People matter: some methodological remarks on the study of transnational law

Emilia Korkea-aho and Panu Minkkinen

This short presentation was intended for a panel at a seminar on transnational law, 12-13 March 2020, organised by Professor Päivi Leino-Sandberg and the Erik Castrén Institute. Unfortunately the authors were unable to attend. It is therefore here for your information.

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In a recent article, Natasha Affolder, the Canadian professor of transnational law, noted how transnational law has served as a kind of ‘holding pen’ for those who have felt restricted by the inability of existing legal vocabularies to accommodate new versions of law as it is observed, lived and practiced (Affolder 2019: 3). A major attraction of this ‘holding pen’ is its ability to turn away from states and other institutional entities to ‘actors’ (Affolder 2019: 8). Actors are, then, often defined with reference to what they are not, and, consequently, transnational law is mainly concerned with actors that are not states.

Despite this focus on actors that seems to evoke images of individuals buzzing around in networks, Affolder also noted how transnational law has neglected to include people in its analyses. Transnational legal scholarship is seemingly full of accounts about ‘actors’ (non-state, NGOs, corporations, substate, and so on), ‘agents’ and ‘experts’ all operating in a complex web of networks. But curiously by avoiding to address ‘people’, the use of actor-oriented operators also leads to a ‘conceptual flattening’ that redirects the inquiry somewhat ironically back into institutionalised accounts of transnational law ignoring the human origins of all network activities and other constellations where agents, actors and experts gather.

Affolder’s observations about the promise of transnational law as the ‘holding pen’ and her reservations about the ‘conceptual flatness’ of its actor-oriented vocabulary are both plausible.  But we would like to take her argument a bit further. In several places, she refers to the ‘lived practice of law’, to ‘lived reality’, or to transnational law’s commitment to uncovering hidden law and the people behind it (Affolder 2019: 3, 4, 15). But she never really elaborates how we should go about doing this. There is surely a need to ‘bring human actors back on stage’, as she claims. But we need to know how. What does ‘bringing people on stage’ entail?

We would like to suggest that if we wish to take Affolder’s challenge seriously, a more ethnographic approach, perhaps anchored in a new conception of legal realism, is needed. Viewing transnational legal networks through an ethnographic lens would not only bring human actors back on stage, but it would also improve our understanding of institutions and their practices and helps us to see them in a more nuanced light.

Perhaps this captures the real uniqueness of ‘transnational law’ in general. Its normative substance can neither be inferred from the will of some transnational legislator nor from the practices of authoritative institutions, but from the routines and interactions of networked individuals.

Bibliography

Affolder, Natasha, ‘Transnational Environmental Law’s Missing People’, Transnational Environmental Law 8:3 (2019), pp. 463-488.

CANCELLED: Andreas Philippopoulos-Mihalopoulos (Westminster), ‘Tracing the steps of artistic/academic research with breathing pauses’ (7 April 2020)

A performance lecture on Tuesday, 7 April 2020, from 10am to 12noon, in Porthania P545 (Faculty Room). Organised with generous support from the Doctoral Programme in Law.

Please note that this event is cancelled.

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//sensoring (for what to use if not my ears and eyes, he said from that white coast across the channel) //sensing (for what to trust if not the ones that I have never encountered) //matter (that white noise – who amongst the orders of angels will hear my) //materiality (encased as she was by the unfinished) //hypothesis (but he knew, I am sure he knew, right from the outset) //play (it’ll be all right on the day) //flow (yes) //flow (no) //and destroy

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The event is open to all interested, but kindly register your intention to participate by Friday, 3 April 2020, by filling in this form.

Andreas Philippopoulos-Mihalopoulos is Professor of Law & Theory at the University of Westminster, and founder and Director of The Westminster Law & Theory Lab, as well as permanently affiliated to the University Institute of Architecture, Venice since 2009. His research interests are interdisciplinary and include space, bodies, radical ontologies, post-humanist studies, critical autopoiesis, literature, psychoanalysis, continental philosophy, gender studies, art theory, and their connection to the law. His academic books include the monographs Absent Environments (2007), Niklas Luhmann: Law, Justice, Society (2009), and Spatial Justice: Body Lawscape Atmosphere (2014). He is currently working on a monograph on Material Justice.

