Law and Critique

Introduction

Against Exclusion: Teaching Transsystemically, Learning in Community Abstract In September 2018 the University of Victoria Faculty of Law on Vancouver Island, Canada welcomed its first cohort of students to its cutting edge and innovative joint degree programme in Canadian Common Law (Juris Doctor (JD)) and Indigenous Legal Orders (Juris Indigenarum Doctor (JID)). The JD/JID programme draws on the law faculty's more than two decades of experience and research on Indigenous legal orders, and Indigenous legal education. It is the first of its kind in the world, combining intensive study of Canadian Common Law with rigorous engagement with Indigenous law. The rationale behind this programme is to engage with Indigenous legal orders using the depth, rigour, and critical focus that law schools bring to the study of other legal orders. Pushing against exclusion happening in higher education throughout the Commonwealth and beyond, the JD/JID programme aims to ensure that education in Indigenous Law is no longer an education in exclusion and displacement. This short piece provides necessary background to the programme, including structure and content, and details its transsystemic pedagogical and community-based learning approaches.

Regulatory Threats to the Law Degree: The Solicitors Qualifying Examination and the Purpose of Law Schools Abstract Two major regulatory changes are affecting the provision of undergraduate legal education in England and Wales. On the one hand, the Qualifying Law Degree is being deregulated, meaning law schools are free to make significant changes to how and what they teach. On the other hand, higher education in England has seen a significant overhaul through the creation of the Office for Students, which treats students as consumers. Now more than ever, law schools need to ask themselves existential questions which will not only test their continued relevance or indeed viability within the 'market' for higher education, but also the status of the discipline of law as a whole. The regulatory landscape may indeed present a significant threat, but it is also an opportunity to reflect on what law schools are for, and consequently what changes could result from the academic freedom that comes with deregulation. Whilst different law schools will interpret their mission differently, they should caution against either generalised inertia or succumbing to an outcomes-oriented provision that simply prepares students for the new Solicitors Qualifying Examination. Instead, law schools will find their proper purpose in critical reflection and academic self-grounding, providing undergraduate students with a 'question everything' mentality, and showing them that law is something to be experienced and not merely learnt.

On the Undecidability of Legal and Technological Regulation Abstract Generally, regulation is thought of as a constant that carries with it both a formative and conservative power, a power that standardises, demarcates and forms an order, through procedures, rules and precedents. It is dominantly thought that the singularity and formalisation of structures like rules is what enables regulation to achieve its aim of identifying, apprehending, sanctioning and forestalling/pre-empting threats and crime or harm. From this point of view, regulation serves to firmly establish fixed and stable categories of what norms, customs, morals and behaviours are applicable to a particular territory, society or community in a given time. These fixed categories are then transmitted onto individuals by convention, ritual and enforcement through imperatives of law (and technology) that mark certain behaviours as permissible and others as forbidden, off bounds. In this manner, regulation serves a programming (i.e., a calculable or determinable) purpose. It functions as a pro-active management or as a mastery of threats, risks, crimes and harms that affect a society and its security both in the future and in the present. Regulation for instance, will inscribe and codify what it determines to constitute crime or harm such as pornography, incitement of terrorism, extremist speech, racial hatred etc. These determined or calculated/calculable categories will then be enforced and regulated (e.g. through automated filtering) in order to ensure a preservation of public order within society. Drawing mainly from deconstruction, this article situates law and technologies within a wider ecological process of texts, speech and writing i.e., communication. In placing regulation within disseminatory and iterable processes of communication, this article complicates, destabilises and critiques the dominant position of determinability and calculability within the regulatory operations of law.

The Contradictions of Conscience: Unravelling the Structure of Obligation in Equity Abstract Conscience rests within the heart of equity, yet it is a manifestly nebulous and contradictory concept. In particular, equity has never been clear about exactly whose conscience we are concerned with: the Chancellor or judge, or the court, or the defendant? Furthermore, in some lights conscience appears to compel obedience to the authority of law, whilst in others it gives expression to ethical drives that escape the formal strictures of legal rules. Contextualised within the broader history of ideas of Western modernity, this article sets out to understand the rhetorical significance of conscience in equity, making the argument that its disparate and contradictory modes of expression do not undermine its significance, and instead are essential to its construction of juridical obligations. By invoking conscience as a contradictory expression of both vertical state authority and personal ethical autonomy, equity asserts not only a unique normative structure, but also a distinct mode of power.

