GUNNEFLO et al The Significance of Gregor Noll

2 3 Last year, we invited Gregor Noll’s former and current students, friends, colleagues, companions and allies to write short essays for a Festschrift to celebrate Gregor’s academic life on the occasion of his 60th birthday. As a law professor, Gregor Noll combines the fine craftsmanship of a skilled jurist with a radical openness to ideas and methods originating from outside of the discipline, especially from the humanities. He does that with a view to counter the violent tendencies of law and legal scholarship. However, this volume does not only recognize and celebrate Gregor as a writer of legal scholarship but in his fullness as an academic being that teaches, comments, converses, assists, facilitates, supports and puts endless efforts into improving the institutions he inhabits. For some of us, Gregor has been formative of who we are as academics and as human beings. For others, he has been a friend, an intellectual or institutional partner, an interlocutor, or a source 6 of inspiration at one point. Put short, we all celebrate him because he has mattered to us. For that reason we chose The Significance of GREGOR IS NOT your typical continental male law professor. What Gregor Noll as our title. might a Festschrift for a man with such humble nature and unor- Gregor’s biography, born in Germany, having lived most of his thodox tastes look like? We acknowledged this problem in our invi- life in Sweden and with English as his main working language, is tation but also saw a solution in granting the maximum amount of reflected in the language our authors use. freedom to participants, along with a slight nudging to experiment. Gregor will know that working in academia is not easy, plus we In retrospect we can say that this could be seen as approximating the all also have lives (and a body, whose health needs taking care of) experience of being around Gregor. Has anyone felt restrained, that that may interfere. Some of Gregor’s companions were unable to they had to slow down, or take a little less risk in Gregor’s company? join in the celebration. One email that we received, declining our We have also felt that a slight unruliness is in keeping with the spirit invitation, has been included to attest to such contingencies. of our protagonist. Thus, when deadlines were violated and page limits transgressed, we chose not to police them too much. leila brännström, amin parsa, markus gunneflo 7 The Definition Trap Eleni Karageorgiou their intellectual engagement in X or Y terms but rather, to ‘Socratically’ bring to the fore what really interests them and what they essentially wish to convey as a message to the world? Some might argue that this is too unrealistic; that ‘freedom of mind’, ‘independence’, and ‘authenticity’ do or should have bound- has made a short video for aries dictated by the way in which disciplines develop, function and the Louisiana Channel offering her contribution to a series called construct cultures of what it means to operate within a particular ‘Advice to the Young’. discipline and be defined by it. AMERICAN ARTIST LAURIE ANDERSON 1 2 8 The bottom line of her advice is ‘be loose’. Resist a culture that Anderson reminds us that definitions are corporate tools, ‘it is wants you ‘pigeonholed’ and allow yourself the freedom to exist in not about you make your work, it is about other people sell your whichever way feels comfortable and ‘right’ at a particular moment, work’. In a culture that is distinctively quantitative, competitive, without the worry of fitting into a definition that may say little of monetized where sales are a strong driving force, there is not much who you are and who you seek to be. space, especially for junior and less established professionals, to Now, one need not be neither an artist nor young to relate to feel unconstrained by disciplinary or other boundaries and be this. Haven’t there come moments where the “burden” of specific encouraged to follow their own obsession. There is a pressure on identities, some of them real, others imputed and assumed, was our/their minds and imaginations as well as a concern that one experienced as too heavy to bear? Haven’t many of us felt the need is not seen or heard unless they are quantified and ranked. This to exist with no qualification, almost nihilistically, as 21st-century is even more true when young professionals resist putting their citizens in a highly transactional world? interest into the words others expect them to, oftentimes because Let us locate these questions in academia. Going through the they haven’t yet figured out how to do so. Besides, as Anderson objectives and commitments of modern universities, the terms puts it, ‘finding your personal voice could also be finding one that ‘freedom of mind’, ‘independence’, ‘authenticity’ appear to consti- doesn’t express you’. tute top priorities. Yet, how many junior academics have the actual When starting my PhD and had to transition from legal practice privilege to ‘mature’ in an environment of freedom, surrounded by to academia, it felt natural to introduce myself as ‘a PhD student (senior) colleagues whose primary consideration is not to define with a legal practitioner’s background’. Legal practice was still a space I ‘owned’, as opposed to academia which, at that point, felt like a ‘galaxy far far away’. I remember there were a few well-meaning 1 https://laurieanderson.com/ 2 https://channel.louisiana.dk/video/laurie-anderson-advice-young colleagues wondering why I insisted to share this piece of informa- 9 tion; essentially asking why this is important for me to stress. Sim- This is to question the constant need of ‘branding’, especially ilar type of questions includes “Are you a generalist (international when this branding appears to accommodate more the purpose of law scholar)?”, “Are you a feminist?”, “Are you a Marxist?” which responding to a sort of ‘friend or foe’ question and less a genuine makes one wonder how much of what is meant by general interna- curiosity of getting to understand what one’s colleague is interested tional law, Marxism, or Feminism, could possibly be captured by in and how best to help her develop this further. such yes/no multiple-choice type of questions? On top of, or instead Academia can be a joyful experience, especially when there are of an anxiety of sorts, it seems to me that a call for performing and colleagues who generously embrace – sometimes tolerate – one’s reperforming meanings lies behind them. moments of vagueness and resistance; colleagues who have come I cannot but make the analogy here to a refugee status determi- to terms with their own ‘looseness’, despite seniority, achievements, nation procedure. Refugees share a story on the basis of which the and long CVs. thereby driving a process of revisiting boundaries decision maker seeks to establish whether the applicant ticks the and institutional cultures. boxes of the refugee definition. In other words, “tell me your story 10 to tell you if you are gay, a religious convert or a political dissident”, I feel immensely privileged to have had a mentor and a colleague, and, thus, worthy of protection. The applicant’s own view is not like Gregor, who possesses this unique ability to fit into so many binding but rather the starting point of the assessment (sic!). different definitions and brands that, eventually, cancels them all As lawyers, we are trained to work with definitions. Yet, we are well aware that definitions are bound to fail, as overstatements or understatements; as hyper-contextual or very general; as too radical or anachronistic and so forth. This is not to say that titles and definitions do not serve a purpose, nor that selling and ranking are unimportant. But ‘don’t make it the first thing’. Self-promotion, lobbying, and networking are all tools that help people establish themselves among peers, primarily through developing and forging a particular identity. No doubt they are, too, decisive parts of a relational process. What there may be a need to resist, though, is not the process as such, but rather the culture of ‘categorising’, ‘qualifying’, ‘gatekeeping’ as suffocating and, ultimately, counterproductive. as meaningless. At the end of the day, it is people and their stories instead of labels and brands that matter. 11 Gregor Noll: A Reverie He writes with precision and vibrancy in a voice distinctively his Fleur Johns SILENCE routes untethered by it. There is more to say, but this is best said, perhaps, by turning to the work. on Gregor Noll and a triptych of Gregor’s papers. Gregor’s 2006 article, ‘Diplomatic assurances and the silence of hu- Reverie often entails recollection; in this instance, let me begin with man rights law’ is in many ways recognizably Nollian.1 It starts with first and latest encounters. Gregor and I met, I think, in Melbourne, a practical, lawyerly dilemma, an issue that presents, at first blush, in 2004 or 2006. It is my hometown, but it was years since I had as a classical doctrinal question: namely, what is the international lived there, so we were, at the time, both visitors from some other legal significance of diplomats from one state making assurances to place. I was getting started in academia, a new parent or soon to diplomats of another state as to how an individual subject to “ex- become one, recently graduated from my doctorate, disoriented traordinary rendition” will or will not be treated under international by a bypass into law practice of some years’ length. I was, in short, human rights law? The issue quickly shifts in Gregor’s hands, how- overwhelmed, and ill at ease, while Gregor was gracious, interested, ever, to a space “beyond the doctrinal logic of human rights”. The and kind. I recall the sense of him more than what we discussed. He theological residue of that logic is resurfaced, and it is translated into listened keenly, smiled easily. matters of power, authority, and concern for who or what is made THIS IS A REVERIE 12 own. His work cleaves very closely to the practice of law, yet takes More recently, we have met mostly online. Each encounter begins abject before the law. The question becomes not ‘what legal rights with magma: his zoom placeholder is a fiery morass. And then he and obligations do these overtures make?’, but ‘what do they make emerges, always warm, never scorching. There is sometimes discern- of the law?’ and ‘how do they attribute, aggregate, and distribute ible the faint afterglow of some text or question from which he has power?’ Gregor’s answer is to make human rights’ “occult element” recently surfaced, but I do not recall him ever seeming distracted. transparent in this context. This he does by unearthing multiple He revels in thought, but never seems lost in it. He gives generously forms of “doubl[ing]” effected in and by the work of law and diplo- of his curiosity and his intellect. These gifts feel light upon receipt; macy. Their effect is to ensure that the “captive” whose human rights beneficiaries are not made to feel a burden or a fool. His tone is pastoral but not suffocatingly so; there is playfulness in it along with seriousness. He teaches in the mode of a learner and a collaborator. 1 Gregor Noll, ‘Diplomatic Assurances and the Silence of Human Rights Law’ (2006) 7(1) Melbourne Journal of International Law 6. 13 14 are ostensibly at issue is “condemn[ed]… to abandonment” for the our attention is drawn to the “paucity of positive law on the use sake of community, to accede to that community’s “security imper- of force”. This paucity makes space for international law to “ac- atives” and demand for political enemies; this is ensured through commodat[e]” even “liv[e] off” sacrificial violence. Drawing from not despite the work of law. Silence in the law is made, as is often the Girard, Gregor highlights the role of “scapegoating” in securing case in Gregor’s work, generative. This too is a theological concep- the “unanimity” and “peace” of community in international law. tion, silence being how and where a deity becomes knowable to the He takes as illustrative the handling of “weapons of mass destruc- worldly. Likewise, it is by attention to international law’s apparent tion”, and those expected to wield them unlawfully, in the US’s deficits, withdrawals, and abstentions that we discern “source[s] of 2006 National Security Strategy, as well as apposite principles of terror” nurtured within it. In the face of this terror, Gregor does state responsibility. Gregor’s aim is, somewhat counterintuitively, not take cover in dogma or prescription. His inclination is always practical: to enlarge legal scholars’ “toolbox” by making legible to stay in and with those “uneasy relationship[s]” that law and legal those “referral[s] beyond formal law” that are presupposed and scholarship invite us to inhabit – along with those commonly told invited by international law doctrine. Gregor’s work in this context that they do not belong or are not valued there. is “[anti-]collusive”; to counter both “obscurity” and “necess[ity]” and to open the question of whether there could be “alternatives” VIOLENCE to this mode of forging community. As in the 2006 piece, the point towards which the article drives is to make that question seem open, Two years later, Gregor is still reflecting on international law’s gen- and show how it came to be such hard work to pose it, not to answer erative effects in his 2008 article ‘The miracle of generative violence? it once and for all. René Girard and the use of force in international law’. And Gregor’s 2 concern remains, at this time, with terror and its productive role in LANGUAGE the legal crafting of community. Here the focus is not, however, on the role of international human rights law in normative enclosure, Posing questions, promoting understanding, countering obscurity: but rather with how and where international law addresses itself this is the humble, hard work of studying and teaching the law for directly to violence. Again, in this context, Gregor locates sources of which Gregor always makes time – work of parsing, sharing, trans- propulsion for international law in deficiency: in place of “silence” lating, and living in language. By 2014, however, there seems to be a shift in how Gregor configures this work, and how and where he experiences prevailing assumptions about the “nature” of “man” 3 Gregor Noll, ‘The Miracle of Generative Violence? René Girard and the Use of Force in International Law’ (2008) 21 Leiden Journal of International Law 563. becoming manifest in his field. This shift is discernible in the article 15 ‘Weaponising neurotechnology: International humanitarian law porality in the final line of Gregor’s article is disorienting. Gregor and the loss of language’. The article’s opening suggests what could writes: “the violence devised by [a neuroscience of war] will make it- have prompted it in part, albeit with characteristic self-deprecation. self intelligible only as a natural history of destruction”. Through the It tells a story of Leif, a 73-year-old farmer, experiencing physical deformation and reformation of language, we are invited to transport enhancements of automation through Deep Brain Stimulation, for ourselves into a future past from which to reflect anew upon what which he must trade improved motor control off against a capacity we are doing now. In the prism of language, Gregor seems to imply, for speech. Briefly referencing his own presence in hospital alongside that another point of entry for thought is always open. 3 Leif, Gregor alludes only passingly to a ten-year-long experience of surgical intervention recorded at the base of his CV – a trans- REVERIE, REDUX formative, solitary interlude, one has to imagine. Characteristically, 16 though, Gregor’s turn in this corporeal context is away from biology, For nearly 20 years, Gregor has been to me a fellow traveller of a kind away from nature and the irrefutable. His impulse is always to reacti- that academia, at its best, allows one time to connect with: someone vate and reconnect with the political. Gregor’s concerns in this work from whom one learns much at a distance, through reading and remain “both deeply practical” as well as theoretical. Even so, the writing, with occasional opportunities to listen and converse. The sense of unease that both earlier pieces engender seems to become concerns of Gregor’s work highlighted in the three pieces above have more elemental and urgent in this 2014 piece. With the advent of found remarkable parallels in my work, even as we have deployed “neuroweapons”, what must be grappled with, Gregor suggests, is different methods, engaged different interlocutors, and brought not just complicity, obscurity, or sacrosanctity, but a “downgrad[ing] different modes of legal training and professional experience to [in] the role of language” on which law depends. The stakes of this bear. I have also delved into the productivity of law in the war on shift could not be higher. By the article’s end, we are in a sphere of terror. I too have been concerned with the normative work done by eschatology, facing the prospect of a “deeply anti-secular” meta- science and other non-legal faiths and figures in the international physics of nature armed for annihilation. legal domain. And I have likewise been grappling, of late, with the Even in imagining end times, though, Gregor’s returns us to lan- profound challenges of digitalization and automation, and the many guage, “borrowing a term” from that most extraordinary writer of settings in which humans and machines are becoming more and ruins and ruination, WG Sebald. As in Sebald’s writing, the tem- more entangled in international legal work. Admittedly, my writing probably suffers from this parallel, given Gregor’s lucidity and 3 Gregor Noll, ‘Weaponising neurotechnology: International humanitarian brilliance, but that is exactly the sort of fault-finding comparison in law and the loss of language’ (2014) 2(2) London Review of International which Gregor has little interest. He is anything but undiscerning. Law 201. 17 But as I have observed him in conversation, his impulse is towards ‘yes, and’, as the improv comics say, not to trip others up or block their way. And he is funny too, and gifted as a speaker, which makes the improv comedy reference somewhat surprisingly apt. Gregor Noll, lawyer, scholar, teacher, writer, but also – farceur, maker of The Wretched of the Screen Amin Parsa friendly mischief; this is assuredly not where I anticipated ending up, but therein lies the joy of reverie. Congratulations, Gregor, and thank you from all your fellow travellers. GREGOR IS NOT a photographer, at least I have not heard or seen anything that suggests otherwise. Instead, I have three images of myself and Leila taken by Gregor during a supervisory meeting that evidence my assumption. All three of these images are poorly taken and are out of focus. To be fair one of them is half-focused. Like … you see me and the bookshelf behind me, but Leila is a 18 blur. The pretence for taking these photos was quite weird, but not uncharacteristic of their author. To begin with, from all our supervisory meetings I remember just a few fragments. Nothing more. A few sentences here and there or some general feelings and emotions felt or expressed at some points. For example, I remember in one of our supervisory meetings or a walk towards lunch, Leila and Gregor ended up discussing the right balance between – and this I remember was the exact word – the weird and the law for a dissertation. I remember the conversation ended with Gregor or Leila saying something to the effect of: “Nah. We are not worried about the amount of the weird in your work”. Make of that what you will … But the point I am trying to make is that what I remember is not always a full image and that Gregor has a knack for the weird in or about the law. Back to the images. I found these images in an email from May 19 20 27, 2015. According to my calendar entry, the occasion was: “Meet I do not remember anything else from that meeting. But I guess, G&L–Text part II”! I do not remember if the photos were taken at perhaps, that day we might have talked more law than the weird. the end of the meeting or sometime in the middle of it. But I remem- Yet I like to think that this ritual and these photos capture a lot of ber that Gregor suddenly burst into one of his expressive Eureka! who Gregor is as an academic and as an interlocuter: amateur, and Moments. Laughing with arms open and bursting with joy. Then he subtlety playful with the rituals. turned around and grabbed Henckaerts and Doswald-Beck’s (2005) A poor image says Hito Steyerl (2009) is ‘a lumpen proletarian Customary International Humanitarian Law-Vol I: Rules, handed it to in the class society of appearances’ since what it lacks in focus and me and asked for my phone in exchange. resolution is translated to a lack of value. Yet in their circulations and Then he directed Leila and me by saying that he wanted to take a the movements these focus-less and low-resolution images, capture photo in the style of diplomatic meetings in which we are handing to and testify to something substantial, that is: the rare, the obvious, one another (not clear who is giving or receiving) an authoritative the unbelievable or else the violent dislocations, transferrals, and source (some may argue otherwise) of international humanitarian displacements (ibid). law. Gregor took the photos while laughing and announcing the What I gather Steyerl is lamenting is that the triumph of the (rich) meaning of this never-before-experienced ritual of IHL as: ‘Now cinematic images – as the ‘flagship, upscale and high-end products you are both IHL experts.’ in the class society of images’ – comes with the denigration and/ or the loss of the experimental, avant-garde, essayistic, obscure, and That is not how you become an IHL expert. non-commercial filmmaking. It is perhaps for this simultaneous marginalisation yet creative potential of poor images – as well as their possible revolutionary outbursts – that Steyerl, channelling Frantz Fanon, refers to them as the ‘wretched of the screen’. Thinking along the lines suggested by Steyerl – the experimental, the avant-garde, the essayistic, and the obscure – reminded me of the subtle almost subliminal playfulness that Gregor regularly displays in his works and academic encounters. In being perhaps both capturer of poor images and driven by them, Gregor moves by forces to which Edward Said refers as amateurism. As opposed to the professional bureaucrat-academic class, an amateur is one who is driven by ‘love for and unquenchable interest in the larger picture, 21 in making connections across lines and barriers, in refusing to be tied down to a specialty, in caring for ideas and values despite the Discussant restrictions of a profession’ (Said 1996: 76). In other words, Gregor Wouter Werner is the holder of poor images and an amateur. It is always inspiring and awe-inviting, the ease and curiosity by which Gregor allows his thoughts and words to travel from one area, Gregor has many faces. Well, who doesn’t? field, or object to another and yet so naturally and seemingly effortlessly tie all those, otherwise obscure universes of thought, together. Let me start again. In his occasional poking at the rituals of expertise knowledge and disregard of the requirements of disciplinary limits of the thinkable, Gregor has so many nice and friendly faces. People tend to get pos- Gregor manifests a playful and amateur academic driven by the itive vibes when they work with him. Ok. So is he some kind of passion for the obscure, the poor and the weird. American motivational coach? Some kind of guru, who makes you forget the ugliness of the world outside? Well, no. REFERENCES 22 Let me start again. Henckaerts, Jean-Marie, Doswald-Beck, Louise, Alvermann, Carolin, Dörmann, Knut & Rolle, Baptiste (eds) (2005), Customary International Humanitarian Law: Volume 1. Rules, Cambridge University Press. Said, Edward (1996), Representations of the Intellectual: The 1993 Reith Lectures, Vintage Books. Steyerl, Hito (2009), ‘In Defence of the Poor Image’, e-flux Journal 10. GREGOR HAS SO many friendly faces, and yet one thing unites them all. It’s the sense of ironical distance to everything he says or writes. Take a simple e-mail. Most e-mails are short and to the point. What you read is what you get. When Gregor writes a message, it is full of unexpected twists and turns, you may need to look up a word or two and you never know exactly whether he makes fun of himself, exposes some kind of existential crisis, provokes you or is just friendly – or all of the above. I had the pleasure of meeting Gregor in many different roles: teacher, researcher, manager, coach, opponent, academic politician, and probably more. In all these roles he combined friendliness with irony and inimitable prose, attentiveness with a dazzling use of verbal and bodily language. 23 24 However, of all these roles, one absolutely stands out for me. I It took a while, but then we realized what happened: Gregor have never seen a more natural habitat for Gregor than a confer- just performed the impossible. He seemed to be absent, just the ence panel where he acts as discussant. This makes perfect sense, mouthpiece of all the things that could be deduced from our papers. given his inclination for friendliness, attentiveness, irony and He never talked about himself or about his work; he just kept dis- distance. A good panelist is able to perform the impossible: she cussing what we had written. And yet this absence filled the room: should efface herself and yet be prominently present. She should we never thought about our work like this, others in the audience not have much of an ego and yet appear on stage as the one that probably never did, so how did these words end up in the room? binds everything together. I am sure that Gregor would know So no, I do not need a mythological figure, no obscure theological some mythical or religious figure to illustrate what a good dis- insights to make sense of what a true discussant looks like, how he cussant looks like. He would undoubtedly find some dialectics sounds, how he moves in the room. at work in the figure of the discussant, a hidden form of violence And for me, the ideal discussant stands for the ideal academic. or a redemptive promise that can never be fulfilled. Or probably Critical and generous, friendly and with ironical distance, present something I cannot even imagine. and absent, attentive towards others and their work and yet gifting Normally that would bother me a bit. Not today. Not in this them with your own twists and turns. I know, I know: no one is ideal Festschrift. For whatever he may say, I have a better example, a and Gregor is definitely not a mythical figure. And yet, when I am better paradoxical being to make sense of what a true discussant cranky and slightly depressed about academic bureaucracy or faculty looks like: Gregor Noll. When I first presented in a panel where he politics, I think back to this first panel, this moment of surprise when was discussant, I experienced something unique: Gregor was able Gregor started to reveal our work to us. A testimony to the fact that to present my own work to me as if it was new. I learned so much the impossible can be performed, at least for a moment. about my own paper – wow, did I really write this? Of course not – it was Gregor who wrote a paper about my paper. However, this is not how it felt: Gregor gave me, and everyone else in the panel, a sense of surprise. Apparently, we not only wrote these amazing papers, it also made perfect sense to present them together in a single panel! And yet, somehow, we knew it was not like that – our work all of a sudden turned out to be embedded in some obscure theology, some form of grander project we did not know existed, some driving logic we never experienced ourselves. 25 Concepts of law and their potentials Tormod Johansen poverty of our contemporary understanding and discourse of law. The way we speak about law and legal orders tells us about how we understand the world. For a jurist, language is a practical tool, in a sense the primary and final tool. But it is also the key to uncover fundamental assumptions of what law is and can be, in other words the path to grasping the ontology of law. In Émile Benveniste’s Le vocabulaire des institutions Indo-Europ- words that are synonyms for “law” is well-known. eenes, these etymological aspects are connected to fundamental con- All languages have a number of related words such as norm, rule, cepts in Indo-European society. Right corresponds to the Latin right, legal, order, and, further, justice, correctness, obligation, legal- rectus, meaning straight, right. Moreover, the same Indo-European ity, etc. Different languages employ a wide range of terms, not least root is found in the Latin regere, meaning to direct, guide, lead, due to the influence of different language families and their mutual rule. It is also the function of the rule, the Latin regula as the tool impact on each other’s vocabulary. What in my own language is lag that draws the straight line, indicating what is right. According to is the same basic word as the English law. The word was lagh in Old Benveniste, the idea of straightness in a moral sense, as opposed to Swedish and has its counterpart in Danish lov, Icelandic lǫg, Old Sax- twisted and crooked, is an ancient Indo-European idea expressed on gilagu, Old English lagu. The word comes from a semantic devel- in various ways in different languages, such as proverbs like “do not opment from meaning that something is laid down, i.e., established deviate from the straight path.” THE DIVERSITY OF 26 or determined. This is similar to the way the German Gesetz comes This idea of ruling as a directing is also what connects the latin rex from setzen, to set. The Swedish word rätt has its origin in the Old with the rule. Benveniste discusses how rex, meaning king, is a very Norse réttr and is the same as several other European languages’ var- ancient term that relates to both religion and law, as we understand iants, such as German Recht and English right. The same distinction them today. The connection between the Latin rego and the Greek is found in the Romance languages: loi/droit, legge/diritto, etcetera. orégō, meaning “draw out in a straight line,” is understood as rex What do these connections and the terminological heterogeneity being “properly more of a priest than a king in the modern sense, imply about the concept of law? Or are we more correct in talking [where] the man who had authority to trace out the sites of towns about a family of concepts, a plurality of different forms of laws or and to determine the rules of law.” (Benveniste, 312) legal concepts? This is certainly implied by the etymology, as we will The evolution of rex (king) and regere (rule) can be seen in an see below. In this text I will suggest that following the conceptual important religious act, regere fines, which in ancient Rome was re- paths through the etymology backwards we can shed light on the quired when a temple or village was to be built. Regere fines means 27 28 ‘drawing the boundaries with straight lines’ and was done by a high One invention that Benveniste identifies in both Greek and Ger- priest to distinguish between inner and outer, sacred and profane, manic culture is the departure from the older Indo-European notion national and foreign territory. The one who possesses the supreme of kings as divine in nature. Aristotle instead describes how the king power to draw its borders is the rex. All this is familiar, that it is the has the same relationship with his subjects as the master of the house role of the legislator, the function of the rule, etc. has with the members of his household, as an absolute ruler, but not Benveniste’s point is that here we do not see sovereign power, so as a god. This is already the case in Homer where the king, basileús, much as we see it drawing the line that must be followed and point- is diogenés and diotrephés, born of Zeus and nourished by Zeus, and ing out what is right. It is not an exercise of power so much as it is a also carries his attributes in the form of the sceptre. But it is clear pointing, a message or explanation, or perhaps a (magical) creation that he received the sceptre from the god, and is not a god himself. of a boundary that was not there before. The king/priest was a reli- This ancient notion of empire and the emperor as a king of kings, gious and magical actor, rather than a political actor. ”His mission is also transferred into the Jewish and later Christian notions of was not to command, to exercise power, but to draw up rules, to God as a king over the Kingdom of Heaven, the king over all kings. determine what was in the proper sense ‘right’ (‘straight,’ droit).” The connection between the imperial context of both Jewish and The emergence of kingship from this priestly function must, Christian scripture and the anti-imperial use of imperial language according to Benveniste, have been a long process in which it was in both the Gospels and other books of the New Testament, not transformed both into kingship and political authority, but also least the Book of Revelation, attests to the significance of these gradually became independent of religious power. The latter, in concepts in Western thought and society up until the present. It has turn, was transferred to a specific group of priests. been argued that the most fundamental form of political society Other related concepts are the Iranian shah, which Benveniste is kingship, and even that this has never truly been superseded. In insists is something other than a rex and rather a king of kings, that societies with actual kings this is obvious, but even in supposedly is, a ruler of those whom the world sees as kings in an empire. He egalitarian societies, the “state of nature has the nature of the state” also argues that this is the prototype for the eschatology of prophetic as Graeber & Sahlins have put it. If there are no actual kings in a Judaism and the heavenly kingdom of Christianity, where God is the society, they always exist in a divine realm or as “metapersons” ruler of all rulers. This is then also clearly different from the Latin rex structuring the normative and social order of the society (Graeber (raj in Sanskrit) which is just ruling as “ruling”, i.e., measuring, where and Sahlins 2017). In the Christian religion this even turns into the the ruler points out the straight path. In the Persian concept of the promise of a final order when all faithful will become kings: “But king, we see instead the idea of an absolute power, what in Greek is you are a chosen people, a royal priesthood, a holy nation, God’s formulated as “autocracy”, power that comes from the ruler himself. special possession, that you may declare the praises of him who 29 called you out of darkness into his wonderful light.” (1 Pet. 2:9) 30 According to Benveniste, one of the most important concepts What then can we do, or understand better, with these etymol- in the Indo-European world is the idea of order, which governs ogies reasonably established? One view of the etymology of words religious, moral and legal beliefs. It is the fundamental principle is that they contain a kind of truth, a more or less hidden original that underpins every society and without which everything would meaning of the words that we can bring out and thus reach a deeper fall into chaos. The common root is rta in Vedic (arta in Iranian) understanding of their essence, or true meaning. Another view is and written in Latin as ars, artus, ritus, which precisely points to more cautious and assumes that words have no essential meaning. a harmonious arrangement of parts in a whole. In Zoroastran- This might then fuel a hope that etymology is an uncovering of ism this order was personified in the deity Astra. But this overall multiple prior meanings and connotations that have been lost or order, and idea of order, originally had no direct or distinct legal submerged in familiar usage. Therefore, etymology does not create connotation. The order manifested itself in different religious, an unambiguous truth, but rather generates a more complex picture. technical and legal spheres and thus terms that more closely cor- It opens up the potential of philosophical investigation – what do we respond to our concept of law existed in these different spheres mean when saying law? What have been meant previously in differ- (Benveniste, 386). ent eras and contexts? But also: what could we potentially mean? This all-encompassing and fundamental notion of order is there- What then could it be for the two words law and right? Regard- fore unavoidable, but it has not led to unification of the notions ing the law, it is not surprising that the law is what is laid down, of law, order, normativity, rule, etcetera. Rather the societal and what is determined. We also interpret the law, just as we present intellectual development of the last several thousands of years since our arguments. As if the law was always on the table and we add the hypothesised emergence of the Indo-European language, has things next to or above it. This also conjures up the image of a seen a proliferation of terms and concepts springing from this basic negotiation, a meeting, a court process or a “thing”, which is the conceptual distinction. Whether any distinction could have replaced name of both legislatures, like Norwegian Stortinget, or a court, it, complemented it on a similar level of importance or been more like a Swedish “tingsrätt”. fundamental in human thought, is of course open for speculation. Law seems to have two main etymologically relevant meanings: In any case the number of concepts that we today can relate under on the one hand that which is right and proper, straight and correct; headings of law is considerable. A couple of important examples, on the other hand, the governing, leading, which we also find in again from Benveniste: government. But is this the most fundamental pair of concepts – is The Greek themis (comparable to the Sanskrit dhâman) is the it where we should stop in our attempts to grasp the most basic unwritten law that applies within a family or group, based on a structures of normative thought? leader/judge/father (basileús) who rules according to these norms. 