Category Archives: Workshops

Audio from Seminar 3 is now Online

Audio recordings from our third seminar, held at the University of Kent on September 19 are now available online, courtesy of Backdoor Broadcasting.

Aina Khan – Agreements in Islamic Family Law – Perspectives from Practice

Christine Schwoebel – The Public and Private in Public International Law 

Emmanuel Voyiakis – Private Law in Public Places

Daniel Monk – Inheritance Law, Pleasures and Perils

Emmanuel Melissaris – Framework Responsibility for Remote Consequences

Mairead Enright – Beyond Strategic Agency – Towards a Political Conception of Religious Contracts

Reflections on Seminar 2: Private Law and the Subject of Human Rights

The second seminar in our series was held at Warwick University on March 22nd. The seminar focused on strategic deployments of private law and civil litigation in vindicating human rights. Seminar discussions addressed and developed a number of important questions drawn, in particular, from our engagement with examples from current practice in human rights law. The core difficulty with squaring private litigation and human rights seems to be that ‘we find ourselves standing on another’s ground’, reliant on historical accretions of contingent precedent that, by and large, have nothing immediately to do with the sorts of claims discussion in this seminar – claims about sexual abuse, torture, state killing, corporate killing and so on. To what extent can we expect civil litigation to support credible struggle with the awesome definitional and political power of law?

Private Law Justice and Human Rights Claims: Hope and Hopelessness.

 Several participants spoke to projects which situate civil litigation within broader movements agitating for political change or for changes in the symbolic representation of particular claims. We might describe these claims in the language of victimhood and reparation, but we might also use the language of citizenship, responsibility and accountability. Traditionally, private lawyers seek monetary compensation for clients who have suffered harm: this tactic asserts a commensurability or equivalence between a financial remedy and a particular material wrong. But, as several speakers reminded us, some litigants are seeking something other than financial remedies. They may be seeking some broader reparation. They may be seeking an apology. They may want to compel the production, or participate in the production of a national narrative which sets out how they came to be harmed and begins a process of catharsis, reconciliation or transformation. They may want to use litigation to trigger later processes of public deliberation or contestation. In other words, they may be asking private litigation to play some of the roles which we associate with public inquiries and commissions, or with more traditional constitutional or rights-based litigation.

Some papers spoke of private law as a supplement to failing public law systems. For instance Nikki Godden‘s paper addresses the use of negligence in  highlighting and addressing police failure to protect victims of sexual assault; an issue which has eluded adequate reform from within the criminal justice system. There is a suggestion that the threat of financial loss via damages may spur powerful bodies to alter their practices; reinscribing notions of responsibility or duty which are not adequately inscribed in public institutions. Maeve O’Rourke also spoke to Justice for Magdalenes’ campaign for apology and reparations for women incarcerated in the Magdalene Laundries; obstacles to a viable civil claim have perhaps pushed that movement onto an entirely different political terrain than it might have occupied if the demand for a government admission of responsibility could have been effectively tied to liability. Damages have an ambivalent relationship to these political aspirations for litigation. As the news comes that the British government is currently negotiating a financial settlement with the litigants in Mutua v. Foreign and Commonwealth Office Andrew Williams‘ paper on civil litigation arising from the Iraq War makes very interesting listening. Often, powerful corporate or government wrong-doers appear to ‘pay litigants off’ , pacifying them through settlement, neutering the opportunities for ‘truth-telling’ that significant, highly publicized litigation might attract. Some litigants, of course, have tried to short-circuit that process by creatively reappropriating financial remedies. Consider Abdel Hakim Belhaj’s offer to settle his rendition claim against the UK Government for £3 in exchange for an apology and an admission of liability.  Catherine Gilfedder  spoke about another of Reprieve’s campaigns against indefinite detention and rendition. She discussed how a client of Reprieve  used part of the damages which he obtained through civil litigation to provide for other victims of torture – effectively building political solidarity from an action grounded in corrective justice.

Participants also discussed  civil litigation’s construction of harm and its relationship to ongoing political struggle. On the one hand, we may have a sense that civil litigation may allow litigants to construct a political narrative around individual harm which can cut through a large and complex crisis and provide space for contestation of take-for-granted frames. As a strategy, litigation of this sort may be more effective than a large scale public inquiry which may produce a sprawling de-individualised and dispersed  historical record of harm. Consider the South African apartheid litigation which may provide opportunities (outside of class actions) to address forms of corporate wrong-doing which have not been addressed as part of truth and reconciliation processes. On the other hand, as Carolina Olarte and Nick Shapiro emphasised in their papers, private law’s emphasis on individuals, and on discrete ‘events’ of wrong-doing tends to silence ongoing experiences of systemic harm.

