The Triveneto transhumance: law, land, movement

North Italy's nomadic shepherds are a phenomenon unique in the world. Their nomadic nature is taken to the extreme since they move constantly rather than solely in the winter or the summer, as in the usual nomadism. Their home is on wheels and their territory is the tightly regulated yet sprawling Triveneto area. The Triveneto transhumance moves beyond private/public property divides, and indeed beyond lawful/unlawful distinctions, giving rise to what I have called an animal normativity. Relying on Valentina De Marchi's text 'Fame d'Erba' on the Triveneto transhumance, I show how territory becomes a question of animal hunger, and movement becomes an atmospheric, silent and imperceptible affect that crosses private property boundaries, state law limitations, reservation areas and road networks. This way of being, beyond the usual distinctions, offers an example of an alternative political and legal organisation that brings forth the continuum between the human, the natural and the legal/political.

Atmospheres of law: senses, affects, lawscapes

In this article, I deal with airs and sounds and scents, while keeping an eye on the law. My field of enquiry is the interstitial area between sensory and affective occurrences, namely sensory experiences that are traditionally thought to be a causal result of external stimuli, and affective experiences that are mostly associated with emotional changes and generally allude to something internal. I am arguing that there is no constructive difference between internal and external origin of occurrences. In its stead, I suggest the concept of atmosphere, namely an attempt at understanding affective occurrences as excessive, collective, spatial and elemental. However, it quickly becomes apparent that an atmosphere is legally determined. The law controls affective occurrences by regulating property of sensory stimulation. At the same time, the law guides bodies into corridors of sensory compulsion – an aspect of which is consumerism in capitalist societies. The law achieves this by allowing certain sensory options to come forth while suppressing others, something which is particularly obvious in cases of intellectual property protection that capture the sensorial. I deal with the law in its material, spatial manifestation and in particular through what I have called the ‘lawscape’, namely the fusion of space and normativity. I employ a broadly Deleuzian methodology with insights from radical geography, affective studies, and urban and critical legal theory in order to develop and link the various parts of the text.

Critical autopoiesis and the materiality of law

Autopoietic theory is increasingly seen as a candidate for a radical theory of law, both in relation to its theoretical credentials and its relevance in terms of new and emerging forms of law. An aspect of the theory that has remained less developed, however, is its material side, and more concretely the theory’s accommodation of bodies, space, objects and their claim to legal agency. The present article reads Luhmann’s theory of autopoietic systems in a radical and material manner, linking it on the one hand to current post-structural theorisations of law and society, and on the other hand extending its ambit to accommodate the influx of material considerations that have been working their way through various other disciplines. The latter comprises both a materialisation of the theory itself and ways of conceptualising the legal system as material through and through. This I do by further developing what I have called Critical Autopoiesis, namely an acentric, topological, post-ecological and posthuman understanding of Luhmann’s theory, that draws on Deleuzian thought, feminist theory, geography, non-representational theory, and new material and object-oriented ontologies. These are combined with some well-rehearsed autopoietic concepts, such as distinction, environment and boundaries; Luhmann’s earlier work on materiality continuum; more recent work on bodies and space; as well as his work on form and medium in relation to art. The article concludes with five suggestions for an understanding of what critical autopoietic materiality might mean for law.

Transgender Freedom and the Law: A Liberal-Poststructural Discussion on McNally

In R v McNally, gender deception is found capable of leading to the vitiation of consent to sexual intercourse and, in so doing, places restriction on the freedom of transgendered individuals in favour of cisgendered freedom. This paper seeks to challenge the standing of this decision by adopting a combined methodological approach between Deleuzian post-structuralism and Gewirthian legal idealism. In so doing, we attempt to show that the combination offers a novel and productive approach to contentious decisions, such as that in McNally. Our approach brings together post-structuralist corporeality which conceives of the body as material and productive, and Gewirth’s ‘agent’ to conceptualise the legal body as an entity which can, and should, shape judicial reasoning. It does this by employing the criterion of categorically necessary freedom on institutionalised practical reasoning. These ‘bodies of agents’ can be conceived as the underpinning and justificatory basis for the authority of the law subject to the morally rational Principle of Generic Consistency. This egalitarian condition precedent requires individualisation and the ability to accept self-differentiation in order to return to a status, which can be validly described as “law”. Ultimately, we argue that this theoretical combination responds to a call to problematise the connection made between gender discourse and judicial reasoning, whilst offering the opportunity to further our conceptions of law and broaden the theoretical armoury with which to challenge judicial reasoning in McNally. That is, a ‘good faith’ attempt to further and guarantee transgender freedoms.