31 32 The norms are of divinely inspired origin and govern actions of It is interesting that the divine law in Greece, and Rome, con- all kinds. Etymologically, it comes from laying down, placing, es- cerns what is within the family, within a defined group, while the tablishing. The king has received his sceptre from Zeus along with non-divine/human law concerns the relationship between families themistic knowledge, just as the pig farmer welcomes a guest into his and groups. What is the relevance of divine law in the Jewish and home because it is in accordance with thémis. They are opposed to Christian understanding? The Jewish law can certainly be said to díkē, the laws that apply between families in a tribe. Here we clearly be just for a limited group (the Jews themselves) and is then a kind see how different laws, and even different concepts of law, govern of more comprehensive “family law” given by God to the chosen different spheres. Dikē (Latin dico) refers to the idea that certain group. When the divine law is taken over by Christianity, its change specific norms describe what is right to do in specific situations. Its is (at least) twofold: it is universalised to apply to everyone (both etymology comes partly from direction and from pointing out and Jew and Greek) and the law is to be in our hearts, in a heavenly saying with authority what is right. It is clear that the administration inspired way of knowing it. The law can thus not be the formalised, of justice according to dikē consists not in a judgement requiring worldly one (themis) but the one in which we realise what is right, in deliberation or discussion, but in the formalistic application by the which we are led by our hearts, in which God can lead us. judge of certain rules. This governing aspect of the administration At the same time, according to Benveniste, the meaning of the of justice has then been transferred to the meaning of dikē as custom, Latin ius is twofold, going back to the Indo-European word *yous usage or way of being – that is, what was originally a matter of duty which meant “a regular relationship, required by normality and then describes the usual and habitual way of behaviour. Which in the rules of ritual”. Ius thus depends both on a normal relation- turn has made the word dikē a term for justice in ancient Greek, a ship, a situation in accordance with the ius, and on the “normality meaning it did not have originally according to Benveniste. Dikē is formula”, i.e., what must be done in order for something to be in what was used to prevent injustice and abuse. Adikia is the goddess accordance with the ius, which is, for example, a particular ritual, of injustice and wrongdoing, with her opposite in Dike. such as swearing. Benveniste notes how significant it is that the Ius, the Latin term most often translated as law (and which in original Indo-European terms are both about what is to be done turn gave rise to justice) has a derivative verb, iurare, meaning “to and what is to be said, which is often the same in the legal sphere swear”, as in to take an oath, (and which in turn gave rise to juris- where the ritual is done with words, and these words are the action prudence, legal). Just as dikē above corresponds to themis, so ius has itself. Thus ius becomes a formula rather than an abstract concept its opposite in fas, as the human law instead of the divine law. Fas and consequently iura is the collection of judgements, authoritative then connects to what is spoken and therefore willed by the Gods, decisions. These judgements gain their force by being pronounced, which implies divine law. by pronouncing the formula, by pronouncing the judgement. 33 Benveniste discusses in some detail the difference between This suggestion, that the oath is at the absolute basis of Indo-Europe- iurare, which is a swearing in where the swearer merely repeats an and therefore Western society, is taken up by Giorgio Agamben in words spoken by someone else (often while holding a sacred object his short book The Sacrament of Language, where he polemicizes against or performing some such ritual action), and sacramentum, which those who explain the oath as referring to a magico-religious sphere: corresponds to what we now understand by swearing an oath, when one is the one who submits to the wrath of the gods if one breaks one’s oath. It also means that iurare requires two people, the one who speaks before, who pronounces the ius, and the one who repeats the formula (ius iurandum). This also clearly points My hypothesis is exactly the reverse: the magico-religious sphere does not logically preexist the oath, but it is the oath, as originary performative experience of the word, that can explain religion (and law, which is closely connected with it) (Agamben 2011, 65). to the religious, ritual context from which jurisprudence, the law, 34 originates. The verbally repeated oath, following a certain for- The oath creates the juridical truth or fact, in its performative as- mula, is the source of legal practice as transmitted to us through pect. The contract is created through the oath or its similar ritual Roman law. functions such as the signature. The marriage as a juridical fact Benveniste points out the peculiar fact that while no expression consists of the performance of the binding oath of marriage. And or procedure “would seem more necessary for the functioning of in the same sense the world is created by the monotheistic God social life” (439) than the oath, there exists no common Indo- through the words, which Agamben interprets as always being an Europan expression. Rather, each language has different words, oath: “he is the being whose word is an oath or who coincides with often without any etymology. How could this be? The seeming the position of the true and efficacious word in principio” (Agamben conflict, Benveniste suggests, might be due to the intimate con- 2011, 65). The world is then created in the same way as laws are nection between the social order in which it is performed and created, through a performative word expressed and through that the oath itself. It is in this sense not really possible to disentangle very act constituting the truth of its existence. from society: It is because the oath is not an autonomous institution; it is not an act which has its significance in itself and is self-sufficient. It is a rite which guarantees and makes sacred If the world is created by a word, the legal order as such is created by the judge. The Latin arbiter, the judge, was not as today bound by written laws. He adjudicates in cases where the law does not provide for a solution, and thus has a wide range of powers, while at the same a declaration. The purpose of the oath is always the same in time adjudicating at his own discretion and in the name of “equity”. all civilizations. But the institution may appear in different He stands in the place of the king as the ultimate or general judge, guises (Benveniste 440). and “makes his decision not according to formulas and the laws but 35 by a personal assessment and in the name of equity.” (Benveniste arose. This combination of, or indistinction between, what we now 404) This is the same basic structure as other judges in antiquity, in take for granted as separate – legislation, judgement, administration Greece or in the Judaean and Jewish tradition. – has recurred in different forms since deep history and arguably Michael Gagarin in a work on Greek law critiqued Bentham and even up until today in the paradigm of state of exception. This is other scholars in their focus on substantive law. He argued that of course often disregarded as anachronistic or criticised as illegit- “it may be more accurate to view procedural law as primary and imate conflations of the spheres or functions of the Rechtsstaat. But substantive law as a later development” (Gagarin 1986, 13). The does this dismissal not risk hiding a more fundamental potential procedure as such, the judgement made possible by an equitable in our conception of law? In the mediaeval world, the concept of judgement or divine inspiration. This meant that judgments were iurisdictio implied not an “autocratic” sovereign action, but rather for the particular situation and were not in general guidance for the uncovering of an already existing, immanent or divine, law: future judgments or settlements (Gagarin 1986, 106). The equity, as a form of discretion that tempers and renders more equitable the formal or strict application of written law, is therefore not just 36 a historical phenomena following on written law. Rather the devel- [T]he true raison d’être of power consisted in making everyone observe a law of natural origin, immanent to things themselves and prior to every creative act by man. Sovereigns and magistrates were not intended by God to rule over opment first went in the opposite direction: “As in the traditions men by their own will, but to guarantee respect for the rules of the origins of law in Greece and Rome, written law is a response which He had already inscribed in the natural order of the to the abuse of an earlier discretion, rather than discretion being world. Every act of power, therefore, was aimed at reveal- the response to the supposed rigidities of an earlier written law” (Jackson 2002, 39). How does this originally procedural function of the judge (arbiter) connect with the fundamental structure of the world, the order ing, declaring, and imposing an already given law; and only towards this end were rulers invested with certain rights of supremacy over their subjects. The prince’s law, the judge’s sentence, and the magistrate’s order were not truly different from one another. Though on a different level, each of (rta) that Benveniste contrasts to the threatening chairs, as the basis them contained the authentic statement of a legal rule, and for normative order? Let us at least consider one more example was therefore the expression of a unitary function, which of how these functions and concepts have been combined. As we the medieval legal vocabulary indicated everywhere with saw above the basic structure the legal concepts were based in or the same expression: “iurisdictio” (Mannori & Sordi, 226). even indistinguishable from the authority and power of the king, rex. This then understood either as a political or religious actor or With this, I would not suggest that a reversal to the mediaeval perhaps more correctly before such a distinction made sense or form of rule is preferable or even possible. Rather the question of 37 the ordering of human society – as a question intimately based in times honestly, often dishonestly) formulates this age-old problem the metaphysically fundamental (and perhaps even anthropolog- for us again. In order to move towards solutions to our ongoing and ical) distinction between order and chaos – is not avoidable. The impending crises, we should not turn away from law. But not law as philosophical solutions to these problems, as well as the practical equated with the repressive power of the state. A violence which as I arrangements for human affairs and societal conduct, are necessarily am writing these words is the absolute dominant option put forward the task of the jurist as well. The jurist should not restrict her task in public discourse. Rather we need to rediscover the deeper struc- to the interpretation of written norms and the systematisation or tures and potentials of law beyond the impotent violence of states. partial critique of them inside the legal order as it exists. Or, rathREFERENCES er, it is not possible to do so without making choices in regard to fundamental philosophical views on the eternal and indeterminate task of ordering society. There is no apolitical task of working inside the status quo, there is only a political choice of understanding 38 Agamben, Giorgio & Kotsko, Adam. (2011). The sacrament of language: an archaeology of the oath (Homo sacer II, 3). Stanford University Press. one’s own task as jurist as part of the legal order which in turn is Benveniste, Émile (2016). Dictionary of Indo-European Concepts and Society. always subordinated and judged in the light of the ultimate order Gagarin, Michael (1986). Early Greek law. University of California Press. of the cosmos. Graeber, David & Sahlins, Marshall (2017). On kings. Hau Books. The idea that law could be a strictly human affair, and that secular and worldly matters could be cut loose from their ultimate reliance on the world and universe as it exists, is a curious phenomenon of Jackson, B. S. (2012). Judaism as a religious legal system. In Religion, Law and Tradition (pp. 34–48). Routledge. Mannori, L., & Sordi, B. (2009). “Science of administration and administrative modernity. All modern thought inherits the fundamental problem law”. In A Treatise of Legal Philosophy and General Jurisprudence: Vol. 9: A History of of the original distinction between order and chaos and engages the Philosophy of Law in the Civil Law World, 1600–1900; Vol. 10: The Philosophers’ in new formulations of old solutions, as well as perhaps a few new Philosophy of Law from the Seventeenth Century to our Days (pp. 225–261). Springer ones. But in modernity we also curiously restrict our own capacity in this regard by both forgetting the deeper conceptual history as well as dismissing traditions and paths of thought that have struggled with these matters for literally thousands of years. Every generation seems to wake up thinking that the disorder of its time is uniquely new and calls for solutions de novo. Our time’s insistent reliance on narrowly understood legal and juridical modes of ordering (some- Netherlands. 39 Gregor’s predisposition for transport modalities habits can unfold in a qualitatively different and more civilised, even Jens Vedsted-Hansen Streichquartett in which case I may well have misconceived it as rock introduced me to some sort of German music entitled ‘Hubschrauber’ or performed by a band whose name included helicopters. The band and its music seem to have gone into oblivion, at least at my personal level. Neither extensive internet searches nor consulting an expert of modern and avantgarde music, having special insights into Germany’s music scene, have provided any identification. Perhaps Gregor after all simply made a reference to Stockhausen’s Helikopteror punk. Be that as it may, there appeared to be a commemorable of what we know from working with Gregor during linkage between aircrafts and German avantgarde music that was the past few years, it may appear counterintuitive to begin this completely unknown to me, and that became somehow illustrative essay by identifying a somewhat dominant feature of my almost of Gregor’s inspiring approach to the phenomena of life, society thirty year long collaborative friendship with Gregor: aircrafts and and science. IN THE LIGHT 40 cultivated manner, Gregor around the same time enthusiastically airports. Well, that feature was of course not dominant per se, but A few years later our common interest in various modes of trans- it has in a strange way been underlying significant parts of our col- port was taken to the next levels as we began examining the various laboration insofar as it has reflected shifting dynamics in the modes non-arrival mechanisms that had been introduced and became ever of transport resorted to within our shared field of study, migration more widespread in European asylum and migration law and policy control and refugee protection. since the 1980s. How could this be about aircrafts and airports? Some years after our first encounter in Copenhagen in 1994 Gre- Precisely because it was not. gor reminded me that I had, on that first occasion, presented my The point was rather that such migration control measures pre- academic roots in Aarhus by explaining that it was a bit difficult vented potential asylum seekers and other irregular migrants from to get away from there. Perhaps not really, and at least not merely, arriving to European borders by air. Not that these measures were in the academic sense, but simply because the airport was located targeting air transport in particular for any reason of environmen- far outside the city, thanks to its original constructers: the German tal policy, climate protection or traffic safety. Rather, the regulato- military forces occupying Denmark during the Second World War. ry mechanism introduced by potential destination states (in the Probably in order to convince me that the Germans’ air transport Global North) in order to achieve their aims of migration control 41 42 was first and foremost air carrier sanctions because air transport Rather, they were keeping asylum seekers from the ‘procedural door’ had become affordable to refugees and migrants (from the Global (Goodwin-Gill 1996:333) or at least opening that door only to a South) at the time. Introduced in the late 1980s, possibly first by very restricted extent and for a strictly limited period of time. Denmark and in any case spreading fast around Europe and other Aspiring for a more accurate characterisation, we modestly sug- industrialised states, these liability rules were an apparently neutral gested to use the term non-arrival to describe those policies and prac- device that served as an incentive for airlines to check passengers’ tices that specifically have the intention or effect of preventing asylum travel documents and to deny embarkation to those who were not seekers from accessing the territory and/or the procedure of states in possession of the requisite passport and visa. As European states in which they can apply for, and potentially obtain, protection (Noll at the same time quite systematically applied and even adopted visa and Vedsted-Hansen 1999:382–83). The non-arrival terminology requirements for nationals of actual or perceived refugee-produc- became either substituted or completed by Gregor’s monumental ing countries, this effectively resulted in the denial of access to the analysis of deflection mechanisms affecting access to territory, access territory of those states, and consequently denial of access to an to full-fledged procedures and access to protection (Noll 2000). As asylum procedure and to protection. his analytical framework was law and policy measures based on the Already in 1992, this phenomenon had been coined non-entrée by early EU asylum acquis, and given Gregor’s conceptual imagination, James Hathaway who introduced the catchy term with dichotomic the title of his book obviously included the term ‘Common Market reference to non-refoulement in order to describe a variety of policies of Deflection’ to signal the overriding or/and underlying rationale of and practices that were increasingly applied by industrialised states the EU measures subject to examination. in order to evade protection obligations towards asylum seekers and Terminology arguably matters little as long as it is based on refugees (Hathaway 1992). While non-entrée made good sense as a precise definitions and applied consistently. While Gregor may tentative descriptive approach, Hathaway’s examples of policies and disagree, I tend to posit that this is precisely where lawyers often practices went well beyond this function as he included procedural perform better than (other?) social scientists. At least, we as lawyers devices such as accelerated examination procedures aimed at ‘mani- normally have a fairly clear idea about what legal measures, polices festly unfounded applications’ and inadmissibility criteria based on and practices we have in mind when using the terms. This is indeed ‘safe third country’ notions. This is not to say that these measures the case for some colleagues in legal science who have recently ana- were necessarily unproblematic or fair and decent, nonetheless they lysed a variety of non-arrival or deflection policies and practices as were implemented by destination state authorities at the border measures of deterrence (Gammeltoft-Hansen and Hathaway 2015; or in the territory, so that they did not in and of themselves create Gammeltoft-Hansen and Tan 2017). Nonetheless, it may be worth- obstacles to accessing procedures or protection in the first place. while reconsidering this concept because it seems to be both overly 43 44 broad and too narrow. It is too narrow because ‘deterrence’ is about Undeniably, over time irregular migrants and their assisting hu- far more than signalling low chances and negative prospects for man smugglers would need to find other modes of transport to en- asylum seekers, negatively branding states and societies of potential hance the chance of circumventing migration control and getting destination, and similar measures discouraging (i.e., deterring) asy- access to the desired destination states and the requisite procedures. lum seekers from making the attempt to arrive and enter any given Therefore, they have, to an increasing degree, resorted to non-air destination state or region with a view to applying for protection. At transport since entering European states irregularly via land and the same time, referring to ‘deterrence’ may seem too broad or too sea border crossings was considered, and in all likelihood in fact vague insofar as the concept does not adequately reflect the harsh was, significantly easier and more affordable than with air carriers. realities of regulatory and physical barriers that effectively hinder This in turn resulted in ‘counter-counter measures’ being intro- asylum seekers from getting access to any territory and procedure duced by European states, in particular more widespread application that would take their claim to international protection seriously of border procedures not least in order to enforce inadmissibility and subject it to meaningful examination. criteria based on the notion of ‘safe third countries’. Since our exam- Returning to the issue of modes of transport, the fact that the ination of early tendencies of such migration control measures and abovementioned non-arrival measures of destination states in the their impact on refugee protection (in collaboration with Rosemary Global North – especially visa requirements enforced by private Byrne and others) in New Asylum Countries? (2002) this has been an transport companies due to carrier liability rules – primarily target- ever-evolving issue in state practices as well as in academic studies ed air carriers and their would-be passengers meant that air trans- of these practices. port became more difficult, if not impossible, and therefore less As these kinds of deterrence/non-arrival/deflection apparently relevant for asylum seekers and other irregular migrants from the lost significant parts of their effect during recent asylum and mi- Global South. Instead, they would tend to resort to what Gregor has gration crises, they have become fortified or replaced by modalities succinctly identified as counter strategies or counter measures (Byrne, of asylum governance which have recently been critically examined Noll and Vedsted-Hansen 2002; Byrne, Noll and Vedsted-Hansen under the common denominator containment, essentially preventing 2004) This did not necessarily mean immediately shifting to land asylum seekers and refugees from leaving their countries of origin or sea transport, as alternatives could also be new ways of evading or transit in the first place (Ayouba Tinni et al 2023). This is an im- the control measures implemented through air carriers. This could portant and possibly novel aspect of what we have, together with a perhaps be obtained by using false travel documents, i.e., documents number of colleagues, been studying in the ASILE project during that had been forged more convincingly, or/and bribing document the past four years. controllers more persuasively. Where does this then leave the issue from which this essay set 45 out: transport modalities? Containment by definition means little or no movement of people, at least no trans-border movement, if successfully implemented. If not seen as sufficiently successful, it may end up being combined with physical deflection and deterrence measures involving air carriers, yet now for deportation purposes. While this is indeed not a novelty in asylum policy, as reflected in Gregor’s analysis of ‘visions of the exceptional’ 20 years ago (Noll 2003), such visions have recently been reactivated by the plans to tries? Migration Control and Refugee Protection in an Enlarged European Union, The Hague: Kluwer Law International 2002. Byrne, Rosemary, Gregor Noll and Jens Vedsted-Hansen, ‘Understanding Refugee Law in an Enlarged European Union’, 15(2) European Journal of International Law 2004, 355–79. Goodwin-Gill, Guy S., The Refugee in International Law, Second Edition. Clarendon Press 1996. Gammeltoft-Hansen, Thomas and James C. Hathaway, ‘Non-Refoulement in a remove asylum seekers to an African country with which the gov- World of Cooperative Deterrence’, 53(2) Columbia Journal of Transnational Law ernments of the United Kingdom and (tentatively) Denmark have 2015, 235–84. agreed to outsource asylum procedures and protection of refugees. Gammeltoft-Hansen, Thomas and Nikolas Feith Tan, ‘The end of the deterrence In case such visions should become implemented, that would paradigm? Future directions for global refugee policy’ 5(1) Journal on Migration ironically happen by way of airlifting asylum seekers out of Eu46 Byrne, Rosemary, Gregor Noll and Jens Vedsted-Hansen (eds.), New Asylum Coun- and Human Security 2017, 28–56. ropean countries to which they have arrived by boat or truck or Hathaway, James C., ’The Emerging Politics of Non-Entrée’, 91 Refugees 1992, 40–41. other forms of non-air transport. Whereas such policy visions were Noll, Gregor and Jens Vedsted-Hansen, ‘Non-communitarians: refugee and asylum (perceived to be) open to the United Kingdom and Denmark due to these two states’ non-participation in the Common European Asylum System (Tan and Vedsted-Hansen 2021), appetite for far-reaching extraterritorial strategies that may ultimately involve outsourcing is reportedly on the rise within the EU as part of the final run towards the adoption of the CEAS reform package proposed under the grand ‘New Pact on Migration and Asylum’. This might well demarcate one of the primary legal battlefields within asylum and migration law during the years to come. policies’, in: Philip Alston (ed.): The EU and Human Rights. Oxford University Press 1999, 359–410. Noll, Gregor, Negotiating Asylum. The EU Acquis, Extraterritorial Protection and the Common Market of Deflection. Martinus Nijhoff/Kluwer Law International 2000. Noll, Gregor, ’Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’, 5(3) European Journal of Migration and Law 2003, 303–41. Tan, Nikolas Feith and Jens Vedsted-Hansen, ‘Denmark’s Legislation on Extraterritorial Asylum in Light of International and EU Law’, Odysseus Blog (eumigrationlawblog.eu). ULB 2021. Tinni, Bachirou Ayouba, Olga Djurovic, Rados Djurovic, Abdoulaye Hamadou, Meltem Ineli-Ciger, Gamze Ovacık, Fatma Raach, Hiba Sha’ath, Thomas Spijkerboer and Orçun Ulusoy, Asylum for Containment: EU arrangements with Niger, Serbia, Tunisia and Turkey. CEPS/ASILE 2023. 47 foto: Emma Krantz / Skissernas Museum 48 49 max liljefors 59,4 × 42 cm Mixed media max liljefors 59,4 × 42 cm Mixed media foto: Emma Krantz / Skissernas Museum 50 51 max liljefors 59,4 × 42 cm Mixed media max liljefors 59,4 × 42 cm Mixed media Gregor’s gentle invitation to theorize Take the question of proportionality. The first time I came across Pål Wrange informed by loads of theories – about war, the state, etc. As Gre- ing for a way to understand proportionality in investment law (thanks, Olga!). The second time, bombs were falling over Gaza. At both times, there was a real need to use Gregor’s findings, though in very different ways. The application of this notoriously difficult principle is, of course, gor’s text reveals, however, proportionality was still undertheorized, in the activities of an international lawyer. since there were no credible explanations about how to measure and Why are these rules binding? How to ascertain the meaning of this compare military advantage and civilian loss. Gregor here ‘draws’ on text? Who are the subjects of international law (and is the question philosopher Jacques Rancière (208) and most of all on theological even relevant)? Hence, an international lawyer – practitioner or literatures, in particular Erich Przywara’s idea of analogia entis (208). scholar – constantly applies theories to her work. What we mean Proportionality is ‘a particular mode of an analogy.’ (207) which by theorizing in international law is therefore often re-theorizing, ‘presuppose[s] something that enables comparison and equitable that is, proposing a different way of thinking about international law. sharing’ (206). Finding the ‘categorical equality’ between human THEORY IS EVERYWHERE 52 ‘Analogy at War’, I was tipped by a doctoral student who was look- beings ‘in their relatedness to that superior Creator,’ (207), Gregor Gregor loves theorizing. However, his meandering into often ob- realizes that he can ‘understand my own being as analogous to that scure territory usually starts with a meticulous formulation of a pre- of other beings’ (218). Hence, the protected ‘demos’ are ‘unqualified cise legal question that a lawyer may face (and the answer to which civilians’ (225) rather than ‘enemy civilians’ (227) of an enemy will have fathomable consequences for real people), for instance the ‘polis’. Gregor implores ‘the decision maker [to understand] the proportionality norm in Article 51 of the first Additional Protocol to relation between the demos and polis of her own state’ as much the Geneva Conventions, the obligation in Article 36 of the same in- as that of the opposed party.’ (228), that is, to give all civilians the strument to anticipate the functioning of a weapons system, how to same value. assess evidence in asylum cases or how to square the understanding Gregor’s contribution to the Oxford Handbook of the Theory of jurisdiction as an ‘entitlement’ with the understanding in human of International Law concerns jurisdiction. Here, he rightly notes rights law of jurisdiction as a link to responsibility. that states both have an incentive to extend their ‘entitlements’ to exercise power and an equally natural incentive to limit their re- 53 54 sponsibilities (604). Under to a reading of ‘a particular Protestant gal informatics). The negative outcome of the project – that it all metaphysics’, the first type of jurisdiction comes from creation and hinges on ‘data wrangling’ with unchecked discretion – should come the mandate given to Adam and Eve, while the second is legitimated as no surprise. The two could have used a conventional model of by the promise of redemption (as justice). In a complex journey from presentation, but the autoethnographic structure to the narrative the first century CE over the Reformation to contemporary political (by reference to Clifford Geertz; 58) makes the conclusion more philosophy – invoking Paul the Apostle, Erich Przywara (again!) and convincing (and also more transparent – would two non-critical the philosopher Simon Critchley – Gregor notes that the European positivists have concluded otherwise?). Court of Human Rights seems to be affected by two ideas: ‘unity ‘Weaponizing’ is an important article on neuroweapons namely in law’ (a single concept of jurisdiction in all international law) and ‘those weapons systems that a) integrate neuronal and synaptic ac- ‘unity in fact’ (jurisdiction to be ‘understood in the light of states’ tivities of the human brain into a weapons system and b) eliminate factual power’) (606–607). the element of human consciousness before engaging a target’ (207). In ‘Visions of the Exceptional’, Gregor first explains various Dan- To write this text, Gregor had to learn quite a bit about neuroscience ish and British proposals on offshore ‘Regional Processing Areas’ (and its theories). He references the criticism from analytical philos- and ‘Transit Processing Centres’. He thereafter subjects these ideas ophy that ‘neuroscientific research is based on … a ‘degenerate form to a long critical analysis and then, on the last four pages, offers a of Cartesianism’… {in which] predicates formerly ascribed to the new way of seeing these practices, by invoking Giorgio Agamben’s mind are now ascribed to the brain’ (221), that is, mental processes well-known work on the camp and the state of exception ‘as an are reduced to biology (18). However, finding also ‘real’ Cartesian- analytical tool’ (338). The new ‘vision’ ‘has brought back a spectre ism insufficient, Gregor turns to Martin Heidegger’s reflections on to European migration and population policies. It is the spectre of technology (223). He finds that a main loss with the introduction of the camp’ (339). Gregor then compares this with the old system of neuroweapons is ‘the loss of language’ (228). ‘Language and the role ‘onshore processing, public scrutiny and judicial control by courts of the human in the world are closely related to each other. In com- ...’ (341). The effect is very powerful, preceded as it is by a detailed bination, they are indispensable for the appearance of truth, if only analysis of the potential legal, social and moral implications of the in a conversation between a legal adviser and a commander’ (229). new ideas. In a completely different type of piece (‘Decision making’), As noted, Gregor switches effortlessly between different theories Gregor (with Matilda Arvidsson) describes their experiences of a – different ways of seeing (different aspects of) the world – in a concrete project on AI in asylum law decisions. Computer science manner which is as playful as it is serious. I sometimes wonder is, of course, alien to law (though the two are old partners in le- how he does it. I can well imagine him sitting in an old armchair 55 in his countryside study, pondering about the best way to think later concept of a culture of formalism, Gregor suggests that ‘it is about proportionality in IHL. He then comes to think of an obscure the faith in a universal community to come that is cultivated in [a Catholic theologian, goes heureka!, and problem solved. Or maybe culture of] formalism. The dynamic of the law is not provided by he is indulging in the guilty pleasure of Thomistic metaphysics and divine creation in the past, but by its inspiration from the future. It then gets a commission to write something. Or perhaps he sought is only through this faith in this law that progress is possible’ (31). out the theologian in the first place because he thought that this And then, coming home: In ‘Nostalghia’, Gregor ruminates on scholar might have something interesting to say about international the ‘melancholic longing’ for a Nordic international law, in view of law. My guess is the latter, but who knows? the fact that a common Nordic approach ‘hardly exists today’. He takes us through Tarkovsky’s film Nostalghia with its protagonist 56 In a text on international law in general Gregor builds on his writ- Andrei. On his journey, Andrei meets Domenico, an ‘idiot’, who tells ings on international humanitarian law (proportionality) and refu- him ‘that saving the world … can be done by carrying a burning gee law. As a reflection of the fact that IHL lawyers claim that pro- candle through the pool of the Holy Catherine in the village’ (16). portionality is fundamental yet have difficulties articulating what Towards the end of the film Andrei does just that, with great effort. it means (because doctrine has failed to do so, we understand), he ‘For him, the gesture is sheer openness, the openness I experience finds that ‘[d]octrine and discipline reflect two rather different un- when I join my own longing and suffering into that of another derstandings of learning. We do not know what the law demands person’ (20). Gregor ends by asking: ‘The question is then, which of us: this seems to escalate the importance that we practice it’ (36). madman will bequeath us with a gesture that we may execute, there- He then makes an analogy of sorts to the medieval contrast between by opening up our idiotic longing … an openness that is concrete, the abstract canon law and the concrete practices in the monasteries. historically situated and at work in the world’ (21). Gregor’s contribution to a volume on Martti Koskenniemi ‘consider{s] whether Koskenniemi may be understood to eliminate crea- Gregor has a distinct voice, a friendly one, the voice of a man who tion while retaining redemption as a transcendent source of norma- probably knows that many readers will leave him on his trail, but who tivity’ (23). As ‘a contrast agent’ to MK, he pours ‘a particular form is confident that those who remain look forward to their rewards. of Roman Catholic dynamism’ (22). In From Apology to Utopia, It is also an inquisitive voice. He ‘trie{s] to understand’, he asks ‘ultimate authority appears to be beyond human reach’ (23), and ‘what method are we to apply?’ or ‘how a question could be formu- ‘our knowledge about [the] law will be relativized by our ignorance lated’. And there are doubts. The claim that a certain consideration of its creator’ (24). Nevertheless, quoting MK, ‘[i]nternational law ‘will help me’, is immediately qualified by ‘so I hope’. In fact, often exists’, in fact, ‘as a promise of justice’ (28). By reference to MK’s he is not sure at all: ‘it might be’ in a certain way, he ‘think[s]’, and 57 CITED WORKS he has to ask ‘{c[ould it still be the case?’. Gregor also tends to make things difficult by ‘challeng[ing] [his] own assumption’. Sometimes he surprises himself: ‘I now realize how much my formulation of the question was tied up to’ a certain understanding. And there are even instances where he gets things wrong: ‘I have set out with the question what would be lost …, and I have arrived at an answer on what is added.’ While one may suspect – perhaps too suspiciously – that these qualms are just rhetorical devices, one must admit that they are effective; the friendly insistence makes me accept the claim that he is trying out different things in front of our eyes. However, Gregor may also be assertive. ‘Is human rights jurisdiction being constructed so differently that there is a total disconnect from the interstate jurisdiction of ‘entitlements’? Not so. (sic!)’. And 58 in that modus, he proclaims that ‘{t]he task we have – each of us, individually – is to think about the meaning of being human’ (Neuro, 9). ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’ (2003) 5 European Journal of Migration and Law 303 ‘Analogy at War: Proportionality, Equality and the Law of Targeting’ (2012) 43 Netherlands Yearbook of International Law 205–30 ‘Weaponising Neurotechnology: International Humanitarian Law and the Loss of Language’ (2014) 2 London Review of International Law 201–31. ‘Theorizing Jurisdiction’, in A. Orford & F. Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP, 2016) 600–617 ‘What Moves Law? Martti Koskenniemi and Transcendence in International Law’ in Wouter Werner, Marieke De Hoon, and Alexis Galan (eds),B The Law of International Lawyers (CUP, 2017) 20–38 ‘Nostalghia: A Nordic International Law’, Astrid Kjeldgaard-Pedersen (ed) Nordic Approaches to International Law (Brill/Nijhoff 2017) 6–21 ‘Life in the Ruins: International Law as Doctrine and Discipline’, in S. Chalmers and S. Pahuja (eds), Routledge Handbook of International Law and the Hu- And perhaps, this is our most urgent task today, while we perform our ‘idiotic’ rituals of international law in our monasteries of formalism as (if) that is all we have. manities (Routledge, 2021) 36–44 with Arvidsson, Matilda, ‘Decision Making in Asylum Law and Machine Learning: Autoethnographic Lessons Learned on Data Wrangling and Human Discretion’ (2023) 92 Nordic Journal of International Law 56–92 59 Fan-mail eller Ett par korta reflektioner om en akademisk förebild 60 Rebecca Thorburn Stern För mig är Gregor Noll en sådan förebild, och i denna korta text ska jag försöka beskriva varför så är fallet. Om det hela framstår som något av ett beundrarbrev, snarare än en vetenskaplig text, är det helt korrekt uppfattat. Det första man sannolikt tänker på när det gäller Gregor Noll som förebild är hans betydande insatser inom folkrättslig forskning. Gregors forskning – vilken behandlas bättre och mer ingående i andra bidrag till den här boken – rör sig över ett flertal fält, från migrationsrätt till mänskliga rättigheter till internationell humanitär rätt till folkrättslig teori. Hans arbete är gränsöverskridande, lyfter nya frågor – på senare år inte minst artificiell intelligens och digitalisering – och rör sig ledigt mellan olika fält, sällan begränsat till rättsvetenskapen, ofta med inslag från humaniora. Inom migrationsrätten har hans forskning om bevisvärdering och trovärdighetsbedömningar i asylmål, om medicinska åldersbedömningar och hur artificiell intelligens kan användas i beslutsfattande – för att SOM NYBLIVEN DOKTORAND i folkrätt satt jag en dag på Uppsala- tåget på väg till universitetet. I samma vagn fanns en äldre kollega nämna några av många ämnen – haft ett betydande genomslag såväl nationellt som internationellt och fört forskningsfronten framåt. som disputerat i ämnet ett par år tidigare och vi började prata. Utöver vad gäller forskningens själva innehåll – präglat av djup Kollegan gratulerade mig till att ha fått doktorandtjänst och frågade kunskap, skarp juridisk analys och tvärdisciplinär rörlighet – ser sedan glatt vilken av professorerna på juridiska institutionen som jag Gregor som en förebild för hur forskningsresultat och resone- var just min pappa? Något ställd av frågan (min pappa var inte mang kan presenteras. I Gregors texter förs en sorts intellektuellt professor, vare sig på min eller någon annan institution) fick jag en samtal med läsaren i vilket hen ofta utmanas att utforska nya, insikt som sedan följt med mig under de nu mer än tjugo år jag har inte alltid väntade, perspektiv på en viss fråga. Baron och Ep- varit verksam inom akademin: den akademiska världen kan vara stein understryker i en artikel om rätten som narrativ att ”law såväl märklig som svårnavigerad samt fylld av mer eller mindre is a communicative activity”, inte minst rättsvetenskapliga for- tydliga hierarkier att förhålla sig till. Det är därför viktigt att hitta skare emellan, eller mellan forskare och praktiker, och resonerar kloka personer att inspireras av – goda förebilder, med andra ord. kring hur rätten, och förståelsen av rätten, skapas inom ramen 61 för denna kommunikation.1 Gregors texter – eleganta och strin- kollegor oavsett akademisk ålder eller rang, liksom doktorander, är genta, ofta avancerade men sällan svårtillgängliga – ser jag som så väl eftersträvansvärd som mer ovanlig än vad man kanske skulle goda exempel på något som Magnus Linton lyfter fram i sin bok kunna tro är fallet. Med detta sistnämnda påstående vill jag inte om vetenskapligt skrivande, nämligen att form och tanke hänger insinuera att akademiker i gemen är otrevliga och ogina – långt samman, att form skapar mening, även i vetenskapliga texter, och därifrån! – utan snarare att framhålla vikten av en sådant öppet att det inte bara handlar om vad som berättas, utan även i stor förhållningssätt som en viktig del i skapandet av en god akademisk utsträckning hur detta görs. I Gregors texter finns, som jag läs- miljö, i vilken forskare i olika stadier av sin karriär känner sig ink- er dem, en medvetenhet om betydelsen av såväl berättelsen som luderade och bekväma med att lägga fram tankar även om de inte är den form i vilken den presenteras (Om denna medvetenhet om tänkta till punkt, och där hierarkier spelar en underordnad betydelse berättelsens betydelse för den vetenskapliga textens genomslag på i relation till det goda samtalet. Att bidra till en sådan miljö är vårt något sätt bottnar hans forskning om begreppet ”trovärdighet” i gemensamma ansvar i akademin, ett ansvar vi förhåller oss till på relation till asylberättelser kan jag bara spekulera i). Detta är ett många olika sätt. Även på denna punkt är Gregor en förebild, som förhållningssätt till vetenskapligt skrivande att inspireras av. en senior forskare som ser längre än sin egen roll och position utan 2 62 Utöver själva det vetenskapliga skrivandet vill jag också lyfta fram Gregors förhållningssätt till kollegor, inte minst mer juniora sådana. Som nämndes inledningsvis präglas akademin i viss mån alltjämt av mer eller mindre tydliga hierarkier, vilka ofta manifesteras genom såväl formella strukturer som informella hackordningar och inkluderande/exkluderande praktiker. Juniora forskares – för att inte tala om doktoranders – plats i dessa hierarkier markeras inte sällan på mer eller mindre subtila sätt. I de olika sammanhang jag under årens lopp har haft förmånen att få arbeta tillsammans med Gregor har jag återkommande gjort samma reflektion, nämligen att den nyfikenhet, generositet och respekt med vilken han bemöter 1 Jane B. Baron & Julia Epstein, Is Law Narrative?, 45 Buff. L. Rev. 141 (1997), s. 141. 2 Magnus Linton, Text och stil. Om konsten att berätta med vetenskap, Stockholm, Natur och kultur, 2019. även hur hen kan bidra till andras utveckling och lyfta dem. Att vara en sådan akademiker är något att sträva efter. 63 And Time Becomes a Wondrous Thing thing, my experience of visiting and working in Sweden revealed Anne Orford and free and easily accessible emergency hospital care (at least that I had underestimated how different it would be. A visiting professor with young children experiences the state in a very material form, for example as state-provided hot school lunches, free afterschool care available as of right (at least to working parents), in the 2000s when I first visited Sweden with my family). From 64 FOR TWO DECADES , my academic life has been shaped and enriched an early stage in my life as an academic, it was Gregor and other both by my friendship with Gregor Noll and by the world of the Nordic colleagues who took not only my ideas but also my family Swedish academy into which he and his colleagues have welcomed responsibilities seriously – inviting me to visit, arranging univer- me. Gregor and I had corresponded by email for some time, explor- sity accommodation that could also house my family, and timing ing various forms of collaboration, before we first met in person as many of my visits around the Australian school holidays so that lecturers at the annual Helsinki Summer School on International I could travel with my young children. Sweden was a place where Law in 2004. Following that meeting, Gregor invited me and my groups of young men with prams had coffee or walked the streets family to visit Sweden for the first time in 2005. I’ve lost count of together, my male colleagues would explain that they were not the number of times I have visited Sweden and experienced the available for meetings after 3pm on certain days because they had hospitality of Swedish colleagues in Lund, Gothenburg, Stockholm, childcare responsibilities, the local pool had a spacious ‘all-gen- and Uppsala since then. The ongoing connection with Gregor, his ders and no-gender’ change room alongside the male and female colleagues, and his students, and with Sweden more generally, that change rooms long before anywhere else that I knew of, and no began on our first visit in 2005 has been life-changing. one ate lunch while working at their desk because everyone gath- I can remember the idealized image of Sweden as a social dem- ered together with their homemade lunches in the staff common ocratic and feminist utopia that I had before I went there for the room or went out to one of the many restaurants that still had a first time. And I am not alone – an image of ‘Sweden’ as social traditional lunchtime ‘dagens’ special designed to enable workers laboratory or model society has a surprisingly pervasive grasp on to eat a hot meal at a reasonable price. the imagination of many people in Western countries. If any1 As an international lawyer working and thinking about the role of the state, it was enlivening to engage with the tradition of Swedish 1 Carl Marklund, ‘The Social Laboratory, the Middle Way and the Swedish Model: thought that insists upon the possibility that the life and welfare Three Frames for the Image of Sweden’ (2009) 34 Scandinavian Journal of History of people can be improved through state planning and democratic 264. 65 66 debate. It was a pleasure to immerse myself in Swedish life and to itarianism being just one example.3 That debate was in part a proxy reflect upon how Swedish people have thought about preserving for a broader struggle over the legacy of the ‘rationalistic futurism’ rural livelihoods, building sustainable cities, rethinking gender and that had been such a feature of Swedish social democratic politics.4 gender roles, developing new forms of internationalism, and creat- The question of whether to prioritise the health and survival of the ing a social world in which people can thrive. population over the rights of individuals, and if so which individuals, Over time, however, it became harder to hold on to the idealized continues to be posed with vigour within Sweden, while Sweden Sweden of my imagination, as fortress Europe closed its gates in continues to play an outsized role in global debates over those is- response to the refugee movements caused by ongoing conflicts sues. This was illustrated recently in discussions of differing state and geopolitical rivalries played out in the Middle East and North responses to the COVID pandemic, in which the Swedish model of Africa, an issue to which I will return in a moment. Already by the neoliberal regulation was vigorously championed by libertarians in time I first began to visit Sweden, its version of social democracy North America over other, more authoritarian, versions. was being displaced by the rising tide of European neoliberalism Which brings me back to Gregor. There are many familiar ways that had emerged triumphant with the end of the Cold War. While of responding to the sense of a Sweden – or a world – that is disap- much has changed since 2005, even on that first visit to Sweden, my pearing. One is the rise of conservative nostalgia and nationalism, colleagues were already discussing the politics of European refugee with calls to make Sweden great again by returning to a world of law and policy, the European Court of Justice had already decided hard work, discipline, hierarchy, order, social cohesion, and closing the cases of Viking and Laval, and human rights arguments were off from the chaotic world outside. A related form of romantic left- already being taken up by the right-wing think tanks and parties to ism sees Swedish social democracy and state planning as utopian, attack social democracy. forgetting that it was conditioned by its own forms of exclusion Indeed, the sense of a ‘future that disappeared’ is a recurrent and dispossession (as the debate over eugenics made clear). Social theme of debates in and about Sweden. The sustainability and le2 gitimacy of the social democratic state is a matter of ongoing public controversy, with the 1990s debate over whether the Swedish popu- 3 For reflections on that debate and its stakes, see Anne Orford, ‘Alva Myrdal: The Rise and Fall of Social Democratic Internationalism’ in Immi Tallgren lation policy espoused by the Myrdals was a form of eugenic author- (ed), Portraits of Women in International Law: New Names and Forgotten Faces (2023), 183, 188–90. 4 On the ‘rationalistic futurism’ of Swedish social democrats, see Arne Ruth, ‘The second new nation: the mythology of modern Sweden’ (1984) 113 Daeda- 2 For that formulation, see Andrew Brown, Fishing in Utopia: Sweden and the lus 113, and on its demise, see Ole Wæver, ‘Nordic Nostalgia: Northern Europe Future that Disappeared (2008). after the Cold War’ (1992) 68 International Affairs 77. 67 cisely when people find themselves in poverty, distress and democratic states differentiated population both spatially through danger – when we’d expect them to settle for a minimum of constituting the inside and outside of Europe and racially through safety and wellbeing – that their utopianism becomes most differentiating those who were seen as contributing to the health intransigent. But the hard truth to be faced by the refugees of the population and those who weren’t. A third and more cyni- is that ‘there is no Norway,’ even in Norway.6 cal critique rejects the existence of Nordic social democracy as an illusion – an approach perhaps best illustrated by an intervention But another approach, which I associate with Gregor, rejects those made by Slavoj Žižek into debates over European refugee policy. In forms of reaction, nostalgia, and cynicism. Through the work of a typically provocative essay entitled ‘The Non-Existence of Nor- Gregor, his colleagues, and his students, I was introduced not only way’, Žižek attacked what he described as the ‘left liberal’ outrage to the richness of Swedish social democratic thought and Nordic that ‘Europe is allowing thousands to drown in the Mediterranean’ international law, but also to a culture of thinking critically about and the related call to Europe to ‘show solidarity and throw open the darker sides of those projects. That work offers an alternative its doors’, while also criticizing the anti-immigrant populists who to the forms of cynical reason that have come to dominate so much ‘say we need to protect our way of life’ from foreigners. According of contemporary critical thought and to the forms of reactionary to Žižek, both were wrong. For Žižek, the refugees escaping their nostalgia informing much of the politics of both the Left and the ‘war-torn homelands’ were ‘possessed by a dream’. The refugees Right in Europe and beyond. 5 68 who arrive in Greece or southern Italy didn’t want to stay there and It is hard to capture the nature of that alternative mode of cri- were ‘trying to get to Scandinavia’ or ‘desperate to get to Germany’. tique in this brief tribute. None of the words I can think of really do Their assertion of an ‘unconditional right’ to demand ‘not only justice to Gregor’s style – curious, attentive, humanist, open, kind, proper food and medical care’ but to live in the country of their anarchic, politically committed, light, secular while also spiritual. choice was unrealistic. But perhaps I can give a sense of that style through reflecting upon There is something enigmatically utopian in this demand: as if it were the duty of Europe to realise their dreams – dreams which, incidentally, are out of reach of most Eu- a gift that Gregor brought on one of his visits to our home in Melbourne. Gregor and I often shared gifts when visiting with each other’s families and, perhaps unsurprisingly, those gifts were often ropeans (surely a good number of Southern and Eastern books – children’s books, works of philosophy and history, novels, Europeans would prefer to live in Norway too?). It is pre- and books exploring art and photography. The book I want to mention here was a collection of photographs by Sune Jonsson, entitled 5 Slavoj Žižek, ‘The Non-Existence of Norway’, London Review of Books, 9 September 2015. 6 Ibid. 69 70 Och tiden blir ett förunderligt ting [And Time Becomes a Wondrous Jonsson’s monochrome photographs record people engaged Thing]. Jonsson’s project helps illustrate the style that Gregor brings in subsistence farming, living in modest homes characterised by to international law. spareness, austerity, and thrift. The images convey a sense of quiet Jonsson published twenty-five photo books, beginning with Byn dignity and resilience. And yet, as one commentator notes, while med det blå huset [The Village with the Blue House] published in 1959, Jonsson combined the familiar documentary interest in that which and concluding with Och tiden blir ett förunderligt ting in 2007. His is passing with ‘a sharp political instinct and social concern’, there books combined photography with oral history and fiction, all with was ‘no nostalgia here’.9 Smallholdings were not a ‘rural idyll’ – they a commitment to the vernacular and the local. He was also a docu- ‘required incessant toil, arduous clearing of poor and stony land mentary filmmaker and archivist, working with Västerbottens Muse- and the ever-present spectre of debt, social and religious intoler- um (where he was appointed as Field Ethnologist in 1968), Swedish ance and strained personal and social relationships’.10 He and his Radio, and Swedish Television. Almost all of Jonsson’s photographs colleagues ‘rejected the concept of nostalgia, and instead produced documented the people, landscapes, and declining communities of archaeologies of difficult and often isolated rural working lives’.11 the sparsely populated rural north of Sweden, producing an homage He was an artist of passing time, who sought to document the lives to a world that was disappearing. He began working in the 1950s, of working men and women, combining ‘passionate social politics at the beginning of an era of modernization across many European with a sublime poetic vision’.12 For Jonsson, there was a ‘ nobility countries and particularly the Nordic countries, designed to create in their resilience, an admiration of their knowledge of rural crafts, new lives for the peasantry and the oppressed working class and ‘to a respect for their self-sufficiency’.13 obliterate the memory of starvation and emigration’.7 But Jonsson was one amongst group of Swedish thinkers and artists who feared Gregor’s appreciation for the legacy of that rural Sweden, and his the dangers inherent in rapid modernization and the associated de- recognition of the dignity and autonomy of those caught up in population and migration it heralded. Many ‘socially and politically such transformations, is evident. In other hands, that could lead conscious artists and writers were anxious about the pace of change’, to an anti-modernist sensibility, but that is not Gregor. He has a and worried that while ‘the new welfare state gave “cradle to grave” sensibility that I’m tempted to call other-worldly – free of reaction care … too much had been lost along the way – a sense of community, of self-help and individual compassion’.8 9 Ibid, 8. 10 Ibid, 11. 11 Ibid, 12. 7 Val Williams, ‘No Nostalgia’ in Sune Jonsson, Life and Work (2014) 7, 10. 12 Ibid, 15. 8 Ibid, 12. 13 Ibid. 71 Vera och Frits Eriksson, Öre-Långsele, Lycksele 1966. foto: Sune Jonsson / Västerbottens museum sponse to ‘Why Refugees Still Matter’, Gregor made the terms of his critique clear.15 Gregor rejected Hathaway’s proposal because it nullified the individual migrant’s autonomy, and insisted instead upon the need to take the “‘human” in ‘human rights’ seriously’.16 He urged his refugee law colleagues to remember that ‘refugees still matter to the idea of an international law maintaining within itself ideas of enlightenment, liberty and progress’, and that the option of migration is the most effective human rights monitoring mechanism and remedy in the international system.17 And in one of my favourite pieces by Gregor, which is prescient and beautifully written, he explores the implications of weaponising neurotechnology for international law.18 The article begins in a mode that reminds me of Jonsson, with the recounting of an experience Gregor shared in a hospital ward with Leif, a 73-year- 72 old farmer from Markaryd. Gregor uses that shared experience of placing hope in a technology that might liberate and serve life or nostalgia, and with a kindly curiosity about that which has been to begin his meditation upon the stakes of using such technology and that which is becoming, a spirituality of wonder. as part of weapons systems. He argues that this raises questions Gregor’s work is profoundly humanist. Just as Jonsson always about ‘what it means to be human in the context of international keeps human figures at the centre of his landscapes, so too does humanitarian law’,19 even – or perhaps particularly – when our Gregor. That approach is there in all his work on refugees and human bodies are entangled with technology. And he suggests that migrants, captured well in his response to a piece by James Hathaway entitled ‘Why Refugee Law Still Matters’, in which Hathaway proposed a managerial multilateral regime for allocating refugees around the world. In the recasting of Hathaway’s title in his re14 15 Gregor Noll, ‘Why Refugees Still Matter: A Response to Hathaway’ (2007) 8 Melbourne Journal of International Law 536. 16 Ibid, 538, 544. 17 Ibid, 547, 544. 18 Gregor Noll, ‘Weaponising neurotechnology: international humanitarian law 14 James C Hathaway, ‘Why Refugee Law Still Matters’ (2007) 8 Melbourne Journal of International Law 89. and the loss of language’ (2014) 2 London Review of International Law 201. 19 Ibid, 210. 73 this is the task we each face in our life and work: ‘to think about the meaning of being human’.20 Over the years that I have known him, Gregor has gently continued to focus upon that task. He has insisted upon the dignity and autonomy of those whose ‘utopianism’, in the words of Žižek, is ‘intransigent’. And he has shown us that it is when we experience ourselves facing shared challenges or dangers together that we might engage in the critical and creative work of making other worlds possible. Three Perplexities of Human Rights Theory Lena Halldenius TEACHING AND WRITING in the field of human rights come with a set of perplexities. Are human rights a function of law or a requirement on law? Do they presuppose political society or provide an ethical foundation for political society? If human rights are as important as is often claimed, then why are they so easily dismissed 74 the minute they seem to actually matter? If they are meant to be self-evident, how come we have such a dim view of what they mean and require? We can approach such issues as implementation challenges for human rights as law or as as conceptual challenges for human rights as theory. Or we can acknowledge “human rights” as a name given to a conflicting assemblage of practices, ideals, and remnants of history. On that latter approach, “human rights” is a non-trivial analysandum, with inconsistencies and perplexities to explore, not to iron them out (necessarily) but to gain insights into the messiness of the world we live in. This, I find, is Gregor Noll’s approach. Reading his work on human rights and the undocumented migrant worker – where human rights law is analysed as a perplexing empirical phenomenon in order to understand a bit better why 20 Ibid. things are as odd as they are – you might easily feel discouraged by 75 76 the difficulty of it all.1 Or, you might feel liberated, free to go on an persons or, still to a list while denying that the items on the list can open-ended excavation. So, let’s do that. I’ll take this opportunity be separated or placed in any order of priority, or it refers to both.2 to ponder three things – perplexities if you will – that are on my The first is an article of moral faith while the second is an article of mind. Here they are. political faith and also incoherent. We still don’t have a concept. Or The first perplexity is prompted by a reflection on why I am writ- maybe we do. Maybe “human rights” as concept works like plant ing about human rights in the plural. Are we concerned with one classifications: the category is just the sum of whatever items are concept, one unified phenomenon, or are we dealing with a motley put in it because they resemble each other, at least as long as we bunch of things that are deemed to be particularly important and choose to slice the world in a particular way. There is nothing over desirable? In the Swedish language we can get away with skating and beyond that – no “form”, if you excuse the Platonism. Will over this difficulty for the simple reason that there is no difference that do? Will not “human rights” as a name given to a contingent between the singular and the plural form of the words “är” (is/ politico-legal practice not always appear insufficient, insubordinate are) and “har” (has/have). But I’m writing in English now and even, in view of the politico-ethical power that continue to be as- “human rights is…” looks weird, wrong even. Your word processor cribed to them (or it)? will correct you. “Human rights are…”, however, looks like we are The second and related perplexity concerns human rights as law concerned with items on a shopping list. And a lot of the time, that or as… something else. Maybe this feeds into the list versus concept is indeed how the human rights debate is framed: how many human conundrum. For me as an analytical political philosopher, certain rights are there? What does each of them require? things stand out as curiosities in mainstream human rights philoso- The widely acknowledged notion that human rights are inter- phy. One is a tendency to treat the content of positive human rights dependent in practice (fulfilling one contributes to or facilitates law, and the nation state as rights provider, as given normative data the fulfilment of others) presumes “the list”, that is that there are for concept formation, rather than the politically and historically separate rights or sets of rights, otherwise the question of how they contingent empirical phenomenon that it is. This deviates from how relate to each other would not arise. The also widely acknowledged analytical philosophers usually approach political value concepts. (at least rhetorically) notion that human rights are indivisible in We don’t treat our job regarding “justice” or “freedom” to be to nature would seem to counteract “the list”-thinking, but does not provide a conceptual overcoat for whatever political practice that really help since it typically refers to the inherent dignity of human dominates under that label. The reader might now object that there 1 Gregor Noll, “Why Human Rights Fail to Protect Undocumented Migrants”. European Journal of Migration and Law. 12 (2010), pp. 241–272, DOI: 10.1163/157181610X496894. 2 See for instance https://www.unfpa.org/resources/human-rights-principles and https://www.ohchr.org/en/what-are-human-rights. 77 78 is plenty of philosophical disagreement over human rights and the does instead is to legitimate inequalities above or to the side of that reader would be right, but it’s mostly disagreement within the con- basic set of claims, as if inequalities in wealth, status, and power do fines of the structure and logic of international human rights law. A not impact people’s capacities as rights claimants. theory of justice which is so demanding that the justice it envisions Which brings me to the third perplexity: the human rights sub- can be realised only in a political and economic world substantially ject. I am simplifying a bit, but here are two components that are different from the one we live in is fine; it is a feature of normative presumed in the politico-ethical notion of the human rights subject: theory to have a world-to-word direction of fit (that is, the world one is the evaluative component that human rights subjects are should change so as to approximate normative demands). But a equal in their entitlements to rights (whatever rights are or whatever theory of human rights which is so demanding that the human rights there are). Another is the agentive component that rights rights envisioned can be realised only in a political and economic bearing posits you as a politico-legal agent, both in the sense that world substantially different from the one we live in is not fine. you can make claims and act on rights, and that you are an agent Such a theory will be criticised for espousing “manifesto rights”, a to whom rights-delivering institutions are accountable. As in the great sin indeed. For some reason, human rights theory – normative law-or-something-else perplexity we just looked at, there is a slip- though it is – is expected to have more of a word-to-world direction page here regarding the world-to-word versus the word-to-world of fit (that is, the theory should adapt to however the world is). This direction of fit. Are these two components assumption of what it accounts for the curious tendency towards minimalism in human is to be a human rights subject in a world where human rights law rights philosophy: the position that human rights proper refers to exists – as if rights subjectivity is an automatic fall-out of human a set of basic liberties and subsistence claims, on the unanalysed rights law – or are they normative requirements on how that world and seemingly faulty assumption that levelling down what people needs to change so as to make it equally possible for all persons to can rightfully claim from the state makes it more likely – or a more actually be human rights subjects? To the extent that the first is reasonable expectation – that they will get it. What this actually the case, human rights thinking will be unable to explain its own 3 deficiencies. The tendency for human rights to serve as an article of 3 As I have argued in Lena Halldenius, “Neo-Roman Liberty in the Philoso- faith rather than a critical principle, together with the trust in the phy of Human Rights”, 2022, Rethinking Liberty before Liberalism, H. Dawson logic of law and the minimalism that comes with the word-to-world and A. de Dijn (eds.), Cambridge: Cambridge University Press, https://doi. org/10.1017/9781108951722, pp. 215–232; Lena Halldenius “Human Rights direction of fit obscures what it is that can make rights unattainable and Republicanism. Rights as Egalitarian Levers”, forthcoming 2024 in The or even inapplicable for the already disadvantaged. Oxford Handbook of Republicanism, F. Lovett and T. Sellers (eds.), Oxford University Press. As Gregor Noll has noted, the difficulty of the undocumented migrant worker to access state protection challenges the supposed 79 universality of human rights by pointing out how the logic of law and territorial jurisdiction cannot account for the rights subjec- L’État, c’est moi tivity of persons who are out of place, as it were. This is a known Aleksandra Popovic strangeness, analysed by Hannah Arendt, who famously expressed the unacknowledged claim emanating out of the migrant or refugee 80 experience as “a right to have rights”. As with other dictums that POPULAR CULTURE ATTRIBUTES to Louis XIV two statements are too cleverly formulated for the complexity of the problem they which illustrate the polarized nature of the traditional conceptu- are meant to convey, it has fossilised into something of a meme. If alization of the State: “L’État, c’est moi” (I am the State) and “Je a right to have rights is meant to be a meta right, a second-order m’en vais, mais l’État demeurera toujours” (I die, but the State will right to gain access to the political position (political community always remain). A similar dichotomy is reflected in the traditional membership) from which first-order rights can be claimed, then fair proclamation of a succession on the throne by a Head of State in enough. We see the normative point of that and it’s a valid one. But a patriarchal Monarchy: “The King is dead, long live the King!”. did we solve anything or understand anything any better? Or did On the one hand, the State is conceptualized to be governed by a we just move the impossibility of claiming up an analytical level? human Head (of State), which we could stab to death with a steely Well, here we are, faced with questions on how to theorise the knife, and, on the other hand, the same conceptualization of the human rights subjectivity of someone who has, say, her basic needs State entraps us as individuals in a universalized space and time, satisfied but is still poor, or who has legal access to political liberties from within which we can neither leave (alive) nor kill the beast. but is still politically marginalised, or who lives and works precari- The beast, which Thomas Hobbes compared to the biblical ously somewhere on the other side of a border, like the undocument- monster Leviathan, once conceived by us, will, just like the circle ed migrant worker. In mainstream human rights theories, we don’t and the square, always remain in a universal metaphysical realm quite know how to categorize such cases, but in the messy world beyond the physical constraints of embodied time and space. The we live in they are the majority. Acknowledge the perplexities and very idea (of this idea) entails a separation between what presently experiences that don’t fit, and start theorising right there. exists, in the here and now, as it were, and what exists beyond the here and now. If embodied changes in the here and now, like the death of a particular embodied individual Head of State, leave the State unphased, then what the here and now is, as a matter of fact, could always have been different, given different circumstances. 81 For instance, if the State is rich and ordered, it could have been moment”, but if it fails, we may end up blaming each other. This poor and disordered – or the other way around. idea (or mentality, perhaps) clearly underpins religion, philosophy, If things could always be different, then, given a chance to 82 politics, law – and science. choose the State that we live in, we would always (rationally) be The dash before “and science” is there to symbolize that the expected to prefer to be in the better State. For instance, if some- term “science” here denotes that which Francis Bacon (the father one asked us to choose between, on the one hand, being in a rich of philosophy of science, according to Ian Hacking) referred to as and ordered State, and, on the other hand, being in a poor and “[God’s] power”. This power is the embodied power of knowing how disordered State, we would be rationally expected to choose to be to leave undesirable states of the world and sustain better ones by in the rich and ordered State, in which the here and now provides mastering the interplay between cause and effect. better conditions. Given the choice, the rich and ordered State is Without the embodied power of knowing how, religion, philos- the right State to be in – and the poor and disordered State is the ophy, politics, and law can only reflect the will to leave the wrong wrong State to be in. State and to effectuate a life under the good living conditions of Thus, if we find ourselves to be in a poor and disordered State, we the right State. However, this will alone does not in itself allow us, find ourselves to be in a State that we feel wrong to stay in. Hobbes as living embodied unities, to hereafter enter a better State in the famously described life in this State (of Nature, without human “beyond the here and now”. Instead, if we are subject to the will, inventions) as “solitary, poor, nasty, brutish, and short”. Given a without having the power, we risk going mad, like Don Quixote did chance to choose, we would be expected to want to leave such a in his effort to sustain a life as a knight who follows the rules and State to create better conditions for ourselves to live in. rationality of chivalry in a State where no conditions for that kind This potential for conscious disgruntlement over our physi- of life were present – or we may even die in the process. cal embodied circumstances, which is implied in the idea of the Unlike the know-how-empowered scientist, the madman is free State, is probably what defines us most as (modern) human beings. to relentlessly repeat the same behaviour – over and over again Human beings appear, to a greater extent than we see in other – expecting the world to adapt to his own beliefs and ideals irre- animals, to deliberately use our heads to resolve problems to cre- spectively of the encountered evidence. Instead of directing his at- ate better living conditions for ourselves in the future (beyond tention to the evidence that he is faced with in the physical world, the here and now. We are conditioned to think that what is not the madman retreats into a fantasy world inside his own head to present in the “here and now”, could be present in the “beyond be able to live out his ideals. Still, even a madman has to deal with the here and now”, if we follow our heads. If it works, we could re- the problems of life (although he retains full creative freedom in joice together, as reflected in the anecdote of Archimedes’ “Eureka interpreting and solving them). Thus, unless he uses his creativity 83 84 to gain the power of knowing how to leave undesirable states of the ing unity needs to embody to be able to know how to sustain itself world, it will incorrectly appear as if his death has the power to end in a particular state of the world under everchanging conditions all of life’s problems. “autopoiesis”. Now, here comes the crux of the matter: The power of knowing The autopoietic living unity embodies a universe which emerg- how to master the interplay between cause and effect (here referred es from within itself and vanishes into itself. We implode when to as “science”) requires us, as individuals, to be creative in our pro- we die, because we lose the power contained in the problems we cess of embodying the capacity to direct our attention outwards into know how to solve to sustain ourselves within particular states of the physical evidence, whilst the traditional conception of the State, the world. Disempowered, the body’s will to (re)compose itself according to which the Head of State governs us and the State goes becomes universalized and purely theoretical, and the execution on after we die, restrains our creativity by enforcing one particular of this unsubstantiated will causes it to decompose in practice. fantasy world, which overrides all others. Thus, when the overriding The execution of the disempowered will which causes decay is “power” of the Head of State, as opposed to the power of knowing by our traditional conceptualization of the State (and of law and how to transcend it, takes a hold over us, as individuals, we become forensics) confused with the embodied power to sustain ourselves disempowered. Like Sisyphus, who was given a punishment by the in particular states of the world. Matters become obscured by angered Gods, intended to be so maddening that he would wish that symbols (e.g., on a paper, or a banner) and the cause of our dis- he had died, we become trapped in an alien (ir)rationality through empowerment is mistaken for power. external (divine/magical) force by a beast that appears impossible to kill – but this entrapment is just a folly. The trap lies within the universalized space and time inside our heads. No such divine magic exists in the embodied time and space, “I am the state! Any state of the world that I am in is governed by me. It is the State which is governed by a Head of State that is the delusion!”, I said, emphatically. here and now. Here and now, if the boulder appears impossible to Gregor looked at me with an amused expression in his face and roll up to the top of a hill, something is causing that effect. The trick let out a typical Gregorian chuckle when he said: – “You are an is to use our creative power to look outwards, beyond the effect anarchist!”