Pete Seeger – What did you learn in school?

 

peteseeger

 

What did you learn in school today,
Dear little boy of mine?
What did you learn in school today,
Dear little boy of mine?

I learned that Washington never told a lie.
I learned that soldiers seldom die.
I learned that everybody’s free,
And that’s what the teacher said to me.


That’s what I learned in school today,
That’s what I learned in school.

What did you learn in school today,
Dear little boy of mine?

Pete Seeger and a friend
Pete Seeger and a friend

What did you learn in school today,
Dear little boy of mine?
I learned that policemen are my friends.
I learned that justice never ends.
I learned that murderers die for their crimes
Even if we make a mistake sometimes.

What did you learn in school today,
Dear little boy of mine?
What did you learn in school today,
Dear little boy of mine?
I learned our Government must be strong;
It’s always right and never wrong;
Our leaders are the finest men
And we elect them again and again.

What did you learn in school today,
Dear little boy of mine?
What did you learn in school today,
Dear little boy of mine?
I learned that war is not so bad;
I learned about the great ones we have had;
We fought in Germany and in France
And someday I might get my chance.

The law, language and identity debate in Northern Ireland: some thoughts on the on-going struggle to find consensus

Verona Ní Dhrisceoil
Verona Ní Dhrisceoil

If language was merely a communicative tool it would pack a much lighter emotional punch (J Edwards, 2003)

On the 17th January the Committee of Experts (COMEX) published the Fourth Report on the application of the European Charter for Regional or Minority Languages (ECRML) by the United Kingdom. In it, the COMEX chastised the UK Government and the Northern Ireland Assembly (NIA) for the lack of progress made in relation to the protection and promotion of the Irish language in Northern Ireland since the previous monitoring round and also for the complete failure to comply with the reporting requirements under Art.15 of the Charter. On the basis of the findings of the Fourth Report, the Committee of Ministers (CoM) have now recommended that the authorities of the United Kingdom “as a matter of priority … adopt and implement a comprehensive Irish language policy, preferably through the adoption of legislation providing statutory rights for Irish speakers.”

This latest recommendation offers an opportunity to revisit the law, language and identity debate in Northern Ireland and to consider the extent to which language as a marker of cultural identity continues to be contested. Notwithstanding the commitments made in the Belfast Agreement – to peace, to equality, parity of esteem and indeed, “respect for linguistic diversity”, it is now clear that expressions of culture and identity, whether through voice or symbols continue to be a source of deep rooted conflict in Northern Ireland. The recent flag debate and the violence that ensued illustrates this point well. In essence, cultural differences central to the ‘traditional’ conflict in Northern Ireland remain salient. More broadly, the discussion here can be viewed in light of the NIHRC’s current project exploring the protection and promotion of the human right to culture in the context of societies emerging from conflict.

Background

Readers may recall that as part of the St Andrews Agreement in 2006 (to restore devolution) the United Kingdom made a commitment to “introduce an Irish Language Act reflecting on the experience of Wales and Ireland and work with the incoming Executive to enhance and protect the development of the Irish language” (Annex B). This has, as we now know, never transpired. Yes, two consultation processes on the introduction of an Irish language Act followed in –  2006 and 2007 respectively but when government devolved to Northern Ireland in May 2007, the Language Act ‘issue’ then became a matter for the Northern Ireland Assembly. At the time, much criticism from supporters of Irish language legislation was levied at the British Government for ‘closing the window’ on Westminster legislation when it was quite clear that should it become a devolved matter, unionist parties would seek to block any such legislation. This is precisely what happened and since then the Irish language issue and language more generally has become deeply embedded in identity politics.

Following the two consultation processes, then Minister for Culture, Arts, and Leisure Edwin Poots  decided against introducing language legislation in October 2007. In his view, it would be unwise to introduce a Language Act because of, “insufficient community consensus, potentially significant costs and a real possibility that legislation could undermine good relations”. His successor, Gregory Campbell also declined to introduce an Act in 2008. According to Campbell, the responsibility of a language Act belonged to central government, and it was something the “British Dept Arts CultureGovernment and the Government of the Irish Republic committed themselves to” – his party did not.

It is in this political context that demands have also been made for greater protection of the Ulster Scots language in Northern Ireland. Ulster Scots is recognised as a language under the ECRML but only as a Part II language meaning that the UK authorities and the devolved administration have not agreed to undertake any specific undertakings, under Art.8. McDermott notes that the “potential encroachment of Irish culture in the public space has been perceived in some quarters as a loss for the unionist community”. For many unionists, an increase in Irish language rights is seen as a direct threat and attack on their culture and identity. In response, Ulster Scots has been mobilized by some unionists as a badge of their cultural identity and as a retort to the demands for increased legislative status for the Irish language.

More recently, the appointment of Carál Ní Chuilín (from the Sinn Féin political party and supporter of Irish language matters) as Minister for Culture, Arts and Leisure has seen greater support for Irish language policy. The Minister has also sought to work towards promoting  Ulster Scots under her remit as can be seen from the establishment of MAGUS. With respect to Irish, she declared, soon after her appointment, that she would present proposals to the Northern Ireland Assembly for an Irish Language Act and a language strategy. In an attempt to depoliticise ‘language’, the Minister claimed during the launch of a Draft Language Strategy that the purpose “is to make the Irish language more accessible, to promote Irish in a positive and progressive way and, in doing so, break down barriers and negative preconceptions affecting the language”. The hostility towards any increased protection, however, remains steadfast. Unionist political parties have reminded the current Minister that any Irish language Bill will need Executive and Assembly approval and according to Michelle McIlveen (DUP Party), “it won’t get it”.

Beyond the COMEX, it should also be noted that the NIHRC, the UN CESCR and the Advisory Committee of the FCNM have all called for the adoption of legislative protection for the Irish language in Northern Ireland but again those statements and recommendations have fallen on deaf ears both in Westminster and Stormont.

