (and humanity) are presupposed to be fundamentally non-technological; regarded as both prior and superior to technical processes which they invent and can control. This is visible in juridical presumptions that humans, human rights, and legal doctrinal categories are both media-neutral and can effectively govern any technological system (an idea Conor Heaney and I recently contested in the context of automatic facial recognition technology), or that automated decision systems are just another tool that humans deploy and oversee. By contrast, Stiegler’s ‘originary technicity’ inverts the priority, drawing on French paleontologist André Leroi-Gourhan and philosopher Gilbert Simondon. From the point of view of technics – ‘the pursuit of life by means other than life’(Stiegler, Technics and Time, 1: The Fault of Epimetheus, p. 17) – human life was made possible by material-technical processes. Human life is not something biological nor conscious in origin, but a particular relationship of life with technical supplements. It also produces these, as its exteriorized memory – imbricating it in a broader evolving ‘technical milieu’ that shapes what human life is, including and especially in its psychic and social dimensions.

Crucially, Stiegler developed a conceptual vocabulary to describe better and worse technologies and practices in a very different way from legalist, humanist and moral philosophical traditions. It is still common today to think of technology as ‘neutral’, which is actually another kind of universalism. Taking Jacques Derrida as a point of departure, Stiegler regarded technology as pharmacological(Stiegler, What Makes Life Worth Living) – potentially toxic or curative – and set out to make Western philosophy confront the techne that, he maintained, it systematically excluded. This rejection of technology’s cultural and philosophical neutrality has been extended, notably in the account of cosmotechnics – ‘the unification of the cosmos and the moral through technical activities’ – developed by Yuk Hui and others (cf. Cosmotechnics: For a Renewed Concept of Technology in the Anthropocene, edited by Hui and Lemmens).

A sense of Stiegler’s mode of evaluation is contained in his terms negentropy and deproletarianization. Stiegler associated planetary capitalism and climate change with entropy and identified a responsibility to counter this through the building of potential, coining ‘negentropy’ after Schrödinger’s ‘negative entropy’. And politically, the destruction of information and potential is understood as proletarianization – the loss of knowledge, skills for living, and capacity to contribute to the building of systems – which Stiegler contrasts with de-proletarianization. These were not (only) analytical observations for Stiegler: he used his framework to address major questions of value such as ‘what makes life worth living’, practical questions about how cultural technologies shape desire and interact with political economy (Stiegler, For a New Critique of Poltical Economy), creating concrete contributory-participatory cultures, and many others.

Although the ‘human’ is not a primary concern for Stiegler beyond the ‘inhuman’ condition resulting from life’s individuation necessarily moving beyond the biological (Stiegler, ‘Elements for a General Organology’, p. 80), he does address humans as noetic agents. The human is still a source of ‘value’ – an agent shaping the quality of life – but not as an end or normative standard in itself. This brings us back to the ‘inhuman’. For Stiegler, the human’s technical imbrication means that it matters greatly how humans ‘interiorize’ technologies, either ‘adapting to’ them or ‘adopting’ them with an active noetic spirit. He suggests that humans ‘adapting to’ financialization and global capitalism, makes human life ‘entropic’, while the labour and struggle of adaptation allows us to ‘try to remain non-inhuman beings’ (Stiegler, What Makes Life Worth Living, p. 4.).This double negative ‘non-inhuman’ is key: for Stiegler, humans must critically transform the inhuman technology-selves they receive, through a production of difference, generating the possibility of neg-entropy and de-proletarianization.

Afshin: Connal, you have a major grant on human-AI government administrative decision-making. Can you tell us about what you intend to discover and achieve? Importantly, can you explain what your ideas of the entangled inhuman will tell us about practices and value concepts that could emerge in the future of administrative decision-making?