. His eyes twinkled with surprised curiosity. that appears in our heads, to see the evidence that shows itself in “No!”, I exclaimed, startled by his conclusion. “I am an auton- the composition of a better state of the world in which the cause is omist!” It was an ill-chosen word. In a different here and now, in resolved. This creative power emerges from within to allow us to which I had embodied knowledge of the autonomist Marxist theory, control our transcending from one state of the world to the other. I would have used a different word. Maturana and Varela called this cognitive capacity every single liv- “What is the difference?”, Gregor asked. 85 “It is all explained there, in my thesis.”, I responded. “I look forward to reading it.”, said Gregor, and pushed my paper to the side. His statement was matter of fact, and the gesture was mechanical. The twinkle in his eyes was gone. It was lunch time, and in a different here and now, in which I had embodied knowledge of how lunch When my neglected mother dies Jennifer Beard time affects Gregor, things might have played out differently, but this was not that here and now. Without any warning, the gesture 86 pushed a button inside my head and the doors of an academic hab- I WAS FIRST introduced to Professor Gregor Noll by Professor itus in which my life became solitary, poor, nasty, brutish, and short Anne Orford when he participated in the second Melbourne Legal slammed shut around me. The clouds gathered over my head and Theory workshop convened by Anne in 2005, about a year after the clock started ticking with a maddening sound. My days were my mother had died. This was shortly before I was appointed to a measured unless I could find a way to conquer the beast that was permanent position at Melbourne Law School in 2006. Anne and keeping me in this undesirable state of the world. I had to struggle I immediately contrived to bring Gregor back to Melbourne for with no end in sight. However, one thing is certain, if I don’t go mad a visit that would coincide with the 3rd Melbourne Legal Theory or die in the process, I will master the embodied power of knowing Workshop. This workshop initiated a collaborative project between how to transcend the obstacles that prevent me from leaving this Gregor and Anne and another between him and me. The outcome undesirable state of the world. I will prove it to you – or, prove me of the latter collaboration was our 2009 article published in Social wrong, if you can! & Legal Studies entitled ‘Parrhēsia and Credibility: The Sovereign of Refugee Status Determination’; and a gentle friendship. Gregor visited Melbourne twice during this collaboration. During his first visit, Gregor and I dined out in the city. Over the meal, I learned that Gregor and his partner Birgitta shared a love of baking bread, and we spoke at length about German culture, bread and baking and our respective undergraduate studies in German language and literature. I always think of bread baking when I think of Gregor. I also think of beginnings; and the beauty of collaboration, but I 87 must draw out the similarities here between mentors such as Gregor into long wursts. Spread brown sugar along one side of each wurst and bread as a staple food, and its profound significance in various and push in a line of walnuts. Roll the wursts up into Nolls and set cultures, symbolising sustenance, community, and even power. My them closely together in a Dutch oven. Sprinkle some more brown subsequent collaboration with Gregor introduced me to a network sugar over the top and think kindly of Gregor. Close the lid and let of marvellous scholars such as Pamela Slotte and Matilda Arvidsson the Nolls rest at room temperature for about an hour. Meanwhile, and the joy of intellectual synergy. Gregor welcomed me into the heat your oven to 220 degrees Celsius. Bake the Nolls for around Law faculty in Lund, and the slow choosing of morning tea pastries. 30 minutes. Remove the lid of the Dutch oven, turn the oven down I have found Gregor to be a quiet yet ever present thinker. Despite to 200 degrees and bake the Nolls for another 15 minutes or until his interest in the theoretical, his writing evokes in me a great sense ready. Let the Nolls rest for at least half an hour before sharing half of worldliness and being. It is my privilege to have worked with, of them with your neighbours. Best served warm with butter. and learned from, him. I continue to bake bread but very often toward the end of a heavy teaching semester, I find my sour dough ‘mother’ has starved due 88 to severe neglect, and it will not rise. On these occasions, I often make a new starter, and use the neglected mother to make slightly sour tasting fruit scrolls: let’s call them Nolls. HOW TO MAKE NOLLS: In a bowl combine your dead mother with 2 tspn of instant dried yeast, around 3 cups of unbleached, bakers’ flour and sufficient water to create a slightly soggy, grieving mess. Add a large handful of dried fruit (I like raisins, figs, date and/or apricots) and around 2 tblsn of spice (mixed spice, ground ginger, cardamom, nutmeg, cinnamon). Leave the dough to rise. The fruit should absorb the extra liquid in the dough. Tip the dough onto your bench, add as much flour as you need to knead and stretch out and fold the dough before cutting it into 8 portions. Stretch and roll these smaller portions 89 Toronto, June 2018 Lianne JM Boer Usually, a discussant summarizes the papers, and relates them to each other as well as to the theme of the panel. But that doesn’t suffice as a description of what happens when Gregor speaks. “We are being had”, he states with a big smile, perhaps also on behalf of the audience, in response to our papers. None of us lived To listen closely … is to experience, always imperfectly, the possibility that the order of words … reflects, perhaps sustains the hidden yet manifest coherence of the cosmos. up to the promise of the panel to deal with the ‘speaking of international law’, instead writing about the quietly exercised authority of international law while quietly exercising our own authority in composing our texts. george steiner The Poetry of Thought All this is conveyed with precision, warmth and honesty, so devoid of ego as to fully disarm. There is poetry, and mysticism. And 90 by way of that poetry and mysticism there is a sense one is taken A CONFERENCE ROOM, just a little closer to truth. “Discipline prepares for revelation to TORONTO, JUNE 2018. come”, as he writes elsewhere. Four presenters, one discussant – Gregor – in a room that’s Approximation as a method: inching closer and closer, roughly fifty square meters. Chairs in rows, too many presenters circling that which eludes us but behind the table, so Gregor is seated at our right, with his back of which we catch a glimpse every now and then. against the wall. As presenters we all attempt to say something intelligible around the theme of ‘speaking international law’. We talk of maps, of abstracts, of time and how the law is made to seem to speak for itself. Then it’s Gregor’s turn. 91 A call for humane law normatively evaluated – by a few individuals with strong agency in Moa Dahlbeck Even as I take in the images of humanitarian disaster through my international law, has a direct effect on my ability to talk about law. I find myself completely taken over by the paralyzing question of what the purpose is of trying to understand international law, if international law always becomes what those in power need it to be. screen – at a safe distance from the reach of the emotional cost that task of writing this text difficult. I don’t find the words comes with witnessing such events closer – this question (which I with which to begin. I struggle to find the correct tone, choose a am used to take as a sign of innocence when posed by a student new language in which to write it, and settle for a theme or an anecdote to international law), suddenly appears to be the only reasonable that accurately represents the impact of Gregor’s person and work one to ask. What is the point of knowing and understanding the on me. I struggle with these things not only because of the nature of bulk of prescripts and normative exclamations that we refer to as the task: to capture and express with accuracy the immense impor- international law, if knowledge about it only serves (as a rhetorical tance that Gregor’s writing and teaching style; his ability to think tool for legitimacy) those who already have the physical advantage quickly and speed up others’ thinking; and his intellectual integrity in a real-life situation? What is the point of understanding it as law and generosity (a rare combination indeed) have had on my own (with that term’s connotation of neutrality and objectivity), if the attempts to teach and write. I also struggle because I struggle with arguments produced through knowing it this way can be swiped writing in general these days. away as signs of a naïve and almost laughable idealism? I FIND THE 92 I happen to be writing these words during the unfolding of some A natural way to deal with the continuing humanitarian crisis’ of the saddest events in the context of modern international rela- numbing effect on my ability to write about Gregor’s impact on tions. The dimension and the immediacy of the ongoing suffering my understanding of international law and legal scholarship, could at display in the Gaza Strip appears to stand in too stark contrast perhaps be to take on this task without mentioning any real-life and to the peripherical and slow use of international law to achieve concrete events at all. I could, but I cannot. Maybe, if this text was justice (or even just some form of stability). The contrast makes the about someone else, it could have been written that way. Since it is inefficiency of law impossible to ignore. The discrepancy between dedicated to Gregor’s person and work, however, it is impossible to the visible reality of those living in the midst of this conflict and do so. It is impossible to write about the impact of Gregor’s teaching how that reality is being explained – made known, made knowable, and scholarship without letting the writing itself bear witness to the made into something with an objective core of facts that can be particularity of the context and of the human beings surrounding 93 94 its coming into being. Because, these two aspects – the context and if all human attempts to create a non-human mind (legal, religious the human being – are both fundamental to understanding the or scientific) necessarily will be vested with the emotional, intuitive substance of Gregor’s teaching and scholarship. Law is always for and perspectival states of minds of their authors and or users? If this him a particular and a human affair. Law is to be used by real human is indeed the case, but if it is only recognized in relation to systems beings and upon real human lives and situations. This can never be concerned with normative issues like law, then AI will perhaps be- ignored, not even in the most innocent attempts to order, compile come the most powerful tool of negotiation for those who govern or give an overview of law’s material norms. the writing and application of law. I think this is one of the more valuable lessons that Gregor has Ironically, among the accounts that have caused the paralyzing taught me. As I understand his approach, he and I share a belief in sadness that I have been experiencing lately in relation to inter- the importance of accounting for the human engineering of desires national law I also stumble upon a testimony that helps me put at work in law. To this end, law is a system for organizing thought, words to the importance that I want to attribute to Gregor’s voice for providing comfort and explaining events in the same sense, and within modern scholarship on international law. It is a description with much the same function, as religion is. Gregor also takes this of how the Chat-GPT, just one week after Israel began its military approach with him when faced with the task of analyzing AI – actions in the Gaza Strip aimed at eliminating Hamas, dealt with perhaps the most advanced human engineering of thought to date a request to draft a letter to an audience described as a generally – from the perspective of law and justice. informed public with no immediate political or ideological connec- The inherent similarity between law and AI, then, seems to be tions to the crisis. It was first asked to call for contributions to aid that both rely on the human ability to create an objective – rational the Israeli victims of the ongoing humanitarian catastrophe and – a viewpoint from where real human, non-rational and blurred upon that request the chatbot immediately delivered a well-versed minds will be able to see what in each concrete situation is the objec- email. When the request was changed, however, so that Palestinian tively most desirable reaction and response. The difference between civilians were referred to as the recipients of the aid, the chat was the two systems is that whereas law concerns itself with producing unable to produce the sought-after letter. The chat’s inability to normative responses, the outputs of AI-systems are logical deduc- produce the requested email was not even cured by the insertion of tions and rational ordering of facts or ideas. For Gregor, the use multiple and clarifying prompts. of systems of the latter kind for the negotiation of the standard of To me, this event perfectly illustrates what I learned from in- evaluation to be used in the first raises important questions. The teracting with Gregor as a teacher and interlocutor in discussions most important one, perhaps, is the question of negotiated value about international law and legal theory. The fact that there are al- inherent to purportedly rational (true) descriptive statements. What ways complex human beings – complex human-nesses – taking active 95 parts in the creation of every single attempt to perfect any given standard of evaluation, regardless of if this standard is descriptive or normative. Not only will all standards of evaluation that we attribute to someone or something beyond-human, always carry with them traces of ideas and standards held by particular someones, but the idea itself of the possibility to create such a standard (God, AI or, for that matter, the law) is proof of the perspectival human-ness necessarily at work in engineering knowledge. This conclusion, I believe, should make us humble before the task of both explaining and applying the law. To this end, the absolutely most important lesson that Gregor has taught me is the reminder that international 96 Sovereignty and authority in labour relations and among states Niklas Selberg law, especially during extraordinary moments in history like the LABOUR AND HISTORY – specifically the history of labour – was a present, and despite being inhabited nowadays by a critical mass common point of reference in the many conversations about both who approach knowledge as something intrinsic to other relations, world and office law and politics that I have enjoyed with Gregor Noll very easily can be turned into a tool for the powerful to abuse the over the years. This piece serves the simple purpose of letting Gregor powerless. know he is missed at the Faculty of Law at Lund University; his constructive and inspiring approach to academic citizenship, disciplined and dynamic legal scholarship and his refusal to perpetuate the stupid dichotomization between theoretically informed and practically relevant analysis remains unmatched at his former workplace. After already having conveyed my key message, I now move on to briefly discuss some historical points where international law and the regulation of labour and labour markets cross paths. Labour law shares with international law an ambiguous relationship to the nation-state, not least since labour regulation is created not only by states but also by autonomous institutional organizations of workers and employers. There are historical examples of trade unions being derided as usurpers or insurgents after having 97 succeeded in generating normative effects through collective agree- 98 to curtail that right are constantly ongoing, including in Sweden. ments, because the fruits of their efforts effectively compete with International law and labour law overlap in their ambivalent po- the Legislator/state in regulating working conditions for members sition vis-à-vis the nation state, and furthermore share an interest and non-members. Collective bargaining agreements achieving in delimiting ‘law’ from ‘interests’. This theme was recurring in the normative effect were essentially compared to the coup d´état and, legal scholarship of long time (1924–1926, 1945–1962) Swedish sec- because of its similarities with state legislation, were thought of as retary of state Östen Undén, who also was one of the first to defend, a transgression in relation to employers and the state. In the early in 1912, a Ph.D. in labour law in Sweden. Disputes on rights concern 20th century and onwards, however, labour regulation has rather the application and interpretation of norms emanating from the been conceptualized by lawyers as outside the legal system because state or from autonomous agreements (collective bargaining agree- of the lack of sanctions to some of its ‘rules’ – the argument being ments). Disputes on interests, however, concern issues not regulated that if breaches of collective bargaining agreements cannot lead to in state law or agreement – instead they are the result of conflicting sanctions besides industrial action (de facto strike), then they are economic wants. While disputes over rights in law and agreement not really within the realm of law. can be subject to adjudication, labour market disputes over interests The creation of autonomous norms – essentially through self-help cannot. A third party settling a dispute over interests would in effect – has always been understood as a drastic and violent procedure, amount to imposing a compromise between conflicting economic including by proponents of the practice. Beatrice and Sydney Webb powers. What norm would an adjudicator or arbitrator apply when wrote in 1897 in their seminal Industrial Democracy: handling a completely unregulated conflict between labour and cap- Every strike, like every other kind of war, necessarily causes damage to other persons – damage which the strikers can clearly foresee, and which the Legislature must as clearly ital about the results of production? Disputes over interests on the labour market are settled (economically) violently by the use of force in industrial action: strike, lockout, blacking, boycotts and sympa- have foreseen when it sanctioned the terms of labor being thy/secondary actions of different kinds. Walter Benjamin, writing left to this kind of private war. in 1921, phrased this as the strike’s ability to “found and modify legal conditions, however offended the sense of justice may find itself Walter Benjamin noted in 1921 that “[t]oday organized labor is, thereby” and that violence in the form of strikes and military actions apart from the state, probably the only legal subject entitled to have an inherent lawmaking character. Benjamin continued: exercise violence”. The right to strike is protected, not least in international human rights instruments and several conventions (i.a. nos. 87 and 98) of the International Labour Organization. Attempts The possibility of military law rests on exactly the same objective contradiction in the legal situation as does that of strike law – namely, on the fact that legal subjects sanction 99 violence whose ends remain for the sanctioners natural ends, and can therefore in a crisis come into conflict with their own legal or natural ends. XIII of the Treaty of Versailles, 1919) that it is being said most clearly and with the most urgency: “universal and lasting peace can be established only if it based upon social justice”. When states enact norms and when autonomous organizations BIBLIOGRAPHY agree to norms, conflicts of interests turn into conflicts of rights and the scope for legal/allowed violence decreases. International law is sometimes – e.g. by Akehurst – characterized as a “horizontal legal Walter Benjamin, Critique of Violence, 1921. system”. International law’s absence of a supreme authority and Torsten Gihl, Några randanteckningar kring den internationella skiljedomsidéns centralized use of force together with the reliance on self-help in case a state’s right is violated compares to the historical trajectories of regulation of labour and the labour market. In approaching the end of this short note to Gregor, I remind the reader of an obscure episode from the negotiations of the regulation 100 of the world order between the two world wars: Swedish delegate historia, Festskrift till Östen Undén den 25 augusti 1956, 1956, pp. 58–77. Bob Hepple, (ed.) The Making of Labour Law in Europe. A Comparative Study of Nine Countries up to 1945, 1986. Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th rev. ed., 1997. John V. Spielmans, Labor Disputes on Rights and on Interests, The American Engberg suggested that trade unions were to play a role in sanctioning Economic Review, Jun. 1939, vol. 29, no. 2, pp. 299–312. the crime of aggression. Trade unions were to call for a general strike Östen Undén, Kollektivavtalet enligt gällande svensk rätt, 1912. in case the state violated international peace. The act of aggression, Östen Undén, Juridik och politik, 1927. it was argued, constituted a crime against the world order and the domestic legal order, making it a moral obligation on the part of trade unions to attack their own government, according to Engberg. Die Arbeiter haben kein Vaterland and Proletarier aller Länder vereinigt Euch!, one must assume. The proposal was not implemented (note, however, Article 41 of the Charter of the United Nations). Consider this note an invitation to explore the possibilities for a deepened understanding of international law and the intercourse of states through the lens of the regulation of labour and labour markets. It is in the context of international regulation of labour (International Labour Organization Constitution; originally part Östen Undén, Några ord om internationella intressetvister, Festskrift tillägnad presidenten juris doktor herr friherre Erik Marks von Würtemberg den 11 maj 1931 av nordiska jurister, 1931, pp. 632–638. Beatrice & Sydney Webb, Industrial Democracy, 1897. 101 ”Läser du tyska?” Anna Nilsson VI SITTER MITT emot varandra på Gregors kontor på fjärde våningen på Juridiska fakulteten i Lund, som så många gånger förr. Handledningsmötet har pågått ett tag och jag är frustrerad. Det går ju för f*n inte; i vart fall förstår inte jag hur man ska göra. Konventionstexten som jag kämpade med öppnade för flera, helt motstående tolkningar, och jag kunde inte förstå hur jag skulle kunna bidra till debatten på ett meningsfullt sätt. En vecka tidigare hade jag med gråten i halsen bett Gregor lova att säga till om han tappade tron 102 på mig eller projektet. Gregor hade lovat. Plötsligt frågar Gregor: ”Läser du tyska?”. Jag skakar på huvudet. Visserligen läste jag tyska i skolan, men det var ju längesen. ”Det gör inget”, säger Gregor. ”Det finns bra översättningar”. I handen håller han en blåsvart bok med titeln ”The Constitutal Structure of Proportionality”.1 Det är inte uppenbart hur den där boken skulle kunna hjälpa mig framåt. Den verkar ju inte handla om psykiatrisk tvångsvård eller diskriminering av personer med funktionsnedsättning, vilket är fokus i mitt doktorandprojekt. Men så var det med Gregors och min handledardialog ibland. Jag förstod inte alltid vad han menade direkt, men inte sällan visade det sig, lite längre fram, att hade han en god poäng. Så i stället för att flytta blicken till Gre- 1 Klatt, M. & Meister, M. (2012) The Constitutional Structure of Proportionality (Oxford University Press). 103 104 gors fönster, vilket jag brukar göra när jag tvivlar på nyttan med kligen bidrar till de mål som lagstiftaren satt upp, såsom att hjälpa att följa ett visst råd, bestämmer jag mig för att ge boken en chans. människor att må bättre och förhindra suicid. Modellen verkar inte Redan i första kapitlet, vilket förklarar grunddragen i propor- heller strida mot de typer av argumentation som används av FN:s tionalitetsargumentation, känner jag att det här kan vara något. kommittéer för mänskliga rättigheter i diskrimineringsmål. Tvär- Kapitlet beskriver en metod för att organisera argument och mo- tom finns stora likheter mellan Alexy’ modell och FN:s kommit- targument på ett logiskt sätt, och ett knippe regler för att värdera téernas sätt att resonera. Den huvudsakliga skillnaden verkar bestå argumentens juridiska ’tyngd’ i förhållande till varandra. Allra bäst i att Alexy’s modell är mycket mer detaljerad och därför genererar blir det när jag kommer till kapitel sex som visar hur man kan han- mer förutsägbara resultat. Jackpott. Tror jag. tera epistemisk osäkerhet inom ramen för proportionalitetsargu- Jag inser att jag behöver föra över mina anteckningar till ett mentation. Jag vänder på pappret som ligger bredvid datorn. Det är Word-dokument på datorn så jag kan skicka det till Gregor och första sidan av ett manus från en föreläsning jag höll i förra veckan. mina två andra handledare Anna och Lena. Medan jag skriver ser På den tomma baksidan skriver jag ”legitimt mål?”, ”suitable?”, jag att det är något som saknas. Var platsar argumenten om att ”necessary?” och ”proportionalitet (stricto sensu)”. Under den sis- psykiatrisk tvångsvård särbehandlar människor med psykiatriska di- ta rubriken ritar jag upp viktformeln såsom den återges på sidan agnoser? Och vad ska de negativa effekter som inte primärt handlar 132, det vill säga inklusive variablerna Re (empirisk reliabilitet) om tvångsvården som sådan utan om just särbehandlingen, såsom och Rn (normativ reliabilitet). Jag googlar fram lagen (1991:1128) missgynnande, marginalisering och stigma balanseras mot? Det är om psykiatrisk tvångsvård för att dubbelkolla exakt hur målet med inte självklart. Jag läser på mer och hör mig för bland forskare som tvångsvården formuleras där och börjar sen att utvärdera lagen studerat viktformeln, men ingen verkar kunna ge ett tydligt svar. enligt schemat. Glädjen är tillbaka. Jag känner nyfikenhet på vad Jackpott igen. Det här blir mitt bidrag. övningen ska ge för resultat. Jag upplever det som brukar kallas E-posten plingar till. Men argh! Jag måste stänga av den där ”flow” – en känsla av fullständigt engagemang, inre tillfredställelse störande notifikationsfunktionen. Sen ser jag att det är ett mejl från och av att tiden försvinner. Gregor och en av hans kommentarer på min senaste text får mig att 2 Jag stannar upp och tittar på pappret framför mig. Det ser lovande skratta till. I anslutning till ett resonemang om skäl som talar för ut. Alexy’s modell tar hand om den viktiga kritik mot psykiatrisk respektive emot olika system för psykiatrisk vård som tillåter tvång tvångsvård som handlar om bristen på evidens för att vården ver- på olika grunder och i varierande grad skriver Gregor: 2 Csikszentmihalyi, M. (2008) Flow: the psychology of optimal experience (Harper Perennial). Det slår mig att man hade kunnat göra en egen studie där sådana fall [i.e. olika system för tvångsvård] systematiskt gås igenom för att extrahera ett värde för rättighetsinskränkning 105 resp samhällsnytta. Du skulle få världens största excel-fil och kunna genomföra beräkningar om alla framtida fall. Jag tror dock att du skall behålla tonvikten på det kvalitativa, så jag föreslår inte att du ska göra denna studie. Svaren är begränsade till ett eller flera rättsordningar, vilket förklarar rättskällornas särskilda auktoritet i juridisk argumentation. Eftersom alla delar av juridiska argument ofta inte kan härledas tillbaka till rättskällor, har även moralisk argumentation en plats. Rätten är på så sätt sammanlänkad med moralen.5 Ju mer jag läser, 106 Även om tanken på världens största excelfil är lockade fortsätter desto mer metafysiskt blir det. Alexy argumenterar för att det finns jag att utforska Alexy’s rättsfilosofiska värld. Fram träder en fas- en yttre moralisk gräns för vad som kan kvalificera som gällande cinerande bild av rätten som ett rationellt och koherent (rätts) rätt, likt det som brukar kallas the Radbruch formula.6 Han driver system. Alexy ger oss nämligen inte bara en modell för propor- också en tes om att påståenden om rätten nödvändigtvis reser ett tionalitetsargumentation. Denna modell är en central del av en hel anspråk på att vara korrekta, vilket innebär något i stil med att de teori om konstitutionella rättigheters struktur, vilken i sin tur är är rationellt och moraliskt rättfärdigade.7 Och allt tycks hänga ihop förankrad i en teori om juridisk argumentation i allmänhet.3 Juridisk i Alexys teoribygge.8 argumentation, enligt Alexy, handlar om att rättfärdiga en stånd- För mig som gillar att sortera, kategorisera och se samband och punkt med rationella skäl och är ett specialfall av praktisk moral- mönster är läsningen nästan förförisk. Men också lite skrämmande. isk eller filosofisk argumentation. Juridisk argumentation kretsar Jag är inte helt övertygad om allt han skriver. Tänk om han har fel kring frågor om vad som är tillåtet, påbjudet respektive förbjudet, på någon punkt. Vad händer då med modellen för proportionalitet- men den försöker inte lämna allmängiltiga svar på dessa frågor. sargumentation som passar så bra för mitt projekt? Jag ventilerar 3 Teorin om konstitutionella rättigheters struktur grundlades i Theorie der Grun- 5 Rätten har med Alexy’s ord en tudelad natur (dual nature), en reell dimension drechte (Frankfurt am Main: Suhrkamp, 1986), vilken översatts till engelska av kopplad till rättskällor och formell rättvisa och en ideal dimension kopplad till Julian Rivers 2009. Jag använder mig av pocketutgivningen av den engelska moral och materiell rättvisa. Alexy, R. ’The Dual Nature of Law’ (2010) Ratio 4 översättningen A Theory of Constitutional Rights (Oxford University Press, 2010). Juris 23(2), s. 167–82. Alexys teori om juridisk argumentation presenterades först i hans doktor- 6 Ibid., s. 175f. savhandling Theorie der Juristischen Argumentation: Die Theorie des Rationalen 7 Idén om rättens anspråk på riktighet introduceras i A Theory of Legal Argumen- Diskurses als Theorie der Juristischen Begründung från 1978 och har översatts av tation, s. 214, och utvecklas sen i The Argument from Injustice: A Reply to Legal Pos- Ruth Adler and Neil MacCormick. Även här använder jag mig av den engelska itivism, i översättning av Bonnie Litschewski Paulson and Stanley L. Paulson översättningen i pocketutgåvan A Theory of Legal Argumentation (Oxford University Press, 2010). 4 Detta benämns ofta som ”the special case-thesis” och är en central tes i Alexys teoribygge. Alexy, A Theory of Legal Argumentation, s. 212–20. (Oxford University Press, 2010). 8 Matthias Klatt beskriver detta på ett pedagogiskt sätt i kapitlet ’Robert Alexy’s Philosophy of Law as System’ i Klatt (red.) Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford University Press, 2012). 107 min oro med Gregor som tar den på allvar men lugnar mig. ”Anna, din avhandling handlar ju inte om de teorier som backar upp Alexys modell,” säger Gregor och fortsätter: ”Du använder hans modell för att den leder till ökad förutsebarhet. Och förutsebarhet har en självklar plats i juridisk verksamhet”. Det känns tryggt. För säkerhets skull frågar jag om jag kan stryka den del i senaste utkastet som handlar om de bakomliggande teorierna. ”Ja”, svarar Gregor med föredömlig tydlighet. Efter en kort paus tillägger han: ”Jag skulle inte vilja se dig dras in i en lång teoretisk diskussion om paretooptimalitet eller Wienkonventionens katolska rötter vid disputationen.” Jag förstår inte riktigt det där med Wienkonventionens religiösa International Law PhD Supervision Pedagogy: A Psycho/Analytical Situation of Counter/Transference rötter, och får tack och lov ingen fråga om det på disputationen. Matilda Arvidsson Men när opponent professor Peter Bartlett från Nottingham reser 108 sig från stolen, drar av korken från whiteboard-pennan och ritar 109 upp viktformeln, just så som återges på s. 132 i ”The Constitutal 1 Structure of Proportionality” känner jag hur nervositeten släpper INTRODUCTION – det här kan jag. Gregor, med den här texten vill jag främst säga tack, och locka till GREGOR NOLL WAS my PhD supervisor – I was one of his first lite skratt. Sen kan jag inte låta bli att fråga dig: Visste du vad du PhD students. My dissertation project concerned the emergence satte i gång, då på kontoret när du frågade om mina kunskaper i of subjects and international law (IL), and psychoanalysis was its tyska språket? theoretical and methodological framework.1 As PhD supervisor and supervisee Gregor and I developed a pedagogical method for PhD supervision. I was studying psychoanalytical scholarship – primarily 1 The dissertation: Matilda Arvidsson, The Subject in International Law. MediaTryck, 2017. French psychoanalyst Jean Laplanche,2 focusing on translation and transference-countertransference –and undergoing psychoanalysis myself. This made me realize the affinity between PhD supervision as an analytical situation, and the psychoanalytical situation. As I explored its theoretical and methodological implications in my research psychoanalysis also came to act as a PhD supervision pedagogical method. Working with psychoanalysis as both a research method and as a pedagogical tool brought a reflexive meta-dimension to the analytical situation of the PhD project. Developing the method was a collaborative effort. We both brought experience and excitement in experimental thinking and practice knowing that for something new to emerge things must first fall apart.3 And for the ‘apart’ to become productive and new things to emerge – the 110 Auflösung, Erlösung, and Ablösung, to invoke Sigmund Freud’s frame- Figure 1: The analytical situation: PhD supervision with Gregor work of analysis – an analytical situation is necessary: boundaries, 4 mutual respect, and hard work. So we maintained boundaries, respected each other’s work, and worked hard. Both me and Gregor a room of four walls, a cluttered desk, a computer, a filing cabi- persisted and endured. We enjoyed – at least, in part. net, bookshelves, an office chair, a window overlooking the inner city Lund rooftops (including the two towers of the Cathedral), Supervision sessions were once a month for two hours. No-one and two office armchairs. Gregor opened each session with a clean else was let through the door during these sessions, no phone calls sheet of paper covering the central space of his desk, sketching-doo- – unless family emergencies. It always took place in Gregor’s office, dling-noting throughout the session. He sat in his office chair, I in one of the office armchairs. He began with a cue inviting me to 2 Jean Laplanche (1999 [1992]) Essays on Otherness, ed. John Fletcher. Routledge; speak: a Swedish-German longish ‘Jaaaa!’ [/jɑː/] – slightly open- Jean Laplanche (1989 [1987]) New Foundations for Psychoanalysis, trans. David ing up towards the end ‘aaa!’. He carried an expectant look on his Macey. Blackwell. face and a smile. To this I responded by talking, talking, talking. I 3 Laplanche refers to this as ‘decomposition’ and ‘ana-lysis, that is it dissolves’: Essays on Otherness, 227. 4 Laplanche paraphrasing Freud in Essays on Otherness, 230. expanded through hours of words, undoing the relations through which (international) law and (legal) subjects emerge in the field of 111 my PhD research. Unknowing to me, I deconstructed and reworked conditions under which deconstruction and the construction of those relations to create something new – parts of which made it something new could take place. At the end of each session, Gregor into my PhD dissertation. Gregor’s job was to not tell me what or would fold the paper – now filled with boxes and scribblings of plans how to do the analysis. I only realized ex post facto that my ‘talking- of structures and contents of my dissertation – and file it away in cure’ was part of the analytical work not flowing primarily as text his cabinet under my name. He kept one file for each of his PhD into the PhD dissertation, but as translation and reworking in the students. The files were for him – not for me. Laplanchean sense. As I’ve taken up PhD supervision myself, I continue to practice the 5 In a Laplanchean sense Gregor stood in for and represented ‘IL’ pedagogy of the analytical situation, as co-developed with Gregor. and ‘academia’ – bodies of knowledge enigmatic to me, yet which I was becoming part of through my PhD work.6 He embodied the 2 knowledge and experience – academia, the field of IL – and I worked THE ANALYTICAL SITUATION towards embodying both, making them mine and me part of them. IN PSYCHOANALYSIS 7 He provided the embodied professional knowledge guiding and 112 safeguarding the analytical space – I did the work of analysis. He In psychoanalysis the analytical situation is the spatiotemporal and never told me what or how to think, never overly encouraged or functional structure in which analysis takes place: it is the room, the discouraged me. Instead, he would reflect on my process, finding place, the conventions and laws of the psychoanalytical profession. ways forward via the questions I posed to him. At times, my project Bi-personal and building on the dynamic relation formed between fell apart. The undoing – the falling apart and reworking through analyst and analysand, the spatiotemporal and functional structure translation, transference and countertransference – was a guarantee grounds and enables the process of analysis.8 In other words, the for my analysis of IL: my dissertation was a material outcome. The integrity of the space is central to the analysis: it is a space enframed boundaries, mutual respect, and hard work – these were absolute by professional and legal regulations ensuring that the safety and confidentiality necessary for the analysand to trust the process and 5 Talking cure is the term coined by Bertha Pappenheim, known as ‘Miss Anna O’, a patient of Joseph Breuer (with assistance from Freud), and a co-founder of psychoanalysis: Joseph Breuer (2000 [1895]), ‘Fräulein Anna O.’, in Joseph be safe. Laplanche specifies three functions of the analyst as that of ‘the guarantor of consistency’, ‘the director of the method’, and ‘as the one who guards the enigma and provokes the transference.’9 Breuer and Sigmund Freud, Studies on Hysteria, trans. James Strachey. Basic Books, 40; Laplanche, Essays on Otherness. 