Minor Jurisprudence 2016

mjs_banner

program_icon
Program
venue_icon
Venue
Participants_icon
Participants

Papers
email_icon
Contact

BERKELEY LAW SYMPOSIUM

Berkeley School of Law 
Warren Room, 295 Boalt Hall

 

click-here-to-register-button

ABOUT:

“Law As …” is the umbrella title for a biennial symposium that, since 2010, has worked to assemble original configurations of historical, social scientific, literary, and legal scholarship in the service of conceptual innovation in the analysis and history of law.

Attendance is open to all-comers. The symposium is committed to mixing established senior scholars with junior scholars (including pre-doctoral scholars); and scholars trained in history and law with scholars from other disciplines in the social sciences and the humanities; and scholars based in North America (Canada and the U.S.A.) with scholars from Europe and Australasia.  The results have been consistently stimulating and encouraging.  The symposium has become well known and has a considerable following.

The first three meetings of the symposium took place at the University of California Irvine in 2010, 2012, and 2014.  The fourth meeting will be held at Berkeley December 2nd – 3rd 2016.  The theme for the fourth meeting is the exploration of “minor jurisprudence.”

Each Irvine meeting resulted in publication of a dedicated symposium issue of the UC Irvine Law Review Vol. 1 #3, 2011; Vol. 4 #1 (2014) and Vol. 5 #2 (2015). 
 
Essays based on the Berkeley meeting will appear in a future issue of Law Text Culture.

 

MINOR JURISPRUDENCE IN HISTORICAL KEY: 
Conceptually, “minor jurisprudence” was an invention of the 1990s. It had two distinct incarnations. In 1994, Panu Minkkinen, then a research fellow at the University of Helsinki, published an intriguing essay entitled “The Radiance of Justice: On the Minor Jurisprudence of Franz Kafka,” in which he applied the concept of “minor literature” developed by Gilles DeLeuze and Félix Guattari to Kafka’s conception of law. In Minkkinen’s view minor jurisprudence stood for a mode of jurisprudence that (like Kafka’s literature) simply could not be contained within any established canon or genre. It signified something completely new, completely unlike the known “major” canons of orthodoxy. Two years later, Peter Goodrich’s book Law in the Courts of Love gave minor jurisprudence a different inflection as any species of legal knowledge that had escaped “the phantom of a sovereign and unitary law.” The product of “rebels, critics, marginals, aliens, women and outsiders,” in this register “minor jurisprudence” is simultaneously plural, subaltern and subversive. In 1999 Minkkinen responded, briefly, that in his view Goodrich’s formulation was “too much of a ‘critical oeuvre’ of its author,” but otherwise did not take any further the matter of conceptual definition. As a result, this interesting and potentially productive idea has ever since lain largely undeveloped.

The three sets of essays produced since 2010 by the “Law As …” enterprise have followed their own distinct path toward minor jurisprudence. The choice of this theme for the fourth symposium is intended to give the concept the full and complete attention, both theoretical and empirical, that it has thus far lacked. Preliminary and general contacts with a large number of academics across a range of disciplines at UC Berkeley, elsewhere in the University of California, nationally, and internationally have disclosed considerable interest in this initiative.

Back to top


PROGRAM:

 Friday, December 2, 2016

8.00-8.45 am

Registration & Breakfast

 Warren Room (Room 295 Boalt Hall)

8.45-9.00 am

Christopher Tomlins

UC Berkeley

Introduction & Welcome 

9.00-10.10 am

Panu Minkkinen

University of Helsinki

Comment: Marianne Constable

                     UC Berkeley

10.25-11.35 am

Peter Goodrich

Yeshiva University

Comment: James Porter

                    UC Berkeley

11.50-1.00 pm

Jothie Rajah

American Bar Foundation

Comment: Nan Seuffert

                    University of Wollongong

1.00-2.00 pm

 Dean’s Welcome & Lunch

Goldberg Room (Room 297 Boalt Hall)

2.00-3.10 pm

Mark Antaki

McGill University

Comment: Kinch Hoekstra 

                     UC Berkeley

3.25-4.35 pm

Kirsten Anker

McGill University

Comment: Beth Piatote 

                     UC Berkeley

4.50-6.00 pm

Laurent de Sutter

Vrije Universiteit Brussel

Comment: Leti Volpp 

                     UC Berkeley

6.00-7.15 pm

Opening Reception

Goldberg Room (Room 297 Boalt Hall)