Hacking Private Law: Subjects and Consequences.

Another series of conversations revolved around the strategic question of the instrumentalisation of private law techniques for political or critical ends. The apparently depoliticized space of private law may be ’empty’ and open to filling in the sense of reinterpretation or repoliticization; to ‘hacking’. This can be purely pragmatic. For instance, Catherine Gilfedder introduced discussion of creative uses of commercial remedies in human rights cases; consider, for instance, the use of the Norwich Pharmacal jurisdiction – originally a creature of patent law – in the Binyam Mohomed litigation. (The order has since been neutered by the Justice and Security Act: see Fiona de Londras here). Hacking may also have a second aesthetic or representational dimension: this possibility was especially apparent in Tsachi Keren-Paz’s discussion of the possibilities of using the tort of conversion to secure remedies for victims of trafficking. What do we do when we transfer private law forms from their marketised  ‘home’ to contexts which are much more explicitly embedded in matters of violence, gendered power and struggle? On one hand, private law forms – especially because of their bluntly economic associations – allow us to discuss human rights in a brutally economic register, which exposes their imbrication in market power. Sometimes, by collapsing the distinction between categories of injury via private law – as Karen-Paz does when he deploys conversion to obtain a property remedy on the basis that a woman has been treated ‘as property’- we can work a certain ‘poetic justice’. But what is lost in that collapse?  In thinking of and describing women ‘as property’, are we producing a new subject of private law, ripe for government along particular lines and saturated with meanings which we would perhaps prefer to discard? How do we account for these subjects, and for litigants’ experiences of inhabiting those subject positions? In particular, how can we square the gains of litigation with the costs to a litigant of being burdened with the violent name of property? Is it possible to do more than reproduce and reinforce the original chattelisation? How can we interrupt that reproduction? Abdul Paliwala reminded us of the importance of situating legal strategy within communities of political resistance; joining private law to the public of resistance, as much as to the public of the sovereign. Illan Wall introduced the Lacanian idea of ‘over-identification’ to the conversation; in ‘hacking’ private law can we, to paraphrase Zizek, take private law more seriously than it takes itself; stretching its boundaries in ways which expose its fundamental tensions, contradictions and paradoxes? The point is to give private law credibility insofar as is necessary, without being corrupted by it; to profane private law.

The state, of course, may also ‘hack’ or reappropriate private law techniques, with uncomfortable consequences. Carolina Olarte’s paper discussed how, in Colombia, ‘good faith’ – a concept associated with the protection of vulnerable market actors against over-reaching and opportunism – is used by the state in a synthesis of public and private law which deprives displaced landowners of their property rights to meet the needs of government and private corporations. This ‘hack’ produces a new subject of private law – a ‘dispossessed owner’ who is owner in name, but has none of the control over her land which we associate with property, and can only dispose of it as the regime would wish.

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We warmly invite PhD students, academics (in all disciplines), teachers of private law and practitioners and activists working in relevant areas to get in touch with us at m.enright[at]kent.ac.uk or i.r.wall[at]warwick.ac.uk and/or to express interest in participating in the later seminars in the series (details at www.publicprivatelaw.co.uk).

To receive updates on the seminar series, you can follow us on twitter @pubprivlaw and on facebook here.

Details of the third seminar in the series are here.

Recordings from Seminar 2 Are Online.

Audio recordings from our second seminar, held at the University of Warwick on March 22 are now available online, courtesy of Backdoor Broadcasting.

Andrew WilliamsPersonal Injury Claims in the context of Systemic Human Rights Violations: the case of Britain in Iraq

AUDIO HERE

Catherine Gilfedder –  Private Law Litigation: Reprieve’s Practice

AUDIO HERE

Nikki GoddenTort Law, Human Rights and Rape: Beyond the Enforcement of Criminal Justice

AUDIO HERE

Carolina OlarteNew property regimes and the function of (corrective) constitutionalism

AUDIO HERE

Tsachi Keren-Paz –  Private law in the service of human rights: the sex trafficking case study

AUDIO HERE

We are unable to share recordings of Nick Shapiro and Maeve O’Rourke’s presentations for reasons of client/informant confidentiality, but we hope to post text versions of their presentations in due course.

