As part of the Law’s Slow Violence workshop hosted by Osgoode Hall Law School next week (June 14) (complete information here or at the bottom of this post), we have solicited guest posts from academics attending the workshop and interested in the issues.
Find the other three posts here.
Today, Prof Doug Hay offers excerpts from his thoughts on reading Nixon’s Law’s Slow Violence & the Environmentalism of the Poor ( links all added by the editor). Hay is appointed to both Osgoode and the Department of History and throughout his long and distinguished career has highlighted the relationship between violence and law.
I read Rob Nixon’s engrossing and appalling book from the perspective of an historian who works on law. It opened to me an immense range of scholarship and activism of which I was only tangentially aware. But it also has themes that resonated, on almost every page, with things I study. Law certainly appears in the book. Here I want here to emphasize its importance to his argument, and to widen the discussion of chronologies.
Nixon discusses the destruction and activism and literature of recent decades, and at the other extreme, the deep environmental time of climate change, fossil fuel creation, the 4.5 billion year half life of depleted uranium. The disjunction of temporal orders, of chronologies or chronotypes, is a main theme of his book (61 and passim). In these remarks I want to look at the mid-range: the early modern/modern period of the 16th to early 20th centuries. Humanity lacked the capacity for purely technological destruction at the beginning of this period (suffering rather the biological destruction of the Black Death spread by human commerce—the plague destroyed one-third to one-half the population of England in the 14th century, and returned repeatedly into the 1600s). But by the 18th century the groundwork of modernity was being surely laid.
Today’s neoliberalism is a reprise of classical 18th-century liberalism in markets—and globalization is a reprise of 19th century globalization in the century before 1914. (After the world wars and depression, world trade only recovered to 1914 levels again in the 1980s ). It was in the 18th and 19th centuries that law, in particular, prepared the way for destruction of lands and peoples by the powerful. Because law is the rhetorical and instrumental mode by which the powerful both justify and enact their predations. Because law is the principal creation of the state, and the mode of state power—they are coeval—[Nixon’s] emphasis on the importance of the state (p.141) is amply justified.
Over the last two centuries, state law in England and America radically redefined human beings’ relationship to their landscapes, removed all legal recourse against the employer for industrial injury in order to ensure corporate profitability, degraded legal rights to water and air quality in order to accommodate and foster industrial development, and created empires of law as well as of capital to export all these legal inventions to their colonized subjects.
What we see in the last thirty years is what can be traced over the last 200; intensified, no doubt, as technological danger and military force have become greater, but facilitated and obscured by legal inventions well over a century old. Common law, the law of the great British and American empires of the nineteenth and twentieth centuries, rests on past authority. And a century, in law, is easily long enough to count as tradition, precedent, the authoritative past.
Nixon’s emphasis on the occult characteristics of slow violence resonates very strongly for me as a social historian of law, because the common law has been an elite jargon, an immensely complicated social and intellectual structure, from its beginnings.
Revolutionaries in every century, including levelers and fifth monarchy millenarians in the 17th century, called for a single, simple law book and the elimination of the lawyers: justice should be clear and open, not hidden by tortuous language and intricate procedures navigable only by the legal priests who served the upper classes. (Veall; cf Nixon 125). Those who demanded popular justice were right. The common law, the forum within which the most wealthy increasingly conducted their quarrels rather than through directed violence, was also, from its beginnings, the instrument by which the great and powerful obfuscated and legitimated the extraction of wealth from the rest of the community.
On a wider scale, the early-modern period of early imperial expansion generated even more raw expressions of legal power. State law in the special form of the law of states—international law– legitimated destruction of ‘savage’ and ‘uncivilized’ populations, and the rejection of their claims to rights against harm, rights slowly being built up, under wider voting franchises, in the metropoles of the empires in the nineteenth century. …
From the seventeenth century to the mid-twentieth, when British suppression of mau mau in Kenya used terror, mass execution, and vast concentration camps to maintain the colonial regime that had seized land and reduced peoples to coerced labourers, British imperialism scorned ‘rule of law’ for subject peoples of colour. But they maintained its façade through rhetoric and guile, and here Nixon’s emphasis on the occult is particularly apt: the facts of the mau mau repression have only recently come to light (Anderson, Elkins; cf Nixon 137ff). Information about the Kenyan atrocities the British public might not have ignored were deliberately suppressed by the state. As Nixon puts it, memory loss is often memory repression. Thus ‘writing as scripted obliteration’ (p.95) aptly characterizes Niall Ferguson’s celebration of the glories of the British Empire. The historian Bernard Porter notes that Ferguson also celebrates his idyllic childhood memories of Kenya, a few years after the British atrocities committed against the Kikuyu. He says nothing about it. Empires demand amnesia.