 Saturday, December 3, 2016

8.30-9.00 am Breakfast Warren Room (Room 295 Boalt Hall)
9.00-10.10 am

Genevieve Painter

McGill University

Comment: James Martel

                    San Francisco State University

10.25-11.35 am

Julieta Lemaitre

Universidad de los Andes

Comment: Karen Tani

                    UC Berkeley

11.50-1.00 pm

Olivia Barr

Melbourne Law School

Comment: Rebecca McLennan

                    UC Berkeley

1.00-2.00 pm Lunch Goldberg Room (Room 297 Boalt Hall)
2.00-3.10 pm

Natalie Davidson

Hebrew University

Comment: Saira Mohamed

                    UC Berkeley

3.25-4.35 pm

Shaun McVeigh

Melbourne Law School

Comment: Bryan Wagner

                    UC Berkeley

4.35-4.50 pm

Christopher Tomlins

UC Berkeley

Closing Remarks
4.50-6.15 pm Closing Reception Goldberg Room (Room 297 Boalt Hall)

 

Back to top

 

 

Participants

Symposium Participants

Kirsten Anker is Assistant Professor of Law at McGill University, Montreal, with a Ph.D. from the University of Sydney.  Teaching and research interests extend to property, legal theory, Aboriginal law, evidence, dispute resolution, resource management, and legal education.  Her book, Declarations of Interdependence: A Legal Pluralist Approach to Indigenous Rights (2014) explores claiming Native (Aboriginal) Title as a way to inspire a re-imagination of law.  She has written widely on the challenge to orthodox understandings of law and sovereignty posed by the recognition in Australia and Canada that Indigenous law “intersects” or co-exists with state law, and draws on studies in legal theory, anthropology, Indigenous and occidental philosophy, translation and language.  Current projects include work on Indigenous legal traditions in formal legal education, non-static digital mapping in land claims, the privatization of Indigenous consultation, and ecological jurisprudence.

Mark Antaki is Associate Professor of Law at McGill University, Montreal, and Ph.D. in Jurisprudence and Social Policy from the University of California, Berkeley (2005). He teaches and researches generally in law and the humanities, legal theory, public and international law.  Recent publications include “The Turn to Imagination in Legal Theory: The Re-enchantment of the World?”; “From the Bridge to the Book: An Examination of South Africa’s Transformative Constitutionalism’s Neglected Metaphor”; and “No Foundations?” He has been a Fellow of the Stellenbosch Institute of Advanced Study, the Institute for the Public Life of Arts and Ideas at McGill, and a visiting scholar at the University of Kent, Melbourne University, and Griffith University, Queensland, Australia.

Olivia Barr is Senior Lecturer at Melbourne Law School. Her research and writing are concentrated in jurisprudence specifically, and law and the humanities scholarship more broadly. She is the author of A Jurisprudence of Movement: Common Law, Walking, Unsettling Place (Routledge, 2015). She is also Managing Editor of the Australian Feminist Law Journal.

Natalie Davidson is a post-doctoral fellow at the Minerva Center for Human Rights (Human Rights under Pressure program) at Hebrew University Jerusalem. She recently completed her dissertation at the Faculty of Law of Tel Aviv University, and was a 2015-16 research fellow at the Rapoport Center for Human Rights and Justice, University of Texas School of Law. She holds a joint LLB-Maîtrise (King’s College London and Université Paris I) and an LLM (University of London), and practiced corporate law prior to her doctoral studies.  She is interested in the history and sociology of human rights activism, private law theory, and how insights from those fields can be incorporated into normative analyses of international human rights law. Through archival research and ethnographic methods, her dissertation revisits seminal torture claims filed under the Alien Tort Statute, exploring their contribution to the social construction of political violence committed in the Cold War’s Western bloc.  Her post-doctoral project explores how activists are promoting a new definition of torture in international law that seeks to challenge the public/private dichotomy. She has also written on corporate accountability for collaboration with the Nazi regime, and her article “Shifting the Lenses on Alien Tort Statute Litigation: Narrating U.S. Hegemony in Filártiga and Marcos” is forthcoming in the European Journal of International Law.

Laurent De Sutter is Professor of Legal Theory at Vrije Universiteit Brussel, Belgium.  His work, translated into several languages, is devoted to the endless exploration of the obscure relationship between law and its transgression.  Among his most recent books are: Métaphysique de la Putain (Paris: Léo Scheer, 2014); Striptease, l’Art de l’Agacement (Dijon: Le Murmure, 2015); and Magic, une Métaphysique du Lien (Paris: Presses Universitaires de France, 2015).  He is the Managing Editor of the Theory Redux series at Polity Press, and the Perspectives Critiques series at Presses Universitaires de France.  He is a member of the editorial board of Décalages: An Althusser Studies Journal and of Law & Literature, as well as a member of the scientific council of the Collège International de Philosophie (Paris). From October 2014 to September 2015, de Sutter was Fellow at the Käte Hamburger Center for Advanced Study in the Humanities, “Law as Culture,” (Bonn).  He has been featured on several occasions as one of the Top 100 cultural personalities of the year in France, by various influential magazines and journals.