The struggle in accommodating culture, identity, language…

In terms of wondering what may come of this latest COMEX Report and recommendation from the CoM, it strikes me that very little will change and the political wrangling and polarisation of ‘language’ will continue. Though often framed as a fiscal related argument, it becomes clear that arguments rejecting increased legislative protection for the Irish language are firmly connected to cultural identity. That will not change. As noted by McEvoy, even after signing peace agreements, groups often continue to “rely on a system of meanings and repositories of memories to interpret both the conflict and the new political framework”. The Fourth Report and the clear recommendation from the Committee of Ministers do bring an authoritative statement about obligations on UK authorities and devolved administration to introduce language legislation to give effect to the promises made in the St Andrews Agreement and the commitments made under the ECRML. However, in essence, that is all the Committee can do. No individual rights arise from the ECRML nor can any real sanctions be imposed.

As I have noted elsewhere, I support the idea of increased legislative protection for the Irish language in Northern Ireland and on that basis statements from the COMEX are to be welcomed. And yet, the sceptic in me and, more generally, my interest in exploring rights debates through a lens of substantive equality, lead me to wonder whether a language legislative or rights framework in the current political context in Northern Ireland can ever be achieved. And if some measure is to be introduced, whether it could be more destructive than constructive both to the peace process and goodwill towards the language? Can a rights/legislative framework, especially one that embodies language and identity be achieved in any true sense within the consociation – power sharing model in Northern Ireland? Colin Harvey and Alex Schwartz in Rights in Divided Societies (Chapter 6) have deliberated at length about the challenges posed by the model adopted in Northern Ireland in the accommodation of difference and the fulfilment of human rights. On the Bill of Rights discussion they write (p.125):

“[I]n a deeply divided society. A would be-bill of rights must also pass through a kind of double ‘veto-gate’; the bill must secure sufficient support from (at least) two distinct sets of political elites whose attitudes and interests will have been shaped by very different experiences”.

Some final thoughts

Thus, it could be some time (if ever) before consensus is reached on Irish language legislation in Northern Ireland. (That is, unless the UK authorities will take some kind of lead on the issue – which is doubtful!). Depending on the consultation process currently under way, some consensus may be reached on an Irish language strategy, but even with that many difficulties lay ahead in terms of practical application. In his discussions of language policy more generally, Francois Grin talks about the need for “capacity, opportunities and desire”, in order for any language policy to be effective. It is difficult to envisage, that those tripartite language policy elements can be achieved in the continuing climate of cultural contestation in Northern Ireland.

It appears to me that the language debate in Northern Ireland exposes in a very real way the gaps between the ideals of a rights and equality framework for post-Belfast Agreement governance and the reality of the cultural conflict and contestation that remains steadfast and a challenge to establishing a human rights agenda across, and for all, sectors of the community in Northern Ireland.

Verona Ní Dhrisceoil is Lecturer in Law, University of Sussex.

Letters on Legal Architecture

by Lucy Finchett-Maddock and Léopold Lambert 

This exchange of letters was originally published on The Funambulist and can be also found in The Funambulist Pamphlets Volume 04: Legal Theory (Punctum Books, 2013)

FIRST LETTER
(New York on July 12th 2012) 

Dear Lucy,

Léopold Lambert
Léopold Lambert

I read your essay Archiving Burroughs: Interzone, Law, Self-​Medication with at­ten­tion and ap­pre­ci­ated, as usual, the way you manage to link nar­rative, law and space all to­gether. I do think how­ever that we should keep this text for a little bit later in our con­ver­sa­tion as its spe­cificity might make us miss the bases of the dis­cus­sion that we would like to have about law and ar­chi­tec­ture. In this re­gard, I would like to in­genu­ously start by stating some ob­vious facts which are al­ways good to re­member for such a discussion.

Law, un­der­stood as a human ar­ti­fact, con­sti­tutes an en­semble of reg­u­la­tions which have been ex­pli­citly stated in order to cat­egorize be­ha­viors in two cat­egories: legal and il­legal. In order to do so, it ex­pects from every in­di­vidual sub­jected to its ap­plic­a­tion a full know­ledge of its con­tent in order to mor­alize and held ac­count­able at­ti­tudes that are either re­spectful or trans­gressive to­wards it.

Law is un­deni­ably re­lated to space as it re­quires a given ter­ritory with pre­cise bor­ders to be able to im­ple­ment it­self. Nothing easier to un­der­stand this fact than to ob­serve in which space one is al­lowed to smoke and in which one is not. It also in­cludes within this ter­ritory smaller zones of ex­clu­sion, from the corner of the class room to the pen­it­en­tiary, in which an­other form of the law –sup­posedly a more re­strictive one– is ap­plied for in­di­viduals who, through an active re­fusal of spe­cific parts of it, are to be sep­ar­ated from the rest of so­ciety. Those in­di­viduals, when cap­tured by law en­forcer in­stances, are brought within those zones of ex­clu­sion and are being held in them for a given period of time pro­vi­sioned by law itself.

Many other spaces con­sti­tute ter­rit­ories on which law is also dif­ferent but com­posed of layers of laws which do not con­tra­dict each other. Spaces like schools, of­fices, factories, hos­pitals, for ex­ample, apply a legal su­per­im­pos­i­tion in order to com­ple­ment the ter­rit­orial law with set of rules spe­cific­ally for­mu­lated to op­timize their in­sti­tu­tional function.

Space it­self is not ne­ces­sarily an ar­ti­fact, al­though the des­ig­na­tion of bor­ders that de­limit it cer­tainly con­sti­tutes a human in­ter­ven­tion, and prob­ably the first legal ges­ture that is. Let us con­sider ar­chi­tec­ture as the en­semble of human phys­ical modi­fic­a­tion of its en­vir­on­ment. It would prob­ably be use­less to wonder whether law in­vented ar­chi­tec­ture or if it is pre­cisely the op­posite. What we can pos­sibly af­firm, how­ever, is that ar­chi­tec­ture, through its phys­ic­ality, em­bodies the im­ma­terial law. This is clear in the case of the zones of ex­clu­sion that I was evoking above. The fun­da­mental ele­ment of the law of ex­cep­tion ap­plied in them con­sists in the ban for their sub­jects to exit their space. In order to im­ple­ment such a ban, an im­per­meable ar­chi­tec­ture needed to be cre­ated: it is the in­ven­tion of prison as a building.