Property and the Interests of Things: The Case of the Donative Trust Abstract Within a liberal, 'law of things' understanding of property, the donative trust is seen as a species of gift. Control over trust property passes from the hands of settlors to beneficiaries, from owners to owners. Trust property, like all other property, is silent and passive, its fate determined by its owners. This article questions this understanding of the trust by showing how beneath the facade of ownership, the trust inverts the relation between owner and owned, person and thing. It analyses the relation that trustees, beneficiaries and settlors have to the trust property and argues that the role of each of these parties can be shown to consist in furthering the interests of the trust property rather than their own. It claims that this protects things from their owners at the same time as it ensures these owners' ongoing care towards the things they own. This raises questions about the trust's status within the institution of private property, justified as it is by the human autonomy it is said to enable.

Legal Education Beyond the Academy: The Neoliberal Reorientation of Public Legal Education Abstract In order to re-make the world in its own image, neoliberal expansionism is predicated on the dominance of a particular regime of reason. The dominance of economic-juridical rationality relies in no small part on education to reproduce itself. In this sense, how and why a populace is educated in the law becomes a locus of struggle and of alternative and competing constructions of normative and political orders. Over the last decade the United Kingdom's justice policy has become more attentive to the role of citizens' knowledge of the law in the context of a reinvigorated drive toward competition in the legal services market. Reformism in legal services thereby emerges as a strategy geared toward the economisation of the state by propagating specific types of legal knowledge. This reorientation of legal education is considered through, on the one hand, the insights of recent theories of neoliberalism and, on the other, a wider lens relating the intersection of legal education to the juridical-political realm. Finally, the paper outlines alternative strategies of community-based educational practices rooted in resistance to legal and economic orthodoxies.

Limits to the Politics of Subjective Rights: Reading Marx After Lefort Abstract In response to critiques of rights as moralistic and depoliticising, a literature on the political nature and contestability of rights has emerged. In this view, rights are not merely formal, liberal and moralistic imperatives, but can also be invoked by the excluded in a struggle against domination. This article examines the limits to this practice of rights-claiming and its implication in forms of domination. It does this by returning to Marx's blueprint for the critique of subjective rights. This engagement with Marx will, however, take a particular form. I will read Marx first through the eyes of Claude Lefort and thereafter against Lefort. The latter's critique of Marx still constitutes the strongest case against the dismissal of subjective rights. Introducing a reading of Lefort into the argument allows us to discover what is dead and what is well alive in the Marxist theory of rights. What is dead, I will argue, is Marx's early conception of subjective rights as ideology and illusion. However, the more mature Marx developed a theory and critique of the legal form that is able to explain why the politics of rights—despite its undeniable advances—has not been able to overcome certain forms of domination.

Policies, Technology and Markets: Legal Implications of Their Mathematical Infrastructures Abstract The paper discusses legal implications of the expansion of practical uses of mathematics in social life. Taking as a starting point the omnipresence of mathematical infrastructures underlying policies, technology and markets, the paper proceeds by attending to relevant materials offered by general philosophy, legal philosophy, and the history and philosophy of mathematics. The paper suggests that the modern transformation of mathematics and its practical applications have spurred the emergence of multiple useful technologies and forms of social interaction but have impoverished access to meanings originating in the lifeworld. The paper also argues that, as part of devices of interest aggregation and expert networks, mathematical infrastructures can be scrutinized by a revised form of legal practice that subjects them to legal critique and reconstruction in order to overcome conditions that have eroded the moral self-awareness of individuals and communities and their existential meanings.

From Social Uprising to Legal Form Abstract Does, or should, social uprising lead to new legal form? Ukraine's current situation following the Revolution of Dignity in 2013–2014, with continuing violent conflict in Donbas and Crimea, suggests that not only is it unclear how a 'new' form is assessed, but existing transitional policies and frameworks are unlikely to be clearly implemented and enforced. An alternative analysis of transformation is necessary to address the conflicting aftermath of uprising within a particular historical and cultural context. The transformation that is happening in Ukraine is a continuum that is intellectual and psychological as much as reforming judicial systems and governance. Thinking transformation differently opens onto narratives, complexity of causes and a plurality of ideas of future, resolutions and justice. Such a shift in thought and analysis, informed by narratives and grounded research, is necessary in order to try to understand the current pursuit of justice in Ukraine.

Alexandros Sfakianakis
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alsfakia@gmail.com