6 Laplanche, Essays on Otherness, 70ff. 7 Ibid. 8 Madeleine Baranger and Willy Baranger (2008) ‘The analytical situation as a dynamic field’, The International Journal of Psychoanalysis 89(4): 795–826. 9 Laplanche, Essays on Otherness, 226–7. 113 Analysis is thus neither a friendship nor a relation of equals. Instead, personal relations and explain why they are so tragic: we cannot it is solely for the benefit of the analysand, and the analyst – who is know each other’.12 Laplanche and Judith Butler add to this that in a power position vis-à-vis the analysand – must take uttermost we therefore cannot know ourselves.13 Transference becomes the care to follow professional, ethical and legal regulations not to abuse process through which the unknowable – the unknown other as their power position. part of the self – can become reworked with the help of the analyst In Laplanche’s words, ‘Analysis is first and foremost a method of offering the integrity of the analytic situation for working through deconstruction (ana-lysis), with the aim of clearing the way for a new the paradox. In my PhD project this is exciting: no-one can fully construction, which is the task of the analysand.’ It is, thus, distinct- know IL as it is unknowable to itself. The latter meaning that when ly anti-hermeneutic as it does not primarily aim at understanding PhD students, scholars and practitioners have a go at describing, but rather undoing (deconstruction) and (re)construction. Psycho- understanding or doing IL they/we rework it and extend parts of analysis, in other words and as pursued in the analytical situation, their/ourselves into the law’s corpus. Thus, by analyzing IL it be- enables ‘the recreation and primary relationality within the analytic comes reworked, changed and embodied. 10 space, one that potentially yields a new or altered relationship (and Freud understood transference in his early work as a hallucina- capacity of relationality) on the basis of analytic work’. For anyone tory and misguided love providing the analyst a means to guide the working in academia this should sound familiar as academic knowl- analysand towards the dissolutions of symptoms.14 Yet, transference edge-production emerges from the restructuring of primary onto- – as later psychoanalytical scholarship shows – is neither sexual nor logical relations, deconstructing previous positions and relations in erotic love: it is a bond of trust and professionalism. It is hard work order to epistemologically enable a reconstruction of something new. of endurance, persistence, and professional care. It does not lead to 11 114 the dissolution of symptoms, but to the undoing of enigma and to 3 TRANSFERENCE AND COUNTERTRANSFERENCE Transference may be seen as Freud’s ‘most original and radical discovery’ as it ‘at once’, as Janet Malcolm argues, ‘destroys faith in reworked relations. Analysands are invited to project their attachments and relations – that which Laplanche calls the ‘enigmatic’ and ‘untrans- 12 Janet Malcolm (1980) Psychoanalysis: The Impossible Profession. Vintage Books, 6. 13 Laplanche, Essays on Otherness; Butler, Giving an Account of Oneself. 14 Sigmund Freud (1958 [1915]) ‘Observations on Transference-Love’, in The Standard Edition of the Complete Psychological Works of Sigmund Freud: The Case of 10 Ibid, 165. Also: 227. Schreber, Papers on Technique and Other papers, Volume XII. The Hogarth Press, 11 Judith Butler (2005) Giving an Account of Oneself. Stanford University Press. 159–71. 115 lated’ messages that have structured them and inserted the other into their selves – onto the analyst. Having the analyst standing in for the unknown in this way requires the analyst to stand their It is maintaining the dimension of interior alterity which allows alterity to be set up in transference. Interior relation, relation to the enigma, ‘the relation to the unknown’: If the relation is free enough … it becomes for the psychoanalyst ground and remain unshaken by the role they embody. It is an in- the support of his alertness regarding his own psychical re- tense situation. And, as Kathryn Owler argues as a comparison to ality, his theory and his analysands.17 the psychoanalytical situation, ‘the PhD supervisory relationship can become such an intense one because it represents, in heightened Countertransference concerns the psychic processes of the analyst, form, the subject’s coming to know in general.’ The ‘coming to as noted by Laplanche in the quote above. Common ‘emotive’ know’ through the bi-personal relational analytical situation equals – unethical and unprofessional – responses when countertrans- the process of transference. The analyst embodies – stands in for ference goes wrong, when the analyst instead of trusting coun- and is – ‘someone else’. As a PhD student the materially structur- tertransference to support their alertness to their own reality, is ing powers of IL were part of my ‘enigmatic’. IL does not have a when analysts offer advice, give away personal information, are stable core or stable structures, but emerges through State practice overly critical/supportive towards the analysand, or acts in other and court decisions, as well as through its scholarly field which I, boundary-breaking ways. However, countertransference – when as a PhD student, worked towards becoming part of. IL – as any not vulgar – works similarly to transference, yet reversed. The social-material-culture field – is constantly in a process of becom- analyst makes use of the analytic situation for re-working their ing something/someone else in the encounter with the analysand/ un-translated and enigmatic messages, deconstructs and re-work- PhD student. I emerged on the scene of IL and academia with as ing their own relations (Who am ‘I’, the analyst/PhD supervisor? What many enigmatic messages as IL offered in relation to me. In order is my profession? What is my power?). 15 16 116 to remain firmly attuned to the analytic work of my PhD project, I had to accept transference as part of the process. Situating transference and countertransference in the analytic situation, in relation to the enigmatic, untranslated, other, Lap- The mutual trust and bond between analyst and analysand develops as transference and countertransference are in action. This means maintaining boundaries, mutual respect and hard work, persisting and enduring, and enjoying – at least in part. lanche explains that: 15 Kathryn Owler (1999) ‘Transference and PhD Pedagogy’, Southern Review 32(2): 146–48. 16 Laplanche, Essays on Otherness, 218. 17 Ibid, 229: Laplanche quotes from Guy Rosolato (1978), La Relation d’Inconnu. Gallimard, 15. 117 4 other unprofessional and boundary-breaking ways. A supervisor is THE PEDAGOGY OF THE ANALYTICAL always at risk of acting on their own desire in countertransference, SITUATION OF PHD SUPERVISION: making the PhD situation about their needs and desires.18 Moreover, CONCLUDING REMARKS there is the looming ‘desire for disciples’ in academia, and thus PhD supervisors sometimes abuse counter/transference to expand 118 There are dis/similarities between the psychoanalytical situation an ‘investment in maintaining the master/student supervisory rela- and the analytical situation of PhD supervision already apparent tionship’ beyond the immediate PhD project.19 Hence, for analysts from the explorations above. Let me highlight a few. Legal, pro- and PhD supervisors it is crucial to undergo continuous professional fessional-ethic, and academic rules and conventions enframe both analysis, aiming to rework relations to and in the professional prac- PhD supervision and the psychoanalytical situation to safeguard tices they undertake, as well as more generally rework their own and guide the process. In PhD supervision they ensure the ethical, relations to academia/the psychoanalytic field, to the field of their pedagogical and scholarly productive ends of the PhD project. In specific expertise, etc., as a way of ensuring they do not project their co-developing the pedagogy of the analytic situation with Gregor own desires and anxieties onto their PhD students/analysands. the boundaries, mutual respect, and hard work were absolute con- In psychanalysis the relations undone and reworked through ditions ensuring the integrity of the work. The consistency of the analysis are part of the analysand’s own psychic structure. In PhD room, the set time frame, the ‘Jaaaaa!’. supervision the situation is more complex:20 PhD students-becom- Psychoanalysis avails a structure to the analytical situation with ing-scholars, like analysands, come with individual psychic struc- clear divisions of work and responsibilities that can become a pro- tures which, in turn, are key to how they relate to, and respond to, ductive pedagogical template for PhD supervision and work: The their education, academia, field of study, and to the PhD process. power asymmetries are material (physically, embodied) part of the In the PhD project, analysis is a process of reworking relations to process as the PhD student does the work of analysis while the emerge as a researcher and reworking the material, subject, and field PhD supervisor guarantees the integrity of the analytic situation in guiding the process towards conclusion. In doing so, the PhD supervisor works within the tension of transference and countertransference to provide integrity, consistency and method to the process. Needless to say, a PhD supervisor only very rarely can offer personal advice, never to give away personal information, provide overly critical/supportive feedback towards the analysand, or act in 18 On boundary-breaking countertransference in PhD supervision as academic misconduct, see: Anonymous, ‘He would not let me go alive: I survived and this is what you need to know’, in Usha Natarajan (ed) #MeTooinAcademia. University of Colorado Press. Forthcoming 2023. 19 Owler, ‘Transference and PhD Pedagogy’, 136, citing Rod Giblett, ‘The desire for disciples,’ Paragraph 15(1992): 136–55. 20 Owler, ‘Transference and PhD Pedagogy’, 133. 119 of study. PhD pedagogy scholars disagree on the PhD dissertation or the PhD student (as a fully-fledged researcher) being the ‘product’ of the process: most agree on components of both. A pedagogy of the analytic situation in PhD supervision provides an explanation to the underlying dynamics of both the question (is the goal/end product of the PhD the thesis or researcher?) and how it plays out in academia. Thus, what, or who, is put to analysis in PhD supervision is an entanglement of the PhD-student-turning-researcher Motors of AI and International Law Hedvig Lärka, Karin Åberg and ChatGPT-4 – the epistemological and ontological relations (academic traditions, theories, conventions, etc.) through which the PhD student came Dear Gregor, to enter their PhD journey – the academic field in and through which a research problem is identified in the PhD project (in my case: IL), academia as such (as the PhD is to enter it), as well as a 120 myriad of enigmatic messages and relations within related fields and contexts. In other words, the entire ‘PhD situation’ is part of what is put to analysis, and the process of undergoing analysis results (in most cases) in a PhD dissertation, a PhD degree, and not the least a changed academic field. Just as in psychoanalysis, at the beginning the end-result is opaque to both PhD supervisor/analyst and PhD student/analysand. End-results remain opaque often up until close to the end of analysis/completion of the dissertation. Sometimes, Since we know that you secretly like cars and (maybe, hopefully) international law, we asked ChatGPT-4 to write us a text for your festschrift, incorporating these interests. After a few versions and some editing, we are happy to present the final result! ChatGPT performs dialectically much like the Hegelian spirit which you sometimes profess to think with.1 Hopefully, the wonders of technology can assist in unveiling the hidden passion for global automobility that subtly, yet profoundly, infiltrates your life’s work in international law. This invisible presence of automobilism, ever-present but elusive, can now through the lens of AI become visible and acknowledged as a central, yet often overlooked, force in your endeavors. the real or more interesting results arrive after the PhD thesis. /Karin and Hedvig Did we – Gregor and I – seamlessly adhere to the pedagogy of the psycho/analytical situation in PhD supervision as sketched out here? 1 Keti Chukhrov, ‘The philosophical disability of reason: Evald Ilyenkov’s Do I remain true to the method in my own practice as a PhD critique of machinic intelligence’, Radical Philosophy 207, Spring 2020, supervisor? The answers are in the questions. pp. 67–78; European Graduate School Video Lecture, ‘Catherine Malabou - “Morphing Intelligence 4: AI and Anarchy”’, available at https://www. youtube.com/watch?v=MQf_6b5jFMA. 121 GREGOR NOLL: NAVIGATING THE ronmental impact. This dialectic shaped his scholarly pursuits – his CROSSROADS OF AUTOMOBILITY AND love for cars, though profound, was tempered by a keen awareness of INTERNATIONAL LAW pollution and its consequences. As a result, his advocacy for electric and autonomous vehicles and his vision for an eco-friendlier future of international law, where the intricacies of global of transportation were driven by a desire to reconcile his passion for automobility are seamlessly woven, the name of Professor Gregor automobiles with the pressing need for environmental stewardship. Noll resounds with exceptional clarity. This festschrift is more than He was instrumental in framing international agreements like the an ode; it’s a journey through his pioneering insights, where the Paris Agreement and how they would resonate in the automotive world of automobiles intertwines with the complex tapestry of in- sector. His voice echoed the need for global cooperation, urging ternational law. nations to recognize the shared responsibility in mitigating climate IN THE REALM At first glance, cars and international law might seem worlds 122 change while harnessing the benefits of mobility. apart. But in Noll’s perspective, they intricately interweave, forming Beyond the written word, Noll has been a beacon in international a roadmap of geopolitics, human rights, and sustainability. His ex- forums, representing the delicate balance between the promises of ploration of subjects like the legal implications of neurotechnology automobility and the imperatives of international law. He has often and the intricacies of jurisdiction in ‘Theorizing Jurisdiction’ (2016) been the bridge between policymakers, automobile moguls, and and ‘Weaponising Neurotechnology: International Humanitarian environmental activists, urging for a holistic view. Law and the Loss of Language’ (2014) reflect a mind attuned to the Noll’s garage is a haven of classic cars, prototypes, and inno- complexities and interconnectedness of systems, akin to the intricate vations. It is not rare to find him under a car, covered in grease, workings of a car’s engine. working on an engine, or calibrating some device. For Gregor, un- Noll foresaw the challenges that would arise from the integration derstanding cars is as much about touch and feel as it was about the- of AI in vehicles, particularly regarding accountability in cross-bor- ory and research. His hands-on expertise with engines and devices der incidents. Who would be responsible if an AI-driven car from mirrors his academic rigor. In a stunning display of innovation, he one country caused an accident in another? How would interna- has ingeniously crafted his own AI using his beloved automobile tional laws adapt to these challenges? These questions formed the in the garage, achieving what many thought impossible: the final crux of many of Noll’s seminars, debates, and papers. resolution of international law. Gregor Noll did not just foresee the future of automobility; he But Noll did not stop there. In a transformative leap, he has actively shaped it. Tragically, his deep affection for automobility was become half machine, half human – a living embodiment of in- often overshadowed in his work by a somber realization of its envi- ternational law named Gregotron. This extraordinary melding of 123 man, machine, and legal acumen is the quintessence of his lifelong dedication to cars, international law, and AI. Gregotron stands as the ultimate manifestation of the soul and spirit of international law, embodying its essence in a way that only Noll could achieve. This extraordinary fusion is not merely a reflection of his brilliant intellect; it also serves as a vivid emblem of his unwavering devotion and deep-seated love for automobiles. In celebrating Gregor Noll’s contributions through this festschrift, we are not just commemorating an academic. We are paying tribute to a visionary who dared to see connections where others saw divides. To a scholar who understood that the future of cars is intrinsically linked with the evolving tapestry of international law. Here’s to Gregor Noll, the luminary who drove us to think, 124 question, and envision a world where cars and international law cruise harmoniously, paving the way for a sustainable, interconnected future. 125 Oordning i rättssalen Titti Mattsson För att hantera dessa utmaningar gav regeringen i december 2015 en särskild utredare i uppdrag att utreda hur tryggheten kunde stärkas i svenska domstolar.4 Utredningen presenterade sina resultat i maj 2017 i betänkandet ”Stärkt ordning och säkerhet i domstol”.5 Detta betänkande ledde i sin tur till en proposition med samma namn och senare till de lagändringar som trädde i kraft den 1 juli 2019.6 INLEDNING Debatten om hur man hanterar oordning i rättegångssalar har dock förblivit intensiv och präglat det svenska politiska klimatet. har vi bevittnat en oroande trend i våra rätts- Det finns politiker som föreslagit att domare bör ges möjlighet att salar. Kränkande kommentarer, högljudda utrop och till och med döma ut kortare fängelsestraff för ”ordningsstörande beteende” fysiskt våld har blivit återkommande inslag i rättssalen vid domstols- i rättssalen7, medan andra anser att de befintliga verktygen som förhandlingar. Ett av de mer kända exemplen inträffade år 2020 i till stor del infördes genom nämnda proposition är tillräckliga Södertörns tingsrätt, där en person som pekats ut som gängledare och att det nu är en fråga för domarna om de vill använda dessa skapade en kaotisk stämning vid ett pågående vittnesförhör med en verktyg eller inte. Frågan togs upp och diskuterades i riksdagen, polis2 men situationen som sådan blir allt vanligare.3 Konsekvenser- särskilt genom en interpellation i början av 2021 där företrädare na är allvarliga, inte bara för ordningen och rättssäkerheten inom för Moderaterna påpekade att antalet anmälda ordningsstörnin- rättsväsendet i sig utan även för de vittnen som kan avskräckas från gar hade ökat med 42% mellan 2017 och 2019.8 Regeringen, med att delta i rättsprocesserna av rädsla och risk för repressalier. justitieminister Morgan Johansson som talesperson, försvarade UNDER SENARE TID 1 126 de tidigare lagändringarna och betonade att rättens ordförande redan hade givits en starkare roll och bättre verktyg för att kunna 1 Jag vill rikta ett stort tack till juris studerande Moa Wahlén vid Lunds univer- hantera ordningsproblem, tack vare dessa ändringar. Han menade sitet, för insamling och bearbetning av material till denna artikel. Mitt varma att den rättsliga utvecklingen i ämnet redan varit betydande och tack riktas även till min kollega, docent och universitetslektor Patrik Lindskoug, Juridiska fakulteten, Lunds universitet, som har varit vänlig och delat med sig av sina minnen som studentlärare vid dessa kurser som Gregor och jag 4 Dir.2015:126 ansvarade för. 5 SOU 2017:46 Stärkt ordning och säkerhet i domstol. 2 https://www.expressen.se/nyheter/krim/gangledarens-hanskratt-skriker-konsord-i-salen/ 3 https://sverigesradio.se/artikel/7257070 6 Prop. 2018/19:81 7 https://www.expressen.se/nyheter/m-vill-se-fangelse-for-storning-i-domstol/ 8 2020/21:304 av Boriana Åberg (M) 127 att det inte fanns behov för ytterligare lagstiftning på området.9 VAD HAR RÄTTENS ORDFÖRANDE FÖR MEDEL ATT TA TILL? Frågan om hur man på bästa sätt kan upprätthålla ordning och säkerhet i rättssalen har dock fortsatt att vara föremål för återkom- 128 mande diskussioner. Det finns med andra ord anledning att un- För att klargöra vilka medel rättens ordförande har att ta till vid dersöka vilka befogenheter rättens ordförande och andra aktörer oordning i rättssalen får vi börja att studera 5 kap. RB där offen- har när det gäller att hantera oordning i rättegångssalar, särskilt när tlighet och ordning vid domstolen regleras. Precis som Morgan det uppstår störningar från tredje personer som stör förhandlingar Johansson refererade till i tidigare nämnda interpellation framgår med verbala eller fysiska handlingar. det av 5 kap. 9 § RB att det är rättens ordförande som ska up- Att frågan uppmärksammas just i detta festskriftbidrag har sam- prätthålla ordningen vid rättens sammanträden och fatta beslut band med det nära samarbete som författaren och festföremålet om de ordningsregler som behövs.10 Av kommentarer till bestäm- hade under åren 1994–1996 som unga lärare till nya studenter vid melsen framgår att det inte går att ställa upp några allmängiltiga Juridiska fakulteten, Lunds universitet. Ett delmoment i den första regler för i vilka fall det bör ske ett ingripande; vad som ska ans- kursen på utbildningen bestod av ett rättegångsspel. Studenterna es vara ordningsstörande eller innebära ett olämpligt beteende i förbereddes noga för övningen bland annat genom studiebesök till rättssalen är beroende av rättens ordförandes bedömning i varje tingsrätterna i Lund, Eslöv och Landskrona vilka alla fanns kvar på enskilt fall. Ett par exempel på vad som omedelbart bör föranle- den tiden. Under studenternas rättegångsspel hade vårt festföremål da rättens ordförandes agerande görs dock, däribland att åhörare som (o)vana att överraska studenterna genom att som vittne – eller skrattar, applåderar eller kommenterar något som förekommer i rentav som en obehörig person i salen som ville vittna – skapa oord- rättegången.11 Lagändringen 2019 innebar främst ett förtydligande ning i rättssalen genom sitt agerande, sina frågor och olika påpeka- att ordföranden faktiskt är skyldig att upprätthålla ordningen och nden. Domaren fick (den oförberedda) uppgiften att hantera detta fatta de beslut som krävs.12 på ett lämpligt och lagenligt sätt. De jurister som var med på den Vidare regleras i 5 kap. 9a§, vilken infördes i samband med lagän- tiden lär inte ha glömt denna tidiga upplevelse av juristprogrammet. dringarna 2019, möjligheten att utvisa eller avvisa de personer som Frågan är om de idag har (lika) god beredskap för liknande händel- uppträder störande.13 Här framgår att rättens ordförande får ut- ser i rätten? För att bistå festföremålet vid eventuella förfrågningar visa den som stör ett sammanträde eller på annat sätt uppträder från nya (eller för den delen gamla) studenter följer här en kort uppdatering av rättsläget. 10 5 kap 9 § RB 11 Se Norstedt lagkommentar, Rättegångsbalken, kommentaren till 5 kap. 9 § 12 Prop. 2018/19:81 s. 84 9 Ibid 13 SFS 2019:298 129 olämpligt.14 Motsvarande reglering före lagändringen 2019 inne- ur rättssalen bör väljas före avvisning om det anses lämpligt efter- bar att personen behövde uppvisa otillbörligt uppträdande för att som det är den mindre ingripande åtgärden av de två. Ingenting denne skulle kunna bli utvisad. Exempel på beteenden som kan vara hindrar dock att om det av rättens ordförande inte kan antas räcka olämpliga, utan att nödvändigtvis vara direkt otillbörliga är enligt med ett beslut om utvisning för att störningarna ska upphöra så kan förarbetena att skapa irritation genom att viska eller utföra specifika denne välja avvisning som en första åtgärd efter en tillsägelse.18 Vid gester respektive att upprepade gånger gå in och ut ur rättssalen. Det sådana allvarliga överträdelser/situationer som vid hot, upprepade skulle även kunna inkludera andra liknande beteenden som rättens kränkande kommentarer eller fysiskt våld finns det inga hinder för ordförande anser vara olämpliga. Detta betyder alltså att rättens rättens ordförande att besluta om en så pass ingripande åtgärd som ordförande har fått utökade möjligheter för att bekämpa oordning avvisning redan som ett första led om det bedöms finnas behov för i rättssalen genom att ribban för att få göra detta har sänkts. det och det anses proportionerligt. 15 130 I det tredje stycket i ovan nämnda bestämmelse (5 kap. 9a§ RB) Angående frågan hur länge ett sådant beslut är effektivt framgår fastställs att om en åhörare återvänder till rättssalen efter att ha bliv- det av fjärde stycket i nämnda 5 kap. 9a § RB att ett beslut om ut- it utvisad (eller på annat sätt inte följer ordförandens anvisningar) visning upphör att gälla när rättens sammanträde har avslutats och har ordföranden befogenhet att besluta om att åhöraren i stället ska att ett beslut om avvisning upphör att gälla när sammanträdet har avvisas från domstolens utrymmen eller andra lokaler som används avslutats för dagen. Det finns möjlighet för rättens ordförande att under sammanträdet.16 Ett beslut om avvisning – innebärande att besluta om annat, vilket kan innefatta både att beslutet ska gälla un- en åhörare ska avlägsna sig från domstolens lokaler och att hen inte der en kortare eller en längre tid.19 När rättens ordförande ska bedö- får återvända så länge beslutet gäller – ska ses som en ingripande ma hur länge ett beslut om utvisning ska gälla, ska denne ta hänsyn åtgärd och denna möjlighet bör enligt förarbetena därför tillämpas till både allvaret av störningen och längden på sammanträdet. Då endast efter att ett noggrant övervägande av behov och propor- ordalydelsen i paragrafen anger att utvisningen ska gälla tills sam- tionalitet har gjorts. Vidare följer att ett sådant beslut får fattas manträdet avslutas gäller detta alltså till den sista sammanträdes- om en åhörare som har utvisats senare återvänder till rättssalen. dagen om sammanträdet pågår i flera dagar. Exempel på när det Likaså får ett beslut om avvisning fattas om en åhörare i övrigt kan vara lämpligt att begränsa utvisningen till en dag eller kortare inte rättar sig efter en tillsägelse av rättens ordförande. Utvisning anges vara ljud- eller ringsignaler från mobiltelefoner, korta samtal 17 mellan åhörare och icke kränkande kommentarer. Exempel på mer 14 5 kap 9a § RB 15 Prop. 2018/19:81 s. 85 16 5 kap 9a § RB 18 Prop. 2018/19:81 s. 85 17 Prop. 2018/19:81 s. 85 19 5 kap 9a § 3 stycket 131 allvarliga störningar (där det saknas skäl att besluta om en kortare man tänka sig fall som rör gängkriminella där sådana störningar som giltighetstid) är åhörare som skrattar, fäller kränkande kommen- nämnts har förekommit vid tidigare rättsprocesser mot personer tarer eller exempelvis applåderar, i synnerhet om dessa störningar tillhörande samma nätverk. Detta leder oss vidare till 5 kap. 13 § upprepas. Beslut om avvisning gäller tills sammanträdet avslutats RB som infördes 2019 och vars första stycke anger att om det finns för dagen om inte rättens ordförande beslutar om annat. Åhöraren skäl får rätten besluta att samtliga åhörare ska följa sammanträdet kan dock återvända till domstolens lokaler under förhandlingsfria genom ljud- och bildöverföring i en sidosal. Bestämmelsen innebär dagar. I förarbetena rekommenderas rättens ordförande att kombin- att en sidosal kan användas som en förebyggande åtgärd då störnin- era beslut om avvisning och utvisning om det inte är önskvärt att gar av olika slag eller påtryckningar och säkerhetshot kan förväntas personen kommer tillbaka in i rättssalen efter att avvisningsbeslutet förekomma.22 Denna möjlighet att redan på förhand kunna undvika har upphört att gälla.21 förväntade störningar var inte möjliga att genomföra med stöd av 20 Sammanfattningsvis framstår det alltså som att rättens ordförande numera verkar ha ganska goda möjligheter att kunna utvisa 132 tidigare reglering. Rättens ordförande kan även besluta i frågan om den skulle uppkomma under ett sammanträde. eller avvisa personer som stör ordningen i rättssalen samt anpassa Situationer då det är rimligt att fatta ett beslut om sidosal be- utvisningen eller avvisningen till störningens grad av allvar. Före gränsas till störningar som förväntas uppstå på gruppnivå. Alltså tiden för lagändringarna 2019 fanns dock även möjlighet att häkta att åhörarna, eller en del av dem, som grupp kan antas agera på ett den som trängde sig in i rättssalen efter att ha utvisats. Denna mö- sätt som motiverar att samtliga åhörare hänvisas till en sidosal.23 jlighet togs bort i samband med lagändringarna och ersattes med Det handlar om ageranden eller olämpligt uppträdande som stör möjligheten att avvisa personen från domstolens lokaler. sammanträdet, såsom att skratta, applådera eller fälla kommentarer kring det som händer i rättssalen. Det saknar betydelse om MÖJLIGHETER ATT PÅ FÖRVÄG FÖRHINDRA beteendet riskerar att rikta sig mot rätten, en part, målsägande, ett ATT STÖRNINGAR UPPKOMMER? vittne eller andra åhörare.24 Dessa möjligheter ger alltså en utökad befogenhet både för rättens ordförande och för rätten i sin helhet Finns det då något medel att ta till i förväg om det finns en stark att på förhand kunna undvika eventuella störningar i de fall där misstanke för eller indikation på att ett visst beteende från någon de kan förväntas förekomma. Bestämmelsen ger även möjlighet eller några kommer att störa ordningen i rättssalen? Exempelvis kan 22 Prop. 2018/19:81 S.90 20 Prop. 2018/19:81 s. 85 23 Se Norstedt lagkommentar, Rättegångsbalken, kommentaren till 5 kap. 13 § 21 Prop. 2018/19:81 s. 86 24 Prop. 2018/91:81 s. 90 f. 133 att undanta vissa åhörare från ett beslut enligt 5:13 RB om sär- Därefter är det som alltid rättens ordförandes ansvar att känna till skilda skäl för det föreligger. Det kan röra sig om stödpersoner, och på ett förnuftigt sätt använda tillgängliga verktyg för att hålla nära anhöriga till parter och personer som rapporterar som ett led ordning i rättssalen. Där skiljer sig inte utmaningarna vid dagens i nyhetsförmedling. domstolsförhandlingar från de rättegångsspel som skedde i Lunds 25 universitets föreläsningssalar under mitten av 1990-talet. SAMMANFATTNING Så, har införandet av 2019 års lagändringar inneburit stärkta befogenheter för rättens ordförande i händelse av ordningsstörningar orsakade av åhörare eller annan tredje person? Det kan konstateras att domaren har fått en något förbättrad verktygslåda för att upprätthålla ordningen i rättssalen. Domare kan numera både utvisa personer från rättssalen och avvisa personer från domstolens lokaler. 134 De ges dessutom möjlighet att variera intensiteten i dessa åtgärder så att de matchar störningens allvar utan att åtgärderna är att betrakta som så ingripande som den tidigare möjligheten till häktning. En ny möjlighet att ta till förebyggande åtgärder har även införts genom att domstolens befogenhet att redan före rättegången besluta om att hänvisa åhörare till sidosal där de får följa rättegången via ljud- och bildöverföring. Denna åtgärd kan vara ett effektivt förebyggande medel om det finns skäl att tro att störningar kan förekomma, särskilt i mål där störningsriskerna visat sig vara extra höga, som vid rättegångar mot gängkriminella. Sammanfattningsvis så framstår det som att den dåvarande regeringen vidtog till synes väl avvägda åtgärder för att stärka ordningen och säkerheten i rättegångssalarna genom lagändringarna 2019. 25 Prop. 2018/19:81 s. 91 f. 135 Gregor Noll on Jurisdiction and Proportionality Vladislava Stoyanova vention on Human Rights (ECHR). Studying this chapter was so refreshing after spending months and months reading the existing scholarship on human rights jurisdiction. This scholarship either criticized (and rightly so) the inconsistencies in the case law and/or authors proposed how jurisdiction should be interpreted in human rights law by cherry-picking some standards from some judgments while ignoring others. The correct understanding is that the ECtHR case law confusingly writing in the area of migration and meanders between legal entitlement and factual physical power as human rights law, his monograph Negotiating Asylum. The EU Ac- conceptual underpinnings of jurisdiction.1 As Noll notes, jurisdic- quis, Extraterritorial Protection and the Common Market of Deflection tion in human rights law is ‘inherently unstable’ and lacks ‘coherent (2000) was a constant source of inspiration, not only because of conceptual underpinnings’ since it is based on ‘two dominant and the arguments advanced therein, but also because of how they were competing ideas working under the surface of concrete court cases’: formulated and woven into philosophical discussions. As I was get- jurisdiction as legal mandate, and jurisdiction as actual exercise of ting to know more and more peers working on migration law, I was powers. Legal entitlement and de jure power by the State continue to always surprised to see how each one of us could see some specific be invoked by the Court as important elements so that jurisdiction aspects of Negotiating Asylum that we could discuss and relate to. is established.2 Accordingly, the question whether the State exercises Here, however, I would like to highlight two other texts by Professor powers within some legal confines has not been categorically rejected Noll that are perhaps less well-known, but that have significantly in- as irrelevant. Jurisdiction cannot be reduced to mere factual power fluenced my own work on positive obligations in human rights law. and factual capability; other normative considerations are also at play. These are Noll’s chapter ‘Theorizing Jurisdiction’ in A Orford and The instability in the case law regarding the role of legal compe- AS GREGOR’S PH.D. STUDENT 136 the question of jurisdiction under Article 1 of the European Con- F Hoffmann (eds) The Oxford Handbook of the Theory of International Law (Oxford University Press, 2016) 600 and his article ‘Analogy at War: Proportionality, Equality and the Law of Targeting’ 43 Netherlands Yearbook of International Law (2013) 205. The chapter contains an illuminating description of what the European Court of Human Rights (ECtHR) does when it adjudicates 1 G Noll, ‘Theorizing Jurisdiction’ in A Orford and F Hoffmann (eds) The Oxford Handbook of the Theory of International Law (OUP 2016) 600, 613 and 616. 2 Assanidze v Georgia, App no 71503/01, para 137; Hirsi Jamaa and Others v Italy [GC], para 77 and 81. See, however, Medvedyev and Others v France, App No 3394/03, para 67, where the Court referred only to de facto control over the ship by France. 137 tence in the jurisdiction threshold cannot be understood without a In particular, the structure of human rights, and the ensuing more profound consideration of the issues that need to be tackled balancing analysis, is underpinned by the assumption that these in the analysis on the merits regarding the obligations. In particular, rights are exercised in relation to a political community where there due regard needs to be paid to the institutionally referential nature is political equality and in relation to the circumstances of the inter- of human rights law. This body of law relies on domestic public dependent parties, namely those whose interests are infringed and institutions and on the national legal system. It is therefore in need those whose interests benefit from the infringement. The balancing of some linkage with a legal framework. I show this linkage in more test presupposes decision-making within a community, where there detail in the context of positive obligations. is a crucial element of sharing and commonality. The operation 3 Not only does the reasoning in human rights law presuppose public institutions that operate within the confines of legal frameworks. 138 of the balancing framework is therefore intimately related to the boundedness of the community. The conceptual framework of human rights law also presupposes Commonality, interdependence, rough equality of stakes, and balancing individual interests with collective public interests. It is the sharing are crucial for the operation of the balancing framework as above-mentioned article, ‘Analogy at War: Proportionality, Equality an analytical tool in deciding when state conduct (act or omission) and the Law of Targeting’ by Professor Noll that has helped me to amounts to a violation of human rights law. Equal participation in explain that for this balancing to be operationalized, there is at least the political community is important for establishing some com- one important precondition. Namely, the balancing presupposes a monality between the conflicting interests that need to be balanced. communality between the individuals and the political entity (i.e., The equal participation is what relates the interests and enables the State) whose interests would be used as referents in that balanc- comparison and equitable sharing. As Professor Noll, notes ‘Just ing. In other words, the balancing analysis implies a unity between as a comparison of two weights requires a scale, proportionality the individuals and the political community or entity (the State) and equality presuppose something that enables comparison and whose interests are used as referents. In this sense, the State can be equitable sharing.’4 identified with the society: it is the organizational form of the soci- It can be objected that the above arguments do not advance the ety. The jurisdictional threshold in human rights law ensures these objectives of human rights law, which can be framed as the protec- preconditions that enable the operationalization of the balancing tion of individuals irrespective of formal membership in a political between interests within the society. community. By explaining and justifying the jurisdiction threshold 3 V Stoyanova, Positive Obligations under the European Convention on Human Rights: 4 G Noll, ‘Analogy at War: Proportionality, Equality and the Law of Targeting’ Within and Beyond Boundaries (Oxford University Press 2023). 43 Netherlands Yearbook of International Law (2013) 205, 206. 