Andreas is also an artist working with performance, photography, text, and installation as well as sculpture and painting. He has performed at the opening of the 58th Venice Art Biennale 2019, the 16th Venice Architecture Biennale 2016, the Tate Modern, Inhotim Instituto de Arte Contemporânea Brazil, the Danish Royal Cast Collection, the Royal Music Academy of Sweden, and other institutions. He has shown his photography and text (picpoet on instagram) in group shows at the London College of Communication, The Arebyte Gallery, the Palais de Tokyo publication On Air as part of the Tomas Saraceno Carte Blanche show, Unit 24 Gallery, and in his solo show The Iron Books: Poems for the Posthuman at Gasoline Rooms London. He is currently working on an installation on the Lawscape for the Venice Architecture Biennale 2020 with the Danielle Arnaud Gallery. His recent art publication is called a fjord eating its way into my arm, published by AND publishers, London.

He is also a fiction author, with his book The Book of Water published initially in Greek and translated to be published in English by ERIS press in June 2020.

Concepts, paradigms and slogans (24 May 2019)

Concepts, paradigms and slogans – From human rights to human dignity and sustainability. EASA LAW NET workshop on the key concepts of anthropology of law and governance

Friday, 24 May 2019, from 9am to 4:30pm, Siltavuorenpenger 1A, 2nd floor, meeting room 229

Convenors: Reetta Toivanen, Miia Halme-Tuomisaari, Jane Cowan

The aim of this workshop is to bring together anthropologists working in the anthropology of governance, rights and law to discuss, generate and, where appropriate, define/redefine key concepts, paradigms and familiar slogans that frame practices and performances of governance. Extractivism, environmental sustainability, transnationalism, power and security are among the key concepts that will be discussed. ‘Sustainability’ constitutes one exemplary case of a discourse that in recent years has become increasingly central within global governance, prompting the question: what is entailed in the apparent shift from human rights toward human dignity and sustainability? What changes can be identified, where do they come from, and what do they express? More generally, what and who are such new or subtly shifting paradigms serving? The workshop offers an opportunity to consider ethnographically grounded explorations on the meanings and consequences of concepts, paradigms and slogans as they endure or alter.

For more information on this event organised by by the Centre of Excellence in Law, Identity and the European Narratives (EuroStorie), Helsinki Collegium for Advanced Studies (HCAS), Helsinki Institute of Sustainability Science (HELSUS) and the network Anthropology of Law, Rights and Governance (LAW NET) of the European Association of Social Anthropologists (EASA), see here.

Law and ethnography: a methodological debate (9 May 2019)

Thursday, 9 May 2019, from 10am to 5pm, Porthania P545 (Faculty room).

The 2019 main event of the Helsinki Socio-Legal Initiative (HSLI) addresses the largely untapped potential of ethnographic methods (participant observation, qualitative interviewing, etc.) in the socio-legal study of law. A common misconception associates ethnography exclusively with the anthropological study of ‘exotic’ legal cultures. Far too little information is available on what these methods have offered – and continue to offer – the study of law and legal institutions in our own contemporary world. What added value do ethnographic methods represent? What new perspectives into familiar phenomena can they open?

In addition to a keynote address by Professor Marie-Benedicte Dembour (Brighton), a leading human rights scholar at the intersection of law and anthropology, and a panel discussion with leading experts, the one-day event includes a session dedicated to individual papers in which ethnographic methods have either been used or are being planned.

The event is open to all interested.

The event has been made possible with generous support from the Hilkka and Otto Brusiin Foundation and through collaboration with the Helsinki Collegium for Advanced Studies (HCAS).