Peter Goodrich is Professor of Law and Director of the Program in Law and Humanities at the Benjamin N. Cardozo School of Law, Yeshiva University. Prior to moving to Cardozo, he was Corporation of London Professor of Law and Founding Dean of Birkbeck Law School, University of London.  He writes on legal history, jurisprudence and aesthetics of law. His most recent books are Legal Emblems and the Art of Law (Cambridge University Press, 2014), and (with Valerie Hayaert), Genealogies of Legal Vision (Routledge, 2015).  He is the managing editor of Law and Literature and serves on the editorial board of Law and Critique.

Julieta Lemaitre is Associate Professor of Law at Universidad de los Andes, Bogotá.  In the academic year 2014-2015 she was Robina Human Rights Visiting Scholar at Yale Law School and Global Scholar affiliated to PRIO (Peace Research Institute at Oslo).  Her law degree is from Universidad de los Andes (1995); she also holds an M.A. in gender and religious studies from NYU 1998 and a doctoral degree in law (SJD) from Harvard University (2007) with a concentration in law and society.  Her research areas are law and social movements, law and violence, violence against women, and sexual and reproductive rights.  In English she has published articles in the Harvard Human Rights Journal, the International Journal of Constitutional Law, the Law and Society Review and Feminist Legal Studies.  She has published widely in Spanish, including the books El Derecho como Conjuro (2009) and La Paz en Cuestión, as well as the edited volumes La Quintíada and Derechos Enterrados.

Shaun McVeigh is currently Associate Professor of Law at Melbourne Law School.  He previously researched and taught at Griffith University in Queensland as well as Keele and Middlesex Universities in the United Kingdom. He has a long time association with critical legal studies in Australia and the UK.  His research is concentrated in the fields of jurisprudence, jurisography and legal ethics.  Current projects center on three themes associated with the persona and office of the jurisprudent: the development of accounts of a ‘lawful’ global South; the importance of a civil prudence to thinking about the conduct of law (and lawyers); and, the continuing need to take account of the colonial legal inheritance of Australia and Britain in considering the conduct of lawful relations.  His recent publications include Jurisdiction (Critical Approaches to Law: Routledge, 2012), co-authored with Shaunnagh Dorsett.

Panu Minkkinen is Professor of Jurisprudence at the University of Helsinki, Finland.  His numerous publications cover themes ranging from the critique of the neo-Kantian remnants of legal thinking to the legal dimensions of contemporary critical theory.  Currently his two main research interests are political constitutional theory and the various intersections of law and the humanities.  “My research work is guided by a dedication to interdisciplinary approaches to law and international collaboration, and I hope that these will also be reflected in my teaching.”  

Genevieve Renard Painter is a post-doctoral fellow at McGill University’s Faculty of Law. She holds a PhD in Jurisprudence and Social Policy from the University of California Berkeley and degrees in common and civil law from McGill University. Admitted to practice law in Quebec, she has worked in aboriginal, constitutional, and human rights law. Her teaching and research interests focus on Indigeneity, legal history, feminist legal theory, international law, and constitutional law. Geneviève’s dissertation and book project explores the transformation of a hard political question into a problem of fundamental human rights. Starting from a Canadian law about Indigenous marriage, the dissertation tracks the gradual invention of a conflict between the equality rights of Indigenous women and the sovereignty of Indigenous nations. Geneviève’s post-doctoral project is about the relationship between law, time, and language in a selection of 19th century Canadian legal processes about race, gender, sexuality, and land. 

Jothie Rajah is a Research Professor at the American Bar Foundation, Chicago.  She is a graduate of the Faculty of Law, National University of Singapore, where she also graduated with Honours in English.  Rajah’s research explores the intersections of law, language and power.  She is the author of Authoritarian Rule of Law: Legislation, Discourse, and Legitimacy in Singapore (Cambridge University Press, 2012). Her articles have been published in Law, Culture, and the Humanities, Law/Text/Culture, Law & Social Inquiry, the Annual Review of Law and Social Science (with Elizabeth Mertz), and various book collections. She is a member of the Law & Society Association Board of Trustees, and of the editorial boards of the Hague Journal on the Rule of Law, and the Indiana Journal of Global Legal Studies.

