Strategic litigation: anti-racism in the courtroom?

Rebecca Sparrow, second year LLM student, discusses a recent event about how to challenge structural and state-sanctioned racism in law.

The Centre for the Research of Race and Law’s most recent event, Strategic Litigation: Anti-Racism in the Courtroom?, hosted two panels, each of which broadened understandings of what strategic litigation does and might look like. How, whether, and when to litigate, and how to ethically, and effectively occupy Mari Matsuda’s ‘multiple consciousnesses’ of working within and against the law, is a constant and pressing concern for anyone involved in social justice or political campaigns, critical academia and legal advocacy. This set of workshops provided a stimulating space for discussion and exploration of this fraught battleground of the law, particularly in the context of challenges to structural and state-sanctioned racism, including in its ever-increasing formulation through immigration policy.

In the first session, Ioannis Kalpouzos from the Global Legal Action Network suggested a challenge to Upendra Baxi’s suggestion that all political issues of salience in the second half of the 20th Century must be articulated through human rights. Kalpouzos described the Network’s efforts to use the International Criminal Court to challenge offshore detention in Australia, a country he described as the ‘envy of the Western world’ when it comes to brutal immigration regimes. He explored the potential of using International Criminal Law to name and label western state-sanctioned violence – even when that violence is not spectacular or radical, but bureaucratic and all-pervasive. This raised questions from the audience about whether using criminal law might exceptionalize particular moments of violence, and therefore also serve to normalise violence that we should be pushing to be accepted as human rights violations. The responses to these questions made the particularly strategic nature of such litigation clear.

Lewis Kett from Duncan Lewis Solicitors, one of the main law firms with legal aid contracts to represent those in UK immigration detention, spoke about his recent successful case challenging laws on segregation in immigration detention centres. Although this, and previous wins of Duncan Lewis’, have been important, and provided some of the only real positive changes to detention policy in recent years, Kett also expanded on the extent of the problems within existing policy, and how much further there is to go. In response to queries from workshop participants, he reflected on whether improving structurally violent institutions such as detention can serve to make them more palatable without removing their inherent violence, but concluded that as a solicitor it is ethically impossible not to litigate for reform where possible, not only to change practice but also to provide accountability, and as part of wider campaigns.

The second panel began with Muhammad Rabbani, the director of CAGE recently charged and convicted under terrorism legislation for refusing to hand over the passwords to his mobile phone and laptop in Heathrow airport. He was stopped under Schedule 7, the law introduced in 2000 that sees 50,000 people per year stopped in airports, with no right to remain silent, to seek legal advice, to refuse a strip search or the handing over of data. The 99.8% non-arrest rate, as Rabbani highlighted, signifies a breach of the Magna Carta principles against suspicionless arrest. Rabbani asked brave, poignant questions about how he might have been treated, both during his arrest and during legal proceedings, particularly when unable to find any lawyer willing to submit a judicial review on his behalf because he had a ‘pigmentation problem’, and so wasn’t considered ‘the ideal case’. Thus Rabbani questioned the possibilities for strategic litigation when the law is actively constructed to target Muslims. Where, in this context, is the space for strategic litigation? Rabbani had to take his strategy beyond the courtroom and run his own campaign.