Programme

  • 10:15am Opening words
    Professor Panu Minkkinen (Helsinki)
  • 10:25am Keynote address
    Professor Marie-Benedicte Dembour (Brighton), ‘The four anthropological mottos and the study of law’
  • 11:15am Discussion
  • 11:45am Lunch break (at your own expense)
  • 1:15pm Paper presentations, followed by discussion
    • Nora Fabritius (Helsinki), ‘Ethnic and national identities in cultural minority rights argumentation – looking into rights talk at the grass-root level’
      This paper presents a close reading of everyday rights talk on the grass-root level of a multicultural locality in Northern Norway. It puts explicit focus on the methods used; Argumentation and Discourse Analysis. The paper underlines the importance of taking into consideration the local context when implementing minority rights since rights and identities are negotiated in plural and fragmented ways in relation to other groups, the nation, and the regional community. For this, ethnographic studies have much to offer. The study shows how everyday rights talk becomes intertwined with the ways those the rights aim to protect understand, present and describe themselves and their neighbours.
    • Mehrnoosh Farzamfar (Helsinki), ‘Applying human rights-based soft security measures in response to the contemporary security-related challenges of immigration: a transformation of global governance’
      In my PhD dissertation, I argue how there could be a reconciliation between conserving the national security of states and the safety of host societies, on the one hand, and ensuring the human rights of immigrants, on the other hand, by adopting a human rights-based approach to security issues, instead of securitisation of immigration. Due to the multi-faced nature of the topic of my PhD research, this study is a multi-disciplinary investigation combining law, political science, and social science.
    • Stephen Phillips (Åbo Akademi), ‘State-created vulnerability through denial of access to services: the case of single male asylum seekers’
      This paper explores the extent to which the denial of the vulnerability label to certain individuals and groups can lead to an increase in their level of vulnerability, as through their exclusion from services they are often placed at greater risk. In this research I will draw on my experiences as a caseworker in a small NGO in Australia where I worked with community based asylum seekers. I plan to return to this NGO and observe sessions with clients, as well as conduct interviews with clients and staff. This case study will be used as a reference point to examine how the vulnerability concept is theorised, constructed and applied, and to demonstrate the exclusionary nature of the vulnerability concept and its potential (mis)use as a tool of power.
    • Discussants: Professor Jo Shaw (Edinburgh/Tampere) and Associate Professor Magdalena Kmak (Åbo Akademi)
  • 2.45pm Coffee break
  • 3:15pm Panel discussion: ‘Law and ethnography’, followed by q&a/discussion
    Panellists: Professor Jane Cowan (Sussex/HCAS), Professor Marie-Benedicte Dembour (Brighton), Dr Miia Halme-Tuomisaari (HCAS).
  • 4:30pm Final discussion
  • 4:45pm End of seminar

About the keynote speaker

Marie-Benedicte Dembour is Professor of Law and Anthropology at Brighton Business School, University of Brighton, UK. While Professor Dembour’s research interests cover a wide range of subjects in the anthropology of law, her particular area of expertise is international human rights law. Her numerous publications include the book Who Believes in Human Rights? Reflections on the European Convention (CUP, 2006) which examines how classical critiques of human rights (realism, utilitarianism, Marxism, feminism and cultural relativism) manifest themselves in the case law of the European Court of Human Rights (ECtHR) showing that the ECtHR must confront the dilemmas and contradictions these critiques highlight. Her latest award-winning monograph, When Humans Become Migrants. Study of the European Court of Human Rights with an Inter-American Counterpoint (OUP, 2016), reveals how the ECtHR was never especially pro-active at defending migrants’ rights. It contrasts ‘the Strasbourg reversal’, which puts the principle of state sovereignty and border controls before human rights, to the pro-human approach adopted by the Inter-American Court of Human Rights.

About the panellists

Jane Cowan is Professor of Social Anthropology at the University of Sussex, UK. During the academic year 2018-2019, she is Jane and Aatos Erkko Visiting Professor at the Helsinki Collegium for Advanced Studies (HCAS).
Miia Halme-Tuomisaari is a legal anthropologist specialised in the analysis of the contemporary human rights phenomenon. She is currently Core-Fellow at the Helsinki Collegium for Advanced Studies (HCAS).

Ben Booth (Edward Elgar), ‘How to craft a good and persuasive book proposal’ (7 March 2019)

Thursday, 7 March 2019, from 2.30pm (please note time) to 4pm, P545 (Faculty room).