Connal: I have a UKRI Future Leaders Fellowship, for my project ‘The Future of Good Decisions: An Evolutionary Approach to Human-AI Government Administrative Decision-Making’. As data-driven decision automation becomes much more common in administrative legal systems, we need to recognize the limits and unintended effects of existing legal frameworks, conceived in a very different technical milieu. This is a challenge because of how legal systems respond to rapid technological change. On the one hand, there are new legal instruments and strategies, like the widely mandated ‘human in the loop’ mechanism, giving the impression of law moving with the times. On the other, the normative-political frameworks that structure institutional processes – such as ‘administrative decision’ – contain latent ontological premises about humans and technological neutrality that must be revised.

I am particularly interested in evaluation practices and their embedded value concepts. These are often regarded as fixed standards for new technologies and practices to meet, thus guaranteeing their acceptability (even if they remain otherwise politically and normatively disruptive). Some 60 years ago, Gilbert Simondon referred to the need for normative reinvention (Simondon, Imagination et Invention, p. 158),to avoid reapplying settled normative codes as if they were eternal or universal. Rule of law values like transparency or the elimination of bias emerged in a time and a place, in, through, and for specific media conditions, and might need to be updated or supplemented by more techno-historically appropriate standards. The Future of Good Decisions asks how emerging techno-social media systems can support a new vision of participatory deliberative governance, to supplement that of liberal legal thought. How can our ideas of ‘good decisions’ evolve, via new administrative practices and evaluative concepts, for an age where humans and AI increasingly ‘co-decide’?

Stiegler’s work is important to this project on at least three levels. The first is ontological, rethinking the basic arrangement of technology and human agency in relation to decisions and government administration. The second is political-normative, asking what kinds of values might emerge if we do not stop at meeting existing politico-legal criteria, but ask about value in broader technopolitical ecologies. The third is methodological, emphasising practical knowledge and experience, design and engineering, and participatory reflection on values in technical-political processes. My project uses Live Action Role Play to collectively explore new value concepts, and model ‘non-inhuman’ governance processes. Because it aims at practical change, these concepts ultimately need to be institutionally legible, and broadly resonant. As a critical legal project, it makes a political demand, making space for critical philosophies of technology in this age of institution-building. It’s not enough to translate critique across political and legal-institutional registers. We also have to create the conditions for those philosophies to be meaningful, enabling a variety of political voices and agencies to participate. Otherwise, an already technical form of government decision-making seems set to be re-technologized, proletarianizing us further while presenting itself as the fulfilment of the democratic tradition.

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Matilda Arvidsson is an Assistant Professor of International Law, and Associate Senior Lecturer of Jurisprudence at the University of Gothenburg. Her work crosses over law, posthuman feminist theory and practice, colonial history, human-other relations, and AI. Publications include Arvidsson & Noll (2023) ‘Decision Making in Asylum Law and Machine Learning’, and Arguello, Arvidsson & Krabbe (2024) ‘Marine Ecosystem Bodies as Entangled Environments and Entangled Laws: Drones and the Marine Environment. She is the co-editor, with Emily Jones, of International Law and Posthuman Theory (2024) and the series editor of AI, Law and Society.

Connal Parsley is a UKRI Future Leaders Fellow and Reader in Law at the University of Kent. His interdisciplinary research brings together critical political theory, philosophy of evolving technosocial ecologies, experimental prefigurative methods, jurisprudence and legal studies. Recent publications include (with Conor Heaney) a critique of human rights litigation’s efficacy in regulating algorithmic technology (‘​​Dans l’intérêt de la communauté?) And the forthcoming Routledge Handbook of the Lived Experience of Ideology, co-edited with James Martel, Basak Ertur and Naveed Mansoori. He is co-director with Maria Drakopoulou of the AHRC Law and the Human Network, and the translator of works of Italian thought by Roberto Esposito, Giorgio Agamben and Emanuele Coccia.

Afshin Akhtar-Khavari is a professor of international law at the School of Law of the Queensland University of Technology. His research engages in critique and develops normative perspectives on the relationship of the law to non-human living beings and their social lives. He has published studies focusing on global governance, restoration, plastics, and jurisprudence. He is presently completing a book on restorative mindsets in international law for the Routledge Explorations in Environmental Studies series on the topic of international law and restorative environmentalism. He is currently a Chief Investigator on two Australian Research Council discovery grants studying the intersections of science, ecology and law.