Marianne Constable is Professor of Rhetoric at the University of California, Berkeley.  She has published broadly on a range of topics in legal rhetoric and philosophy, most recently her book on law and language entitled Our Word is Our Bond: How Legal Speech Acts (Stanford University Press, 2014).  She is currently working on a book-length manuscript on the “new unwritten law,” which ostensibly exonerated women who killed their husbands in Chicago a century ago, as a way of exploring the rhetoric of law and the rhetoric of history.  Previous books include Just Silences: The Limits and Possibilities of Modern Law (Princeton University Press, 2005), and The Law of the Other: The Mixed Jury and Changes in Conceptions of Citizenship, Law and Knowledge (University of Chicago Press, 1994). Constable is the author of articles on, among other topics, Foucault and immigration law, Nietzsche and jurisprudence, the rhetoric of “community,” the role of law in the liberal arts, Frederick Schauer on rules, Robert Cover on violence, Montesquieu on systems and Vico on legal education.

Kinch Hoekstra is Chancellor’s Professor of Law and Political Science at the University of California, Berkeley.  Hoekstra specializes in the history of political, moral, and legal philosophy. He has written on ancient, renaissance, and early modern political thought. In particular, he has published a number of studies on aspects of the philosophy of Thomas Hobbes, including legal obligation, democracy, tyranny, mixed government, natural law, and the rationality of justice. From 1996 to 2007, Hoekstra taught in the faculty of philosophy at the University of Oxford, where he was the Fellow in Ancient and Modern Philosophy at Balliol College.

Rebecca McLennan is Associate Professor of History, University of California, Berkeley.  She is the author of The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776 – 1941(Cambridge University Press, 2008), a winner of several book awards, and (with David Henkin) Becoming America: A History for the 21st Century (McGraw-Hill, 2014).  She writes on human rights, prisons and incarceration, and the death penalty.  Her current research emphasizes study of the legal culture of the Early Republic. 

James Martel is Professor of Political Science at San Francisco State University, where he is also Chair of the Department of Political Science. He is the author of The One and Only Law, Walter Benjamin and the Second Commandment (Michigan 2014); Divine Violence: Walter Benjamin and the Eschatology of Sovereignty (Routledge/GlassHouse 2011); Textual Conspiracies: Walter Benjamin, Idolatry and Political Theory (Michigan, 2011); Subverting the Leviathan: Reading Thomas Hobbes as a Radical Democrat (Columbia, 2007); and Love is a Sweet Chain: Desire, Autonomy and Friendship in Liberal Political Theory (Routledge, 2001).  Current work includes The Misinterpellated Subject for Duke University Press and When Anarchism was Young: Retrieving early 20th Century Spanish Radicalism as a Way of Life.  Martel is co-editor, with Jimmy Casas Klausen (Wisconsin, Madison) of How not to be Governed: Readings and Interpretations from a Critical Anarchist Left (Lexington, 2011), and the author of multiple essays, encyclopedia entries, book chapters and book reviews.  He teaches courses in political theory, continental philosophy, anarchism, post-colonial theory and theories of gender and sexuality.

Michael Meranze is Professor of History at UCLA.  He is the author of Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 1760-1835 (University of North Carolina Press, 1996), editor of volumes of essays on Benjamin Rush and on the American death penalty from the eighteenth-century to the present, and has written on the history of the body, the death penalty, conscience, the relationship between the European Enlightenment and the present, and sensibility and violence in the Revolutionary Atlantic.

Saira Mohamed is Assistant Professor of Law at the University of California, Berkeley, where her primary interests are in the areas of criminal law and human rights, with a particular research focus on responses to mass atrocity. Examining the roles of criminal law and armed force in preventing and stopping widespread violence, her work considers the meaning of responsibility in mass atrocity crimes and seeks to unsettle conventional conceptions of choice and participation in this context. Her most recent publications have appeared in the Columbia Law Review, Yale Law Journal, and Stanford Journal of International Law. Her article “Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law,” Yale Law Journal, 124 (2015), won the Junior Scholars Paper Award from the Association of American Law Schools Section on Criminal Justice.