Are you working on a project that is likely to lead to an edited volume? Are you considering publishing your doctoral thesis as a monograph through an international publishing house? In this training session, Ben Booth, representing a leading international legal publisher, will give you hands-on tips and advice on how to formulate your research into a strong book proposal. The session, which will also include a brief introduction of the Edward Elgar law catalogue, concludes with a q&a session where you can direct your questions and queries to someone who has practical professional expertise in academic publishing.

Ben Booth is Publisher (Academic Law) with Edward Elgar Publishing, a leading international academic and professional publishing house with a strong focus on the social sciences and legal fields. Ben has worked in publishing for over 15 years and is part of the commissioning team for Elgar’s growing law list. He takes responsibility for the broad areas of public law, European law and international law, and has helped to develop a strong focus on key topics such as environmental law and human rights.

The Doctoral Clinic (Vaasa, 8-9 April 2019)

Photo: Asko Halme

The two-day national workshop, co-organised by the Faculty of Law, University Helsinki, and the Institute for Human Rights at Åbo Akademi University, and hosted by the Vaasa Unit of Legal Studies of the University of Helsinki, is intended for doctoral candidates in law and neighbouring disciplines (politics, social sciences, humanities, etc.) from all Finnish universities working on themes related to law.

The main aim of the workshop is to enable you to tackle the methodological problems that you may be facing in your thesis work. While the focus of the event is methodological, its approach is practical and ‘hands-on’. What is the difference between a theoretical framework and a method? What methods are available for legal research, and which method does the research question of your thesis imply? What options do you have? What are the relative strengths and weaknesses of the options you have?

The workshop will include:

  • an advance reading assignment;
  • plenary sessions on general methodological questions and the main options;
  • working in groups assessing and comparing the different methodological approaches that are available to you;
  • a pop-up clinic for face-to-face consultations with the instructors on drafts of the methodological sections of your theses or of your research plans; and
  • a written assignment submitted either as a self-reflective academic learning diary (3 ECTS) or a research essay intended to function as the first draft of the methodological section of your thesis (5 ECTS).

Having successfully completed the workshop, you should be able to:

  • understand the basic methodological approaches available in legal scholarship and how they apply to your own thesis project;
  • manage the complexity of legal phenomena through the systematic frameworks provided by different methodological approaches;
  • discuss and evaluate critically the political interconnections between various legal phenomena and their study; and
  • appreciate the challenges that interdisciplinarity introduces to legal scholarship.

Participation is free, but participating doctoral candidates are expected to cover their own travel and accommodation costs. Please consult your doctoral programmes and Faculties for possible subsidies.

More information (including travel and accommodation information and registration form) is now available on the event’s Moodle platform.

Emilia Mataix Ferrándiz (HCAS), ‘Reconstructing Roman Sea Trade Law (2nd cent BC-3rd cent AD): Materials and Textual Evidence’ (15 January 2019)

Tuesday, 15 January 2019, from 2pm to 4pm, Porthania P669 (6th floor).

This study seeks to understand the changes in sea trade law and the material record associated with it in the period from 2nd cent. BC until the 3rd cent. AD. To that aim, it merges ancient legal sources and the archaeological record in order to understand if there was a relation within the rulings established by law and the materials and structures used in the practice. This study will bridge the gap between theory and practice, and intends to understand what kind of communication was established between lawyers and merchants. Thus, it will address the following main research questions: (1) what mechanisms to deal with sea trade were developed by Roman law from the 2nd cent BC until 3rd cent. AD? (2) How did the changes in the law have a reflection in the artefacts and infrastructures used in commercial daily life? (3) Was Roman law designed for traders and inspired by them? Conversely, (4) were traders aware of all the particularities of Roman trade law? These questions relate to other fields of research, such as the role of political authorities in the changes in the law. It will study legal commercial mechanisms (e.g. agreements, agency) chronologically and focusing on the areas of the case studies. The commercial sites from Rome and Arles’ connections to the sea will be mapped and the areas where material evidence has been attested will be linked with the legal sources associated.

The discussant is Katja Tikka.