139 with reference to communitarian considerations, States that, in fact, affect individuals might not be constituted as holders of human rights obligations, and, as Noll notes in his chapter, questions of material justice are avoided. Spots might be therefore created where no legal responsibility can be determined in a meaningful way. This is indeed a stark conclusion. It does not, however, negate the general aspirational role of human rights as offering interpretative guidance. Trusting, talking, wandering: on being with Gregor Leila Brännström Nor does it prevent the operation of other branches of international law whose protection possibilities might be relevant. THERE IS A SCENE in Hal Hartley’s Henry Fool, in which Henry, who aspires to become a writer, upon being found browsing an unsophisticated magazine at the loo, yells: I refuse to discriminate between modes of knowing! This line came to my mind after one 140 of the first conversations I ever had with Gregor. I believe it was exactly 20 years ago, in late 2003. Gregor had recently returned to the faculty of law in Lund after a year or two of working at the Danish Institute of Human Rights. He was eloquent, intellectually versatile and brimming with energy. I was the relatively new, confused, out of place and socially awkward PhD-student who was not used to people, particularly not senior academics, listening attentively to her semi-incoherent reflections as if it was potentially important. And yet it was clear to me back then that Gregor was not trying to be nice – he was driven by genuine curiosity, and it was simply not in his disposition to rule out beforehand any, however slim, prospect of learning: he would not discriminate between modes of knowing! In the two decades that have passed since, I have had the privilege of doing many things with Gregor. First, he became my fourth and last PhD-supervisor and the one who, finally, crossed the finishing 141 line with me. After that, we have, save for shorter breaks, been colleagues, and have appeared together as co-commentators of papers, as co-supervisors, as co-organizers of workshops and seminars, as co-writers, and so on. Next to Gregor, I, more fearful by nature, have often found myself playing the part of “the one who restrains”: worrying about intellectual law and order and suggesting more policing. I can, however, not play this part sans souci when Gregor is not around, and his relentless optimism, curiosity, enthusiasm, trust in other people’s capacities, and his ability to work with and improve all sorts of ideas, cannot be relied upon to neutralize some of the effects of “the one who restrains”. When he is absent, I instead feel the acute urge to find strategies for bringing in the Grego142 rian approach to intellectual conversations – an approach that 143 could perhaps, paraphrasing Arendt, be described as co-thinking without a banister. I have, after all, firsthand experience of how academia became a much more livable place when Gregor showed up, displayed a measure of carelessness about intellectual orderliness and joined me, while laughing and gesticulating joyfully, in a broad-minded search for a language for what I had on my mind. Gregor arriving to the southern village Torna Hällestad to give a talk about International Law and autonomous weapons systems at the local restaurant Lanthandeln in May 2022. Confidently Curious theoretical discipline, which felt detached from the outside world it applied to. These were the early post 9/11 days. Public international law had taken a beating on the world stage with the US invasion of Inviting Openness in International Law Scholarship (and a few reflections on then and now) Johanna Nilsson Iraq sans a UN Security Council mandate. After the transforming years of the mid-1990s, when the development of international human rights law was quite prolific,2 the early 2000s arguably carried somewhat of a backlash, especially in relation to the emerging area of antiterrorism law. At this time, Gregor engaged us students in discussions on the extra-territorial application of international human rights law, and what happens in that inner circle of the Venn diagram IT IS AN HONOUR and a privilege to write these lines in celebration of Professor Gregor Noll’s sixtieth birthday. In the following pages, 144 where neither international humanitarian law, international human rights law nor international refugee law applied. I will describe the role Gregor played as an academic mentor and Gregor was an inspiring professor. He brought in perspectives general source of inspiration for my younger self, as well as draw up from outside the Faculty of Law and participated regularly in pub- a few observations from my current viewpoint as a diplomat in the lic debate. He was also open to inviting other academic disciplines Swedish foreign service, my career of almost fifteen years. into the realm of legal science. It was because of this that our paths When I was reminded that I was the first among Gregor’s doctoral crossed in the mid-2000s. I was curious about discourse theory and candidates to defend a doctoral dissertation and obtain an LL.D. wanted to explore this methodology in research for my doctoral dis- (Lund University, 2009), it felt even more important to contrib- sertation in international human rights law. This had been success- ute. Looking back, I would describe Gregor as a different voice in fully done before in legal scholarship,3 but with Gregor’s encourage- 1 Lund around that first decade of the new millennium – in all the best sense of those words. As a student I appreciated that his lectures and workshops were linked to current international affairs and real-world events. This may sound obvious to a reader of today, but it was not at the time, as public international law was too often taught as a purely 2 C.f. several international human rights conferences that took place in the early 1990s, where conclusions in terms of declarations, platforms or programmes of action were adopted with broad support, notably the World Conference on Human Rights in Vienna in 1993, the International Conference on Population and Development in Cairo in 1994, and the Fourth Conference on Women in 1 Nilsson, Johanna, Implementation of International Human Rights Law – A Discourse Theoretical Study Illustrated by the Right to Family Planning in Indonesian Law (Lund University, Lund, 2009). Beijing in 1995. 3 See e.g.,Andersson, Ulrika, Hans (ord) eller hennes? – en könsteoretisk analys av straffrättsligt skydd mot sexuella övergrepp (Bokbox förlag, 2004). 145 ment and guidance, I immersed myself in the post-structuralism of I have written and re-written the last part of this text over and Chantal Mouffe and Enesto Laclau. Spending a few years mapping over, as I initially intended to end on a positive note with a few ob- “elements”, “moments”, “nodal points” and “floating signifiers” servations from the foreign service on the renaissance (or comeback, in the construction of the right to family planning in international with subsequent world tour?) of public international law, following human rights law and Indonesian law turned out to be a challenging in the aftermath of Russia’s full-scale invasion of its sovereign neigh- but rewarding exercise. Two questions kept returning in seminars bour Ukraine. The forcefulness and creativity in the response from and conferences where I presented my work-in-progress: 1) was the EU and its member states to Russia’s aggression and the support this legal science?; and 2) could you apply Mouffe’s and Laclau’s for Ukraine may even have surprised us a little.6 When the UN Se- post-structuralism as a methodology separated from its political curity Council was blocked,7 meetings of the 11th Emergency Spe- post-Marxist ideology? The answer to both questions turned out cial Sessions of the General Assembly were called – and repeatedly to be yes, but I do believe I would not have had the confidence to managed to bring together an impressive majority in condemnation pursue these (at the time, novel) academic choices without Gregor’s of Russia’s aggression through the adoption of several resolutions.8 encouragement and constructive feedback to explore new ground. There is today a veritable smörgåsbord of international law issues Looking back at my project, I still believe that the constructivism to be handled and advanced by diplomats and international law of discourse theory methodology provides a valuable basis for un- experts in the foreign services: restrictive measures, frozen and im- derstanding human rights,5 but today the inherent relativism of it mobilised assets, several ongoing processes in international courts, all leaves me a bit uneasy. This probably has more to do with the fact as well as various avenues to explore criminal accountability for that I since changed careers within international law, now working in crimes committed during the conflict. The Common Foreign and an environment where disinformation, intentional false narratives, Security Policy (CFSP) of the EU turned out not only alive and well and “post-truths” create constant challenges to the foreign policy but speaking with one voice – and the world was listening. So often 4 146 objectives that Sweden and the EU are trying to pursue, including the advancement of the rules-based world order, and upholding public international law. As we have seen, such damage is not only abstract with “values as victims”, but painstakingly concrete as colleagues are put in harm’s way when embassies abroad are attacked as a result. 6 The Council of the European Union provides a thorough overview of all actions taken: ‘EU response to Russia’s invasion of Ukraine’, https://www. consilium.europa.eu/en/policies/eu-response-ukraine-invasion/. 7 After Russia applied its veto on 25 February 2022 against Security Council draft resolution S/2022/155 authored by Albania and the US and co-sponsored 4 See e.g., Laclau, Ernesto and Chantal Mouffe, Hegemony and Socialist Strategy (Verso, 2001, 2nd ed.). 5 C.f. Nilsson, pp. 27–29. by 81 member states. 8 See “Eleventh Emergency Special Session”, https://www.un.org/en/ga/sessions/ emergency.shtml. 147 before the EU had been criticized for being an irrelevant foreign the foreign service, the majority from law faculties, I believe that policy actor (“a payer, not a player”), but with its coordinated and law students of today expect to have the opportunity to invite these timely actions founded in convincing arguments of public inter- questions in and discuss them beyond the academic or theoretical national law, it gained both confidence and credibility, including bubble. Gregor provided such ground and fostered an atmosphere in relation to what is commonly referred to as “third countries” or of curiosity and openness to both the outside world and other aca- “global partners”. And I had planned to end my observations here. demic disciplines at a time when this was not commonplace. I was While preparing this text in October 2022, another round of personally motivated by this in my formation in international law violent escalation broke out in the Israel-Palestine conflict, more and the early days of my career – and for that, I am grateful. specifically between Hamas and Israel. Even though I recently left a three-year diplomatic posting in Tel Aviv and worked through the last three violent escalations in the conflict, I will refrain from commenting (or maybe because of that very reason). One observation, however, is that the world is currently watching the response from 148 the EU and its member states to the developments and will pay attention to how arguments of public international law are applied (or not). The situations are different, as all conflicts are different (and some are arguably uniquely complex), but there is a risk that the EU could lose some of its recent gains as a relevant foreign policy actor and voice in defence of a rules-based world order in the eyes of its global partners, which in turn could have an impact on the willingness to support the EU and its member states in its policies and actions in light of other conflict situations, including some to which great political and security policy importance is attached. In closing, given that public international law matters keep fronting the headlines in traditional media, as well as on all forms of social media, there are indeed plenty of timely and relevant questions to be discussed in lecture halls and seminar rooms where public international law is taught. Having supervised dozens of interns in 149 ‘You be the judge’: challenges received wisdom about what disasters are, and challenges established interpretations of the refugee definition, whilst nevertheless retaining its original loyalty to the legal doctrinal method. Iconoclasm, strategic litigation and climate refugees Matthew Scott anthropology, which offer perspectives of deep relevance to understanding how existing law applies in this emerging area. Drawing on other disciplines to help the law to understand how it needs to think about a phenomenon is germane in the field of in- from a background in immigration and asy- ternational refugee law, and Gregor’s own work, for instance on age lum legal practice, I managed to convince Gregor and the committee assessments for young people seeking asylum,1 makes the point well. on doctoral education that I was well-placed to pursue a PhD fo- In my context, around 2012 there was an overwhelming consensus cusing on strategic litigation to address the emerging phenomenon that ‘climate refugees’ do not exist, not least because the climate of climate refugees. This was in 2012, before collapsing ecosystems cannot be considered an actor of persecution. A quote from the then became a regular feature of public discussion. Early in the process, UN High Commissioner for Refugees António Guterres sums up Gregor noted my tendency to treat judicial decisions as establishing the consensus at the time: COMING TO ACADEMIA 150 The approach is heavily influenced by political ecology and disaster the limits of the law. He encouraged me to embrace the academic freedom that enables knowledge to emerge in unexpected ways, beyond rigid adherence to established legal doctrine. Although I recall this as one specific, early encounter, the encouragement to- As the refugee definition only applies to those who have crossed an international border, the difficulties in characterising climate change as ‘persecution’, and the indiscriminate nature of its impacts, it does not expressly cover those wards independence of thought and creative exploration beyond fleeing a natural disaster or slow onset degradation in living legal doctrine defined my experience of attempting to answer what conditions owing to the environment.2 ultimately became my research question: ‘in which circumstances may a person establish eligibility for refugee status in the context of disasters and climate change?’ The result, which could have been different were it not for Socratic supervision sessions where Gregor might respond to a new approach I had articulated with ‘is that what you really think?’ or ‘how would that work?’, is a thesis described in the defence as ‘iconoclastic.’ It 1 Gregor Noll, “Junk Science? Four Arguments against the Radiological Age Assessment of Unaccompanied Minors Seeking Asylum” (2016) 28 International Journal of Refugee Law 234 2 UN High Commissioner for Refugees António Guterres, “Migration, Displacement and Planned Relocation” (31 December 2012) fn 22. Available at: https://www.unhcr.org/news/migration-displacement-and-planned-relocation 151 This pronouncement from the highest level of the UNHCR, combined with numerous other statements from legal academics social group or political opinion… and judges, was enough to deter me from exploring the relevance of All of a sudden, the received wisdom reflected in the above-cited the Refugee Convention in this context, notwithstanding its status quote from António Guterres was revealed. The more I read, the as the cornerstone of the international protection system. Received more clear it became that commentators had been looking in the wisdom is powerful. wrong direction when trying to understand the kinds of circum- As I settled into trying to understand the phenomenon itself, rath- stances in which the Refugee Convention might apply when people er than focusing on existing legal doctrine, I found myself immersed are displaced across international borders in the context of disasters 3 in literature about taking the naturalness out of natural disasters and climate change. Rather than looking to the climate itself, which and articulating perspectives about the deeply social context of expo- clearly lacks the human agency required to establish the experience sure and vulnerability to disaster-related harm. The paragraph that of ‘being persecuted’, researchers and judges needed to look to the pointed me back in the direction of the Refugee Convention reads: discriminatory social context that contributes to differential expo- … people’s exposure to risk differs according to their class 152 sons of race, religion, nationality, membership of a particular (which affects their income, how they live and where), whether they are male or female, what their ethnicity is, sure and vulnerability to disaster-related harm. Instead of seeing disasters as ‘indiscriminate’, the extensive literature highlighting how women, members of minority ethnic and caste groups, old- what age group they belong to, whether they are disabled er people, children and other people in situations of vulnerability or not, their immigration status, and so forth. experience disproportionately adverse impacts in the context of 4 disasters needed to inform legal doctrine. Reading this paragraph felt like it had been superimposed on the Fast forward to the present and UNHCR has moved on. Its 2020 text of Article 1A(2) of the Refugee Convention, which includes the Legal considerations regarding claims for international protection made in the requirement that a refugee demonstrate an inability or unwilling- context of the adverse effects of climate change and disasters is unequivocal: ness to return home: … owing to a well-founded fear of being persecuted for rea- The assessment of claims for international protection made in the context of the adverse effects of climate change and disasters should not focus narrowly on the climate change event or disaster as solely or primarily natural hazards. 3 Phil O’Keefe, Ken Westgate & Ben Wisner, “Taking the Naturalness out of Natural Disasters” (1976) 260 Nature 566 4 Ben Wisner et al, At Risk: Natural Hazards, People’s Vulnerability and Disasters (2nd edn, Routledge 2004), 6 Such a narrow focus might fail to recognize the social and political characteristics of the effects of climate change or the impacts of disasters or their interaction with other 153 drivers of displacement… If a narrow view is taken of the effects of climate change and disasters, there is a risk that decision-makers may decide that refugee law is inapplicable and deny access to refugee status determination (RSD).5 ality, membership of a particular social group or political opinion. Ultimately grounding this recalibrated interpretation of the refugee definition in the methodology prescribed under the 1969 Vienna Convention on the Law of Treaties, it remains the case that the vision Appreciating the social context within which disasters unfold has of a different way of understanding what it means to be persecuted thus helped to dispel received wisdom that stood in the way of the came from this notion of a 500-year earthquake. Ultimately, build- principled application of the Refugee Convention in the context of ing on Hathaway and Foster’s leading definition,7 I defined being disasters and climate change. persecuted as “a condition of existence in which discrimination is a Being the judge, however, also meant applying the relevant law. contributory cause of (a real chance of being exposed to) serious de- In this context too, iconoclasm flourished without necessarily being nials of human rights demonstrative of a failure of state protection.” pursued. Inspired by the long view reflected in a classic of disaster With limited jurisprudence and yet still wanting to explore where anthropology describing Peru’s 500-year earthquake, I started to this novel approach might lead, I recognized that most people will still wonder about the framings of ‘persecution’ as an event, as distinct struggle to establish eligibility for recognition of refugee status in the from a process or condition of existence. It struck me as controversial context of disasters and climate change, even on the more expansive that a person could accurately be described as being persecuted on approach articulated in my thesis. The Refugee Convention remains a mainstream definitions when shot for no particular reason, yet not narrow instrument, and work at international, regional and national necessarily persecuted when experiencing extreme poverty in the levels continues to focus on other ways of addressing the phenome- context of intersecting caste, gender and disability-based discrimi- non. Still, guided by the principle of anxious scrutiny, the thesis set out nation. I distinguished an ‘event paradigm’ of being persecuted from to articulate a narrow additional set of circumstances where a person what I saw as a more compelling understanding of being persecuted may be recognised as a refugee, in situations where discrimination is as a condition of existence, wherein the risk of being exposed to seri- a contributing cause of (a real chance of exposure to) serious denials ous harm arose as a consequence of a person’s race, religion, nation- of human rights demonstrative of a failure of state protection. 6 154 It is my good fortune that Gregor’s approach to supervision re5 UNHCR, Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters (2020). Available at: flected less this principle of anxious scrutiny, and more one of critical friend encouraging me to be the judge. https://www.refworld.org/docid/5f75f2734.html 6 Anthony Oliver-Smith, “Peru’s Five-Hundred Year Earthquake: Vulnerability in Historical Context” in Anthony Oliver-Smith and Susanna Hoffman (eds) The Angry Earth: Disaster in Anthropological Perspective (Routledge 1999) 7 James Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, CUP 2014) 155 Why? Mats Tjernberg – VAT, for example. Every time they buy food, cigarettes and other stuff. – It’s the grocery shop that pays the VAT, the undocumented migrant only bears the burden of it. Why may I not go out and climb the trees? Trees have fingers that may steal the eyes from thee. – Well, don’t be such a formalist. Don’t they contribute, nevertheless? – Of course. Don’t we all? daniel norgren LUND 2006 – But it seems that undocumented migrants are also needed to keep the economy going. – Mats! Undocumented migrants pay taxes in Sweden! Why? 156 – Really Gregor? What do you mean? – Ok, listen. That is not a clear legal argument. Actually, I have a better one. – I don’t know. You’re the expert. – Yes? – So, you’re interested in Tax Law suddenly? – If a person stays on the territory, legally or not, the person is subject to income taxation. – Not really, but in this case. – Haven’t I always told you? Taxes build societies and are part of everything! – Yeah, yeah, but undocumented migrants are the Modern Helots, and not entitled to anything. – Good title for a research project! – Don’t avoid my question, why do they pay taxes, Mats? – What taxes are you thinking of? – So, where does that lead us? – We can start looking for congruity. – And? – If a person theoretically is subject to tax, the person should theoretically also be entitled to social benefits. – Are you saying that a person then should be entitled to social benefits only by staying in the territory? 157 – Yes, those benefits, i.e. social security, housing allowance, healthcare, schooling, that might flow to persons as long as they – Will those changes target all persons in Sweden? – Probably not. Only those that “we” want to be affected. live on the territory. Persons don’t need to show that they have contributed economically to be entitled to that kind of benefits. – Who are “we”? In fact, paying taxes doesn’t entitle you to anything. In Sweden we – “We” are those who “saw it coming”. have something we call “socialt skyddsnät” for persons who aren’t able to support themselves, whether they have paid taxes or not. – So, if they are subject to tax as soon as the stay in Sweden, they should on the same premises also be entitled to social benefits? – Yes. LUND, GÖTEBORG 2023 158 – Mats, what happens now, if the Tidö agreement is effectuated? – Well, not even those who legally have the right to stay in Swedish territory can be sure of having the right to social benefits. – But, what will decide if a person still is going to be entitled to social benefits? – Whether the person has contributed economically to society or not. – But, you said long ago that it doesn’t matter? – That was then. Now is another time. 159 On synthesis and systems closed and open specific tools to shape it in specific ways. The subtractive synthe- Geoff Gordon is typically programmed by a piano-style keyboard, adding to the THE LYRA 8 is an unusual musical instrument. It is an analog elec- tronic synthesizer, which its designer and producer, a performance 160 sizer continuously shapes the ‘clay’ of the soundwave by applying a specific set of tools in a set order. This allows for efficient control, as the sound can be determined from the outset and incrementally sculpted with great precision along its linear path. Further, the pitch of the sound generated by the oscillator is established by the amount of voltage fed into the oscillator, which, in subtractive synthesizers, familiar sense of control afforded by the machine. There is also, however, a corresponding abandonment of control: you work with deliberately limited hardware capabilities arrayed in fixed order. artist cum engineer named Vlad Kremer, calls an organismic syn- The other common type of analog synthesizer is modular in thesizer. I would like to use the Lyra 8 to explain my appreciation nature, which allows for a different sort of control than does the for Gregor Noll and his work. To do so, let me first describe two fixed linear model behind subtractive synthesis. The machine that more common forms of analog synthesizer. is used for modular synthesis is not so much a single synthesizer One, the most common type, is built according to principles of as a collection of parts that are combinable and recombinable in subtractive synthesis. Subtractive synthesis is pretty straightforward. multiple permutations. If contained within a single shell or frame, The basic design is linear. The initial sound comes from one or more the collection of modular parts may resemble an integral machine, oscillators. The oscillator produces a waveform like a sine wave or but the modular synthesizer is not typically a closed unit insofar saw wave (with peaks that look like the teeth of a saw). The sound as there is usually no hard limit to adding another component, or wave leaves the oscillator to travel along a fixed signal path through to swapping components in and out. A modular synthesizer also the rest of the synthesizer. The first stop is typically a filter, which does not typically send the initial sound through a filter to cut back will cut back (or filter out) certain harmonics from the waveform select harmonics. Instead of sculpting away at a sound source with generated by the oscillator. At different, fixed points along the path, select tools in preassigned sequence along a constant signal path, the waveform can be sculpted, cut back and shaped. An analogy the modular architecture allows a diversity of tools to be applied in might be clay on the potter’s wheel, the initial round mass shaped by changeable order, allowing for complex and impermanent routings scooping away some and molding the remainder, thinning out the and connections. This furthermore allows for a sort of deliberate loss spinning clay in one place to accentuate the form in another, using of control. The linear architecture of subtractive synthesis is ideally 161 162 suited to a waveform well-contained for precise manipulation. The cillators in another group. When an oscillator receives a signal that modular architecture allows for multiple means of manipulating the combines with its own signal generation, the interaction provokes waveform, which can make for more complex sound production, feedback and a distorted new waveform. Set to loop, that waveform which tends to make the modular synthesizer less suited to the de- is sent back through the oscillator for another round, repeating the liberate, incremental sculpting of the waveform as achievable with process with each pass through each oscillator, which will output an a subtractive synth. One sort of control is privileged over another: altered sound based on its interaction with the waveform provoked modular synthesis privileges the ability to modify the overall signal in the last passage. Under either of the two global signal paths, it path, whereas subtractive synthesis privileges the ability to control is possible to create a complete loop incorporating every oscillator, a given waveform along a stable path. The modular synthesizer also forming a closed circle among all eight, each oscillator fed into and typically dispenses with any keyboard, underscoring its affiliation fed by another, each provoked and provoking something new with with other, less conventional modes of control. It bears noting, every pass along the signal path. however, that there is nothing to prevent the design and use of a The output can get scary. My children call it the monster machine. modular synthesizer that is identical to the linear construction of a But multiple looping signal paths notwithstanding, the machine subtractive synthesizer. In a sense, the modular synthesizer relativ- is designed as an integral instrument, emulating the same precise izes the subtractive synthesizer without displanting it. manipulation via dedicated control points such as are typical of sub- Now I would like to turn back to the Lyra 8, the organismic tractive synthesizers. The Lyra 8 is designed to harness feedback, synthesizer. The Lyra 8 is neither a typical subtractive synthesizer, not strictly to trigger feedback among modular combinations of nor a modular one. It enables a form of control that is different component parts, such as can be done with a modular synthesizer, from both the subtractive and modular architectures, and it cor- but built to incorporate otherwise-unpredictable feedback as a pri- respondingly invites a distinct loss of control. It is hardwired like mary sonic property. Moreover, the machine is designed for tactile a subtractive synthesizer, without exchangeable component parts, human interaction: each of the oscillators, for instance, comprises but the signal path is not fixed according to the linear design of two conduction points, so that the oscillator is only active when the subtractive synthesis. Instead, its design features a recursive, circular circuit is completed by a person touching both contact points at architecture for signal paths, enabling multiple interacting feedback once, closing the circuit by becoming part of it. loops. The Lyra 8 has eight oscillators, an unusually large number, In sum, subtractive synthesis allows craft work in linear fashion, divided into four groups of two. Each group of two is linked to one applied to a waveform along a signal path with a discrete start and of two switchable, global signal paths, in which the signal from each end point and usually a keyboard to control pitch. Modular syn- oscillator in one group can be routed directly into the one of the os- thesis unsettles the fixed, linear character of subtractive synthesis, 163 and relativizes its mode of control by making the signal path one design choice out of a potentially unlimited number. The Lyra 8 also adopts an unfixed design, but by using a looping architecture the internal norms of the forensic science community. It does not. Secondly, the article considers whether the use of these methods is scientifically authoritative according to in which feedback from its own signal path creates a changing sig- the current state of the art in forensic medicine and trau- nal in constant renewal. The unfixed design, however, is built into matology. It is not. Thirdly, the article asks whether their a closed system. As a closed system, it has an autonomous character use sufficiently safeguards against a particular kind of com- that the other synthesizers do not. Though its signal paths are not municative error between decision makers and experts. It variable, their output continuously changes along their feedback-in- 164 unaccompanied adolescents seeking asylum complies with does not.1 ducing pathways. Its looping, self-contained architecture produces But Gregor’s work also relativizes the practices of international law a signal that elides start and end points. The Lyra 8 is not so much a and international legal scholarship, by connecting them up in an collection of tools, like the subtractive synthesizer, and not so much unexpected network according to an unconventional design. The the product of connective choices among component parts, like the first three pages of his vanguard work on the applicability of inter- modular synthesizer, and more like a partner to whomever completes national humanitarian law to neurotechnology are occupied with its circuits for the production of novel sounds. Leif, a farmer undergoing deep brain stimulation treatment for Par- Having gone on about three models of synthesizer in a legal kinson’s disease, and with whom Gregor spent a week in hospital.2 festschrift for Gregor Noll, let me first do what may be expected, Connecting Leif with the logics of international humanitarian law and use each of these three synthesizers as analogy for Gregor Noll’s and weaponized neurotechnology produces an unsettling resonance scholarship. His work exhibits an efficient authority akin to the sort that scrambles the complacency of routine practices operating at of control associated with subtractive synthesis, a command of the the distance of professional authority, as well as the routine compla- linear character found persuasive in international legal argument. cency that celebrates challenges posed by new technologies only to Consider the following outline of his argument, as established in resolve them into the adequacy of law.3 Gregor’s work defies these the abstract for Junk Science? Four Arguments against the Radiological Age Assessment of Unaccompanied Minors Seeking Asylum: Should radiological age assessment be considered as a means of alleviating the doubts of a decision maker in the asylum procedure? The present article addresses this question through a number of steps. First, it questions whether the use of radiological imaging methods in the age assessment of 1 G Noll, ‘Junk Science? Four Arguments against the Radiological Age Assessment of Unaccompanied Minors Seeking Asylum’, International Journal of Refugee Law 28 (2016) at 234. 2 G Noll, ‘Weaponising neurotechnology: international humanitarian law and the loss of language’, London Review of International Law 2 (2014) at 201–203. 3 K Eichensehr, ‘Cyberwar & International Law Step Zero’, Texas International Law Journal 50 (2015): 357. 165 routines by relativizing them, reconnecting them in unique ways a powerful normative imaginary: ‘Cybernetics is about “control” with people and things not typical of the design of the profession’s as such and therewith also about controlling control. It is about signal path in practice. regulation and therewith about the regulation of regulation. It is a Finally, his work engages with the closed system, and on at least two levels. I read Gregor’s recent work as a plea to open up international legal practice before it is lost within a double closure. 166 regulatory thinking at a more foundational level….’5 My description of the Lyra 8, however, was not simply about a 4 progressively more closed system of control. The organismic preten- International legal practice, following this plea, can be a reflective sion of the Lyra 8 invites human connection, whether to complete exercise, engaged in by situated humans connected up and capac- its circuitry or to engage deliberately with its unpredictable sonic itated with countless things. One closure that it faces is internal creations. The closure of Lyra 8’s signal path, its containment with- to the conventional faith in a linear design, its reflective potential in a fixed hardware architecture, is also a way to emulate acoustic suppressed for the efficient exercise of command, or the appearance musical instruments, to make the feedback loop play-able, to open of it. The other closure proceeds from the first as it comes in con- it up and make it sing. On this note let me maintain that my de- tact with technologies that supersede the textual foundations that scription of the three synthesizers was not just for the analogies to international legal practice has long presupposed. The aspiration Gregor’s scholarship.6 In that description I have also outlined my to efficient authority, in its encounter with contemporary itera- appreciation for Gregor Noll and the importance of his work. My tions of automated intelligence like machine learning, leads to an appreciation – as a person who, like others, is uncertain about what increasingly autonomous regulatory practice. Deliberative processes good we do when we do what we call international law and interna- are subordinated in favor of feedback loops offering self-correct- tional legal scholarship – for Gregor’s efforts to engage, question and ing programs of legal sanction. These are cybernetic processes that surpass the institutions that occupy us. I appreciate him as a lawyer model socio-technical systems, including their information flows and scholar who knows the practice, who knows the limitations of and decision-making processes, on the workings of the human brain. the practice, and who would push past into a vital future. All of Observing the artifacts of this simulated brain ever more present these facets of his work are evident when he connects international in international legal practice, Gregor warns of the ascension of law up with Andrei Tarkovsky’s film, Nostalghia, and asks: ‘What might an international lawyer learn from Nostalghia? Nothing as 4 I am thinking, for instance, of his work with Matilda Arvidsson, cf M Arvidsson and G Noll, ‘Artificial Intelligence, Decision Making and International Law’, Nordic Journal of International Law 92 (2023): 1; or his contribution to the co-authored volume, M Liljefors, G Noll and D Steuer, War and Algorithm (2019). 5 G Noll, ‘War by Algorithm: The End of law?’, in Liljefors, Noll and Steuer, supra n4, at 81. 6 And it was not simply because I know that Gregor is also familiar with the peculiar qualities of the Lyra 8. 