Beth Piatote is Associate Professor of Native American Studies in the Department of Ethnic Studies at the University of California, Berkeley.  She is the author of Domestic Subjects: Gender, Citizenship, and Law in Native American Literature (Yale University Press, 2013), Co-Editor of The Society of American Indians and Its Legacies (a special double issue of Studies in American Indian Literatures and American Indian Quarterly, Summer 2013), and numbers of articles.  Her current research explores the ways in which Native American writers have drawn upon sensory representations such as sound and synesthesia to produce a distinct legal imaginary that contests settler-colonial incursion and affirms indigenous politics and aesthetics.

Jim Porter James I. Porter is Chancellor’s Professor and Professor of Rhetoric and Classics at the University of California Berkeley.  His research interests extend from philosophy (materialism, aesthetics, ethics – presocratic to modernity) to classical reception, the history of philology, critical theory, the history and theory of subjectivity (Homer to Foucault), and interactions between politics, culture, and critique.  His most recent book is The Sublime in Antiquity (Cambridge 2016).

Nan Seuffert is Professor of Law and Director of the Legal Intersections Research Centre at the University of Wollongong, NSW.  In 2016-17 she will be a Visiting Scholar at the Center for the Study of Law and Society, University of California, Berkeley.  Her research (and teaching) spans critical legal theory, law and history, race, gender, sexuality and the law, and securities regulation, and she has numerous publications in all these fields, as well as in legal pedagogy.   She is a member of the editorial and advisory boards of Law and Literature, Law Text Culture, Feminist Legal Studies, the Routledge book series Laws of the Postcolonial: Ethics and Economy and the Centre for Feminist Legal Studies at the University of British Columbia.

Karen Tani is Assistant Professor of Law at the University of California, Berkeley.  Her research explores the legal architecture of the U.S. welfare state and the practices of its designers, administrators, critics, and beneficiaries, with the aim of illuminating change over time in the logic of American governance and the meaning of citizenship.  Tani is the author of States of Dependency: Welfare, Rights, and American Governance, 1935-1972 (Cambridge University Press, 2016).  Other recent work includes “Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor,” Cornell Law Review (2015); “States’ Rights, Welfare Rights, and the ‘Indian Problem’: Negotiating Citizenship and Sovereignty, 1935-1954,” Law and History Review (2015); and “Welfare and Rights before the Movement: Rights as a Language of the State,” Yale Law Journal (2012).

Leti Volpp is the Robert D. and Leslie Kay Raven Professor of Law in Access to Justice at the University of California, Berkeley.  She has written widely at the intersection of law and the humanities, notably in the areas of citizenship, migration, culture and identity. Recent publications include “The Indigenous As Alien” in the UC Irvine Law Review (2015), “Civility and the Undocumented Alien” in Civility, Legality, and Justice in America (Austin Sarat, ed., Cambridge University Press, 2014), “The Boston Bombers” in Fordham Law Review (2014), “Imaginings of Space in Immigration Law” in Law, Culture and the Humanities (2012), the edited symposium issue “Denaturalizing Citizenship: A Symposium on Linda Bosniak’s The Citizen and the Alien and Ayelet Shachar’s The Birthright Lottery” in Issues in Legal Scholarship (2011), and “Framing Cultural Difference: Immigrant Women and Discourses of Tradition” in differences: A Journal of Feminist Cultural Studies (2011). She is the editor of Legal Borderlands: Law and the Construction of American Borders (with Mary Dudziak) (Johns Hopkins University Press, 2006).

Bryan Wagner is Associate Professor in the English Department at the University of California, Berkeley.  His primary research focuses on African American expression in the context of slavery and its aftermath, and he has secondary interests in legal history and critical theory.  He is the author of Disturbing the Peace: Black Culture and the Police Power after Slavery (Harvard University Press 2009), and The Tar Baby: A Global History (Princeton University Press 2016).  Current projects include a digital archive of the 1795 Louisiana Slave Conspiracy and a critical edition dedicated to the fugitive slave, Bras-Coupé. A new book in progress, The Sorrow Songs, considers the theology of African American spirituals.

Christopher Tomlins is Elizabeth J. Boalt Professor of Law (Jurisprudence & Social Policy) at the University of California, Berkeley.  He is the author and/or editor of thirteen books, and a substantial number of chapters and articles.  His research concentrates on Anglo-American legal history from the sixteenth to the twentieth centuries.  He is currently working on a history of the Turner Rebellion and slavery in antebellum Virginia.