Dr Mataix Ferrándiz is currently Core Fellow at the Helsinki Collegium for Advanced Studies (HCAS). She defended her PhD in Roman law in 2014 (University of Alicante and Facolta di giurisprudenza Palermo) concerning criminal liability for shipwrecking. She has just completed a second PhD in archaeology at the Universities of Southampton and Lyon 2 concerning the epigraphy of merchandise. Her research interests are in Roman law, and especially with a commercial and maritime focus. Moreover, her work also examines the ways in which the material of inscribed artefacts provides information regarding their use as objects of communication. The materiality of the epigraphy of merchandise is set against the background of Roman law shifting the focus from traditional linguistic analysis to the means by which inscribed texts were created, shaped, and used as commercial tools in the different regions of the Mediterranean.

Sanne Taekema (Erasmus University Rotterdam), ‘Exploring the concept of interlegality: From local to transnational legal orders’ (6 June 2018)

Wednesday, 6 June 2018, from 2 pm to 4 pm, Porthania P545 (Faculty room).

A generally recognized feature of the modern legal world is the existence of multiple bodies of law, which co-exist, interact and conflict in various ways. The concept of interlegality generates a specific perspective on this phenomenon, seeing it as a process of mixing elements of different legal orders to create a new legal order. Speaking of interlegality then leads to a consideration of different legal orders between which linkages appear. In this paper, the main question is how to understand the concept of ‘legal order’ in light of interlegality.

Interlegality is used as an analytical tool by socio-legal scholars, especially in legal anthopology. The term also appears in transnational legal theory. However, these uses of interlegality seem to presuppose different notions of legal order. In this paper, a view of legal order as a system is contrasted with legal order as an interactional practice. An argument is made that the plurality and tension highlighted by interlegality are problematic in a systemic view of legal order, and can be accounted for in an interactional  view. However, taking the interactional view to its limits may lead to a collapse of the notion of order altogether. This paper considers how an interactional view may incorporate elements of systemic order in order to do justice to interlegality in local and transnational contexts. Examples will be discussed in which the local and the transnational touch, such as the impact of human rights law on city governance and local support for transnational regulatory schemes.

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Sanne Taekema is Professor of Jurisprudence at the Department of Sociology, Theory and Methodology, Erasmus School of Law. Her research addresses various themes in legal philosophy and methodology, including the rule of law, especially in a transnational context, general issues of legal theory, particularly the role of values in jurisprudence and legal pragmatism, methodology of legal and interdisciplinary research, and law and literature. She is Director of the research programme Rethinking the Rule of Law in an Era of Globalisation, Privatisation and Multiculturalisation and leads the research project Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR). She is one of the editors-in-chief of the journal Law and Method. She has published widely on theoretical and socio-legal issues, including two edited collections Facts and Norms in Law. Interdisciplinary Reflections on Legal Method (Edward Elgar, 2016; co-edited with B. van Klink & W.H.J. de Been) and Law and Method. On Interdisciplinary Research into Law (Mohr Siebeck, 2011; co-edited with B. van Klink).

Fabrizio Esposito (EUI), ‘The case for a collaboration between law and economics: Minimalism, consumer welfare and fairness in EU antitrust and consumer law’ (24 April 2018)

Tuesday, 24 April 2018, from 2pm to 4 pm, Porthania P673 (6th floor).

“Market relations ought to be fair or efficient?”. This short question encapsulates the core of the conceptual disconnect between legal and economic research. The tensions between the two disciplines ultimately rest of the divergent answers to this question. This research shows that this sempiternal disagreement rests on a false assumption, namely that fairness and market efficiency are necessarily different concepts. A different account is possible. An efficient allocation of resources maximises consumer welfare, and not total welfare. Moreover, an efficient allocation of resources ensures the equality between the performances of the contractual parties and therefore the fairness of market relation. Accordingly, a fair market allocation is efficient and an efficient market allocation is fair.

This finding calls for a collaboration between lawyers and economists. This collaboration requires respecting the core commitments of the disciplines involved while, at the same time, taking full advantage of their comparative advantages. This primary claim is warranted by three sub-claims: one economic, one translational, and one doctrinal. The economic claim holds that consumer welfare is a maximand used in market efficiency analysis in alternative to total welfare. The translation claim holds that with consumer welfare as the maximand, it is possible to offer a plausible economic account of fair market relations. Finally, the doctrinal claim holds that consumer welfare explains better than total welfare the content and practice of a significant portion of EU antitrust and consumer law as it currently stands.