Reflections on the Public Life of Private Law.

By the end of Friday, we will be half-way through our ESRC seminar series ‘The Public Life of Private Law’. The programme for our second seminar is here. The focus of the second seminar will be on the uses of private law in seeking reparations for ‘human rights abuses’. In setting this theme we had in mind a variety of legal scenarios. To name three, we are interested in:

The challenge is to bring discussion of these issues together with the (overlapping and intersecting) broader theoretical and conceptual questions which we identified during our first seminar. Readers are of course very welcome to engage with these questions in the comments.

The Risks Of Using Private Law

  • How can we ‘think’ strategically entering into private law, to use it for political ends? (Think of how, as Davina Cooper reminded us, public bodies have, in the past,  used private law to advance radical political agendas). Do we always rub up against problems of juridification? What is the position of law in political struggle, and what are the political risks of insisting on law’s importance to life?
  • Are we trying to ‘hollow out’ spaces for political action? Are we sometimes trying to drive the operations of private law to their absolute conclusion? Can acts of over-identification with private law collapse it into itself or transform it into something more useful? Consider Adam Gearey’s presentation on the pension trust.
  • What problems of co-option and reversability does private law present for political struggle? Must you always cede more than you can gain by engaging with it? To what extent does engaging with private law mean that you lose the grounds on which you struggle? Can even creative engagements with private law (see Anne Barron’s discussion of CopyLeft) be brought back within capitalist relations? Is there anything which guarantees private law for the Left?
  • Does the ‘private form’ close down ‘public’ ideas? Does private law inevitably mean a removal of political practices from the space of public oversight? See Kristen Rundle’s discussion of the Jimmy Mubenga and the ‘contracting out state’.
  • What – in a normative sense – are we trying to recover when we talk about reintroducing the ‘public’? What if the ‘public’ itself is tainted with or corrupted by some of what – individualism, commercialism, irresponsibility – we associate with the failings of the ‘private’?  (See Emilios Christodoulidis’ presentation)?
  • What do we assume about the separation of, or distinction between the ‘public’ and ‘private’ of private law when we speak of ‘reintroduction’ of the public to the private? Contrast the notions of ‘public’ at work in Alan’s, Emilios’ and Adam’s presentations. How can we reconcile our interests in these terms with the long tradition of critique of the public/private divide?
  • Who is the subject of these political private law claims? Who bears the burden of bringing the political to private law? How do we understand the individual citizen who uses private law for the political? This looks to be a significant theme ripe to emerge from our second seminar.

What do we want from private law?

  •  What is lost, by contrast, where there is a failure to juridify or a withdrawal of law; where spaces or actions go apparently without law? What values do we tie to the ‘reintroduction’ of law? ‘Publicness’? ‘Oversight’? ‘Rights’? How do we think about contexts in which private law facilitates a withdrawal of law (as in privatisation through contract) and ‘blocks’ further penetration? (See See Kristen Rundle’s  presentation) How do we ‘unblock’?
  • What aspects of ‘the legal’ do we insist on keeping to the fore, particularly when we follow private law into spaces of privatisation and social dumping? Do we, in these contexts, associate law with the ethical, or the relational? (See Alan Norrie’s presentation). Do private law notions of obligation, duty and responsibility help or hinder us here? How does it feel to be obligated, and how does law conceive of these obligations?
  • To what extent does a desire to use law reflect a certain demand for solidarity or identification with community, or with shared normative position? (See Emilios Christodoulidis’ presentation). To what extent does private law entail exactly the opposite; a claim to break out of the public and its demands? (See Matthew Stone’s presentation).

Bringing Private Law Concepts Into New Spaces

  • If we want to appeal to private law, to what extent are we free to preserve or re-orient some of its desirable concepts (see Davina Cooper and Sarah Keenan’s work on rethinking property and read it against Matthew Stone’s)? And if we can ‘play with’ private law’s concepts, as Cooper and Keenan do, to what extent can we bring them beyond their traditional domains and redeploy them as analytical tools in examining unexpected or new forms of political contest? What will they look like when we bring them ‘back’?

We warmly invite PhD students, academics (in all disciplines), teachers of private law and practitioners and activists working in relevant areas to get in touch with us at m.enright[at]kent.ac.uk or i.r.wall[at]warwick.ac.uk and/or to express interest in participating in the later seminars in the series (details at www.publicprivatelaw.co.uk).

