The “Biological Turn” in Law – A Critical Appraisal (2015)

This symposium is interested in pursuing some of the implications of the “biological turn” in the human and social sciences as they touch upon jurisprudence and legal theory. Many studies show that with the increasing use of biological markers of identity (genetic, biometric, etc.), the traditional category of the legal (and moral) person is increasingly becoming unable to articulate or track the new interfaces between life and law. This symposium thematizes the empirical and normative transformations in the ideas of legal personhood, legal form, and subjective rights caused or motivated by the biologization of law and politics.

9.15- 9.30 Welcome & Introduction Marc de Leeuw (UNSW Law)

9.30- 11.00 Biometric Extraterritorialisation of Personhood: Biopolitics of Biodata and the Embodied Border, by Joseph Pugliese (Macquarie University)

Biometric technologies are fundamentally technologies of the border: they at once constitute it and work to govern it. In the wake of the growing flow of asylum seekers, refugees and irregular migrants, both Australia and the EU have deployed biometrics as technologies that are effectively instantiating neocolonial forms of biopolitical governance within zones of extraterritoriality that extend the concept of the border well beyond the traditional confines of the nationstate. This process of biometric extraterritorialisation is also working to disseminate a scanned subject’s biodata through networked, transnational databases. Through processes of appropriation, fragmentation and dissemination, biometrics must be seen as problematising the legal concept of autonomous and unitary personhood. I ground my discussion of the increasingly biologised border in the context of both Australian and EU biometrically-enabled border legislation.

Discussant – David Mercer (University of Wollongong)

11.00- 11.15 Coffee/Tea break

11.15- 12.45 Foetal Life and Law, by Catherine Mills (Monash University)

The human foetus is an especially potent figure of twenty-first century biopolitics, as it is simultaneously invested with notions of sacredness and hope, the target of intense normalisation, and (at the earlier stages of development) the central object in regimes of bio-value and biotechnology. This paper examines the political saturation of the early stages of human life through the recent legal efforts to restrict access to abortion, such as fetal homicide laws and fetal pain laws. Such laws are invested in drawing the boundaries of moral community in, for instance, establishing the status of personhood for the foetus. In doing so, the laws navigate between foetal developmental characteristics and normative notions of rights and interests. In this process, technologies such as obstetric ultrasound and fetal MRI play a crucial role, reminding us that the relation between biology and law is heavily mediated by technology.

Discussant – Sonja van Wichelen (University of Sydney)

12.45- 13.30 Lunch

13.30- 15.00 Criminal Law and the Material Person, by Ngaire Naffine (University of Adelaide)

When criminal law communicates its prohibitions to us as persons, it does so in a manner which abstracts us. As persons, we must not offend against persons. The person is a moral and legal abstraction not a corporeal being. It is in the technical elements of the offences that we materialize as embodied men and women, as law understands us to be. But this is lawyers law, not fully intended for public consumption.

Discussant – Miguel Vatter (UNSW, Politics)

15.00- 15.15 Afternoon tea

15.15- 16.45 From Social Problems to Privacy Issues: A Symptomatic Reading of the Discourse on Genetic Discrimination, by Thomas Lemke (Goethe-University Frankfurt)

The term «genetic discrimination» (gd) has been coined to refer to a (negative) differential treatment of individuals on the basis of what is known or assumed about his or her genetic makeup. Reported incidents include disadvantages at work, problems with insurance policies and difficulties with adoption agencies. Today, many countries around the world have introduced laws designed to prevent discrimination against individuals due to their genetic properties. This paper critically engages with the current understanding of gd. I will focus on the opposition of the symptomatic and asymptomatic ill as one essential element of the genetic discrimination discourse. Taking up Louis Althusser’s interpretative method of “symptomatic reading”, I seek to reconstruct and make explicit what is absent, omitted and repressed by how the problem of genetic discrimination is framed and address ed.

Discussant – Isabel Karpin (UTS) 1

6.45- 17.00 Concluding Remarks Miguel Vatter (UNSW)

17.00- 18.00 Drinks

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