Abstracts

Symposium Papers

In earlier work I had drawn on Indigenous narratives of place and the idea that “the law comes from the land” to argue, briefly, that we could add to speech act theory the idea that the background conditions for the success of legal utterances could include not just social normative experience, but a practical knowledge of places and their ecologies.  My paper expands on that thought, looking to work by Indigenous thinkers in North America and elsewhere on the ways in which their languages and mythologies are the way that creation “thinks” as a form of minor jurisprudence. It engages with legal narratives as combining spatial and temporal dimensions of law, some of which contain the memory of the earth’s cycles of interdependence over time.  Grounded jurisprudence is not the work of “sovereignty or unitary law”; its critique extends to bedrock structures like mind versus matter, and yet it unabashedly offers up a foundation – a literal grounds – for law.

To view full paper click here

Symposium Papers – Notice of Copyright/Conditions of Access and Use: The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

My paper asks after the sense and appeal of the phrase “minor jurisprudence,” whether or not these are captured by its official births in the work of Panu Minkkinen and Peter Goodrich. Three themes in particular are of interest to me: (1) the relation between major and minor jurisprudences and, in particular, the ways in which, at certain times and places, it may not be possible to distinguish one from the other; (2) the multiple resonances of minor jurisprudence such as self-incurred minority (Kant), voluntary servitude (de la Boétie), fact (minor premise), minority or dissenting judgments, minoring rather than majoring in a subject, speechlessness (Antigone, Billy Budd), play (Gadamer) and children (Manderson); and (3) the virtues or excellences of minor jurisprudence.  Does a minor jurisprudence oppose its “prudence” to the “techniques” of major jurisprudence or, perhaps, does it have its own different version of prudence?  What “common sense” or “sense of the common” can a minor jurisprudence draw on or make possible?

To view full paper click here

Symposium Papers – Notice of Copyright/Conditions of Access and Use: The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

Walking is a legal practice. The habitual and often unthought step-by-step of walking is not only physical, pleasurable, healthy and an increasingly well-funded government activity, but also political, subversive, and always already juridical. What, then, is the relation between law and walking? How might walking relate to questions of law, movement, materiality and place-making? One way to explore such relations is to create a minor jurisprudence. For me, a jurisprudence is “minor” when a position is taken accepting the institution of law, and asking how to live with law, and how, perhaps, to live that life well. A minor jurisprudence, therefore, raises matters of politics and ethics, and time and space (i.e. history and geography). More practically, while never dismissing revolution, to write a minor jurisprudence is to take a position that thinks “with” law, temporarily accepting certain aspects and agitating others, noticing what is already there. Seeking neither grand truth nor definitive answers, the task becomes one of drawing out certain strands of legal practice. Using an example of a mural in Redfern, Sydney, the strand I notice is how walking practices on unceded land may or may not contribute to a lawful place.

To view full paper click here (Please download document as the file is overcapacity to allow a preview)

Symposium Papers – Notice of Copyright/Conditions of Access and Use: The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

Social scientists and critical scholars have drawn attention to the ways law and legal discourse can facilitate violence, and lamented the part played by post-war trials and transitional justice mechanisms in obscuring this fact.  It seems that the law is incapable of self-reflexivity – when mass violence is addressed through law, it must be presented as non-law.  But need that be the case? Might there be opportunities in legal proceedings to expose the legal structures of violence?  This paper explores that question through the analysis of one lawsuit in which the key part played by law in atrocity was made explicit: a class action filed in a Hawaii federal court on behalf of 10,000 Philippine victims of torture, disappearance, and extra-judicial killing under the Alien Tort Statute against Ferdinand Marcos, one month after his ouster from power in 1986. Adopting a historical approach, whereby the lawsuit is examined both as a site producing representations of violence, and as a historical event in which participants are subject to a variety of legal, political and strategic constraints, the paper traces openings as well as impediments to discussions of the law’s “dark side” in litigation, and inquires into the legal and political conditions under which law addressing mass atrocity can be self-reflexive.

To view full paper click here

Symposium Papers – Notice of Copyright/Conditions of Access and Use: The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

My paper focuses on a forgotten and ill-reputed category, long used by anthropologists and historians to describe the origins of law, the category of “magic.”  At the end of the 19th century, many scholars found in the idea of “magic” something that could explain why some sort of a necessity could be attached to certain actions, paroles or rituals from which concrete, practical effects were expected in “primitive” societies.  “Magic” was a concept embodying a complete theory of performance, and of the necessity of the consequences produced by this performance, that seemed to some of those scholars capable of explaining why necessity and performance were also legal features.  Yet, after World War II, the positivist school of legal historians chose to discard this explanation, and to forget all about the possible links between law and magic.  I would like to claim that this gesture was rather a form of foreclosure – foreclosure of the fact that law might very well be the last form of magic in a world that refuses to admit its existence.  Of course, the whole question is: Which magic? How magic? Why magic?  These are the questions that I will answer.