To receive updates on the seminar series, you can follow us on twitter @pubprivlaw and on facebook here.

Programme for Seminar 2 on March 22 – “Private Law and the Subject of Human Rights”

 

10 –  Arrive, Coffee

 

10.30 – 10.45 – Welcomes, Introductions, Introducing the Bursary Holders.

 

Panel 1 – 10.45 – 12.30

Andrew Williams: Personal Injury Claims in the context of Systemic Human Rights Violations: the case of Britain in Iraq

Nikki Godden: Tort Law, Human Rights and Rape: Beyond the Enforcement of Criminal Justice

 

Reprieve: TBC

 

Discussion, Q & A

 

Lunch – 12:30 – 13.15

 

Panel 2 – 13.15 – 15.00

Maeve O’Rourke: Justice for Magdalenes outside the court: public pressure and international legal campaign for reparations for Ireland’s Magdalene Laundries abuse

Nick Shapiro: Toxic Emergency Housing Units and the Experiential Irrelevance of Law after Hurricane Katrina

Carolina Olarte: New property regimes and the function of (corrective) constitutionalism

 

Discussion, Q&A

 

Coffee 1500 – 15.30

 

Panel 3 – 15. 30 – 17.00

Nicky Priaulx: Humanising Negligence: Damaged Bodies, Biographical Lives and the Limits of Law

Tsachi Keren-Paz: Private law in the service of human rights: the sex trafficking case study

Discussion, Q&A

 

Dinner – 18.00

Social Property and Political Struggle.

 

We are pleased to feature a version of this paper, delivered by Prof. Davina Cooper at our first seminar. The accompanying audio is here.

With its focus on contestation, authority, normativity, attachment and power, social property here speaks to the agonistic character of politics. It also speaks, importantly to the on-going challenge for a contemporary progressive politics of developing and consolidating new hegemonic institutionalised practices (such as equality law) while simultaneously enabling, engaging with and benefiting from dissent. For dissent (or disorder) keeps progressive hegemonies vibrant, relevant and responsive. This may be true even when dissent comes from the right. Thus, while a liberal response to the cases focuses on identifying the “better” decision, our interest is in standing back from the cases to explore the place of dissent in developing a progressive institutional politics.

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Programme for Seminar on January 18 – “Theories and Strategies”

We are pleased to announce the programme for our seminar of January 18th. This seminar is now full, but recordings of the presentations and shortened versions of some papers will be made available after the event.

Programme

09: 30 –  Arrive, Coffee

10.00 – 10.15 – Welcomes, Introductions, Introducing the Bursary Holders.

Panel 1 – 10.15 – 12.15

1- Simon Deakin, “Private Law as the Law of the Market”

2 -Emilios Christodoulidis “On the Politics of the Public/Private Law Distinction: What Does It Mean to Sustain the Politics of a Lost Distinction?”

Discussion, Q&A

3 – Adam Gearey “Towards A Critique of the Pension Trust”

4 -Matthew Stone “Private Law and Public Subjectivity: The Case of Biopolitics and Property”

Discussion, Q & A

Lunch – 12:15 – 13.15

Panel 2 – 12. 15 – 14.15

5  Alan Norrie, “Criminal Justice and the Public/ Private Distinction”

6 –  Kristen Rundle, “Legality in the Contracting Out State: Cues from the Case of Jimmy Mubenga”

Discussion, Q&A

7 – Anne Barron “The Public Life of Copyright Law”

8 – Sarah Keenan, “Holding Up Subversive Property”

Discussion, Q&A

Coffee Break – 14.15  – 14.45

Panel 3 – 14.45 – 16.00

9 – Davina Cooper, “Social Property and Political Struggle”

10 – Melanie Williams, “Imagining Freedoms, Public and Private – Feminist Science Fiction and Ideological Symbolism”

Discussion, Q&A

Summary Discussions and Conclusion 16.00 – 17.00

Dinner – 18.30

The Series

The series examines the relations between private legal obligation and political struggle.
Details of each seminar (times, venue, speakers) are available by clicking Seminars on the menu above.
Audio recordings of completed seminars are available by clicking Audio on the menu above.
Blogposts including commentary, reflections on completed seminars are available below.
To register for the final seminar in the series, ‘Protest, Precarisation, Possibility’, click Register on the menu above.
For updates, our twitter and facebook links are at the bottom of the page.
For any other questions, email m.enright[at] kent.ac.uk