Orwell’s 1984 and the body of law

Orwell’s dystopian novel imagines the ‘worst of all possible worlds’, where all the social, political and religious institutions have broken down as a result of never-ending war, leaving the population oppressed by the ‘government’ (the ‘PARTY’) and under its constant surveillance. The story takes place in Oceania which is a super state consisting of Great Britain, the Americas, Australia and many more countries, all under the control of the Party. The main character Winston Smith feels the need to rebel against the Party by writing his thoughts in a book, which is a ‘thought crime’ and by being in a forbidden relationship with a woman named Julia.

One compelling aspect of the novel is how ‘crime’ and thus, ‘law’ are perceived. First, law does not exist at all in totalitarian Oceania. Nothing can be illegal as laws do not exist anymore. Yet, if Winston is caught writing his thoughts down in his diary, he could be executed or given 25 years of forced labour. The Thought Police has unlimited power to enforce the Party’s views and ideologies and if anything goes against these ideologies or is not in line with the Party’s views, they are classed as illegal.

Now, this makes us question the popular belief that law always has a single and coherent body. For this, I draw upon the question raised in the LW927 Law and Humanities module at the University of Kent of whether “the idea of a coherent body for law still work towards the delivery of justice”. Some might find it hard to relate this question to Orwell’s novel but the key to this lies in the interpretation of the text.

Dystopia is often the product of a fear for the future following actual or past events and to be able to warn people effectively, the scenarios depicted are often the worst possible ones. So, every aspect described in the text is quite extreme but is a fair representation of what is really going on in the actual world. Firstly, the fact that ‘no laws’ exist is an absurd idea; the ‘coherence’ factor in ‘coherent body’ is hence, already thrown out of the water. However, despite this claim, Winston can still be punished if he commits thought crime and eventually the premise that there is no legal body or system is trumped by the fact that there are some things considered ‘illegal’. So, law whether written or unwritten, coherent or not, does exist in Oceania and has existed in any other totalitarian regimes in the past(or present even?) in the real world. The people are still being regulated and oppressed by a certain set of beliefs, ideologies and even ‘rules’. The story goes further as the Party tries to control the population’s behaviour by inventing ‘Newspeak’ a new language where the main tactic is to limit words to restrict independent thoughts and this ‘dumbing down’ will make disobedience unthinkable and the State (the Party) will have absolute power. Is this kind of regulation there to deliver justice? It is very much unlikely.

So, if we take the dystopian and totalitarian factors out of the picture for a moment, we realise that law is always based on a ‘body’ that gives it its power and authority. Whether that body is coherent or ethical, is a completely different question. Wherever this power derives its legitimacy and whether it is morally acceptable, is also a different question.At the end of the day,can this absolute power of the Party in Orwell’s Oceania be considered as a metaphor to the facts of the famous MABO case?





“The dignity of mankind is in your hands; protect it!” – Friedrich Schiller, German poet, philosopher, physician, historian and playwright

In the final year of my undergraduate degree I once had a lesson which I remember in a notably way: Our teacher demonstrated the moral and ethical limits of Law and where it seems to reach a dead end.

We discussed the German “Luftsicherheitsgesetz” from 2005, a statute which aims to protect the safety in the air by establishing legal norms in case of hi-jacking, terror attacks and acts of sabotage against the air traffic; including armed force as “ultima ratio”. That legal norm caused huge and controversial discussions among German lawyers, politicians and ethicists.

The central issue is as follows: If there is certainty that a passenger plane, hijacked by terrorists, will be downed over a fully occupied football stadium, should the state then be allowed to fire it off, being aware that dozens of innocent passengers will be facing a certain death? Can one sacrifice a few to save many?

By chance a few months later this ethical dilemma was filmed in the German TV movie “Terror”, which again is based on a play by the German criminal defence lawyer and author Ferdinand von Schirach: A German pilot, who fired off a hijacked plane is on trial being charged with murdering 164 people. What makes the movie special and unique is the fact that the audience witnesses the trial from a “live” perspective and in real time. Before the pronouncement of the judgement television viewers were requested to vote via phone call or SMS; either for an acquittal or a conviction.

There was a clearly outcome among the German TV audience: 86, 9% voted for an acquittal, just 13, 1% argued for a conviction.

During the movie the different parties presented a couple of arguments, all focusing on one main question: Should the state, or in that specific case the pilot, be allowed to act as “a master” about life and death? And if we approve that question, which factors should be taken in consideration when taking that decision?

Is one life more valuable than another? If taking an utilitarian approach, one can say that it is better to kill 164 passengers, who might die anyway, than thousands of people in the stadium, in other words “taking the lesser of two evils”.