As Nixon puts it, memory loss is often memory repression.
Legal facilitation of empire
Behind the façade of ‘rule of law’ lay the coercive, facilitative machinery of legal form, legislative terms, judicial interpretation and punitive enforcement. We could examine the role of the corporate form, the deliberate absence of environmental regulation, or the huge legislative corpus and police forces that constructed taxation schemes and land appropriation schemes, new enclosures, to ‘free’ landscapes of people and to construct the inputs of land and labour (South Africa enacted more laws than any other historical regime, bar Nazi Germany). All this recapitulated on a world scale the early-modern history of English capitalism, and the laws used in colonial settings were copies of English law, but often far more punitive.
English master and servant law was coercive from its beginnings in 1349. It only ceased to be enforced by penal (criminal) sanctions in Britain in 1867/1875 (imprisonment of the worker for breach of contracted abolished, followed by the end of penal fines.) Meanwhile, in the growing Empire, a vast legal/administrative apparatus of coerced ‘free’ labour replaced slavery. It was created, disciplined, and oppressed for profit through the state enforcement of highly exploitative contracts of employment. Under indenture, vast numbers of workers, both willing and coerced, signed contracts to labour in unknown conditions at the other side of the world—they came primarily from India, and went primarily to the British Caribbean, to Africa, to Mauritius. But also from Pacific Islands to Queensland, and many other local variants, including within India itself. Peasants were remade into labourers. Law constructed their working conditions as highly coercive, with employers often given rights to discipline and punish that only magistrates could exercise in England, and with a huge recourse to flogging, deduction of wages, mandatory increased lengths of contracts to punish absenteeism, and the deliberate creation of perpetual debt. (referred to in Nixon, 71, 83; cf Hay and Craven)
Imperial master and servant law was thus similar to, and based on, English employment contract law, but far more punitive, with a massive advantage granted to employers. Ex-slave colonies were particularly notable in this regard, but the terms of this mass of legislation (over 2,000 enactments in over 100 colonies) was approved by London (which had the power of disallowance). Indeed, as ‘scientific racism’ increasingly informed the bureaucrats of an ever-widening empire in the later 19th century, the minimal protections for workers (such as limits on the legal length of contracts) were progressively removed. Only the collapse of world trade in the early 20th century, and pressure from the ILO, persuaded London to repeal the most egregiously exploitative elements of master and servant law in their colonial possessions.
…. A new [period of imperial expansion] was well underway by the 1930s. The ILO campaign against British imperial master and servant law was in part an American-inspired attempt to undermine British imperial power. The new world empire was being created. Since the second world war, renewed globalization, renewed neoclassical economics, vastly increased weaponry, deeper environmental degradation, accelerating global inequality among ever-larger populations, and selfish complacency among elites and governments, have a terrible urgency. Nixon’s book is a wonderful response, a hopeful sign of the power of intelligence, of writing, of activism.
Since the second world war, renewed globalization, renewed neoclassical economics, vastly increased weaponry, deeper environmental degradation, accelerating global inequality among ever-larger populations, and selfish complacency among elites and governments, have a terrible urgency.
10 June 2013
Read the full post after Friday’s workshop…
Law’s Slow Violence Workshop June 14, 2013
Law’s Slow Violence: A workshop at Osgoode Hall Law School
Friday June 14 2013
930AM to 430PM Osgoode Hall Law School IKB 1014
with Rob Nixon, Rachel Carson Professor of English at the University of Wisconsin-Madison,
Author of Law’s Slow Violence & the Environmentalism of the Poor, HUP 2012
Registration is Free but Limited
RSVP www.osgoode.yorku.ca/research/rsvp Event Code SLOW
Copies of the book are available at the York University Bookstore.
Read Professor Dayna’ Scott’s review of the book (published in the Osgoode Hall Law Journal) on SSRN, here:
With gripping urgency, Rob Nixon’s book “Slow Violence and the Environmentalism of the Poor” seeks to reveal the “occluded relationships” between transnational economic actors and the things that tie them to particular places, such as labour, land, resources and commodity dynamics.
He brings into view the bodies caught in the middle – those that have been raced and erased, made invisible, and wiped away — by exposing the violence perpetrated against them across time and space. Nixon’s work is a broad synthesis of a seemingly disparate set of literatures in post-colonial studies, eco-criticism and literary studies. His arresting narrative engages three primary concerns: the phenomenon of “slow violence,” the environmentalism of the poor; and the role of the writer-activist in the work of making the first two ‘visible.’