Gracie-Mae Bradley’s presentation followed on perfectly from Rabbani’s warnings. She spoke about her experience both within human rights organisation Liberty, and as an organiser of the Against Borders for Children (ABC) campaign. In particular, she highlighted ways in which litigation, however strategic, is severely compromised if it is not accompanied or preceded by wide-reaching social campaigns. She drew attention to previous strategic wins in the context of UK immigration detention, such as the retracting of the Detained Fast Track programme, and the way in which the Home Office is finding ways to re-introduce slight variations on the same policies only a couple of years later. Litigation, she reminded us, is a way of challenging policy that is fully incorporated within the limits of the system that created it, and controversial policy changes are often actively channeled by Government into legal frameworks, as the delays entailed by public consultations often mean that any successful litigation has to be applied retrospectively, which makes old policies easier to reinstate later. Quoting Gary Bellow, himself quoted by Derrick Bell, in the context of Leroy Clark’s insistence that an over-reliance on the law limited the potential of the black community’s success in pushing for school desegregation in the South, Bradley noted that ‘rule change, without a political base to support it, just doesn’t produce any substantial result because rules are not self-executing: they require an enforcement mechanism.’ Thus she showed that ‘riding on a technicality’, to which much strategic litigation must often be confined, though often crucial, is never enough to establish real change alone. Using the examples of data collection in schools that can be used to inform the Home Office of undocumented children and their parents, she argued that litigation must be accompanied by campaigns that highlight the implications and mechanisms of damaging policies, rather than just channelling the technicalities of their implementation.

Shining a light from a different direction, though with many of the same implications, Chai Patel explored the difficulties litigating strategically in anti-racist campaigns, when many of the effects of harmful and racist policy are not quantifiable in the terms required by the law. Speaking about the Joint Council for the Welfare of Immigrants’ attempts to challenge the Right to Rent legislation of 2016, Patel described the insidious ways in which even though the requirement on landlords to ensure the immigration status of their tenants encouraged, in their own words, discrimination on the basis of perceived race or nationality, it was very difficult to quantify and record such prejudice. In particular, the detail that landlords will be fined for not checking documents if tenants are found to be residing unlawfully, but not for failing to check if they are legally renting, encouraged this discrimination. Thus the detail in the legislation makes it particularly likely to encourage biased assessments of prospective tenants’ immigration status. It also makes it particularly hard to collect data, pushing all conclusions into the realm of the hypothetical. Although litigation might, in this case, be one way to challenge the policy, it has been incredibly hard to show that it was the policy itself that was causing discrimination.

To sit in a room with such a broad mix of academics and practitioners, getting absorbed in the details, methods, implications, ethics, efficacy and revolutionary potential of strategic litigation against racist policy was inspirational. The mood was neither of cynical criticism nor naively hopeful for impossible change. And though the workshop participants, panellists and audience, provided necessary and timely reminders not to put all our faith in litigation, however strategic, the conference itself was inspiring testament to Rabbani’s moving encouragement that if we strive for compassion and courage, much is possible.

 

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Exhibition reflects on the history of ‘un-pregnancy’ through art

A collaboration between Birkbeck academic Dr Isabel Davis and artist Anna Burel has produced a series of artworks depicting the history of ‘un-pregnancy’, which are currently exhibited at The Peltz Gallery. 

Dr Davis, from the Department of English and Humanities reflects on the research which led to the collaboration.

Finding out you’re not pregnant can be a very odd experience of nothing happening. While of course, there are plenty of people who feel relieved on discovering they aren’t going to be parents, there are conversely lots who feel disappointed, and often this isn’t the first time they’ve felt this way. So, they are (or their partner is) not pregnant … again. Grieving for something that never was, feels strange.

My Conceiving Histories project explores how this nothing, this thing that never was, a thing which I call ‘un-pregnancy’, appears in the historical archives. I am particularly interested in how people in the past thought about the time before diagnosis, either of pregnancy or infertility. What do they have to say about trying to conceive, about on-going childlessness (involuntary or otherwise), about the difficulty of diagnosing early pregnancy, about not knowing whether they were pregnant or not and about early pregnancy loss? What I am finding is that there is a lot of archival material about this apparent nothing. If there are things that can be touched, seen and read in archives about un-pregnancy, then this experience can’t really be a nothing; it must be a something, after all.