Prisons are the ex­treme ex­amples of how ar­chi­tec­ture em­bodies the law. We are nev­er­the­less sur­rounded by more do­mestic cases of ar­chi­tec­tural en­force­ment of the law. During a curfew or quar­antine, your own house, sup­posedly so neutral and in­no­cent, can be­come your own prison. But was this house so in­no­cent anyway? Isn’t the house the ma­terial em­bod­i­ment of a law which in­teg­rates private prop­erty as one of its com­pon­ents? How to en­force prop­erty in a better way than to build im­per­meable walls on the lines that law ab­stractly con­structed? Architecture, by using the uni­versal “laws” of physics — nobody can cross a wall for ex­ample — in­sures the ex­pli­cit­a­tion of the law which would need to be dis­curs­ively enun­ci­ated oth­er­wise in order to be ac­know­ledged by its subjects.

This vision is how­ever an ar­tic­u­la­tion centered on ar­chi­tec­ture and I am won­dering how the legal theory spe­cialist that you are in­ter­prets this re­la­tion­ship. Do you think that there can be a law with no ar­chi­tec­ture or/​and a law­less ar­chi­tec­ture? If ar­chi­tec­ture is really the em­bod­i­ment of the law, can we pos­sibly think of an ar­chi­tec­ture of illegality?

I very much look for­ward to reading you on those ques­tions, and on the others that you prob­ably have.

Cordially yours,

Léopold

SECOND LETTER
(Exeter, UK, on August 17th 2012) ///

Dear Leopold,

Lucy Finchett-​Maddock
Lucy Finchett-​Maddock

Thank you for your letter dated 12th August, I apo­lo­gise for my tardy reply but I have been away as you know in India. India, of course being a great ex­ample for the themes of ar­chi­tec­ture and law of which you speak, whereby not only are there plural legal levels of law as a result of the gene­a­lo­gies of co­lo­ni­alism, but so too there are those very clear ar­chi­tec­tures of law that re­veal legal di­cho­tomies, the in­sides and the out­sides, those in­cluded and ex­cluded (and of wrath of the common law in par­tic­ular). Nowhere else has there been such a use of law as a mech­anism of le­git­im­ated dis­pos­ses­sion than in co­lo­nial India, with the de­cent­ral­ised des­potism of the Raj and their op­u­lent palaces as re­minders of their de­cent­ral­ised British power; the ac­cept­ance of cus­tomary law into a plural legal hier­archy of state law that put the common law as the pin­nacle of all might.

When thinking of the role of land and law, and the wall as the boundary, the legal space in which all of the di­vi­sions and struc­tures of hier­archy are ana­lo­gised (or not even ana­lo­gised, but ac­tu­al­ised), there is a reason why one is so struck by ar­chi­tec­ture as the ar­chi­tect of law – or law as the ar­chi­tect of ar­chi­tec­ture. Western in­di­vidual prop­erty rights, are based on a pre­sump­tion that ‘own­er­ship’ of land, the right to design land as one sees fit (or hire a draftsman to follow design in­struc­tions), is the right to have ex­clusive ac­cess and pos­ses­sion to that par­tic­ular geo­graphy of land. Thus, and this is taking from the highly in­flu­en­tial German jurist Carl Schmitt, law starts and ends with the earth, and is de­term­ined through the cat­egor­isa­tion and en­closure of the earth where all other phe­nomen­o­logy resides. This in­trinsic link between law and ar­chi­tec­ture is the design of prop­erty rights, it is the ma­nip­u­la­tion of space which acts as a way of keeping some­thing in, keeping a pop­u­la­tion out. Therefore, ar­chi­tec­ture lends it­self spe­cific­ally as the em­bod­i­ment of law, it is the di­viding line, the junc­ture of limin­ality that is so easily de­scribed, and yet the most elu­sive thing in the world, that which is all order and chaos. It comes to­gether in one co­ordinate, the co­ordinate of legal design; the sketch­ings of the architect.

What struck me re­cently when I was away in India was how ob­vious the past, and in­deed the fu­ture, was ex­pressed within the build­ings, and more so within the con­stant con­struc­tion going on within the mega­city­scape where each new wood and ce­ment fix­ture be­came an­other limb of the great living or­ganism that was growing and gurg­ling as I would veer past in my auto-​rickshaw. These were build­ings that were not com­pleted yet, that would most prob­ably al­ways re­main in­com­plete as the years of bur­eau­cratic pro­cras­tin­a­tion and ju­di­cial protest halt the cre­ation of the fly­overs and of­fice blocks.

What I would like to throw in here is a con­sid­er­a­tion of the role of en­tropy within law and ar­chi­tec­ture, and how this can offer a frame­work through which we can un­der­stand the role of law within ar­chi­tec­ture and ar­chi­tec­ture within law, and what you might think of this in re­la­tion to prop­erty, aes­thetics as a whole, and law so too.

Take the seething urban mass of Bangalore, a city that only 30 years ago was a quaint re­tire­ment des­tin­a­tion for local Karnatakan res­id­ents and its sur­rounding states, which since then has be­come the size of London, with no public trans­port in­fra­struc­ture – and is still growing, with an air of tod­dler­ish­ness that hints to only being a tenth of its po­ten­tial size. The pop­u­la­tion has ma­tured its found­a­tions, and the job of pro­du­cing new living spaces and working spaces have not kept up. There are two types of design, those of the massive land ac­quis­i­tions and re-​mappings that allow for co­lossal new speed­ways and air­ports; and then there are the designs of the slums – both of these ar­chi­tec­tures of law rely on un­plan­ning, as op­posed to plan­ning, and are re­active and emer­gent in their con­ver­gences. This, I would argue, is the en­tropy of ar­chi­tec­ture, and there­fore en­tropy of law.