To view full paper click here

Symposium Papers – Notice of Copyright/Conditions of Access and Use: The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

In both its adjectival and nominative modes, the minor implies subtraction, the minus, a taking away which engenders the less than, and removed from.  The motive force and enigma that drives the concept of minor jurisprudences is that of the plurality of jurisdictions and the historical trajectory of their excision and annexation.  Such subtraction could be viewed melancholically as loss born and retained, classically a leftist perspective, or celebrated as the preliminary to an archaeology of the plethora of veins, the multitude of seams, the richness in the trajectory and diffractions of the institutions of the present, the perspective of the comedy of law.  I have in mind the ambulant laws of multiple and itinerant jurisdictions, multilingual forms of trial, amatory laws, poetic jurisdictions, novel cartographies of justissima tellus.  The narratives of race, sex, land, and religion, the methods even of literary hermeneutics, poetic form, aesthetic expression, the law of revels, the comedy of resistance, in their subtraction from and resurgence in the juridical.  So an example, a striking instance of the archaeology of a silence, an extreme subtraction, the near absolute silence of jurists on the work of the sex swapping Judge Daniel Paul Schreber.

To view full paper click here

Symposium Papers – Notice of Copyright/Conditions of Access and Use: The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

Manuel Quintín Lame, an indigenous leader in southern Colombia, lived during in the first half of the 20th century (approximately 1880 to 1967).  A self-taught peasant, he wrote profusely about law and justice.  His demands focused on collective land rights for the remaining indigenous peoples in Colombia, based on a creative interpretation of existing statutory law, on a strategic use of neo-scholastic jurisprudence and on his own reported visions and hallucinations.  Lame, who died in extreme poverty, was rediscovered by the contemporary indigenous movement in the 1970s.  Later recognition has always been shrouded in the critique that his faith in legal discourse was a strategic error, an excess of legalism that led to movement failure.  My paper asks whether Lame´s writings can be read today as jurisprudence, in the intriguing mode of a minor jurisprudence.  The law, he writes, is the relationship between the strong and the weak.  Injustice is known not only to white reason, but also to the trembling indigenous heart, justified in its disobedience by the very theory he challenges.  Lame explains and appeals, cites statute and cajoles, generally eschewing armed resistance but inflaming peaceful resistance and mobilization among indigenous peasants.  He built on a colonial tradition of indigenous legalism, re-linked it to collective resistance, and laid the way for the contemporary indigenous movement’s rebellious legalism.  That in itself merits his consideration as an author of minor jurisprudence.

To view full paper click here

Symposium Papers – Notice of Copyright/Conditions of Access and Use:The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

My paper draws on a jurisographical investigation currently in progress, entitled “Jurisprudents of London.”  Its motivating conceit follows the rarely tested understanding that London bears or carries a jurisprudence.  The project investigates the ways in which contemporary jurisprudents might be thought of as engaging in the arts of association and place-making.  My particular concerns in this paper relate to forms of place-making and care for places such as universities, cemeteries and other neglected public institutions.  One feature of the writing of minor jurisprudences has been to provide a training in “being minor” in the conduct of lawful relations.  Depending a little on the training that has been offered, the minor jurisprudent seeking to develop a persona conducts themself without most of the instructional and institutional supports of the state.  So one question that might be asked is what kind or character or ethos is entertained in the care of places.  In response I want to consider how the repertoires of minor jurisprudences might be directed towards the ways of tending or not attending to place as a matter of inheritance and neglect.

To view full paper click here

Symposium Papers – Notice of Copyright/Conditions of Access and Use:The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

In an article from 1994, I tried to read Franz Kafka’s short story “In the Penal Colony” as what I called “minor legal literature” or “minor jurisprudence” by drawing on an analogy from Gilles Deleuze and Félix Guattari. Whatever Kafka had to say about law should not, so I claimed, be understood as a form of theodicy as it usually is but, rather, as the possibility for a new “politics of desire.” As “minor literature,” Kafka’s texts were inherently resistant to attempts to box them into conventional literary taxonomies. And it was this inherent resistance that created the opening for his “minor jurisprudence” as well. My aim will be to discuss the nature of this discordant force through the notion of vitalism. More specifically, I will discuss this vitalistic element through Wilhelm Dilthey’s 1883 treatise Introduction to the Human Sciences. But instead of focusing on the hermeneutical method which is the usual way in which Dilthey is introduced into the jurisprudential tradition, I will discuss his more general views on law as a cultural and political phenomenon and on jurisprudence as the “human science” that studies it, both significant themes in the 1883 Introduction but which scholarship has largely ignored.

