[On February 18, 2019, the Unit for Criticism and Interpretive Theory hosted a lecture by Jessica Greenberg (Anthropology) entitled "The Anxiety of Unfinalizability: Legal Activism, Judicial Ethics and the Problem of Justice." Below is a response by Anirban Mukhopadhyay (ICR).] Effect of Effectiveness and the "Affect" of Effectiveness Written by Anirban Mukhopadhyay Justice, as Jessica Greenberg points out, is always modified by adjectives which carry with them the sense of how the materialities of justice are framed through social and institutional normative structures: “social justice, restorative justice, transitional justice, victor’s justice” etc. If this is the case, then how do social activists, policy makers, bureaucrats, and politicians make sense of the “success” of the “justice” meted out by the human rights court? What are the semiotic structures of labor and agency formed by social actors, which satisfy the notion of legal success when they bring cases of human rights to the court? What about the material effects of these judgments coming out of the human rights court? Does the success of a judgment result in empirically measurable social changes? Why, in an era of increasing skepticism about liberal institutions, do social actors still rely on the language of the law to enact their vision of justice? These questions drive the intervention Jessica Greenberg wants to make as she examines the affective and effective components of “success” in the workings of the European Human Rights Court in Strasbourg, France. Greenberg argues that the culture of the human rights court offers a space for material yet affective subjective agency. At the same time, this agentive capacity is always experienced in relation to a sense of both the lack of closure in legal decision-making and the open nature of the interpretation of the court’s decision--what she calls the “unfinalizability” of the law. [caption id="attachment_1867" align="alignnone" width="737"] European Court of Human Rights, Strasbourg, France [/caption] Coping with this “unfinalizability” requires producing diverse shared forms of vocabulary. The social actors must produce a common semiotic framework that will create a discursive possibility of effective change, and they must create an affective space for political and social stakeholders to recognize and solve a problem. The closed, yet open to contextual interpretive nature of the legal judgment, are both a challenge and an opportunity for activists to produce discursive frameworks for social change materially and affectively. It is important to understand how social actors produce the effective material changes or the “actionable actions” needed to set change in motion. At the same time, social actors construct an affective framework that drives actionable ways to produce change. This form of political agency is useful to producing a sense of subjectivity, which comes out of a semiotic structure of doing “change” through law, as well as bending the legal framework itself to make a change. For me, the formation of a distinctive subjectivity through effectively using legal boundaries and suturing the affective discursive frameworks to the institutional structure of law is the most interesting part of the account Greenberg gives us in this talk. I look at this formation of subjectivity as distinct from a neoliberal reflexive subject, which presupposes the self as a bundle of flexible skills. By contrast, the subjectivity Greenberg examines is predicated upon an ethical call to action. How is this affective terrain of subjectivity produced? Her two ethnographic vignettes show a liminal space between action and uncertainty, which shapes how the notion of justice is structured by activists through a shared discursive framework. This shared framework again depends on the “institutional machinery” of the court. Indeed, the institutional machinery itself becomes a potent tool in addressing systemic injustices for the activists who bring the cases of rights violation to the court. Within the ontological boundaries of the institutional machinery, activists must collectively generate new epistemic frameworks to redress individual grievances and they must create a wider material and affective discourse to initiate social change. Greenberg’s first vignette demonstrates how the discursive framework of activists must take shape within the institutional boundaries of the law in a metapragmatic way: activists must connect a specific case of rights violation to the broader implications of systemic injustice and articulate it through the language of the legal framework. Paradoxically, the actionable paths to social change must come through the legal boundaries, though everyone recognizes the inadequacies of a legal dictum to put social inequities to rest. The systemic ways of injustice must be interpreted and connected to a set of events or event to put in motion the legal mechanics of human rights law. Space(s) of action is/are produced within the uncertain actionable boundaries of the law and a great deal of uncertainty is attached to this process. A “feeling” of uncertainty emerges from concern about how long it will take to address the problem (a temporal question), or what form redress will take (an ethical question). Eventually, what the activists accomplish will produce a material as well as an affective sense of “efficacy.” This efficacy is materially seen as a list of actions that need to be taken to connect a micro-event to a larger systemic injustice by invoking legal evidence and thus bringing in a concrete sense of the mutually constitutive logic of justice. This shared sense of framework might not result in a teleological social change. Nevertheless, efficacy through “semiotic labor” matters since it makes sense of an inchoate context and translates it into discrete analytical frames of action. The affordances of the institutional architecture of the court offer a way to generate a sense of going beyond the justice administered by the court. This sense of agency through discursive refraction of legality might be precarious as it constantly shifts and changes. However, it provides an actionable framework to generate material strategies for the activists. This vignette reminds me of Michel de Certeau’s distinction between “tactics” and “strategies” in his book The Practice of Everyday Life. De Certeau links strategies to those who control the institutions of power and put in place architectures of power. Tactics are deployed by subjects who are restricted and seek to maneuver within the regimes of institutional power. Consciously or unconsciously, the subjugated use tactics to incrementally undermine the power structures. Tactics are a way of poaching in the space of power, a way to build new terrain. Similarly, in Greenberg’s vignette, the semiotic labor produced by the activists, their list of actionable items, can be seen as a “tactic” in the de Certeauan sense. The list of proposed actions use the legal affordances to create an effective set of remedies. [caption id="attachment_1868" align="alignnone" width="1332"] European Court of Human Rights Logo [/caption] Greenberg’s second vignette looks at how the judges themselves produce a sense of efficacy and success in the European Human Rights Court. As Greenberg explains, judges and lawyers engage in a different form of discursive efficacy through their emotional labor. In the central processing room, where the workers separate out the admissible from the inadmissible cases, a different affective and effective labor is underway. They function by maintaining an emotional detachment through the legal norms of the institution. The normative structure has to be internalized by the people who work in court to cope with the inadequacies of the court as a vehicle for producing social change. The two vignettes are dialectically related to each other. On the one hand, the materiality, affective labor, and discursive framework are sutured together to produce tactical actions on the part of the social activists. The activists generate a shared set of actionable items using the affordances of legal architecture. Their “success” must come from the discursive refraction of legal logic. On the other hand, the judges, lawyers, and other actors within the court structures operate with an abstracted sense of efficacy, detaching themselves from the humane aspects of the work and binding themselves to the legal machinery of the court. The actors within the court must be effective in following the norms of the law and be efficient in dispatching judgment ethically. I do see a similar discursive framework and logic of using the affordance of law for envisioning social change, that Greenberg unravels through her fieldwork, in other cultural contexts. In India recently, LGBTQ rights groups successfully appealed to the Supreme Court in India to overturn a colonial law which criminalized same-sex relationships. It is beyond the scope of this blog post to analyze the discursive frameworks of the case in detail. But even a casual perusal of how the legal activists and NGOs framed their case across diverse public fora will reveal a metapragmatic frame to counter a discriminatory law through the architecture of law itself. This raises interesting questions about the limits of the kind of political agency, which is shaped through a semiotic/discursive framework that subverts systemic oppression's using the affordances of legal and other institutions of governmentality.