In addition to that the pilot raises the question whether travelling by plane is, as sad as it may seem, part of the “general risk” of living in our modern society. From a legal point of view this could be discussed as a consent from the passengers in their own killing; there is no doubt about that being an adventurous assumption, but when thinking about it in more detail, there is something to be said for it.

But is it that “easy”? Would this be the right decision?

The problem is not new at all: The German philosopher Hans Welzel already dealt with it in terms of his famous “Weichenstellerfall”: Imagine a freight train is about driving against a fully occupied passenger train by reason of a wrong switch stand. Imagine further a pointsman noticing that and redirecting the freight train on the side track to save the people in the passenger train. Unfortunately he kills a few platelayers on the side track who have been busy with maintenance work. How would you judge his criminal liability? And would you change your mind if a few parameters would be changed, like the American philosopher Judith Jarvis Thomson did, by throwing a fat man in front of the train as being the only chance to stop it? In that modification one has to kill by one´s own hand, and most people wouldn´t do that, whereas most people would act like the pointsman in Welzel´s example. Where would you draw the line in deciding who should be sacrificed for whom and under which circumstances? The question of weighing life against life can occur in many different variations.

Coming back to the previous discussed German statute: The wording of the controvertible legal norm (Art. 24 III Luftsicherheitsgesetz) allows the use of direct force of arms if there is reason for assuming that the plane will be used as a weapon against the passengers and that use of force of arms is the only way of preventing that danger (ultima ratio). The German Constitutional Court adjudged it for not being in line with the German Constitution: It violates the right to life and physical integrity as well as the inviolability of human dignity, which overrules the whole legal system. (Art. 1 I 1 GG: Die Würde des Menschen ist unantastbar.)

In response to Germany´s dark past and the atrocities by the Nazis, the creators of the German Constitution put the protection of human dignity on top of everything and considered it to be the most important value.

No human being should under no circumstances be treated as an object by the state. One can never weigh one life against another. In almost hopeless situations there is the constitution for sending us “on the right path”, not to mention more practical questions: What if the passengers would have been able to get into the cockpit and stop the terrorist? What if the terrorist would have changed his mind?

Regarding to Immanuel Kant´s famous “categorical imperative” as part of his deontology killing the passengers would downgrade them to objects.

“Act only according to that maxim whereby you can, at the same time, will that it should become a universal law”.

According to him human beings should never be treated as an instrument, irrespective of the result. If one supports his assumption and favours the decision from the German Constitutional Court no one is allowed to fire off the plane; one would just abandon all people to their fate.

In the movie the criminal defence lawyer raises an interesting point in his fictitious final speech, related to the discussion, whether it is useful to act in accordance with those principles rather than focusing on the individual case: If we act like Kant and the Constitutional Court, wouldn´t that be like an “invitation” for terrorists? Wouldn´t they choose Germany more than ever for future terror attacks if they know that pilots will never be allowed to fire off a hijacked plane?

Wouldn´t Germany be deprived of its chance of defensiveness? Do you find that argument convincing?

Furthermore the lawyer comes to the conclusion that our world already is at war and therefore it is as simple as cruel: There is no war without victims.


The case and its ethical dilemma is thought-provoking: Law is not just about taking decisions. It is in fact about huge responsibility. We as lawyers should be aware of our fateful practice and the far-reaching verdicts we might render.

In my opinion the behavior of the pilot seems to be the only right thing in that situation and when I was watching the movie I voted for an acquittal. Nevertheless I do sympathize with the idea of human dignity as a “head of everything” in any circumstance and the constitution as the highest rule. But at the same time I am asking myself: Why would it feel so wrong to convict the pilot for murder?


The Stories We Tell

On May 18th 2018, Dimitrios Pagourtzis, a 17 year old student, entered his High School in Santa Fe Texas, where he proceeded to fatally shoot 10 people and wound 13 others. While Pagourtizis’s exact motives for the killings have not yet been agreed upon, there seems to be an influx of competing narratives concerning just who Dimitrios Pagourtizis is.

To begin with, we have the story told by his family. In a statement covered by the Los Angeles Times they stated: “We are gratified by the public comments made by other Santa Fe High School students that show Dimitri as we know him: a smart, quiet, sweet boy.” These character traits fit well with further stories offered by former teachers, expanding that he was “quiet, but he wasn’t quiet in a creepy way.” Again these narratives fit with certain accomplishments some media sources have chosen to focus on, such as the fact that Pagourtizis was on the honor roll at his high school, and that he played on the school football team. By this account, this story which is told is concerned with showing the perpetrator in a pseudo-positive light- that he appeared to be a smart, but quiet boy, who was seemingly well adjusted.

