Neil Walker, 'Utopian Threads and Legal Frames'

Professor Neil Walker (Edinburgh) will present his paper 'Utopian Threads and Legal Frames'.

Here is an abstract of the paper:

Utopia -  understood as ‘the desire  for a different, better way of being’, (Levitas) speaks to the pursuit of  projects of radical change and also to political and cultural intimations and  sensibilities that  generate or at least countenance  projects of change  (i.e. to germinal as well as literal utopias). Utopias claim to be at once plausible, transformative, collective, volitional, holistic and amelioratory.  As such, they are largely a product of the modern age and  the Neuzeit of modernity (Koselleck). In earlier ages, idealized projections of individual or collective existence tended to be restricted to other-worldly or purely speculative forms of longing. Only in the modern world, and in its human-centred political imaginary, does time and acting-in-time come to be primarily understood sequentially, stretching across  a long-term horizon towards an open-ended future. 

But contemporary Utopian thought seems increasingly discredited (the word often used pejoratively to convey implausibility, rather than the outer limits of plausibility). From the second half of the 20th century onwards, various factors combined to cast a shadow over utopian thought and practice. The lived experience and memory  of the failure of large scale  transformative  projects such as communism and national socialism,  growing disillusionment with the ameliorative properties of technological change, the prevalence of pragmatic styles of politics and party organization based upon incrementalism or acceptance of dominant economic orthodoxies, a more general suspicion of the authoritarian, dogmatic and intensely collective (and so individual-autonomy challenging) of some  utopian thought and practice, and  fear about our climate-heated planet’s capacity to host any kind of long-term future. 

Yet so important have they been to the political epistemologies and lived experience of modernity, utopian thought and practice (as both affirmation and critique) remain stubbornly threaded through contemporary law and culture, and indeed their importance is arguably amplified in today’s anti-presentist moment. I will pick up on three such (anti-presentist) threads, their entanglements, and their responsiveness to different types of legal framing One thread concerns the recuperative utopias that are associated with certain  national populist projects. The utopian aspiration here is typically that of a collective subject - a nation, a people, –  reconstructing itself by repairing a fracture or overcoming a  loss. Return to health depends on the restoration of some vital quality that has been mislaid or degraded. The future is a stage on which, based upon a claim to make good an idealised conception of the past in the long term, much disruption of the status quo is justified in the short term. A second thread finds its most extreme form in the case of  climate heating, arguably the sole current  existential threat that plausibly can only be successfully met by transformative societal change (although the exponential development of general AI offers a second possibility).  Dystopian fears and utopian possibilities become causally linked – with the threat of terminal social collapse ‘If this goes on|’ (Octavia Butler) stirring the utopian imagination. It conjures up  the ‘One Shot Utopia’ amongst those willing to endorse this high-stakes view of the future, but also various forms of denial or fatalism amongst those who are not. A third  (democratic) input  utopian thread connects more broadly with the legacy of the political modernist emphasis on the possibility of collective world-making. It holds that deep democratic engagement depends upon the open capacity for the persuasive articulation of transformative forms of social projection; and to a future that is not merely one of pragmatic reaction to short term problems, or  nostalgia for an idealised past, or avoidance of a single looming threat, or  preventing or containing the revival of a failed collective project. Democracy has always had a redemptive (of this larger open-ended potential of collective action)  as well as a pragmatic (in dealing with short term governance priorities)  dimension (Canovan), with each dimension required to prop up the other. So in a broad sense  democracy and the (non-closure of the) utopian imagination remain symbiotically related. If one dies so, in time, does the other. 

Law has always stood in a highly ambivalent relationship with utopianism, and the paper goes on to consider how different legal/constitutional frames available to us – projective, permissive and preservative – accommodate or obstruct  these different utopian threads.