Congestion in Bangalore
Congestion in Bangalore

Specifically in re­la­tion to land law, there is little in the way of ac­tual plan­ning law, and when there is, it is planned with a cer­tain group of elites in mind. The ma­jority of those who live in Bangalore cannot af­ford to buy cars or mo­tor­cycles, and yet there are ap­par­ently 1,000 vehicles added to the road day in the city. These are the up­wardly mo­bile Bangalorians who work within IT and are making the most of the bur­geoning city and it being known as the ‘Singapore of the South’. Huge land ac­quis­i­tions are un­der­taken in order to build in the name of the swelling bour­geoisie. Land ac­quis­i­tion is a common law in­her­it­ance and is known in India as ‘em­inent do­main’. It ex­ists as a stop valve for the state to ac­quire land for ‘public pur­poses’, without the per­mis­sion of those who already live on the land and have rights and at­tach­ments to the land. Those who are moved are by and large the ar­chi­tects of law from below, the slum dwellers and im­pov­er­ished who own little or no legal rights to the land on which they reside. A com­plex web of common law legacy gives way to a situ­ation whereby land is ac­quired and new building schemes begin, whilst at the same time ar­chi­tects from below utilise the no­tori­ously slow, but most cer­tainly rel­evant lit­ig­a­tion pro­cesses of the courts to try and halt the taking of their homes and the con­struc­tion of new hegemonies.

These two un­planned move­ments of law and ar­chi­tec­ture, the state land ac­quis­i­tion and the li­ti­gious rigour of Bangalore’s civil so­ciety, op­er­ates in an emer­gent co­agu­la­tion and one that is real­ised in the half built pil­lars and ce­ment covered chil­dren on the road­side. These are not com­plete spaces, but half spaces, spaces that are not aware of how they will end up as a result of the in­ter­sec­tion of law in design.

So what does this have to do with en­tropy? At a very basic level, and one that takes from a tra­di­tional ther­mo­dy­namic view, en­tropy is the amount of us­able en­ergy within a system. The more com­plex a system be­comes, the more en­ergy it uses, and the more it strives to­wards order, the more dis­ordered it be­comes sim­ul­tan­eously. Entropy ex­ists in all sys­tems, those that are alive and those not, as long as they pos­sess enough en­ergy to do work, and even the­ories on en­tropy them­selves are part of the emer­gent sys­tems of bur­geoning the­ories on ther­mo­dy­namism and com­plexity. Entropy is thus the con­tra­dictory premise that the world is rap­idly be­coming more in­tricate, re­quiring more en­ergy to be used within its sys­temic bounds, marching on­wards on a tread­mill of a Darwinian per­fec­tion and evol­u­tion, whilst at the same time, the more com­plex it be­comes, the quicker it moves to­wards a fi­nality of heat-​death. Entropy is there­fore the jux­ta­pos­i­tioning of order and chaos, which ar­gu­ably con­jures an aes­thetics of sym­metry, dis­sym­metry, design and architecture.

Seemingly, order as some­thing that is ne­ces­sary for the human mind to un­der­stand any­thing. There are those sys­tems that ap­pear ordered, and yet they rely on the dis­membered­ness of their in­terior, their gene­a­logy, to exist and con­tinue, con­sid­ering Michael Buor’s de­pic­tion of the struc­ture of New York in the 1950s:

“…mar­vel­lous walls of glass with their del­icate screens of ho­ri­zontals and ver­ticals, in which the sky re­flects it­self; but in­side those build­ings all the scraps of Europe are piled up in con­fu­sion … The mag­ni­fi­cent grid is ar­ti­fi­cially im­posed upon a con­tinent that has not pro­duced it; it is a law one endures.”

What does this de­scrip­tion of the un­der­belly of New York tell us of how law af­fects ar­chi­tec­ture, and the same vice versa? What can en­tropy tell us about the seem­ingly out-​of-​control city­scape of Bangalore, the planned un­plan­ning and un­planned plan­ning of the ar­chi­tects of law from below and those of the law from above? What is the role of prop­erty in this, and in­deed aes­thetics itself?

At this junc­ture I am going to go and have some lunch and leave it for your­self to ponder dear Leopold.

Yours,

Lucy

THIRD LETTER
(New York, May 2nd 2013)

Léopold Lambert
Léopold Lambert

Dear Lucy,

It has been (too) long since we last sent each other a letter to think to­gether of the way ar­chi­tec­ture and the law in­teract with each other. I apo­lo­gize for that as it was “my turn” to write to you.

In your last letter, you were re­flecting on the strange col­li­sion of the Indian em­inent do­main with what I would slyly call im­manent do­main that is de­veloped by the slums. You were talking about this col­li­sion in Bangalore; I happen to know Mumbai much more as I lived there for a little while but I as­sume that the two situ­ations are re­l­at­ively sim­ilar for that matter. Both em­inent and im­manent do­mains con­sti­tute a form of vi­ol­ence to­wards the law as they both “break” a tra­di­tional un­der­standing of what prop­erty is about. In the first case, the mu­ni­cip­ality or the State ex­pro­pri­ates a group of people, while in the second one, a group of people claims a piece of ter­ritory that does not be­long to them to build their dwelling. Two things ought to be noted in this matter. The first one is that, on the con­trary of the im­manent do­main, the em­inent do­main somehow re­gisters within the legal system even though it seems to con­tra­dict the law at first “sight”. The second thing to note is that, while em­inent do­main un­folds it­self on an in­hab­ited territory/​building, the im­manent do­main ex­ists on a land/​structure that is either the ob­ject of es­tate spec­u­la­tion or that does not re­ceive enough fin­an­cial founds to be de­veloped. I know that you are very in­ter­ested in how the various squats of the world are ques­tioning the le­git­imacy of our defin­i­tion of prop­erty and I am sure that you have already thought ex­tens­ively about those two notes.

It is in­ter­esting to ob­serve how the em­inent do­main im­ple­ments it­self in a country like India as it re­pro­duces part of the pro­cess of col­on­iz­a­tion: some­thing from the out­side that im­poses it­self as the new law upon the bodies that happen to be present on the con­cerned ter­ritory. The re­min­is­cence of the co­lo­nial era is some­thing that really ques­tioned me when I was living there. Many of the ad­min­is­trative build­ings of Mumbai are still the same that were used by the British. I am still won­dering today if the con­tinuity it cre­ates is strictly sym­bol­ical or if it act­ively shapes the way this ad­min­is­tra­tion is op­er­ating. The same ques­tion goes for the Rashtrapati Bhavan in New Delhi, the Viceroy Palace that Gandhi wanted to trans­form into a hos­pital and that Nehru at­trib­uted as the Presidential Palace of the newly in­de­pendent India. I sup­pose that there are a mul­ti­tude of laws that were sim­il­arly elab­or­ated during the co­lo­nial era and that re­mained af­ter­ward. You are in­ter­ested in the en­tropy of law, I sup­pose that we could re­main in the field of physics and talk about its resilience.