To view full paper click here

Symposium Papers – Notice of Copyright/Conditions of Access and Use: The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

I am interested in mistakes as places for revealing minor and major jurisprudences.  Drawing on Panu Minkkinen, Tomlins identifies concealment and erasure as subjects of a minor historical jurisprudence.  Concealment and erasure both divert, initiating something new by changing a story from one path to another.  We end up “somewhere” that seems to be not what should have happened.  Concealment or erasure point to some force or agent deciding what to “conceal” or “erase.”  What of less will-ful “forces” that divert a story, like “mistakes”?  What is a mistake, historically?  Reading through archives, you can feel a mistake – the thrill of a slip or a sense that the train has jumped the tracks and we’re bumping across the field, unsure of where it will land.  Actors themselves often seem unaware of the ‘mistake’ that will have been seen to have happened.  Drawing on archives of Indigenous legal resistance in matters of discrimination and dispossession I offer examples of mistakes of custom, protocol, office, form, diction, and rhetoric, which collectively suggest that mistake may congregate precisely at points where jurisdiction manifests.  I aim to set out a non-exhaustive typology of mistakes and their relationship to technologies of jurisdiction, in order to explore how the lack of mistake (and the presence of chance and fortune) underpins major jurisprudence, or how the major law defines and binds.

To view full paper click here

Symposium Papers – Notice of Copyright/Conditions of Access and Use: The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

The relationship between law, and targeted killing through drones, is befuddling and contradictory (Masco 2014; Gunneflo 2015; Diab 2015). To what extent does the analytic lens of minor jurisprudence – with its capacity to interrupt power, and its revisioning of law’s sites, sources, and expressions (Minkkinen 1994; Goodrich 1996; Tomlins 2015) – help illuminate a minor jurisprudence of law as the paradoxical and strategic coexistence of visibility and invisibility? My paper addresses this question through an analysis of the 2016 Gavin Hood film, Eye in the Sky.  Like other instances of minor jurisprudence, Eye in the Sky is a text outside law’s canonical traditions. Given officialdom’s invocations of secrecy on drones (Masco 2014: 134), Eye in the Sky’s ostensibly fictional depiction of the transnational legal, technoscientific, military, ethical, and political interactions of drone warfare stands in for what we – as mediatised consumer-subjects – cannot otherwise know. Attending to Eye in the Sky as minor jurisprudence reveals the extraordinary reliance that contemporary law places on affect and representation to effect its power. Given visual culture’s potent harnessing of affect and representation in scripts of authority and legitimacy pervading social life, does Eye in the Sky become emblematic of the impotence and decentring of mainstream jurisprudence in contemporary life?

To view full paper click here

Symposium Papers – Notice of Copyright/Conditions of Access and Use: The works presented on this web site under password protection are unpublished works made available for discussion at the symposium “Law As … IV: Minor Jurisprudence in Historical Key,” Berkeley Law 2-3 December 2017. Common law copyright grants the author/owner of each of these works the right of first publication. Temporary password-protected lodgment on this web site does not constitute publication (fixity in a tangible medium of expression) (California Civil Code §980, §985). Access via password is granted on condition that none of the works made available for discussion is further reproduced or circulated in any form or medium by anyone to whom access has been granted.

 

VENUE

 

venue_image

All sessions held at:

University of California, Berkeley
School of Law
Warren Room, 295 Boalt Hall [Google Maps]

 

Back to top

CONTACT

 

Christopher Tomlinsctomlins@law.berkeley.edu  
Professor of Law

Thembi Anne Jackson, thembianne@berkeley.edu
Conference Planner     

 

Symposium Sponsors
The “Minor Jurisprudence” symposium is grateful to have received financial and material support from the following units of the University of California Berkeley: Berkeley Law; the Jurisprudence and Social Policy Program; the Center for the Study of Law and Society; and the Townsend Center for the Humanities.
The symposium is also supported by the Department of History, the Department of English, the Department of Rhetoric and the Program in Critical Theory.
Beyond UC Berkeley, the symposium is grateful to have received financial support from the American Society for Legal History, and the American Bar Foundation (Chicago).
The symposium would not be taking place without the financial, material and moral support of all these sponsors.

berkeley-lawhistory-homepage  english-bannerphotoshopaslegalhist-logo

TownsendWebBannerUCamericanbarf-logocritical-theory-color-logotypemaster-withurl