Slow violence, in Nixon’s conception, is “a violence that occurs gradually and out of sight, a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all.”
Because he views a major aspect of the critical challenge to be representational – the problem of devising “stories, images and symbols adequate to the pervasive but elusive violence of delayed effects” – Nixon focuses on the storytellers themselves. And the storytellers he chooses are the writer-activists that have inspired an environmentalism of the poor, primarily in the Global south. They include Arundhati Roy, Ken Saro-Wiwa, Abdulrahman Munif, and Jamaica Kincaid, among others. They are all figures who, like Nixon, demonstrate a stubborn resistance to liberalism’s urge to “locate violence outside law.” Instead of treating law as that which contains violence, they plainly confront its complicity.
The organizers gratefully acknowledge
the financial support of
the Dean’s Conference Fund,
a Harry Arthurs Collaborative Grant,
Osgoode’s Law.Arts.Culture initiative.
the Institute for Feminist Legal Studies,
& York’s Vice-President’s Research and Innovation
the work of
Natalia Angel (Osgoode Doctoral Candidate)
the administrative & organizational expertise of
Lielle Gonsalves and Jody-Ann Rowe-Butler
Rob Nixon is currently the Rachel Carson Professor of English at the University of Wisconsin-Madison. Professor Nixon received his Ph.D. from Columbia University and is the author of London Calling: V. S. Naipaul, Postcolonial Mandarin (Oxford University Press); Homelands, Harlem and Hollywood: South African Culture and the World Beyond (Routledge); Dreambirds: the Natural History of a Fantasy (Picador); and Slow Violence and the Environmentalism of the Poor (Harvard University Press 2011). Professor Nixon is a frequent contributor to the New York Times; his writing has also appeared in publications such as The New Yorker, Atlantic Monthly, London Review of Books, Times Literary Supplement, Village Voice, The Nation, The Guardian, Outside, Chronicle of Higher Education, The Independent, Critical Inquiry, PMLA, Social Text, Slate, South Atlantic Quarterly, Transition, Cultural Critique, Contemporary Literature, Journal of Commonwealth and Postcolonial Studies, Ariel, Modern Fiction Studies, New Formations, and Black Renaissance/Renaissance Noire. He has published over ninety journal articles, essays, and book chapters. Professor Nixon teaches environmental studies, postcolonial studies, creative nonfiction, African literature, world literature, and twentieth century British literature. He is a former chair of the Border and Transcultural Studies Research Circle and is affiliated with the Nelson Institute for Environmental Studies, the Center for Culture, History, and the Environment (CHE), the African Studies program, and the Creative Writing Program. Professor Nixon has been the recipient of a Guggenheim Fellowship, a Fulbright-Hays Fellowship, a MacArthur Foundation Peace and Security Fellowship, and a National Endowment for Humanities Fellowship. He is currently a Senior Fellow at the University of Wisconsin-Madison Institute for Research in the Humanities.
Amar Bhatia is completing his S.J.D. in the Faculty of Law at the University of Toronto. His work focuses on the status and authority of migrant workers and Indigenous peoples under Canadian immigration law, Indigenous legal traditions, and Canadian Aboriginal law. He received his LL.B. from Osgoode Hall and then articled and worked in union-side labour and employment law in Toronto before returning to graduate school, where he received the Howland Prize in U of T’s LL.M. program. His article entitled “The South of the North: Building on Critical Approaches to International Law with Lessons from the Fourth World” (2012) appeared in a special symposium issue of the Oregon Review of International Law on Third World Approaches to International Law. Another recent publication entitled “In a Settled Country, Everyone Must Eat’: Four Questions About Transnational Private Regulation, Migration, and Migrant Work” appeared in the German Law Journal (Dec. 2012).
Ruth Buchanan is Associate Professor at Osgoode Hall Law School. She has research and teaching interests in the areas of law and development, international human rights, international economic law, critical legal theory, and law and film. Her work frequently engages with issues of legal pluralism, resistance and affect. She is a co-editor of Reading Modern Law: Critical Methodologies and Sovereign Formations (2012). She has authored numerous articles and book chapters, including “Writing Resistance into International Law” (2008) International Community Law Review and “”Passing through the Mirror: Dead Man, Legal Pluralism, and the Deterritorialization of the West.” (2011) She holds an LLM and an SJD from the University of Wisconsin-Madison, and has also taught at the University of British Columbia, the University of New Brunswick, and University of Melbourne law schools.