What in­terests us how­ever, is not so much ar­chi­tec­ture and the law con­sidered sep­ar­ately, even when they are in­tricate in sim­ilar pro­cesses of ex­ist­ence, but rather as both part of the same strategy in the or­gan­iz­a­tion of a so­ciety; I want there­fore to go back to this no­tion of im­manent do­main as its re­la­tion­ship to the law might be more com­plex than the one I was de­scribing earlier. In Turkey for ex­ample, I read that the po­lice cannot im­me­di­ately des­troy an un­au­thor­ized dwelling whose con­struc­tion has been fin­ished; this kind of dis­pute has to go to court to be settled. This scen­ario, be­cause it in­volves the in­ertia (some more physics) of the ad­min­is­tra­tion that goes with it, is likely to re­quire enough time for the dwelling’s in­hab­it­ants to use it for a while. There are there­fore strategies to build a home in one night to avoid a po­ten­tial de­struc­tion the fol­lowing day as the con­struc­tion would have not been com­pleted. I find this ex­ample fas­cin­ating as it in­ter­prets the prac­tice of the law in a dif­ferent way that we tra­di­tion­ally do it. It is a form of ne­go­ti­ation with the in­ertia of the system rather than a strict reading of the law that would in­dubit­ably es­tab­lish each be­ha­vior in the two cat­egories of legal and illegal.

There is also a di­men­sion of il­leg­ality that I would like to ad­dress. When does an il­legal be­ha­viour can be le­git­im­ately called “civil dis­obedi­ence” to use Thoreau’s well known idea? My theory about it would prob­ably de­serve more work on it, but I have

Separation Barrier - Israel/Palestine
Separation Barrier – Israel/Palestine

the in­tu­ition that one has the right to dis­obey a law when, through this ac­tion, one is primarily ques­tioning the le­git­imacy of the law it­self. I will use a com­par­ison I made in the past to il­lus­trate what I mean. When someone as­sas­sin­ates someone else, the chances are that this first person is not con­testing the fact that one is pre­vented by law to kill an­other person; how­ever, when Rosa Parks de­cided to go seating in the white people sec­tion in the bus in 1955, sit­ting was not primarily what she wanted to do, she wanted to deeply con­test the very es­sence of the se­greg­a­tionist legal system. Of course, there might be some more com­plex and less ex­treme ex­amples but this dis­tinc­tion al­lows us to make a dif­fer­ence between a selfish dis­obedi­ence to the law from a polit­ical one. I sup­pose that the slums we were talking about are a mix of these two di­men­sions as they claim a ter­ritory op­por­tun­ist­ic­ally, not to be re­leg­ated to the out­skirts of the city, but also as a mani­fest­a­tion of their ex­ist­ence and their right to the city.

Do these per­eg­rin­a­tions of my mind res­onate in any way for you? I look for­ward to hearing from you as I am sure that you will know how to chal­lenge and ar­tic­u­late my intuitions.

Yours,

Léopold

FOURTH LETTER
(Exeter, UK,  May 14th 2013)

Lucy Finchett-​Maddock
Lucy Finchett-​Maddock

Dearest Leopold,

Well, thank you for your last cor­res­pond­ence, and as I read through our pre­vious me­an­der­ings into law and ar­chi­tec­ture, I am trans­ported back to the sultry heat of India, the free flow of writing in the summer months of a sop­or­ific, verdant Devon last year. Perhaps any hints to a summer heat do not ring quite true here in the UK, but you get the pic­ture! Not only has it been a while since writing to you dear Leopold, but it has been a while since writing full stop. The al­most ro­botic prac­tises of teaching — reading, re­for­mu­lating, copying, al­tering, presenting, speaking, re­pro­du­cing, shaking — are al­most the inside-​out of writing, the cath­arsis of mind that al­lows for pon­der­ings on an aes­thetics of law. But I am sure my six months of vocal not written en­gage­ment will be con­trib­uting and in­spiring my thoughts nevertheless.

I am back in India with your im­manent do­main, quite a meta­phor for the emer­gent and by no means inert sci­entific al­leg­ories we are sharing in re­la­tion to prop­erty, both that re­quisi­tioned by the state and that per­formed by the slums. The im­man­ence of the Indian geo­graphy speaks to this kin­etic en­ergy, a city in flux through its re­sponse to legal and il­legal plan­ning re­gimes. It is in­ter­esting that you refer to the di­cho­tomy of legal and il­legal, as what has al­ways been of in­terest to my­self has in fact been this space in between, the point and threshold at which a con­stituent cre­ates the con­sti­tu­tion, the res­ist­ance be­comes law. This is the im­man­ency of law and res­ist­ance, the en­ergy and meta­bolism whereby from one heart­beat to the next there is some­thing that re­sembles a jur­idical for­mu­la­tion. Locating this mo­ment is akin to im­posing a rigid grammar of pre­scrip­tion to a work of art; to the eph­em­eral the resides as a sap­phire in coal dust, be­cause it does just that. But this lim­inal space in between the non-​institutional and in­sti­tu­tional still fas­cin­ates and al­lows for what is legal and what is il­legal, within and ex­ternal to law, like a Kafka-​esque gate keeper, patrolling the door to the stomach of the law. By trying to un­der­stand these move­ments, the idea is to un­der­stand any found­a­tion of law.