To pursue this project, I teamed up with a visual artist Anna Burel who, for a long time, has been working on the female experience of the body, particularly the female body in the gynecological encounter. Like me, she is interested in history and thinking about the points of identification between people today and those in the past. Working together, we have started to look at all sorts of aspects of un-pregnancy; simulated, imagined, misdiagnosed and phantom pregnancies at different points in time, as well as the difficulties of diagnosing pregnancy before home testing. Our exhibition, which presents the work we have done in the first phase of this collaboration, is open at the Peltz Gallery, in Birkbeck’s School of Arts, and continues until 13 December.

In the exhibition we explore four curious case studies: Queen Mary I’s two false pregnancies (1554-1557); a strange fashion for simulating pregnancy by using a pad (1793); a science-fiction fantasy about discovering how to diagnose early pregnancy and date human gestation (1826); and materials from the Family Planning Association (FPA) archive concerning the international transport of live toads for use in the FPA’s pregnancy diagnostic centre (1949-1964).

To give you a fuller sense of just one of these, let me tell you about the strange fashion in 1793 for wearing what was known as The Pad, which simulated pregnancy. The Morning Herald, a contemporary newspaper tells us: “Pads continue to be worn; and on account of these the dress is still a loose gown of white muslin flounced in front, appearing to be put on with the negligence permitted to the supposed situation of the wearers.”

Contemporaries described it as a fashion which moved around from the back, where it functioned as a bustle, to the front. Most of the evidence for it is satirical. Contemporary cartoonists were savage, presenting The Pad as silly and French. They were particularly delighted, but also perhaps horrified by the idea that it was a social leveler, ironing out differences between rich and poor, large and slim, young and old – making a nonsense of the pregnancy swell as a social sign.

A one-act farce, The Pad by Robert Woodbridge opened at the Theatre Royal, Covent Garden the same year. It presents three interlocking stories of couples disrupted because women have taken to wearing The Pad. The main protagonist, Lovejoke, sets out to teach these women a lesson not to ‘outstep the modesty of Nature’ by wearing one. Two of the stories end happily but the third is more bitter. In this story, Sir Simon Meagre and his wife are childless after years of trying; Lovejoke leads him to believe that they might finally have the child they’ve hoped for, although in truth his wife has just taken to wearing The Pad. When the truth comes out, Lovejoke makes an exception for Lady Meagre – she can continue to wear The Pad as consolation for her childlessness. ‘Poor comfort!’ Sir Simon replies, ‘sad substitute for a Son and Heir! – I thought to have had a little boronet [sic]’. Although it is ostensibly a comedy, the play ends on this dissonantly poignant note, bequeathing us some odd evidence for trying to conceive in history.

Anna’s work on this bizarre fashion object explores its tragicomic potential. Her series of photographs show women wearing The Pad, sometimes with fools’ caps. Using the typography of Woodbridge’s play to mark up Pads with dates and slogans, Anna’s photographs explore the emotions around the absence of pregnancy.

Pregnancy is very privatising and not being able to become pregnant can feel humiliating, as if one can’t get into an exclusive private club, or as if the world is laughing. Women and men have long learned to resort to silence about their struggles to become parents for fear of exposing themselves as in some way inadequate. Maternity clothes today emphasise pregnancy as a special category. The current Western aesthetic in maternity wear stresses the neatness of the pregnancy bump, isolating it and giving it clear definition in relation to the female body. For those looking on from the outside, this kind of definition – both to the contours of the pregnant body and to the community of those who can get pregnant – is sharply distinct from the ambiguities of a life lived in uncertainty about the future, the body, pregnancy and parenthood.

The eighteenth-century Pad offers an odd sort of reflection on these complex emotions and there isn’t the sort of evidence that one would really like; what women thought and felt about wearing it, what their motivations were and so on. The imaginative world that it suggests, however, is one in which women can somehow side-step their own longing and the socially isolating experience of un-pregnancy and temporarily enjoy looking pregnant. What if we could collapse the hard boundaries that we set up today, so firmly reinforced by the fashion industry and other institutions, between those who can fall pregnant and those who can’t? Such things are taboo for us: celebrities who fake pregnancies are vilified as if they’ve violated some sacred estate, anyone else is deemed mad.