Bryony Halpin is a PhD candidate in the Faculty of Environmental Studies (FES) at York University. She holds a Master of Arts in Public Policy and Administration from Ryerson University and a Bachelor of Arts in Political Science from Concordia University. Before joining FES, Bryony was awarded a Walter and Duncan Gordon Foundation water policy fellowship and conducted research for the non-profit sector in New York, Mumbai and Toronto. She has been a course director at both York University and Ryerson University. Bryony’s work is centered on environmental justice, racialization and the postcolonial city.
Douglas Hay is a Professor at York Universtity, cross-appointed to Osgoode Hall Law School and York’s Department of History since 1981, teaching the comparative history of criminal procedure, punishment, and crime, and the history of private law in the common law world. He is co-director of a continuing international project on the evolution of the contract of employment (Hay and Craven, Masters, Servants and Magistrates in Britain and the Empire, 1562-1955 (2004) and other titles.) Recent work includes the history of the English high court’s criminal jurisdiction (Crown Side Cases in the Court of King’s Bench, 2010), and Professor Hay is presently writing about the administration of the criminal law in Georgian England. He has published on the history of English and Quebec criminal law; comparative history of criminal procedure; social history of crime; judicial biography; courts and their political significance; and the history of employment law. He has been a visitor at Yale, Warwick, and Columbia law schools, and has been on the boards of the Canadian Historical Review, Law and History Review, the Law and Society Association, and the American Society for Legal History.
Sonia Lawrence is Associate Professor at Osgoode Hall Law School. She graduated from the University of Toronto’s joint LLB/MSW program, and went on to serve as law clerk to Chief Justice Beverley McLachlin of the Supreme Court of Canada. With the help of Fulbright and SSHRC Fellowships, she then attended Yale Law School where she focused on constitutional equality issues and welfare administration. A past member of the Board of Parkdale Community Legal Services, Professor Lawrence has also provided expertise to the African Canadian Legal Clinic, the Women’s Legal Education and Action Fund (LEAF), and the Court Challenges Program. She is the case comments editor of the Canadian Journal of Women and the Law. Her work centers on questions of equality and includes examinations of the Supreme Court of Canada’s equality jurisprudence, the influence of feminism in Canadian law, sentencing regimes for ‘drug mules,’ diversity on the bench, and section 28 of the Charter. She is the Director of the Institute for Feminist Legal Studies and the chair of the Academic Policy Committee. She teaches first-year State and Citizen (constitutional and public law) as well as Perspective Option/upper-year seminars including Law, Gender, Equality. Professor Lawrence runs a blog for the Institute for Feminist Legal Studies at http://ifls.osgoode.yorku.ca/ and is on Twitter as @OsgoodeIFLS.
Karin Mickelson is Associate Professor at The University of British Columbia, Faculty of Law. She has taught in the areas of international law, international environmental law, real property, environmental law and legal theory, and has supervised and co-supervised graduate students in a wide range of areas including international environmental law, international legal theory and international human rights. She has also served as the faculty advisor to UBC teams participating in the Jessup International Law Moot Court Competition. Professor Mickelson’s research activities have focused on the South-North dimension of international law; for example, she has explored the possibility of identifying a distinctive Third World approach to international law in “Rhetoric and Rage: Third World Voices in International Legal Discourse” (1998) 16 Wisconsin International Law Journal 353-419, and has analyzed the failure of international environmental law to respond to the concerns of the South in “South, North, International Environmental Law, and International Environmental Lawyers” (2000) 11 Yearbook of International Environmental Law 52-81. Her current research focuses on the impact of developing countries on the evolution of international environmental law. She is also a contributor to leading Canadian casebooks on international law and environmental law.
Usha Natarajan is an assistant professor in the Department of Law and the Center for Migration and Refugee Studies. She first joined AUC in 2010 as a visiting assistant professor of international law in the Department of Political Science. Professor Natarajan has a multidisciplinary academic background, with a PhD in international law from the Australian National University, a MA in international law from the United Nations University of Peace, and an LLB (law) and a BA (art history) from Monash University. She has taught international law at the Australian National University, and worked with various international organizations including UNDP, UNESCO and the World Bank. She has worked with law initiatives in Asia, including Indonesia during its democratic transition, and in post-independence Timor Leste. Natarajan serves as a legal research fellow on human rights and poverty eradication at the Center for International Sustainable Development Law at McGill University. Recent publications include ‘Fairness and International Environmental Law from Below: Social Movements and Legal Transformation in India’ (2012) and ‘TWAIL & the Environment: The State of Nature, the Nature of the State and the Arab Spring’ (2012).