I also want to draw on your men­tioning of dis­obedi­ence, as this is some­thing that I have been working (sadly more con­fined to within the academy than so much out­side these days!) of late in re­la­tion to the concept and prac­tice of ‘naugh­ti­ness’. Thoreau places the jus­ti­fic­a­tion for dis­obeying law as that which rests as a duty, ‘If (an in­justice) is of such a nature that it re­quires you to be the agent of in­justice to an­other, then, I say, break the law. Let your body be a counter fric­tion to stop the ma­chine’; Arendt would say this is ‘testing the statute’ whereby to be civilly dis­obedient is to counter a law in order to change a law. The in­sti­tu­tional char­acter and limits of law comes up again in Arendt’s un­der­standing of civil dis­obedi­ence and its role in con­sti­tu­tion­alism, whereby to be civilly dis­obedient is to ef­fect and af­fect law through extra-​legal ac­tion, ‘… the law can in­deed sta­bilise and leg­alise change once it has oc­curred, but the change it­self is al­ways the result of extra-​legal ac­tion’. Thus, this di­vi­sion between the ex­terior and in­terior of law as­sumes the found­a­tion of law, as there­fore being in­nov­ated from an out­side source. The legal, il­legal, alegal, extra-​legal, or infra-​legal even, are all a mo­tion of le­git­im­a­tion and struc­tur­a­tion and where can it be better ex­pressed than in ar­chi­tec­ture it­self, in a seething urbanity, in a re­con­fig­ur­a­tion of law whereby slums rest on the grid of co­lo­nial prop­erty rights in a stasis of il­le­git­imacy. And yet without them, prop­erty it­self would not exist, nor in­deed the pre-​eminence of the Common law. Slums are the extra-​legal to the right to exclude.

As you know I have fo­cused my re­search for the last few years on squat­ting, a way of per­forming ar­chi­tec­ture in both an ap­pear­ance and legal loop­hole of tran­si­ency, and yet the per­form­ance can last in a tem­por­ality much longer than that an­ti­cip­ated by either the squatter or the state. This in­ertia in which you won­der­fully place our dis­cus­sion of bur­eau­cracy and the techné of law, is as you say, both a source of frus­tra­tion and also a pro­cras­tin­a­tion that res­ults in the ex­pedient re-​appropriation of land. Returning to physics here al­lows for the role of time to be un­der­stood, or space-​time more pre­cisely, as a motor for res­ist­ance, as a means of testing the statute, whether the dis­rupt it and change its course or oth­er­wise. Entropy is the arrow of time, and so in this in­ertia is an aes­thetics of dilap­id­a­tion and de­com­pos­i­tion, an in­ev­it­ab­ility that the half-​built speedway or giant-​like pillar of a fly­over will even­tu­ally shift from being built — to be­coming ruins. That plateau of ar­chi­tec­ture and law ‚ between con­struc­tion and de­struc­tion — where en­tropy curlicues.

Once again dear Leopold, I shall leave it at that for you to ponder upon and will re­turn to my teaching duties.

Yours,

Lucy

Lucy Finchett-​Maddock is Lec­turer in Law, Uni­ver­sity of Sus­sex; Léo­pold Lam­bert is an archi­tect and Editor of The Fun­am­bu­list.

Europe can learn from US on how not to do net neutrality

Chris Marsden
Chris Marsden

the conversation

This post was originally published in The Conversationwhich is funded by the following universities: Aberdeen, Birmingham, Bradford, Bristol, Cardiff, City, Durham, Glasgow Caledonian, Goldsmiths, Lancaster, Leeds, Liverpool, Nottingham, The Open University, Queen’s University Belfast, Salford, Sheffield, Surrey, UCL and Warwick. It also receives funding from: Hefce, Hefcw, SAGE, SFC, RCUK, The Nuffield Foundation, The Wellcome Trust and The Alliance for Useful Evidence

We are entering a time of great uncertainty for internet freedom following two recent events. Both occurred in the US but have repercussions for Europe, where the debate on the future of net neutrality is warming up. But while events across the Atlantic could be seen as a win for private interests, Europe might be a tougher nut to crack.

The District of Columbia Court of Appeals has overturned much of the Federal Communications Commission network neutrality regulations. In what has been seen as a major blow for net neutrality, it decided that internet access provider Verizon could charge customers for faster internet speeds. Then, the President of the United States decided to tighten the rules governing secret surveillance of electronic communications in the wake of the NSA scandal.

The latter decision is highly contentious, with many advocates for privacy claiming it does very little to restrict government surveillance of US citizens and nothing for foreigners – such as Europeans. That sets a precedent for the British government to make even more minor procedural changes, and for the respective agencies in US and UK to continue to swap the metadata that each has gathered on each other’s citizens. This amounts to government control of the internet, secured by gathering records of our metadata from private companies.

The net neutrality ruling in the US sets a precedent for private censorship by the same internet access providers, which are authorised, or at least not opposed in their actions, by the same governments. European lawmakers should take note of some of the prickly issues that have arisen in the course of these events.

Less than virtuous circle

The net neutrality ruling shows that it is extremely difficult to separate out individual items in communications policy. The National Security Agency and other security services need the legal and extra-legal cooperation of internet access providers to continue monitoring citizens and the internet access providers need regulatory backing when they seek to speed up or slow down traffic on the internet for their own commercial benefit.

In both cases, the user’s right to privacy when they browse the internet is trampled underfoot. A particularly egregious case shows that Europe is not immune to such net neutralitycontroversies. In 2007, BT and behavioural advertising company PHORM intercepted the traffic of 30,000 users without any attempt to secure their consent. The government had been involved in the deployment of the technology used but crucially, it was later dragged to the steps of the European Court of Justice and privacy laws were later amended to stop such an event happening again.

Europe should also note that technological progress is very difficult to regulate in the public interest when private market forces are pushing hard to censor content in the interests of making a profit. In the UK, BT and Vodafone want to charge content companies to carry video, claiming they will be able roll out fixed and mobile high speed internet more quickly if they are granted the ability to put a toll lane on the internet.

Broken promises

Recent events also show that electoral promises are hard to keep in the US when Congress does not support legislation. Just as Obama failed to close the Guantanamo Bay detention camp as he had explicitly promised to do in his first presidential campaign, so the failure on net neutrality breaks his main technology policy promise from 2007.

This was a policy first developed by his friend Lawrence Lessig, his junior professorial colleague at Chicago when they both taught constitutional law in the early 1990s, and Lessig’s brilliant protege Tim Wu, who first coined the term net neutrality.