Yet history and art offer a temporary and neutral space, in which we might think about ourselves and ask questions like: ‘what if …?’

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The London Critical Theory Summer School: combining theoretical thought with political urgency

Carolina Amadeo, MPhil/PhD candidate at the School of Law discusses this year’s London Critical Theory Summer School. The 2018 Summer School will be held from 25 June – 6 July and is now accepting applications. Find out more. 

Carolina’s Summer School cohort in 2015

I first joined the Critical Theory Summer School organised by Birkbeck’s Institute for the Humanities in 2015. At that particular moment, it provided the inspiration needed for me to quit my job as a lawyer and start to pursue the academic career I had always dreamt of. Coming from Brazil and from a law school background, I was struck by how the summer school created an academic environment where critical theory was taken seriously. Not only that, but it was taken seriously in a transdisciplinary way, in which all sorts of different ideas were welcome for discussion.

After getting to know Birkbeck I ended up enrolling for a master’s here straight away, which then led me to start my PhD in January 2017. My research combines critical geography, legal geography and critical legal theory, but it also draws on social and political theory. I explore the interconnections between law, space and resistance, in the context of social movements that use occupations as their main strategy. That is, I examine how space is being appropriated by these movements as a political tool and how property relations relate to this usage. My focus is the Brazilian context, mainly due to the emergence of the secondary school student movement, a series of occupations of public schools to demand better education.

This summer, two years after my first Summer School experience, I again reserved two weeks of the hottest days of the year in London to join this immersive experience. Even though I had a lot of work to do on my thesis, still I thought it was worth to just allow myself to read and discuss topics that although were not central to it, would still help me getting creative and shaping my arguments.

Indeed that was the case. In the first week, I learned a lot from Catherine Malabou’s very well structured classes about the evolution of the concept of the symbol. This gave me a philosophical basis to better understand many of the authors I have been reading. Then Drucilla Cornell introduced me to African Socialism and Paul Gilroy presented an interesting account of British Black culture. Finally, Costas Douzinas surprised me with his presentation of an analytics of resistance, which resonated directly with my own research.

In the second week, Jacqueline Rose, Stephen Frosh and Slavoj Zizek, once again fed my fascination with psychoanalysis. Although I don’t have a detailed background in psychoanalysis, it was still interesting to allow myself to just engage with their presentations, which was also the case with regards to Esther Leslie’s work on aesthetics and nature. Additionally, Jacqueline’s point about the “Rhodes Must Fall” movement from a psychoanalytical point of view gave me a new perspective on how to read student movements, such as the one I have been studying.

The best thing about the Summer School is that it combines an intensive studying environment – with dense readings and two weeks of all-day lectures – with the establishment of relaxed social interactions with like-minded people. At both summer schools I have met participants from all around the world with whom I still discuss my work, but more than that, they have also become good friends.

The selection of the lecturers is another important aspect of it. The list always combines renowned critical theorists from all different backgrounds. The topics range from political economy, to analysis of resistance, postcolonial theory, and psychoanalysis, among others. And you can learn a lot from the lectures and the discussions, even when they are dealing with topics that you are not strictly familiar with. The privilege to sit in a class taught by Etienne Balibar, David Harvey or Catherine Malabou, among all others, is something I could have barely imagined before coming here for the first time.

The environment created by the group is always welcoming and inviting. And the fact that we not only attend classes together but also share meals and small breaks, make it an on-going construction of a group. By the end of the second week, you feel comfortable around the participants and you build long-lasting connections with some of them.

Both experiences I have had in the Summer School have contributed immensely to my academic life. Not only in terms of the theoretical work I was introduced to, the references I have been given or the clarifications I managed to get from such important authors, but most of all, due to the relations I have built with professors and other participants. I could not recommend it highly enough.

Listen to the public debate from the 2017 Summer School.