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Fabrizio Esposito is completing his doctoral thesis at the European University Institute. You can download the presentation here.

This is a session in the Postgraduate Research Seminar (‘tutkijaseminaari’) for General Jurisprudential Studies (i.e. legal history, legal theory, sociology of law, law and gender studies), but all interested are cordially welcome. The session will be chaired by Professor Heikki Pihlajamäki.

Exploring the ‘studies’ in socio-legal studies: A postgraduate research seminar with Professors Reza Banakar and Tamara Hervey (3 May 2018)

Thursday, 3 May 2018, from 10am to 3pm, Porthania P545 (Faculty room).

The aim of this HSLI seminar, specifically tailored for both doctoral students working on their thesis projects and for postdoctoral researchers planning funding applications for the autumn round, is to provide clear guidance on the benefits and possibilities of socio-legal research in addressing contemporary legal phenomena. Themes to be discussed include the relationship between socio-legal research and more traditional approaches in law, as well as ways in which to proceed from research question to a socio-legal research design.

The two main speakers of the seminar are Professor Reza Banakar, Department of Sociology of Law, Lund University, Sweden, and Professor Tamara Hervey,  Jean Monnet Professor of European Union Law, School of Law, University of Sheffield, UK.

Professor Jo Shaw, Salvesen Professor of European Institutions, School of Law, University of Edinburgh, UK, will also be in attendance providing comments and participating in the discussions.

Professor Banakar, a sociologist by training, has published widely in the areas of law and social theory, socio-legal methodology, legal cultures, ethnic discrimination, public ombudsmen, law and literature, and rights. His most recent methodological texts (e.g. Normativity in Legal Sociology: Methodological Reflections on Law and Regulation in Late Modernity, Springer 2014 , available to UoH staff and students as an ebook) have dealt with especially the turbulent intersection at which socio-legal research meets doctrinal work.

Professor Hervey’s publications are mainly in the areas of European Union law, health law and policy in trans-national contexts, and discrimination law and social rights. Her current areas of interest include transnational, global and comparative health law, and equality and diversity. In addition to her own research, Professor Hervey developed and delivered with colleagues a module on legal research methods for doctoral students which gained national recognition through a successful research council application in 2006. Eventually the project resulted in the co-authored book Research Methodologies in EU and International Law (Hart, 2011).

During the second part of the seminar, two doctoral students will present their thesis projects and receive feedback from all seminar participants, including the main speakers.

No registration is required. The seminar, organized with generous support from the Doctoral Programme in Law, is open to all. Full attendance will count towards two sessions in the postgraduate research seminar (‘tutkijaseminaari’) of general jurisprudential studies (legal history, legal theory, sociology of law, law and gender studies) which doctoral students from all disciplines may benefit from.

The name of this seminar is a take on two informative introductions to socio-legal research. Professor Hervey has contributed to the 2016 collection.

Cowan, David and Daniel Wincott (eds) (2016) Exploring the ‘Legal’ in Socio-Legal Studies. Basingstoke: Palgrave Macmillan.

Feenan, Dermot (ed.) (2013) Exploring the ‘Socio’ of Socio-Legal Studies. Basingstoke: Palgrave Macmillan (this book is currently available to UoH staff and students as an ebook through Springer).

Programme

  • 10:15am Opening words
  • 10:25am Professor Reza Banakar (Lund), ‘Socio-legal research: What has empirical research to offer the law, legal studies and legal education?’
  • 10:55am Professor Tamara Hervey (Sheffield), ‘”Law in books”, “law in practice”, “law in context”: studying the effects of the emerging post-Brexit constitutional settlement on health’
  • 11:25am Discussion

11:45am Lunch break

  • 1:15pm Two doctoral student presentations
    Tero Kivinen, ‘Reimagining Animal Law’
    Kangle Zhang, ‘The Expertise of the Rating Agencies and Their Distributive Effects’
  • 2pm Comments and discussion
  • 2:15pm General discussion
  • 2:45pm End of seminar