Tim Wu (left) and Lawrence Lessig
Tim Wu (left) and Lawrence Lessig

Lessig warned in 2010 that Obama was cooling on net neutrality because of political opposition from telecoms lobbyists and their sponsored congressmen.

The messages come from European policymakers are equally mixed. Ed Vaizey, the UK minister in charge of internet policy, has declared himself in favour of net neutrality but also in favour of higher speed toll lanes, which is contradictory. Similarly, European Commissioner Neelie Kroes began her term by declaring her love for net neutrality and has subsequently failed to do much to enforce it.

But Europe is not the United States and the litigation and congressional deadlock that has characterised the net neutrality debate does not apply. A pan-European proposal for enforcing net neutrality was set in motion by national legislation in the Netherlands and Slovenia and may become law this year, though a new Commission and Parliament may delay or even derail the process.

The United States has failed to enforce net neutrality properly because it has tried to deregulate carriers with an à la carte approach. It has kept one eye on neutrality while simultaneously removing the requirement for internet provider monopolies to open access to competitors. In Europe, monopolies still have strict regulation to allow competitors and there is no obvious reason why net neutrality would be successfully challenged by the courts as exceeding European legal powers.

Just as extra-legal internet snooping is disapproved of in mainland Europe, so private censorship by the same internet companies is unpopular, and telecoms lobbying may not prevent the imposition of a real net neutrality law. That would then lead to 28 countries trying to implement it. Ed Vaizey may soon have the chance to correct his contradiction.

Hierarchies of hate: why we need to extend the Crime and Disorder Act 1998

Mark Walters

Mark Walters

The recent Law Commission Consultation Paper Hate Crime: The Case for Extending the Existing Offences is the first large scale review of hate crime law in England and Wales. The Commission is now currently scrutinizing the large number of responses it has received before it provides its final report later this year. In the main, the Commission must decide whether it will recommend to extend the aggravated offences prescribed under the Crime and Disorder Act 1998 (C&DA) to include ‘hostility’ based on ‘sexual orientation’, ‘transgender identity’ or ‘disability’, and whether new offences of stirring up of hatred based on disability and transgender identity should be incorporated into the Public Order Act 1986. Alternatively, the Commission may simply recommend the status quo by retaining (though slightly improving) the current sentencing provisions set out under sections 145 & 146 of the Criminal Justice Act 2003 (CJA) – these provisions allow judges to enhance an offender’s sentence where he or she is motivated by, or demonstrates, hostility based on the victim’s race, religion, sexual orientation, transgender identity or disability.

In deciding whether to extend the law and/or improve the current sentencing provisions, the Commission must first consider the core principles underlying the Government’s approach to hate crime – as set out in their 2012 Action Plan. Within this Action Plan it states that the Government’s number one aim is to prevent hate crime by challenging the attitudes which underpin it, in addition they want to increase reporting and improve operational responses to hate incidents. Considering these primary aims, it would seem prudent of the Commission to start by asking the following question:

Can ss. 145 & 146 of the Criminal Justice Act 2003 prevent hate crime by challenging prejudice?

In other words, should the Government maintain the status quo, can the current sentencing provisions achieve its primary goal of preventing hate crime? On the face of it this seems highly unlikely. Sentencing provisions (even if somehow improved) do little more than enhance the penalty of an offender. Criminological research has consistently shown that increasing the sentence for a particular type of offence has little impact on the overall number of offences that are committed. Part of the reason for this is that very few sentencing remarks will ever reach the public domain (outside of those who attend court) and thus it is doubtful whether any general deterrence of hate crime can be achieved.

Instead, the most likely effect of ss. 145 & 146 is to send more offenders to prison for longer periods of time.  We should remain sceptical about whether this approach will either prevent hate crime or challenge the prejudices which underlie it. Indeed such an approach may actually be counter-productive. For instance not only are offenders who

More than 40000 hate crimes are reported every year
More than 40000 hate crimes are reported every year

go to prison more likely to reoffend when they come out, but we should be highly sceptical about whether locking someone up in a hyper masculine and hostile environment will ever make them less hateful.

Yet while I remain far from convinced that focusing on sentencing provisions is the best way of addressing hate crime, I do remain hopeful that hate crime can be partly prevented and effectively challenged through the use of the criminal law.  Unlike sentencing provisions, specific offences are much more likely to penetrate the public consciousness. For example, offences such as ABH and GBH have captured the public imagination and most know the seriousness of these offences. Similarly, hate crimes that make it onto the criminal statute books will be much more likely to enter public thinking, gain media attention and become part of the public vernacular. This means that the state is able to convey the immorality of hate in a much more powerful way. In fact, one problem with relying on the sentencing provisions set out in the CJA is that they are only ever applied where the police and the CPS ask the court to take them into account – frequently this does not happen (see for example the recent case of Sheard [2013]). This is because the hate element of an offence becomes secondary to the pursuance of the crime based on the fact that it will not make up part of the actual offence, as prescribed by law.

Some of you may be reading this still thinking, “But surely the C&DA has the same effect that the CJA has – i.e. when all’s said and done it enhances penalties!”, you are of course right, but for me the real potency of the C&DA lies in its denunciatory effects and not its often punitive outcomes. Moreover, accepting the utility of hate crime legislation does not mean that one must simply accept a retributive response to this type of crime. Instead, we need to think more creatively about how to sentence hate crime offenders.  While enhancing an offender’s penalty may recognise the increased harm that hate crimes cause to victims, communities and society more broadly, it is likely to do little else than appease the victim’s short-lived desire for vengeance.   Hence the law of hate should be concerned more with sentences that “prevent hate and challenge prejudice” while additionally attending to the needs of victims. Rather than sending more offenders to prison then, sentences should be “enhanced” by utilising more community-based rehabilitation programmes and restorative justice measures.  These are measures which attend to the underlying causes of hate crime while simultaneously encouraging offenders to repair the harms they have inflicted. Together, the symbolic aspect of the criminal law when combined with community-based sentences, could help to convey important social disapproval for hate-motivated offences to the community which in turn would help to prevent it.