 

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Peter Murray Memorial Lecture: ‘How to form a national collection’

Francesca Castelli, MA Museum Cultures student, discusses the recent Peter Murray Memorial Lecture, delivered by Director of the National Gallery, Dr Gabriele Finaldi. The lecture is named in honour of Peter Murray, who founded Birkbeck’s Department of History of Art in 1967 and is part of Opening Up Art History: 50 Years at Birkbeck, a series of events celebrating the Department’s 50th anniversary.

A full house with a captivated audience joined Birkbeck’s Clore Lecture Theatre on 30 November to listen to Dr Gabriele Finaldi as he took us through the events surrounding the foundation and the development of the collections of two museums: Madrid’s Prado and London’s National Gallery.

These two museums differ dramatically in their genesis. While the Madrid museum was very much conceived as ‘an act of royal generosity to the nation’, the London institution was born through the will of the British Parliament.

Opened in 1819 by Ferdinand VII as the Royal Museum of Painting and Sculpture, the Prado was to all intents and purposes a public showcase of the king’s personal collection. Indeed, all of the 311 pictures came from the Royal Residences in and around Madrid and were the works of Spanish artists. It was not until the nationalisation of Church property in 1868 and the incorporation of the holdings of the National Museum of Painting in 1872 that the distinctly local character of the collection started to move towards a more international dimension, with the introduction of works by Flemish and Italian masters like Rubens and Titian.

The National Gallery, on the other hand, was not born through the nationalisation of a royal art collection. It was instead established when Parliament offered a £60,000 grant for the purchase and display of 38 paintings from the estate of banker John Julius Angerstein, including Sebastiano Del Piombo’s s majestic Raising of Lazarus. The National Gallery opened its doors to the public on 10 May 1824 in Angerstein’s former residence at 100 Pall Mall, a building far too small and modest to accommodate a growing museum whose democratic ambition was to be ‘a gallery for all’. The collection was moved to its current location on Trafalgar Square in 1838 and was enriched with important Italian Renaissance works from the likes of Raphael and Correggio, as well as French paintings from the eighteenth century by Poussin and Claude through generous bequests. But it was van Eyck’s Portrait of Giovanni Arnolfini and his Wife, acquired in 1842, that seemed to pique the interest of Victorian crowds with its richness of detail and elegant symbolism.

The account offered by Dr Finaldi of the strength of the relationship between the National Gallery and its audience that became apparent during World War II was particularly poignant.  At a time when the museum was officially closed and the collection evacuated, former director Kenneth Clark began to organise daily piano concerts that were open to everyone. Myra Hess and other musicians played over 1,600 lunchtime concerts from late 1939 until the end of the war.  And in 1942, spurred by a letter written by a member of the public to The Times, Clark was persuaded to take one painting at a time out of storage and put it on display so that Londoners would have something to admire. This event marked the start of the tradition of the Picture of the Month that still exists today, and allowed the museum’s mission to offer the ‘enjoyment of beauty’ to be restored when it was needed the most.

Museums are thus places that bring people together and in more recent years both the National Gallery and the Prado have undergone extensive expansion projects aiming to provide a better environment for their visitors, as well as a modern space for their growing collection, temporary exhibitions and conservation facilities.

Dr Finaldi’s final point was about the opportunities offered by new technologies and social platforms and how these are instrumental in reaching out to new and larger audiences. Museums are called to have their own digital strategy in order to maximise the potential harnessed by the digitalisation of culture and to help people to experience art in different ways. Earlier this year, in a ground-breaking and unprecedented event, the five museums where the existing van Gogh Sunflowers are located, came together in a sort of virtual exhibition thanks to a live Facebook broadcast and gave life to a fully immersive digital experience supported by VR technology and Computer-generated Imagery.  An audience of some 6 million people connected to enjoy an interactive tour of the virtual gallery while van Gogh’s great-grandson shared his personal memories of the iconic pictures.

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