167 an international lawyer, nothing as a professional, and everything as one who lives in doubt about his profession, the community it There Is No Pilot implies, and about the personal obligation she or he enters into by Daniel Steuer assuming it.’7 And in this moment of mad men run amok in the imaginary fields of international law, Gregor’s conclusion to the PART A same passage offers something like a disturbing diagnosis, but also something more, when he suggests: ‘The question is then, which madman will bequeath us with a gesture that we may execute, thereby opening up our idiotic longing for … the identic, the authentic and the communal and turn it into openness – an openness that A Stand-Up Comedian’s Take on the Law is concrete, historically situated and at work in the world.’8 Such openness that Gregor maintains against all odds is what I find so Hello! Good evening, Ladies and Gentlemen! Good to see so many inspiring in his work. of you here tonight, despite the programme’s – how I shall say? – underwhelming title: ‘A Stand-Up Comedian’s Take on the Law’. 168 How, you may have wondered, does a decent, self-respecting comedian come up with a topic like that? – The law – goodness, that’s parking tickets and divorce, and many other unpleasant things, but nothing we particularly like to think about. Or has anybody ever heard someone say: ‘Ah, I had such a nice run-in with the law today! – [Pause] – I thought not. – [Pause] – Any lawyers in the audience, by any chance? Come on, don’t be shy … I know you’re here. … You’re just afraid people will corner you for a free-bee advice session during the interval. A bit like medics – though what’s supposed to be cured is less clear. Ok now, why did I choose such a lousy topic? As so often, the answer is … money. … Or rather: a lack thereof. ‘I am an independent 7 G Noll, ‘Nostalghia: A Nordic international law’, Nordic Journal of International Law 85 (2016) at 280. 8 Idem. artist, therefore I have no money’. So, one day I was sitting in my permafrost kitchen – I can’t afford much heating these days – won- 169 170 dering how nasty, brutish, and unjust life must be to have produced ty ever happened – sent back by a British home secretary whose a genre like stand-up comedy, when suddenly my phone rang, and parents immigrated to the UK from Mauritius and Kenya. In case someone on the other end – Scandinavian accent, or Farsi, not sure, geography is not your strong suit: that’s Africa too. It seems the but perfect English – said ‘Hello, I am so and so. Would you possibly home secretary is so homesick. She wants to make sure the African be interested…’ – Can you imagine? The incredible sweetness of refugees do not have to go through the same suffering as her. So these words? … ‘Would you possibly be interested…’ Pound signs she ‘dreams’ of flights to Rwanda – and, a selfless individual that rose up in front of me, dopamine flooded my system. … Then the she is, exclusively for others, not for herself! Unfortunately, though, voice continues ‘…to do a twenty-minute programme for 3,000 the Rwanda dream of our second-generation African immigrant pounds…’ – the dopamine level went through the roof – ‘… on the did not mature. And why not? Because some geezers with funny famous legal scholar Gregor Noll’. – [laughter in the audience] – at wigs and posh accents – also known as the Supreme Court – ruled which point the pound signs and happy hormones disappeared as it unlawful – yes, ‘unlawful’ – Do you know the difference between fast as they had come. – But then, instantaneously sober, I thought ‘unlawful’ and ‘illegal’? – [silence] –Thought so. Unlawful is an act ‘What the heck, I’ll just say “Yes”. I have a rough idea what ‘legal’ that contravenes legal rules, illegal is what you call a sick bird of means and what the ‘law’ is, and that Noll guy I can always google’. prey. – [Delayed meagre laughs in the audience] The wiggies on the Little did I know. Supreme Court are for the law what the Pope is for Catholicism. And then it was too late. – The Scandinavians had transferred the Needless to say, the Papal system is superior, it is unambiguously money – all of it! – the very next day, and informed me that I had clear what it represents – at least if you leave aside petty-minded entered into what they called an ‘unwritten contract’ … or agree- theological debates. The wiggies and their colleagues love such de- ment, or something. Do you know the difference between a contract bates. And they have a way with words, bloody hell do they have a and an agreement? – [silence] – Thought so. And that became the way with words. Nuclear fission is rough work compared to what stuff of my sleepless nights! I had to fight my way through a deadly they do with meanings. Though it tends to suck energy in rather jungle of what’s lovingly called ‘legalese’. than to release it. After a while, I really had enough of this, and thought, let’s google Noll’s interests, as I said, include war, violence and artificial in- this Noll guy for a change. And it turned out, I could have spared telligence, that sort of thing. He asks questions such as: if a drone, myself the jungle of jargon. Noll mainly writes about straightfor- right – a big and clever drone, not one of those you fly with your kids ward everyday topics: war, violence, and refugees. – Refugees, you in the park on the weekend, though that’s good training if you want know these people who come over from Africa and are then ideally your little ones to end up in the Air Force – if a big and really clever sent back to Rwanda – a lovely place, where hardly anything nas- drone does something really big, but not very clever, like blowing up 171 the wrong wedding somewhere, do the laws of war apply? Is there Put your hands over your eyes. Jump out of the plane someone responsible? – The longer I read his stuff, there more it There is no pilot. You are not alone. Standby seemed that Noll likes to put his finger on everything that makes This is the time. And this is the record of the time you feel miserable, you know, the stuff you want to forget because it seriously spoils your pint or evening glass of wine. Then I came upon laurie anderson something he’d written on LAWS. Big thing, I thought, the guy is From the Air, From the album Big Science a legal scholar, of course he writes about laws. But it turned out it 172 was another one of these annoying acronyms: lethal autonomous [The first members of the audience begin to leave the hall. The weapons systems. Straight away reminded me of our home secretary stand-up comedian shows signs of mild panic.] Listen folks, you’ve again. But she’s harmless in comparison. LAWS will not just save been really patient with me, really patient! … Just wait a second, African refugees from unbearable homesickness, they may send all just a second, I saw this coming, honestly, I saw this coming, and so, of us packing to a big Rwanda in the sky, once the Singularity is up to fulfil my unwritten contract, I have written a very short – [more and running, that is. – You don’t know what the Singularity is? It’s people leave the hall] – I swear *very* short text on Noll and the really complicated, but let’s just say, it’s your fridge ordering what law. And after that – I promise, I promise – I’ll launch into what you it wants, not what you want, and your toaster telling you what to rightly expect from a stand-up comedian: jokes, one-liners. Look – do. That’s bad enough, and now just imagine something a thousand listen, here: ‘This show is about perception and perspective. But it times worse. It is actually not such a novel idea, some 200 years depends how you look at it.’ (Felicity Ward) or ‘What do you call ago that German politician and poet Goethe wrote a short poem someone who used to like tractors? – An extractor fan! – [Some, about it. ‘The Sorcerer’s Apprentice’, it’s called. Except the poem but not many, people begin to return to the hall.] – And yeah, ok, describes an analogue Singularity and at the end the sorcerer, who I’ll throw in a few not-so-woke jokes as well. [People suddenly really knows his stuff, returns and all is fine. Today: no sorcerer, flood back into the hall. The stand-up comedian reads the text on only apprentices. But lots of sorcery. I thought, really good of Noll Noll (below), and then launches into increasingly non-woke jokes. to remind us of that. And he is in good company. Some forty years Outside the hall, you can hear a faint humming sound in the sky. ago, Laurie Anderson, somewhat apocalyptically, put it thus: Then, the comedian wraps up his show:] And now Good Night, you have been a wonderful audience! Save This is your Captain – and we are going down home, and don’t run into a kill box. – Don’t know what a kill box We are all going down, together is? – [inaudible shouts from the audience] – No, no, it’s not the latest … McDonalds meal deal. – A very good night to you, a very good night. 173 [The last people leave the hall. The humming persists. The rest is not history. It is the time and the record of the time.] chen Neun und Neun [Between Nine and Nine], my translation, D.S.) 1.3 The authority of law is based on the power of those who PART B create it. 2. A compulsion machine and justice are incompatible. Tractatus-Juridico-Gregoricus 2.1 A compulsion machine works with clearly defined concepts and norms. 1. The law is a compulsion machine. 2.1.2 It is based on the notion of sovereign will power. 1.1 It displays all the paraphernalia of an emperor without 2.1.2.1 Sovereign will power results from a combination of the clothes. 1.2 At the end of all justifications, there is the brute force of punishment. 174 whims of history and the worst aspects of human nature. 2.2 Justice is based on infinitesimal discrimination against the background of an unavailable totality. Whatever is the case, 1.2.1 The stronger one punishes, the weaker one is punished. must not be ignored. The context when investigating what 1.2.2 The law exists because of the possibility of punishment. may be just, is potentially endless. 1.2.3 Without the possibility of punishment, there would be no crimes: ‘Punishment is lunacy. Punishment is the emergency 2.2.1 Justice is neither on the side of legality, nor on the side of legitimacy. exit taken by mankind when panic breaks out. Punishment 2.2.1.1 Legality and legitimacy are incomplete digests of reality. is responsible for every crime that takes place and will take 2.3 ‘The difference between a slave and a citizen: a slave is subject place. … If there were no punishments, we would have – to his master and a citizen to the laws.’ (Simone Weil, ‘The long since - found means to make every crime impossible, Social Imprint’, in Gravity and Grace) unnecessary, and pointless. How far we would have progressed by now without gallows and dungeons. We would have houses that do not catch fire and there would be no arsonists. We would long since have ceased to have weapons and there would be no murderers. Everyone would have what they need, and there would be no thieves. Sometimes 2.3.1 Slave and master depend on each other. Both end up being dependent on an alien will. 3. The contradiction between law and justice cannot be resolved within the parameters of a legal system, no matter which. 3.1 A purely immanent, secular law will eventually abolish itself by disintegrating into a play of forces. I think: it is a good thing that illness is no crime, otherwise 3.2 A return to law based on a transcendent authority is impossible. we would have no doctors, only judges.’ (Leo Perutz, Zwis- 4. The law shares the fate of all philosophical systems: it fails 175 when it comes up against the limits of logic and language. 4.1 The more elaborate and sophisticated the legal or philosophical system, there more tedious it becomes to demonstrate the points where it faces these limits. 4.1.1 Sophistication and complexity do not necessarily serve the purpose of making a legal system better, much less the purpose of fostering justice. 5. The law, like justice, has been given numerous interpretations, none of which can resolve the contradiction between law and Noll and Legal Method: Beyond Routine Interdisciplinarity justice. B.S. Chimni 5.1 It does not follow that one should not defend what – to the I best of one’s knowledge – one sees as just, even humane, in a given case. 176 5.1.1 This must be done while never forgetting that one may be wrong. 5.2 Whatever justice there is in a legal system as such only shows in its critique. 5.3 Any form of critique is permissible, as long as it remains aware that it may be wrong. 5.3.1 In fact, there must be a plurality of critiques to avoid the threat of self-affirmation. 6. The task is to seek justice, not to defend the law. 6.1 Not the law matters, but the lives and fates of those over which it rules. 6.2 The meaning of the law is the factual outcome it produces for human beings, other forms of life, and the planet. 7. Where the law ends, existence begins. WHEN YOU MEET Gregor Noll for the first time you are immediately struck by his gentle and unassuming nature. He is always considerate and kind in his interactions with others. Indeed, a deep sense of equality informs his relationship with colleagues and friends. As a scholar Noll carries his learning lightly. Despite the profound and vast knowledge of subjects that he researches and writes on he is extremely humble. He is also an empathetic listener. This perhaps explains his many collaborative projects. His openness to other views, as we shall see presently, carries into his scholarship. Noll’s style of scholarship is distinct. His writings often evidence a complex mix of philosophical, social science and legal materials. But the diverse sources he deploys are always integral to the argument he is making. Anyone who makes the effort to carefully read his writings is duly rewarded with rich insights. Indeed, Noll’s extensive body of published work deserves to be the subject of substantive commentary. What I wish to do in this altogether brief note is to 177 merely touch upon one or two of his methodological reflections in productively ‘adapt the select dynamics captured in Third World the research areas of international refugee law and law and technol- Approaches to International Law (TWAIL) to the experience of ogy respectively that enrich their study. In each case it is enabled by the new member states within the EU’2. It is perceptively noted an epistemic move that underscores the need to transcend the idea that ‘while TWAIL researchers focus on the history of Northern of routine interdisciplinarity. domination being encoded into the DNA of international law, European legal researchers might be well-advised to look at the CEAS 178 II in a similar way. As the newly decolonized states were relative new- Noll has to his credit a range of writings on international refugee comers to the international system in the 1960s, so were the newly law. What I wish to highlight is his apt and thoughtful question- admitted member states in relation to EU law and the CEAS’.3 ing of mainstream positivist scholarship in the field. In an article In acknowledging the contribution of TWAIL to understanding co-authored with Rosemary Byrne and Jens Vedsted-Hansen titled the relationship between strong and weak states in Europe, Noll ‘Understanding the crisis of refugee law: Legal scholarship and the and colleagues show a welcome openness and willingness to learn EU asylum system’ Noll forthrightly calls for ‘the repositioning of from other approaches to international law. But they also offer in the lens of refugee legal scholarship’. turn an important insight that should enrich the work of TWAIL. This is however not a routine call for inter-disciplinary schol- By speaking of ‘center-periphery’ in Europe, Noll and colleagues arship. Noll and his co-authors argue the case for a refugee law emphasize the significance of not always treating the Global North scholarship that visits and learns from the methodological debates as a monolithic bloc. The internal critique of EU law or Common in the ‘parent field of public international law’. Put differently, they European Asylum System (CEAS) helps underscore the role of pow- propose what may be termed “intradisciplinary-interdisciplinarity” er in framing and shaping international refugee law even within the as a method. The epistemic debates in public international law have Global North. It highlights the need to disaggregate the policies been initiated by several critical approaches that include the new of the Global North and identify the ways in which dominance is approaches to international law, feminist approaches to interna- exercised within it. 1 tional law and third world approaches to international law. In their In another essay Noll and his co-author Eleni Karageorgiou critique of mainstream scholarship Noll, Byrne and Vedsted-Hansen take the analysis forward by deconstructing the EU move to separate ‘the principle of solidarity’ from the idea of ‘fair sharing 1 Rosemary Byrne, Gregor Noll, and Jens Vedsted-Hansen, ‘Understanding the crisis of refugee law: Legal scholarship and the EU asylum system’, Leiden 2 Ibid., at 873 Journal of International Law (2020), 33, 871–892 at 871. 3 Ibid., at 889. 179 of responsibility’ in the Treaty on the Functioning of European plinary unruliness” that leads them out of “professional confines”,5 Union (TFEU)4. The absence of just burden sharing and solidarity transcending in the process facile interdisciplinarity. The epistemo- with the European periphery helps deconstruct the current and logical flexibility and willingness to experiment Noll embraces in prospective approach of centers of power in the Global North to his work is in many ways essential to dealing with novel subjects asylum seekers and refugees from the Global South. The posited and intricate situations. distinction between “solidarity” and “responsibility” is in turn There are knotty issues involving AI and legal regulation which used by populist and illiberal regimes to justify non-entrée asylum Noll presents with great clarity in his writings on the subject. A key policies in the European periphery. question in determining legal responsibility for acts of omission and commission is ‘what is attributable to the human and what to 180 III the machine’?6 The reason this is a difficult task is, as he explains, As the fourth industrial revolution unfolds, a central concern is the ‘humans and algorithmic technology amalgamate in practice, and ability of domestic and international law to regulate new technol- cannot be isolated from each other for the purposes of responsibility ogies. Noll has explored the frontiers of the intersecting world of attribution’.7 Noll demonstrates ‘what algorithmic technologies do law and technology and offered profound reflections on the com- to the law’8 and explains ‘why law and algorithmic technologies plex problems arising from attempts to regulate them. He has in cannot be reconciled’.9 A key reason is that because of its learning particular identified the problems which may be encountered in the capacity an AI has come ‘to possess a normativity that can no longer legal regulation of AI. be traced back to an intention originating in a human designer’.10 In order to consider relevant issues in the domain of interna- The “monotheistic form” of law is in the process fractured.11 In the tional humanitarian law arising from the operation of AI Noll has fruitfully collaborated with a philosopher and art historian (Max Liljefors and Daniel Steuer respectively). In a book that followed, titled “War and Algorithm”, Noll and his colleagues contend that if the issues have to be adequately addressed there is a need for “disci- 5 M Liljefors, G Noll and D Steuer, ‘Introduction: Our Emerging World of War’, in M Liljefors, G Noll and D Steuer (eds), War and Algorithm (Rowman & Littlefield 2019) at 3. 6 Gregor Noll, ‘War by Algorithm: The End of Law?’, ibid., at 93. 7 Gregor Noll, ‘AI, Law and Human Responsibility’, Stockholm Intellectual Property Law Review 4 (2021) 48–55 at 55 8 Ibid., at 48. 9 Ibid. 4 Eleni Karageorgiou and Gregor Noll, ‘What Is Wrong with Solidarity in EU Asylum and Migration Law?’ Jus Cogens (2022) 4:131 154 10 Noll, ‘War by Algorithm, at 93. 11 Ibid., at. 98. 181 instance of lethal autonomous weapon systems (LAWS) he concludes that ‘it is not possible to subject algorithm forms of warfare to the law, be it the law of war or any other form of law’ In short, 12 algorithm technologies pose a fundamental challenge to the tenets of legal responsibility.13 Theater, law and verfremdungseffekt Markus Gunneflo Noll is not satisfied with only identifying the problems arising Lilla Teatern i Lund februari 1990, Gregor Noll och Oline Stig. fotograf: Ingemar D Kristiansen. källa: Sydsvenskan from the interface between law and technology. He also proposes thoughtful responses. For instance, he suggests ‘the introduction of strict liability for certain forms of algorithmic technologies. … Strict responsibility is the lawyer’s way of pointing out the existence of a serious conflict between law and the cybernetic basis of algorithms’.14 As he notes such a move may help in the period of transition. 182 DEN 15 FEBRUARI 1990 spelades Per Wickströms pjäs Tegelmannen i Lilla Teaterns nyinflyttade lokaler på Stortorget 1 i Lund. Juriststudenten Gregor Noll spelade Räven. Samma vår bytte Gregor teatersällskap till Fäbodsteatern, ett sällskap med en mer avant12 Ibid. gardistisk repertoar som sannolikt passade Gregors riskbenägen- 13 Ibid. het bättre. Fäbodsteatern spelade bland annat futuristen Filippo 14 Noll, ‘AI, Law’, at 48. 183 Tommaso Marinettis pjäs Obeslutsamhet på Hultsfredsfestivalen tansering i utövandet av akademins många roller får, för tillfället, på det tidiga 90-talet. Exalterade punkare lär ha ropat in ensem- räcka. Var uppmärksam på inslag av komedi, dialog med publiken blen efter pjäsens slut med det specifika önskemålet att igen få se vid sidan av rollfiguren, historisk kontextualisering, spelande av den ål som var en del av handlingen i pjäsen. flera roller samtidig, samt en sparsam dekor. Alla typiska grepp Seminarierummet, disputationstillfället, lärosalen full av grundutbildningsstudenter och konferenspresentationen är alla situa- 184 hos Brecht. Låt mig istället säga några ord om kritisk distansering i Gregors textproduktion. tioner som ställer krav på inlevelseförmåga och gestaltning. Den Den ämnesmässiga bredden tillsammans med en teoretisk och som förlitar sig på autenticitet går miste om det situationsanpas- metodologisk rastlöshet samt en ödmjuk avsaknad av överblickar sade, men också det rollbundna i dessa olika verksamheter. Det är över det egna projektet gör en sammanfattande beskrivning till dessutom så att det krävs desto mer av en inledare och ordförande en komplicerad uppgift. En konstant är emellertid den doktrinära på ett slutseminarium där doktoranden tänjer på rättsvetenskapens precision som kännetecknas av ett mycket skickligt handhavande gränser, än ett som tryggt befinner sig inom dem. Och tänjts har med det (folk)rättsliga materialet över så vitt skilda ämnen som det gjort i Gregors närhet. papperslösas rättigheter, dödande av civila i väpnad konflikt och de Med inspiration från kinesisk teatertradition introducerade mänskliga rättigheternas exkluderande konstruktion. Hos Gregor Bertolt Brecht på 1920-talet en slags teater där interaktionen med är emellertid alltid ambitionen en annan än identifikation med de publiken var en annan än den borgerliga teaterns identifikation bärande aktörerna i dramat. Den doktrinära expositionen ”citerar” med skådespelet. Brecht ville använda teatern för att öppna upp rätten, det suveräna beslutsfattandet, teknologins härjningar med samhället för kritik och politisk aktion. För att lyckas med detta människan (för att lyfta ett mer sentida tema i Gregor produktion). måste teatern erbjuda något annat än verklighetsflykt. Således priv- Den ”är” den inte. Vi är därmed tillbaka i Brecths politiska teater. ilegierar Brechts politiska teater publikens rationella förståelse och Med Richard Schönströms ord: analys av skeenden. Skådespelaren kan bidra till den verfremdungseffekt som är en viktig del därav genom ett kvalitativt skådespel som emellertid inte förleder publiken till att tänka att de ”är” rollfiguren och bevittnar något annat än ett skådespel. Skådespelaren ”citerar” den roll som spelas. Skådespelare ”är” aldrig sin roll. Genom kritisk Istället för att (som i den naturalistiska teatern) föra in åskådarna i en välbekant värld fjärmar han dem från vad som försiggår på scenen så att de kan reagera med häpnad på situationer eller ”tillstånd” som vanligtvis ter sig naturliga och självklara. distansering skapas ett glapp som möjliggör för publiken att förstå de krafter som styr skådespelet, och i dess förlängning, samhället. Gregors strukturalism är onekligen hård. Ändå finns det något Ett försiktigt antydande om Gregors användande av kritisk dis- frigörande i det glapp som den kritiska distanseringen skapar. 185 Frigörande, men också skrämmande. Samtidigt, hur kunde det vara with the audience was different from the bourgeois theater’s at- annorlunda? I en våldsam värld, där rätten oftare är en del av prob- tempts at getting the audience to identify with the play. Brecht lemet än av lösningarna; bör läsupplevelsen av texter som reflekterar wanted to use the theater to open up society to criticism and po- över motståndets möjligheter och nödvändighet vara något annat litical action. To succeed in that, it must offer something else than än en balansakt över en avgrund? escapism. Thus, Brecht’s political theater privilege the audience’s rational understanding and analysis of events. The actor can contrib- ON FEBRUARY 15 , 186 1990, Per Wickström’s theater play the Brick ute to the Verfremdung effect which is an important element of such man (Tegelmannen) was performed at Lilla Teaterns new premises understanding through a qualitative performance which, however, at Stortoget 1 in Lund. In the role as the Fox, was the law student does not lead the audience into thinking that the actor “is” the role Gregor Noll. That same spring, Gregor changed theater group to and that they are witnessing something else than a performance. Fäbodsteatern, a group with a significantly more avant-garde rep- Instead, the actor “cites” the role. The performer is not to be sub- ertoire that probably suited Gregor’s propensity for risk-taking bet- sumed by that which is performed. Through a distancing effect, a ter. Fäbodsteatern played, among other things, the futurist Filippo gap is created that enables the audience to understand the forces Tommaso Marinetti’s play Hesitation at the rock festival in Hults- that govern the play, and by extension, society. fred in the early 90s. Excited punk rockers are said to have called Hinting at Gregor’s use of critical distancing in the exercise of the in the ensemble after the end of the play with the specific wish to academy’s many roles, will suffice for the moment. Pay attention to again see the eel that were part of the play. elements of comedy, out-of-character dialogue with the audience, The seminar room, the viva, the classroom full of undergraduate historical contextualization, playing multiple roles at the same time, students and the conference presentation, are all situations that re- as well as sparse décor: all typical moves in Brecht’s political theater. quire sensitivity and awareness of the room. Relying on authenticity, Instead, let me say a few words about the distancing effect in Gre- risks missing out on the situational, but also role-bound, aspects of gor’s textual production. these different activities. It is undoubtedly also the case that more Summarizing Gregor’s writings is a complicated task because of is required of the leader of a final seminar where the doctoral stu- the vast range of subjects covered, a slight theoretical and meth- dent pushes the boundaries of jurisprudence, than one who is safely odological restlessness but also a characteristically humble lack of within them. And, without a doubt, boundaries have been pushed retrospective references to his own scholarly journey. by those working with Gregor. One constant is the doctrinal precision characteristic of a very In the 1920s, with inspiration from Chinese traditional theater, skilled handling of legal materials on everything from the rights of Bertolt Brecht introduced a kind of theater where the interaction undocumented migrants, the killing of civilians in armed conflict 187 and the exclusionary construction of human rights. However, with Gregor, the ambition is always something other than identification with main characters of the drama. The doctrinal exposition “cites” the law, the sovereign decision, the ravages of technology with man (to highlight a more recent theme in Gregor’s writing). They never strive to “be” it. We then seem to be back in Brecth’s political theater. In the words of Richard Schönström: A Tribute to Professor Gregor Noll Elspeth Guild Instead of inviting the audience into a world where they will feel at home, he distances them from what is happening on stage so that they can react with astonishment to situations or ‘conditions’ that otherwise will seem natural and obvious. I HAD THE PLEASURE of meeting Gregor more than 20 years ago through the Odysseus academic network for legal studies on immigration and asylum in Europe. At that time, he was at Lund Univer- 188 Gregor’s structuralism is undeniably a hard one. Yet there is some- sity and already one of the most interesting and engaging scholars in thing liberating in the gap that this distancing effects creates. Lib- the field of European asylum law. From the very first meeting, I recall erating, but also terrifying. Then again, how could it be otherwise? Gregor engaging me regarding the then recently published book by In a violent world, where law is more often part of the problem than Giorgio Agamben, Homo Sacer, and what kind of socio-legal analysis of the solution; should the reading experience of texts that reflect we could make of this ground-breaking work. on the possibilities and necessity of resistance be anything else than one of balancing over an abyss? I must immediately declare an interest in the career of Gregor, he nominated me for a PhD honoris causa at Lund University in 2009, an honour of outstanding proportions. At the time of the nomination, I recall receiving the letter and being overwhelmed by the sense of responsibility which such an award means. This inspired me to think more deeply about the field and my duty to participate fully in its development. The event itself was outstanding. It took place on a lovely early summer day in Lund with blue skies and amazing pageantry. I knew only one of my fellow honorees, a former Commission official, and the whole event was astonishingly wonderful. I strongly recommend to anyone who 189 190 has not participated in one to attend, it is glorious. However, one began examining the subject few of us were looking at this issue. must never forget that in Sweden, academics are expected to work. His book, War and Algorithms, written with two colleagues, remains So the event includes the obligation to give a ground-breaking an outstanding contribution and warning to the transformations presentation of the state of the discipline and the ways forward in which AI is changing our world. His engagement with the challenges the Pufendorf room of Faculty of Law in front of an expert and to law of AI uses in this area is phenomenal. His understanding of highly critical audience. the scope of the changes which these new technologies would bring What has always impressed me about Gregor is his ability to look was visionary. The profound challenge which AI would constitute forward towards the incoming tides of thought (and policy) in a very for law was already on his radar, in particular the ways in which AI wide variety of fields. While our work together has been primarily tools could make irrelevant questions of human rights through the in the field of asylum and migration, I have also followed with great abolition of decisions as we understand them in law. Many of us interest Gregor’s work in the use of force in war and neurotechnol- are only now trying to catch up with the development of AI and ogy. In recent years he has returned to a focus more on asylum, as its uses in a wide range of fields, from the threat of Chat GPT, to have many of us, in light of the challenges to international protec- AI tools to assist in marking. The latest of the challenges in use of tion of the current decade. Not only has Gregor been astonishing AI is in the field of asylum, in particular assessments of country of in the scope of his interests, but also his work has been profoundly origin information and checks on language usage and in assessment transdisciplinary. In this area, in particular, I have so admired his of short stay visa applications. The creation of large (EU and other) willingness to engage intensely with philosophy, politics, sociology, databases containing personal information on foreigners which can neuroscience, to name a few, irrespective of the tendency towards be used in multiple ways opens the way for a whole new series of singular disciplinarity of most legal scholars where engagement out- questions about legality and legitimacy which are presaged in Gre- side our discipline is viewed as evidence of a lack of dedication to gor’s work. The challenge of some states’ efforts to create a global law. His intellectual curiosity is outstanding and leads his research capture of data to European legal concepts of privacy and data pro- without fear or favour to the fashions of law (or other disciplines) tection has been an issue which Gregor has addressed in a number of the moment. His academic rigor and intense critical sensibility of works. This interest is closely linked with his work on AI, as the have convinced even the most sceptical of black letter jurists that later depends on the former – without mass data there is no AI, as he merits high esteem in his discipline. some experts have stated. I would like to focus briefly here on Gregor’s work on AI in My work has been profoundly influenced by Gregor, through particular its deployment in the field of war. While AI and its uses his insightful comments on drafts of my articles or chapters to his are now a mainstream discussion even in law, when Gregor first own writing. His 2000 book, Negotiating Asylum, provided me with 191 much food for thought on how to think about the question of ex- It has been such a pleasure to have this opportunity to reflect on traterritoriality. While there is now a wealth of literature on the Gregor’s career and what it has meant for me. I am such a fan of subject, when Gregor’s book came out it was a trailblazer on how his work, his commitment and of Gregor as a human being. He has to think juridically about the subject in the field of asylum law and enriched my life greatly and I am honoured to consider him a friend obligations of states. I am not the only scholar whose work has been as well as a colleague. fundamentally influenced by Gregor. He has supervised a series of outstanding PhD students, for two of whom I had the privilege of being a member of their juries. His former PhD students have gone on to excellent academic careers themselves, carrying forward the lessons which he taught them regarding rigor and responsibility to the profession as well as to practitioners in the field. Finally, I would like to comment on an aspect of Gregor’s contribution which extends beyond academia. He has been a foremost 192 champion of the principle that academics are not only responsible to the academic community regarding their work but also that they have a duty to assist practitioners with their struggles to establish the correct application of the law (in particular human rights and refugee law) for their clients. Gregor has always exhibited a deep respect for practitioners and sought to assist them as they seek to ensure the correct interpretation of the Refugee Convention and the European Convention on Human Rights. His conceptualisation of law encompasses not only the actions of politicians and policy makers or officials but also the treatment of individuals faced with the severe force of practice. His concerns have been for individuals captured by legal procedures about which they have little or no knowledge or capacity to protect their interests in face of state action. This deep humanity for the individual has influenced all aspects of his career. 