It is not just the social declaration against hate which the C&DA provides. There is a second, perhaps just as important, message contained within specific hate crime offences. This message is that certain groups in society will be protected from targeted victimisation.  It is, in effect, recognition of the history of prejudice-based victimisation that certain groups have had to endure and that the state is willing to do something about it. This aspect of hate crime legislation is essential to groups who feel vulnerable to abuse and who demand greater protection from it by the state – especially considering that it has been the state itself that has often been the cause of minority group oppression.

Go Home van
Go Home van

This is not to suggest that the Crime and Disorder Act will solve the problem of hate crime in its entirety – in fact it should be noted that there is the concern that the state (and the Law Commission as part of its machinery) may hide behind hate crime laws while doing little else to actively tackle hate crime. Worse still, these laws may actively mask the imposition of policies – such as the recent “Go Home” posters used by the Home Office to combat illegal immigration –which actually fan the flames of hatred against certain minority groups.

Government intentions aside, hate crime laws can and do make a genuine difference by ensuring that the police and other criminal justice agencies sit up and pay attention to a problem which has blighted societies throughout the world for centuries.  We might ask ourselves: Would the police put the time and resources into tackling the problem without a specific offence compelling them to? Could we locate as many hate-motivated offences that we currently do, if the law and its enforcers did not bother taking account of it? Of course it is possible, and currently is possible, but it is much more difficult. It is for all these reasons that I recommend that the Government extend the Crime and Disorder Act 1998 to include sexual orientation, transgender identity and disability hostilities, ending the current hierarchy of hate-motivations in England and Wales and sending a clear message to society that all hate-motivated offences will be pursued equally and vigorously by the state.

A version of this blog also appears at: http://www.internationalhatestudies.com/hierarchies-hate-need-extend-crime-disorder-act-1998/

For further reading on hate crime law in England and Wales and the use of alternative sentences see:

Walters, Mark Austin (2013) Conceptualising ‘hostility’ for hate crime law: minding ‘the minutiae’ when interpreting section 28(1)(a) of the Crime and Disorder Act 1998. Oxford Journal of Legal Studies.

Walters, Mark Austin (2013) Why the Rochdale Gang should have been sentenced as ‘hate crime’ offenders. Criminal Law Review (2). pp. 131-144.

Walters, Mark (2013) Restorative approaches to working with hate crime offenders. In: Hate crime. The Policy Press, Bristol. (In Press)

Walters, Mark Austin and Hoyle, Carolyn (2012) Exploring the everyday world of hate victimization through community mediation. International Review of Victimology, 18 (1). pp. 7-24.

Criminal justice, due process and legal aid: thoughts from Ghana

Abenaa Owusu-Bempah

During a recent trip to Ghana, I visited the Faculty of Law at the Kwame Nkrumah University of Science and Technology (KNUST). I was also able to speak with Eric Delanyo Alifo, a criminal lawyer based in Accra. These conversations were a stark reminder of the struggles faced by those accused of criminal wrongdoing in Ghana, and the struggles faced by those who endeavour to assist them. Mr Delanyo Alifo set up and runs an NGO called HelpLaw Ghana. The purpose of the NGO is to provide free legal assistance to those who cannot afford it. Unfortunately, it has been, and continues to be, an uphill battle, in terms of both the workload and available resources.

Ghana does have a state-run system of legal aid. However, it is largely ineffective and is fraught with difficulties. The nature of these difficulties has been carefully explained in an article by Renee Morhe, a lecturer at KNUST. They include a shortage of experienced lawyers, low levels of remuneration for lawyers, and poor access to legal aid offices. As a result, many of those who are accused of criminal wrongdoing go unrepresented, causing them serious problems at each stage of the criminal process.

For example, once accused persons have been arrested, anecdotal evidence suggests that it is not uncommon for the police to beat ‘the truth’ out of them. This claim is supported by a recent report which found that as many as 40% of pre-trial detainees said they had been tortured by a state official since their arrest. Without the assistance of a lawyer, it is very difficult for accused persons to challenge the validity of confessions obtained in this way. This problem is compounded by the high rates of illiteracy amongst accused persons, making it easy for the suspect to be tricked into signing a false confession, and making it nearly impossible for the accused to adequately prepare for trial or challenge the evidence against him in court.

Ghanaian pre-trial procedure is not subject to the kind of regulation that English procedure is. For example, police interviews are not routinely recorded. Even if the accused is fortunate enough to have a lawyer, the police might prevent the lawyer from being present during interrogations, and the lawyer’s own meetings with the accused might be observed or monitored by the police, depriving them of any confidentiality. These practices are not compatible with Ghanaian law, including Article 19 of the Constitution, which provides, inter alia, that a person charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence.

Ghana Supreme Court
Ghana Supreme Court

One consequence of the lack of legal representation is that pre-trial detention periods can be incredibly long. This is, in part, due to the fact that the accused is not competent to apply for, or obtain, bail. A recent report on the socioeconomic impact of pre-trial detention in Ghana, published by Open Society Foundations, found an average pre-trial detention period of 14 months, with the longest coming in at 7 years. Many of the detainees were held in relation to non-violent crimes and were unlikely to abscond or pose any risk to society. The same report found that only 27% of detainees had seen a legal representative (none of whom said that the state had paid for the cost of their legal representation). The result is many innocent people wasting significant periods of their lives in prisons which are severely overcrowded and unhygienic (for more information on current prison conditions in Ghana, see this Amnesty International report).

What I have outlined above is just the tip of the iceberg in terms of the unsatisfactory nature of criminal procedure in Ghana, and the lack of respect accorded to fundamental due process rights. More detailed accounts, based on the experiences of Eric Delanyo Alifo, can be found here. I have the utmost respect for Mr Delanyo Alifo and other dedicated lawyers who are making significant personal sacrifices in their efforts to create change. As a country, Ghana has a lot to offer; it is often employed as a shining example of democracy and economic development in Africa. Yet, the approach to criminal procedure and due process has remained largely stagnant.

Thinking closer to home, one becomes aware of just how important it is to resist government plans to cut legal aid fees by up to 30%. Without adequate funding, many lawyers will be forced to abandon the criminal bar; the quality of state-funded legal representation will diminish; the rights of accused persons will be put in jeopardy; and the potential for both wrongful convictions and wrongful acquittals will increase.