Confronting law affectively: encounters of a Patpong sex tourist

When considering spaces of sex-work such as Patpong in Bangkok, Thailand, the inclination is to be drawn into habitual debates concerning the legitimacy of sex-work and the clear objectification of sex-workers. While these concerns are valid and real, there are significant absences in terms of the theoretical mapping of the space, such as the affect of the presence of law, bodies, space and the sexual encounter itself. Law emerges as the most significant presence, since it both forms the transactional surface of Patpong and produces the confusion and revilement that results from the confluence of cold legal exchange with the tactile intimacy of the sexual encounter. This text explores the ethnographic space of Patpong in order to understand ways in which law’s transactional, effective surface is both embodied through subjectivication and spatially emplaced, yet also disrupted through the affective agency of the bodies and spaces it enfolds in order to produce this surface. This exploration will point to the limitations of law’s effective surface and suggest ways in which law might be located within a regime of affect, which returns the law to the body it subjectivises.

Law, technology and water conflicts in developing societies: a case study of tank systems in Tamil Nadu

The study examines the relationship between law, technology and water conflicts from colonial days to the present in traditional (water) tank systems in the south Indian state of Tamil Nadu. Tanks are man-made water systems developed for irrigation and many other purposes in semi-arid areas. The thesis adopts a historical approach to study the development of law, particularly property rights, and takes an empirical approach to investigate the tank conflicts. Archival documents on irrigation development, Case laws, Focus Group Discussions, Open ended Interviews and Field visits to selected tank chains are used as source material for the discussion. Case studies of conflicts are described and analyzed at three levels - Vaigai river basin for a macro level, Kothai Anicut system in Cauvery basin for a meso level, and twenty other interconnected tanks for a micro-level. The thesis deviates from the conventional understanding that tanks as traditional systems as simple and local technologies but considers them to be complex. It argues that the use of commonly held systems such as tanks within the colonial and post colonial laws as state ownership has been the source of many conflicts. In particular, it finds most tank conflicts are a product of progressive and absolute state control over water and the systems established using colonial land revenue administrative law. The law continues to treat tanks as pieces of landed property held by state and the individuals rather than as technology systems that presupposed the regime of property rights introduced after the colonial times. The modern interventions in water including the reservoir building, and altering the hydraulics of rivers and streams aggravate tank conflicts and lead to their further detriment. The study brings the focus to ground realities, and offers new perspectives on understanding tank systems in dynamic ways.

The Olympics, transnational law and legal transplants: the International Olympic Committee, ambush marketing and ticket touting

This paper concerns the origination, development and emergence of what might be termed ‘Olympic law’. This has an impact across borders and with transnational effect. It examines the unique process of creation of these laws, laws created by a national legislature to satisfy the commercial demands of a private body, the International Olympic Committee (IOC). It begins by critically locating the IOC and Olympic law and examining Olympic law as a transnational force. Using two case studies, those of ambush marketing and ticket touting, it demonstrates how private entities can be the drivers of specific, self-interested legislation when operating as a transnational organisation from within the global administrative space and notes the potential dangers of such legal transplants.

EU Criminal Law and Enlargement

Since creation of the European Communities the number of Member States has gradually increased from the original six to current twenty-eight. Enlargement has become an EU’s flagship external policy, demonstrating the EU’s ability to shape its neighbourhood and to serve as a catalyst of deep and multilayered reforms. The consecutive seven enlargement rounds went in parallel with widespread internal developments, culminating with the creation of the European Union and, most recently, entry into force of the Treaty of Lisbon. As this volume demonstrates, EU criminal law has evolved considerably from its early days under the legal framework laid down by the Treaty of Maastricht to its current post-Lisbon shape. On 1 December 2014, that is with expiry of a five year transitional regime for the jurisdiction of the Court of Justice, Police and Judicial Co-operation in Criminal Matters became a fully fledged EU policy, governed largely by the same modus operandi as other areas of EU competence and with compulsory jurisdiction of the Court of Justice. As EU criminal law developed internally, so did its external dimension, including the role it plays in the enlargement policy. In case of the latter the expiry of the same transitional period has brought to an end a rather anomalous situation whereby the European Union had more enforcement tools before and after accession vis-à-vis its future/new Member States than it could employ against the old ones. This bifurcation, quite rightly, triggered a lot of discussions about double standards used by the European Union in its pre-accession policy. This is exacerbated by the fact that some of those standards are neither defined in EU law, nor pursued vis-à-vis the existing EU’s Member States. The aim of this chapter is to demonstrate that evolution with particular emphasis on the role of EU Criminal Law in the policy currently employed by the European Union vis-à-vis candidate and potential candidate countries of the Western Balkans and to Turkey. Arguably, together with political conditionality, it has become one of the pillars of the enlargement process and, as the examples of accession negotiations with Montenegro and Serbia prove, its role is likely to increase as rapprochement of other candidates and potential candidates progresses to the next stages.