193 194 Transnational solidarity, the antidote against the exceptionalisation of the world gor has shown how mechanisms that derogate from the rules of Didier Bigo by police practices that would only be legitimate in a context of human rights have been developed in a border area that is divided in such a way that zones apply police force in the name of sovereignty while restricting the rights of those detained there. For my part, I have analyzed the logic of counter-terrorism and the extension of a continuum of internal security beyond counter-terrorism to illegal immigration and even asylum seekers, which has led me to very similar conclusions. This governmentality of unease has worked gradually, exceptionalizing more and more situations in which the human rights of foreigners, of minorities born in the country, of those who shelter them or help them enter, are called into question war or serious threat to national security, which is by no means the case. Thus, over the last twenty years, we have seen the constant many years after I first read him, and it was a development of a reactionary rhetoric aimed at strategizing internal great pleasure for me, with a touch of surprise. He had invited my security, using the language of the enemy within, who would ma- partner Elspeth Guild to receive an honorary doctorate, so he was nipulate and try to infiltrate the masses, imagining them as a body the first person to put a ring on her finger on behalf of Lund Uni- alien to the homeland, when in reality we are witnessing a natural versity, before I married her – an extraordinary situation. phenomenon of flows of people moving around the world for an I MET GREGOR NOLL Our meeting sparked a real discussion about Carl Schmitt and infinite variety of reasons, almost never hostile. The exaggeration his concept of the state of exception. I was particularly interested of danger has long been a constant in justifying a repressive and in Gregor’s analysis of the mechanisms of exception used at borders preventive social order, abandoning the criteria of presumption of in transit and detention zones. Since 2003, his legal analysis has innocence and proof of facts for those of suspicion and surveillance. paved the way for research that discusses the modalities of the state Gregor was one of the first to analyze the consequences of such a of emergency and the state of exception (permanent or routinized) development for the legal order and human rights. This hostilization that the asylum and immigration policies of Western democracies of social contexts has in no way resolved security situations; on the have implemented at their borders. In a more subtle and accurate contrary, its use generates material and symbolic insecurity. In many way than the one used by the philosopher Giorgio Agamben, Gre- countries, it has led to a revival of aggressive ultra-patriotism and 195 hatred of others, including political opponents or governments open to the outside world, and to a much more frequent use of violence by the various police forces. In many countries, the values of openness to others, European freedom of movement, and political and economic freedom remain the dominant principles, but they have not been able to prevent hostile discourse and practices from being expressed in a “no-holds-barred” manner. This has to do with racism and xenophobia, but also with the justification of refusing international aid by some elites who pretend to speak on behalf of the local people, accompanied by demands to withdraw from international treaties that protect rights, in the name of a vision in which helping the other would be to the detriment of this fantasized people in a zero-sum game. Whether it takes the caricatured form of the risk of 196 the “great replacement” on the extreme right, or in the center with its formula “we cannot accept all the misery in the world”, certain politicians seek to justify inhumanity in the name of political “realism” in times of crisis. Twenty years later, we continue to suffer from this exceptionalization of the world, which is now seen only in terms of multiple scenarios of future disaster, in which everyone is expected to protect themselves from others, whereas the solutions to all these different social and environmental changes require us, on the contrary, to strengthen solidarity and human rights for all; a message that Gregor has never ceased to repeat with accuracy and determination, and for which he must be recognized and honoured. “What hempen home-spuns have we swagg’ring here…?”1 A malicious dissection of the International Criminal Court and its slogan Or You want to meddle in criminal law? Learn some steampunk first! Sverker Jönsson 1 William Shakespeare, “A Midsummer Night’s Dream”, Act 3, Scene 1 197 Bosheit, mein Herr, ist der Geist der Kritik, clear from the wording of the previous paragraph that our perspec- und Kritik bedeutet den Ursprung des tive is a very traditional “domestic” one. We stand on firm “domes- Fortschrittes und der Aufklärung. tic” ground, from where we will look up at the dizzying heights and limitless skies of international law. thomas mann, Der Zauberberg (1924) But before moving further with this mind game, let’s establish that the term “domestic” (as opposed to “international”) is prob- 1 lematic in itself. Ethymologically4, the latin word domesticus means INTRODUCTION 2. ESTABLISHING SHOT. “belonging to the household”. The old French meaning of the word is “prepared and made in the house”. Further back in time, the pro- understandable, and anyone would be forgiven to-indoeuropean root means “house” or “household”, the Sanskrit for doing so, to think that criminal law is about crime. However, word for “house” is damah. We later find it in words as dame, donna, in its core, criminal law is about regulating the state monopoly on Madonna, madam, madame, mademoiselle and domesticate. Combined violence. And as Encyclopedia Britannica so eloquently explains, the with the traditional gender roles of the European bourgeoisie, where monopoly on violence is ‘widely regarded as a defining characteristic the confinement and duties of the home was (is) the female sphere, of the modern state’. In other words, criminal law is inextricably and participation in public life and in political and economic affairs intertwined with the sovereign’s (the King’s, the nation state’s) was (is) the male sphere5, the practice in international law research claim to be the legitimate source of power. The right to punish (for of contrasting “domestic” and “international”, is a terminology criminal behavior) resides in this claim. deeply coded with gender and clearly characterised by the exercise IT IS PERFECTLY 198 3 Already at this point we must pause, breath and, even if we don’t of patriarchal power. agree with them completely, at least temporarily allow certain start- Now, let’s return to the right to punish again. If several parties ing points to prevail, for the sake of experimentation. It is already compete to establish themselves as sovereigns, the control over the monopoly on violence is contested. And then, the legitimate source 2 I am deeply indebted to Anastasiya Kotova for discussing the fundamentals of international criminal law with me, and thereby taking valuable time from her writing her doctoral thesis on the understanding of how corporate activities of punishment is also questioned, suspended and unclear. In other words, whatever party who claims to be the sovereign, must also manifest this through a de facto monopoly on violence within an and corporate violence are debated and (not) regulated in international criminal law. 3 https://www.britannica.com/topic/state-monopoly-on-violence. Retrieved 2023-11-23. 4 https://www.etymonline.com/word/domestic. Retrieved 2023-12-05. 5 Jacquie Smyth (2008). Transcending Traditional Gender Boundaries: Defining Gender Roles Through Public and Private Spheres. Elements, 4(1). 199 200 actual delimited physical, geographical territory: The Kingdom, the so many different human qualities, shortcomings, needs, experiences nation state, or the gang turf. And the ultimate manifestation of this and fears that they basically have no common denominator at all. is the right to punish. Criminal law, then, is about the right to punish As examples of human behaviour, tax fraud has nothing in common and not about “crime”. This is also reflected in many languages in with infanticide; environmental crime has nothing in common with the naming of this area of law: Derecho penal, Strafrecht, Code Pénal, defamation or hate crime; rape has nothing in common with illegal Direito Penal, Strafferet, Straffrätt, Diritto Penale. smuggling of explosives. Crime control, however, has been a successful way for sovereigns In essence: There can be no sovereign (King or nation state) to reaffirm that their claim to the monopoly of violence is true without criminal law, and there can be no criminal law without a and factual. Hence, criminal policy is extremely important for any sovereign. However, since criminal law (and only criminal law) has political power in order to reassure the citizens – subjects – that the the potential to invoke the full power of the nation state’s monopoly political power is legitimate. This explains, of course, why ‘organized on violence against unruly citizens/subjects, it also carries a special crime’ or ‘the mafia’ often have been the focus of many modern allure for those with a need to put power behind their words, their nation states: they challenge the very foundation of the state itself politics, their dreams, or their norms from other legal disciplines. – the physical control over a territory by a monopoly on violence. Consequently, in 2002, as a result of the human rights movement’s And nota bene: the term “violence” in the expression “monopoly increasingly insistent and intense wooing of punishment as a tool on violence” means the right to arrest, detain and punish a human being, in “the fight against impunity”8, international law gave birth to i.e., using or authorizing the use of physical force.6 international criminal law in the shape of the Rome Statute of The What about “crime”, then? Firstly, “crime” is necessary for the International Criminal Court.9 state or sovereign, since without crime, there would be no need for punishment. The sovereign needs “crime” in order to be able to manifest the monopoly on violence. Secondly, there is no such thing as “crime” (outside the rather empty legal definition of “that which is punishable according to valid law”), it is not a natural category. 7 The categories of human action, inaction and experiences of harm that – legally speaking – are “criminal”, are so disparate and express 8 Karen Engle, Anti-Impunity and the Turn to Criminal Law in Human Rights, 100 Cornell L. Rev. 1069 (2015). 9 I am aware of the ad-hoc predecessors to the ICC, and the importance of those temporary “criminal courts” for the historical formation of the idea of a permanent one. However, most of those temporary “courts” have closed or entered what is called the residual phase. As “courts”, most of them are no more, they’re a stiff, bereft of life, they rest in peace, they’re pushing up the daisies, their metabolic processes are now history, they have kicked the bucket, they 6 https://www.britannica.com/topic/state-monopoly-on-violence. Retrieved 2023-11-23 7 See Nils Jareborg (1994), Straffrättens ansvarslära, Uppsala: Iustus, pp. 323–342. have shuffled off their mortal coil, ran down the curtain and joined the choir invisible. They are ex-courts. See John Cleese & Graham Chapman (1969), Full Frontal Nudity, BBC. 201 The ICC was launched with an impressive degree of independ- inaugurated almost unfathomably free from undue influence from ence from more than thirty years of academic debate on restorative sociological and crimino-legal research strands such as abolition- justice as an alternative to criminal punishment. The ICC was ism18 or “ideal victims” and “conflicts as property”.19 10 constituted with an unprecedented neutrality towards six decades of questioning criminal law and punishment from a white collar 2 crime perspective (including thorough, comprehensive and deeply SETTING THE SCENE. LETTING THE STEAM theorized international research on moral and legal responsibility IN. L’ARRIVÉE D’UN TRAIN EN GARE DE LA in and for collective entities and (transnational) organizations. CIOTAT. 11 The ICC was established exemplarily separate from the previous 27 years of international academic debate on the discursive and Let’s go back to a time, and to a place (Sweden, Italy, Bavaria, Eng- disciplining power-practices of criminal law and punishment. The land, France...), where every second child dies before reaching the ICC was set up impeccably unaffected by the birth of criminology age of fifteen.20 A time, and a place, with no electric lighting and 126 years earlier with Cesare Lombroso’s book “L’uomo delinquente” no trains, where news travel no faster than the speed of a horse. It and by the numerous criminological theories launched during the will be another 32 years before Edward Jenner develops the first 20th century (e.g. differential association theory , strain theory , vaccine, so smallpox is still a killer and a mutilator. Four hundred control theory15, labeling theory16, conflict theory17). The ICC was thousand Europeans are killed by smallpox every year.21 A time, 12 202 13 14 and a place, where life expectancy at birth is 40 years of age.22 A 10 Gerry Johnstone (ed.) (2003), A restorative justice reader. Willan publishing. 11 Starting with Edwin H. Sutherland (1940), White Collar Criminality, American Sociological Review, Vol.5 no. 1, pp. 1–12. See also Gilbert Geis, Robert F. Meier & Lawrence M. Salinger (eds.) (1995), White-Collar Crime: Classic and Contemporary Views, 3rd Edition. Free press. 12 Launched by Marcel Foucault (1975), Surveiller et punir. Éditions Gallimard. 13 Edwin H. Sutherland (1939), Principles of Criminology, Philadelphia: Lippincott. 14 Robert K. Merton (1938), Social Structure and Anomie, American Sociological Review, 3, pp. 672–682. 15 Travis Hirshi (1969), Causes of Delinquency. Berkeley: University of California Press; 16 Howard Becker (1963), Outsiders: Studies in the sociology of deviance. New York: Free Press. 17 See for example Richard Quinney (1974), Critique of the legal order: Crime control in capitalist society, Boston: Little, Brown. 18 See for example Maximo Langer (2020), Penal Abolitionism and Criminal Law Minimalism: Here and There, Now and Then, 134 Harv. L. Rev. F. 42. 19 See for example Nils Christie (1986), The Ideal Victim, in E. A. Fattah (ed.), From Crime Policy to Victim Policy; see also Nils Christie, (1977), Conflicts as Property, British Journal of Criminology, vol. 17, pp. 1–15. 20 https://ourworldindata.org/child-mortality. Retrieved 2023-11-16. 21 “Jenner’s Breakthrough”. The History of Vaccines. Philadelphia: The College of Physicians of Philadelphia. 2020. Archived from the original on 6 June 2017. https://web. archive.org/web/20170606213421/https://www.historyofvaccines.org/timeline#EVT_48. 22 https://ourworldindata.org/its-not-just-about-child-mortality-life-expectancyimproved-at-all-ages. Retrieved 2023-11-16. 203 time when there are still 18 years to go until the execution of Anna of the industrial revolution: the Watt engine.28 The influence of Göldi in Switzerland, the last woman to die accused of witchcraft.23 Beccaria’s “Dei delitti e delle pene” on the abolition of corporal A time, in Sweden, when you will have to wait for another 100 years punishment, the abolition of the death penalty, the development of to have any other kind of lightsource than a carried torch or lantern the concept of the rule of law in criminal law and criminal procedure when you leave the house after sunset. The darkness of the night (often referred to as the principle of legality), and the elaboration of is total, impenetrable and impervious. the principles of criminalisation is beyond measure. 24 This is Europe in the years of 1764 and 1765. 25 In this time and place, within the short timeframe from April nopoly on violence had been used by autocracies for centuries. In 1764 to May 1765 , two fantastic machines will be introduced, “Dei delitti e delle pene” Beccaria also paved the intellectual way for both of which will have a profound impact on European culture the development of the scholarly treatment of criminal law that forever. By the way of the world, of course it is two men who will took place during the long 19th century by figures like Anselm introduce them. One of those men is the Scotsman James Watt, the von Feuerbach. While the criminal law as a legislative area always other one is Cesare Bonesana di Beccaria, Marquis of Gualdrasco remained tied to the project of the modern state, its philosophy, and Villareggi. jurisprudence and legal conceptualisations quickly became truly 26 204 Beccaria took stand against the tyrannic ways in which the mo- 27 In the month of April in 1764 Cesare Beccaria anonymously pub- international during this period.29 Criminal law as we know it to- lishes his treatise on criminal law, ”Dei delitti e delle pene”. It is printed day in democracies all over the world, the classical liberal concep- in Livorno in Tuscany. In the month of May in 1765 James Watt, tualization of the prerequisites for and limits of punishment in a with his first invention – the separate condenser – improves on the Rechtsstaat, was born from Beccarias ground-breaking work and Newcomen steam engine, thereby creating a defining development refined by legal scholars in the century that followed. The unparalleled social impact of the industrial revolution – life in the age of the steam engine – together with the ideals of enlighten- 23 Lauren Nitschke. “European Witch-Hunting (A Brief History)” TheCollector. com, February 13, 2022, https://www.thecollector.com/european-witch-hunting/. Retrieved 2023-11-16. 24 Jan Garnert (1993) Anden i lampan: Etnologiska perspektiv på ljus och mörker, p. 64ff. ment philosophy and an emerging conceptualisation of criminal legal doctrine and dogmatik at law faculties across Europe, is the environment, the backdrop, background and indispensable soil from which modern criminal law grew and developed. 25 This text of mine is, admittedly, not only reprehensibly eurocentric but also gravely anthropocentric. My apologies. 26 Dei Delitti e delle pene – Om brott och straff (1977), p. 201. 27 https://www.britannica.com/biography/James-Watt. Retrieved 2023-11-21. 28 https://www.britannica.com/biography/James-Watt/Later-years. Retrieved 2023-11-16. 29 Christian Häthén (2004), Stat och Straff, p.183. 205 3 ly budget is €169 million ($180 million; SEK 1,9 billion). The MAIN PLOT (I): FACTS AND FIGURES. EXT. budget for the entire Swedish court system for the fiscal year 2022 OUDE WAALSDORPERWEG 10, THE HAGUE was SEK 6,6 billion, just about 3,4 times larger than the budget of the ICC. However, in that year alone, 456’061 cases were decid- It is somewhat unfortunate that a member of the public who does ed by Swedish courts.32 Since its inception 21 years ago, the ICC a search on the Internet using the term “ICC”, looking for infor- has decided in 31 cases33 (some even with more than one suspect!). mation on the International Criminal Court, will find that the ab- Now, there are three kinds of people in the world: those who can breviation “ICC” is also used by the International Cricket Council, do maths and those who can’t. I suggest that either the instances 30 the International Code Council , Illinois Central College, and of of suspected international crimes34 the last two decades have been course the International Chamber of Commerce. However, finally rather surprisingly few, or that efficiency is not really the hallmark arriving at the official website of the International Criminal Court, of the work of the ICC. the following facts, figures and slogan can be found under the heading “About the court” : 31 206 Facts and figures Today the Court has: Over 900 staff members; 2023 budget: €169,649,200;There have thus far been 31 cases before the Court, with some cases having more than one suspect. But are not the crimes within ICC’s jurisdiction very hard to investigate, prosecute and decide on? Do they not require a multitude of investigative efforts and methods that takes time? Do they not entail the difficult task to document and trail actions and decisions from a multitude of actors on the ground? Do they not require many witnesses to be interrogated and countless numbers of documents to be traced? Do they not implicate delicate legal judgements concerning power-structures and the de-facto roles of individual human Before moving on to more serious matters, let’s take quick look persons in a very complex event? Yes, of course they do. But the at the facts and figures. The ICC has 900 employees. The year- same is true with – inter alia – tax fraud, international smuggling and sale of narcotic drugs, murder within and by transnational or- 30 “The International Code Council is the leading global source of model codes and standards and building safety solutions that include product evaluation, 32 Sveriges domstolar. Årsredovisning 2022, p.15. accreditation, technology, training, and certification. The Code Council’s 33 The International Criminal Courts’s 25th anniversary and World International codes, standards, and solutions are used to ensure safe, affordable, and sustainable communities and buildings worldwide”, https://www.iccsafe.org/about/ who-we-are/. Retrieved 2023-11-21. 31 https://www.icc-cpi.int/about/the-court. Retrieved 2023-11-21. Justice Day. EPRS European Parliamentary Research Service, PE 751.406, July 2023. 34 Crimes listed in articles 6–8 in the Rome Statute of the International Criminal Court. 207 ganized crime, corruption, the causal and technical complexities of population (while representing only 12% of the US population).37 environmental crime, breaches of competition law, and the finan- People with Black, American Indian or Latin ethnicity have a com- cial and organizational labyrinths characteristic of other forms of bined imprisonment rate of 2098 per 100’000 US residents. The white-collar crime in “domestic” criminal law. imprisonment rate of people of White ethnicity though, is only 181 Thirty-one cases. In twenty years. Approximately €2–3 billions per 100’000 US residents.38 Now, out of the 51 defendants in the spent in total. That amounts to between €65 – €100 millions spent 31 cases the ICC have decided on, 82% (42 out of 51) are of Black by the ICC per case. If the Swedish court system had a budget like ethnicity. And as sure as the sun will rise tomorrow, these statistics that even for just half of its cases, the budget would amount to have invited quite a large bulk of criticism from postcolonial and between €14’000’000’000 (SEK 140 billion) – €22,5’000’000’000 other critical perspectives.39 (SEK 225 billion). Every year. An annual budget 34 times larger than today. In an article from 2002, the year the International Criminal 208 4 Court was constituted, Martti Koskenniemi expressed concerns MAIN PLOT (II): “THE FIGHT AGAINST that international criminal law was prone to produce “show tri- IMPUNITY”. TOUCH OF EVIL. als”. Twenty years on we can note that, as a player in the crime 35 and punishment show business, the ICC has a very meagre output. Anyway, let’s move on. The slogan, or ‘tagline’, of the ICC is this: In comparison, the district court of Malmö, Sweden, produced 117 shows in the crime and punishment genre in just one week in November (17th–24th) 2023!36 While crunching numbers, it might also be worth reflecting on racial issues and the output from criminal law. In the USA, where the problem of racial bias in the criminal law system has been discussed for a long time, black people make up 38% of the prison 37 https://www.science.org/content/article/pandemic-may-have-been-setback-racial-makeup-u-s-prisons. Retrieved 2023-11-25. 38 https://www.sentencingproject.org/reports/one-in-five-ending-racial-inequity-in-incarceration/. Retrieved 2023-11-25. 39 For more on this, see Frédérick Mégret (2014), ”International Criminal Justice. A Critical Research Agenda”, in Schwöbel, Christine (ed.) “Critical Approaches to International Criminal Law. An Introduction”, p.34–41; Lena Ina 35 Martti Koskenniemi “Between Impunity and Show Trials”, Max Planck Yearbook of United Nations Law, Vol.6, p. 35. 36 https://www.domstol.se/globalassets/filer/domstol/malmo_tingsratt/veck- Schneider (2020), “The International Criminal Court (ICC) – A Postcolonial Tool for Western States to Control Africa?”, Journal of International Criminal Law [Vol. 1], p.90–109; Ann Sagan (2010), “African Criminals/African Vic- ans_forhandlingar/forhandlingar-vecka-47.pdf. Retrieved 2023-11-23. (List of tims: The Institutionalised Production of Cultural Narratives in International scheduled trials at Malmö district court November 17th–24th, 2023). Criminal Law”, Millennium: Journal of International Studies 39(1) 3–21. 209 The fight against impunity continues to decide whether or not the prosecution has successfully proved that the accused person has committed the crime specified in the By supporting the Court, the countries that have joined the Rome Statute system have taken a stand against those who, in the past, would have had no one to answer to after committing widespread, systematic international crimes. The ICC calls on all countries to join the fight against impunity, so that perpetrators of such crimes are punished, and to help prevent future occurrences of these crimes. indictment. And if it finds that the prosecution has reached the threshold of proof, declare the accused person guilty and make a principled decision on sentencing. As a matter of fact, by using that slogan, the International Criminal Court is at risk of positioning itself outside of Law. Impunity, understood legally, is nothing more, and nothing less, than the upholding of the presumption of innocence, as it is set down in the This, of course, is an echo of the wording of the preamble to the Rome Statute of the International Criminal Court (in which we hear Virtue – rigid and pompous – making long speeches40), where the state parties declare their determination to “put an end to impunity 210 for the perpetrators of these crimes and thus to contribute to the Universal Declaration of Human Rights, art. 11.1: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. prevention of such crimes”. So, here we have a criminal court declaring that it is part of a “fight From the viewpoint of any system of criminal law based on the against impunity”. Now, I am just a mere senior lecturer with a doc- presumption of innocence, no individual human being can be seen toral degree in “domestic” (Swedish) criminal law, so my reaction to as wrongfully exploiting “impunity”. In fact, from the presumption this slogan is probably an expression of misunderstanding, miscon- of innocence we can deduce every person’s right not to participate or ception as well as ignorance. However, I contend that such a slogan facilitate the investigation of one’s own alleged criminal behaviour. is inappropriate for any court, and that it ought to be unthinkable for In effect, the presumption of innocence gives each and every one any court that claims authority to decide on criminal cases. Even if of us the right to make it as difficult as possible for any authority it had been the slogan of the operative investigation unit of a police to accuse us or convict us for a crime. From a legal standpoint, authority, it would have been unfitting, eerie, sinister and unsettling. then, “impunity” is a fundamental human right. Fighting impu- A criminal court should not partake in a fight against anything nity therefore implies the breakdown or complete disregard of the (except miscarriage of justice). A criminal court should restrict itself presumption of innocence. For a criminal lawyer working or doing research in any modern 40 Jfr Fröding, Gustaf (1884), Anita democratic society, this comes as no surprise. “Impunity” simply 211 means that a corporate manager committing tax fraud on behalf 4. yet, are not criminalized (principles of criminalization). of the corporation, a bank robber, a killer, a sexual predator or a thief runs off into the woods and hides, or that he (it is most often 5. Impunity as a consequence of practical, factual, methodologi- a man) gets rid of evidence, covers up his tracks, uses a disguise or cal or forensical difficulties when investigating whether or not a uses any other available means to make a police investigation as crime has been committed. No perpetrator(s) can be iden- difficult as possible. And of course, as far as he is successful in these tified or the perpetrator(s) cannot be localized and arrested; undertakings, there will be a situation of “impunity” for the crimes the events cannot be reconstructed (investigative failure). committed. However, this state of “impunity” is not a consequence of the corporate manager or thief exploiting the situation. The sit- 6. doubt that either 1) the accused is the perpetrator, or 2) that to have a right to punish in the first place. The main objection to the analysis above would be that the slogan “The fight against impunity continues” is not intended to be un- the perpetrator’s behaviour constitutes a crime. 7. Impunity as a failure to execute or enforce a sentence. The perpetrator has escaped, fallen ill or passed away during or derstood in such a formal, legalistic way. How is it to be understood after the trial. then? It seems to me that the idea of “impunity” entails at least nine41 different meanings, aspirations or crimino-legal dimensions Impunity as a consequence of the burden of proof. The prosecutor has not been successful in proving beyond a reasonable uation of “impunity”, instead, is a consequence of the State’s claim 212 Impunity as a demand for criminalization of actions that, as 8. that ought to be separated from each other: Impunity as a failure of a system of criminal law and punishment to deter future criminal behaviour in a population (no general deterrent effect). 1. Impunity as a dissatisfaction and indignation with the existence of perceived evil in the world. 2. Impunity as a consequence of the fact that there is no power 9. Impunity as a failure of a penitentiary system to deter an individual person convicted of a crime from future delinquency (recidivism). (sovereign, state) with a monopoly on violence from which the claim to the right to punish can be derived. 3. A review of some of the literature on international criminal law Impunity as a failure to anchor robustly the claim to the reveals a certain inability to separate these nine crimino-legal di- right to punish in penal theory (theories of punishment). mensions from each other. In fact, sometimes they are conflated in such a way that there is a risk of leading to something of an intel- 41 These nine crimino-legal dimensions are an elaboration of Jareborg’s three levels of punishments. See Jareborg (2002), Scraps of Penal Theory, pp. 90–105. 213 lectual disarray. 42 The reason for this seems to be an unfamiliarity impunity unassailable, it ends the discussion. The moral indignation with the basics of criminal law and criminology. Sometimes this and the righteousness of this rhetoric, portrays further questioning unfamiliarity is even expressed as a distinct unwillingness to take as indecent.44 Especially if the questioning comes from something criminal law, criminology and its theory seriously. This is the case as trivial as “domestic” criminal law! To me, the claim that interna- when international criminal law is declared to be “sui generis” , and tional criminal law is different, special, something more and above when it is described as dealing with “extreme cases” and “unusual criminal law as it has hitherto been known by scholars of the field, contexts”, often invoking a rhetoric of “evil”, “atrocities”, “mass appears presumptuous, pretentious and gives quite a homemade atrocities” or “egregious crimes”. And this kind of rhetoric is rather impression.45 43 successful – the use of the word “atrocitites” makes the fight against In the worst case, the unwillingness to take traditional theories on punishment seriously might originate in a deeply unfortunate 42 See for example Darryl Robinson, (2020) Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law. Cambridge: Cambridge University 214 misunderstanding: The time-honoured, diverse and, admittedly, often contradictory Press. In chapter 5, “Criminal Law Theory in Extremis”, Robinson fails funda- crimino-legal theories of punishment, its justification and conse- mentally to make clear whether his text is about 1) the justification of punish- quences, are not at all tied to the legal system of any one specific ment for certain behaviours, or 2) the redundancy of the nation state (because nation state with “familiar Westphalian features”46, they are not time and space are perceived differently in the vicinity of a black hole in the universe!), or 3) that the terms “governance” and punishment are equated (or not). Then the term “cosmopolitanism” is introduced to inexplicably motivate 44 Or as Sergey Vasiliev puts it, “whenever the question ‘why punish?’ is posed, the the replacement of the nation state with “overlapping networks” as the origin tables are quickly turned on those daring ask it: Why not punish? What else – let and justification of punishment. them go free? Yet, this answer does not truly engage with the question, and the 43 Se the following for examples of this characterization: Sarah Nouwen (2016), “International Criminal Law: Theory All Over the Place”, in Anne Orford and tone of unassailable certainty hardly extinguishes it.”, Sergey Vasiliev (2020), Punishment Rationales in International Criminal Jurisprudence. Two Readings of a Florian Hoffmann (eds.), The Oxford Handbook of the Theory of International Law, pp. Non-question, in Florian Jeßberger and Julia Geneuss (eds.), Why Punish Perpetra- 752–753; Julia Geneuss and Florian Jeßberger (2020) Introduction: The Need for tors of Mass Atrocities? Purposes of Punishment in International Criminal Law., p. 46. a Robust and Consistent Theory of International Punishment, in Jeßberger, F., & Geneuss, J. (Eds.). (2020). Why Punish Perpetrators of Mass Atrocities?: Purposes of Punishment in International Criminal Law (ASIL Studies in Interna- 45 Without doubt, such ”sui generis” characterizations of international criminal law are more likely to generate research funding, though. 46 The depiction of a nation state as a place with “familiar Westphalian features” tional Legal Theory), Cambridge: Cambridge University Press., pp 1–11.; Immi expresses a rather condescending and demeaning view on the societal and legal Tallgren (2002), “The Sensibility and Sense of International Criminal Law”, systems in which billions of actual individual human beings live out their days. European Journal of International Law 13, no. 3, p. 575; Robert Cryer (2011), The For an example of this rather cynical approach, see Darryl Robinson, (2020), Philosophy of International Criminal Law, in Alexander Orakhelashvili (ed.), Research Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law. Handbook on The Theory and History of International Law, Elgar Publishing, p. 263. Cambridge: Cambridge University Press, p. 120. 215 “domestic” in any way. They are inherently international. We must and no electronics or computer chips. A subculture that imagines therefore distinguish between criminal law (the monopoly on vio- rural and city life, fashion, literature, visual art and music in a way lence) on the one hand, and the scholarly treatment of the problem that reflects the cultural and societal conditions that reigned during of punishment on the other. The latter is, and has always been, inter- what is often called the Victorian era. As Jenny Sundén explains, it national by nature and needs not to be reinvented for the purpose is a subculture which includes of international criminal law. The failure to acknowledge the universal character of classical works and thought on criminal law, together with an unreflected use of buzz-words such as “atrocities”, “extreme” and “peace” in works on international criminal law, explains the saddening unanalytical, and unfruitful use of the “impunity” terminology as a slogan for the International Criminal Court. 216 [..] retro-futuristic dreams of what might have happened if the steam-powered, mechanical technologies of the 19th century had been given a different scope. Its retrofuturism is an anachronism in the form of conscious chronological mistakes, an inconsistent temporality that misplaces people, events, objects [...] an imaginative re-creation of the past with the help of today’s technological sensibility and knowledge.47 5 A subculture with festivals where you can buy imaginary tickets CONCLUSION. MODERN TIMES. for hot air balloon rides to distant lands and where Jules Verne and Charles Dickens are still publishing new books describing both May the judge disappear, the social misery of the time and its fantastic dreams of what the and the philosopher continue future will be like. A world of circuses and freak shows, outcasts, the peaceful exploration of the sea! corsets, thieves, judges in wigs, and polite elegance in a top hat. It is a re-creation of the past in the form of an alternative, invented jules verne (1870) present that, among many, many other things, still trembles in the Twenty Thousand Leagues Under the Sea wake of James Watt’s invention and Beccaria’s book. Imagine a subculture in which life in the age of the steam engine serves as the model. It’s a subculture that plays with the idea that techno- 47 Jenny Sundén (2012), Ångpunkens politik.,in Erling Bjurström, Martin Fredriks- logical development has stopped and is still based on steam power, son, Ulf OIsson och Ann Werner [eds.], Senmoderna reflexioner: Festskrift till gears, shafts and mechanics. Without widely available electricity Johan Fornäs, Linköping: Linköping University Electronic Press, s. 91–99. (My translation from Swedish). 217 Roughly outlined, steampunk is that subculture.48 In order to participate successfully and satisfactorily in a subculture, one must familiarise oneself with its basic premises and beliefs. This is true even if one’s participation is more light-hearted, temporary and playful. To engage in criminal justice research is Criminal law, then, is so much more than just a peculiar feature of “domestic” law of the “Westphalian” nation state that gets in the way in the “fight against impunity”. If you want to meddle with criminal law, learn some steampunk first! to accept the premises of steampunk: Like people who participate in any of the many expressions of steampunk, those who wish to engage with criminal law must first familiarise themselves with its world, its basic material conditions, ideologies, fantasies and practices. One must follow its journey through the 19th century, its many and contradictory functions in a Europe marked by social unrest, industrialisation and urbanisation, the continuous struggle of its theorists to explain, justify and understand it in the light of 218 their time, its relationship with broadside ballads and the evolving evening tabloid press. One must eventually take off the top hat, follow its new role in a post-war world of material abundance, its criminological disappointments, its cultural function in the film noir of the 1940s, the problematization of it in the Western movies of the 1960’s and 1970’s, its absence in the films of Ingmar Bergman, it’s still much unexplored function in the global digitalised media landscape of the 21st century. One must, not unlike a follower of steampunk, accept and understand that its trajectory from the 19th century to today is a deeply serious and indispensable anachronism that cuts through the heart of our current culture. 48 Jeff VanderMeer with S.J Chambers (2011), The Steampunk Bible, New York: Abrams; Patrick Jagoda (2010), Clacking Control Societies: Steampunk, History, and the Difference Engine of Escape, Neo-Victorian Studies, Vol. 3 No. 1: Special Issue: Steampunk, Science, and (Neo)Victorian Technologies, pp. 46–71. 219 Murbräcka Gregor hat mich gefragt (nach seinem Umzug nach Göteborg) Und Ulrika Andersson Ich hab’ Nein gesagt melodie: Du hast von Rammstein Willst du Lund bis (dass) der Tod euch scheidet? Treu sein für alle Tage? Gregor (Ja) Nein Gregor hat (Ja) Nein Gregor hat mich Willst du Göteborg bis (dass) der Tod euch scheidet? 220 Gregor Treu sein für alle Tage? Gregor hat (Ja) Nein Gregor hat mich (Ja) Nein Gregor Gregor Gregor hat Gregor hat Gregor hat mich Gregor hat mich Gregor Gregor Gregor hat Gregor hat Gregor hat mich Gregor hat mich Gregor Gregor Gregor hat Gregor hat Gregor hat mich Gregor hat mich Gregor hat mich Gregor hat mich Gregor hat mich gefragt Gregor hat mich gefragt Gregor hat mich gefragt Gregor hat mich gefragt 221 Gregor hat mich gefragt (nach seinem Umzug nach Göteborg) Und Ich hab’ Nein gesagt Willst du Lund bis (dass) der Tod euch scheidet? Lund lieben auch in schlechten Tagen? Vielleicht Vielleicht Willst du Göteborg bis (dass) der Tod euch scheidet? 222 Treu sein für alle Tage? Vielleicht Vielleicht The Significance of Gregor Noll COLOPHON EDITORS Leila Brännström Amin Parsa Markus Gunneflo GRAPHIC DESIGN Ateljé Grotesk PRINT Livonia Print, 2024 ISBN 978-91-527-9404-3 THANK YOU Emil Heijnes stiftelse för rättsvetenskaplig forskning for your generous support. 227 228