Pooja Parmar is the inaugural Catalyst Fellow and visiting professor at the Osgoode Hall Law School. She has recently completed PhD in law at the UBC Faculty of Law. The focus of her doctoral research was a dispute over groundwater that began with adivasi (indigenous) protests against a Coca-Cola plant in Kerala, India. Based on extensive legal, ethnographic and archival research, her dissertation explores how claims central to such disputes are inadequately understood. Pooja received her LLM degree from UBC Law and her LLB degree from Panjab University in India. She has practiced law in New Delhi for several years, and has taught at UBC Law and Osgoode Hall. Her research interests include legal pluralism, intersections of law and colonialism, indigeneity in a global context, human rights, law and development, and TWAIL. Her most recent paper titled ‘Undoing Historical Wrongs: Law and Indigeneity in India’ was published in the current issue of the Osgoode Hall Law Journal.
Sundhya Pahuja is a professor in the Melbourne Law School, University of Melbourne and the director of the Law and Development Research Programme at the Institute for International Law and the Humanities. Pahuja’s scholarship is concerned with the relationship between international law and institutions and the question of global inequality. She researches, writes and teaches in the areas of law and development, international law, law and globalisation and legal theory. Her work engages with the practice, and praxis, of international law and development through political philosophy, political-economy and postcolonial theories. She has worked as a research associate in international law and human rights at the EUI in Florence, practiced as a commercial lawyer, and for several years chaired the committee of management at the Darebin Community Legal Centre. She is currently a member of the organising committee of the Legal Theory Interest group of the European Society of International Law and serves on the editorial boards of the Australian Feminist Law Journal * and the Law, Social Justice and Global Development Journal *(LGD) based at the University of Warwick. Her latest book, Decolonizing International: Development, Economic Growth and the Politics of Universality, was awarded the American Society of International Law Certificate of Merit.
Dayna Nadine Scott is Associate Professor at Osgoode Hall Law School and the Faculty of Environmental Studies at York University. She joined York in 2006 after completing a SSHRC Post-Doctoral Fellowship at McGill’s Faculty of Law and a Hauser Global Research Fellowship at NYU. Professor Scott’s teaching is in administrative law, environmental law, risk regulation and international environmental governance. She recently completed a SSHRC-funded research project in partnership with environmental justice activists from the Aamjiwnaang First Nation, near Sarnia`s Chemical Valley, which tackled the issue of chronic pollution on an Ontario reserve. The project applied a critical, feminist perspective to the examination of law’s treatment of the “risks” of long-term, low-dose exposures to pollutants. Professor Scott’s publications cover topics from international law’s “precautionary principle” and the regulation of toxic substances to the challenges posed for law and environmental health activism by the emerging endocrine disruption thesis. She is interested in questions of environmental regulation and governance from an interdisciplinary perspective, especially work that interrogates the interaction between local and global modes of governing and ways of knowing. The chapter, “Pollution and the Body Boundary: Exploring Scale, Gender and Remedy” appears in the recent volume, Feminist Perspectives on Tort Law, edited by Janice Richardson and Erica Rackley (Routledge, 2012). Professor Scott is the editor of `Consuming` Chemicals: Law, Science and Policy for Women`s Health, forthcoming from UBC Press, and the Director of the National Network on Environments and Women`s Health. She is currently working on research related to the environmental justice implications of the pipeline decisions being contemplated by the National Energy Board.
Kate Sutherland is Associate Professor and Assistant Dean, First Year, at Osgoode Hall Law School. She joined Osgoode’s faculty in 1998, and has taught law at the University of Saskatchewan. She has served as law clerk to Chief Justice Antonio Lamer of the Supreme Court of Canada, as well as Chief Justice E. D. Bayda of the Court of Appeal for Saskatchewan. Professor Sutherland is former Acting Director of the Centre for Constitutional Studies at the University of Alberta. She was the recipient of a Fulbright Fellowship in 1995 and the Law Society of Saskatchewan Gold Medal in 1989. Professor Sutherland has written and presented in areas such as charter equality rights, sexual harassment, childhood sexual abuse, and tort law. She has served as editor or co-editor of several publications, including Review of Constitutional Studies, Constitutional Forum, Points of View, and Saskatchewan Law Review . Professor Sutherland has also written several literary pieces, including “The Necklace” in The New Quarterly , Winter (1997), Summer Reading: A Collection of Short Fiction (Saskatoon: Thistledown Press, 1995), and “Lucia” in Prairie Fire (1992). Professor Sutherland’s community involvement has included her work for the Boston AIDS Care Project, University of Saskatchewan Women’s Centre, Her Story Calendar Collective, Saskatchewan Action Committee on the Status of Women, and the Saskatchewan Writers Guild.