But as writer, Stassa Edwards, so powerfully points out, this isn’t the only story to be told. Edwards points towards a counter-narrative offered by Sadie Blaze, the mother of Pagourtizi’s first victim. Blaze tells a story of a boy who harassed her daughter, Shana, for the previous four months, persistently asking her to date him despite her repeatedly telling him no. Blaze has told this story to many mainstream news outlets, adding that: “he continued to get more aggressive”. The fact that Shana was targeted first has led some to believe that Pagourtizis’s attack on Santa Fe High School was an act of retaliation against the girl who turned him down. Many commentators have been drawing attention to the social media presence of Pagourtizis, linking this story of retaliation to further attacks, such as the 2014 killings carried out by Eliot Rodgers, or the Toronto attack in April of this year. These stories present the perpetrators as seeking revenge on girls and women as response to a lack of romantic interest. These narratives are gaining huge momentum at the moment, with many high profile media publications arguing that such shootings are incidents of misogyny fuelled violence. Journalists are taking note that a number of these perpetrators self-identify as ‘incels’ (short for ‘involuntary celibates’), a subsect of online male supremacy communities.

It will be extremely interesting to see which story concerning Pagourtizis will come out as the dominant narrative during his trial, especially when one bears in mind recent high profile judgments concerning other violent acts against women. For me, I see parallels between the family’s account of Pagourtizis and the stories told about convicted rapist, Brock Turner. Throughout his trial in 2016, the court heard about Turner’s accomplishments as a student athlete- at one point a projected future Olympian- at Stanford University, and the great promise his future holds. His father implored the judge for leniency, claiming that his son is “not violent” and arguing that punishment was a “steep price to pay for 20 minutes of action out of his 20 plus years of life”, and yet again this narrative speaks nothing towards the actions that he committed. This is only solidified through the statement Turner he himself made, stating: “I want to show people that one night of drinking can ruin a life”, in which he solely refers to his own- rather than the life of the woman he raped behind a dumpster whilst unconscious. This takes us to the competing story heard throughout the proceedings: the story in which Turner had inflicted a great deal emotional and physical distress through committing the inherently violent act of rape. This counter narrative was primarily told through his victim’s story, where she recounting the effects of his actions: “My independence, natural joy, gentleness, and steady lifestyle I had been enjoying became distorted beyond recognition.

Horrifyingly Judge Aaron Persky argued that “A prison sentence would have a severe impact on him…I think he will not be a danger to others” – sentencing him to six months in county jail, though in actuality he only served three. The Guardian reported that Turner’s age and his lack of previous criminal history were the primary reasons behind Persky’s insultingly lenient sentence, signalling, as Edwards accurately describes a “once-promising” narrative taking precedence in the case. This form of prioritizing of stories isn’t knew- when CNN covered the Steubenville Rape Case in 2013, where two student football players were found guilty of raping a fellow 16 year old and photographing and documenting the incident on social media- the coverage mostly concerned how the sentencing has affected the lives of “two young men that had such promising futures”.

Competing narratives and stories within a trial are an inherent part of the legal process; testimonies are presented to judges and juries in a supposed ‘fact-finding’ mission to establish what actually happened. Yet storytelling can be seen as invaluable rhetorical technique to help persuade these key players of motive, and consequently guilt. Inevitably one story will become dominant, and in recent years it would appear that the ‘once promising’ narrative takes precedence in trials of gendered violence. I am hopeful Dimitrios Pagouritiz can signal a turning point, where a counter-narrative is just as compelling, and the stories of the victims of such acts of violence can be better heard. Acknowledging that many stories are told at trial can open up the space to question which stories win, and why.


The Handmaid’s Tale and the Aesthetics of Law.

Last month saw the return of ‘The Handmaid’s Tale’, a TV adaptation of Margaret Atwood’s haunting novel of the same name. The show reflects on life in Gilead, a dystopian society, where fertile women (‘the handmaids’) are forced into sexual and childbearing servitude as a response to a fertility crisis. Arguably the television series somewhat departs from the novel in a number of ways; for example it claims that Gilead is formerly part of the United States of America, and it provides flashbacks showing the former lives of the main characters. While some may argue that this further information, which has not been alluded to in the novel, ruins the isolating atmosphere which the novel creates, as the story is explicitly told from the main protagonist’s point of view, what it does do is offer extremely interesting context as to how the power of a totalitarian regime can take hold.


During the second episode of season 2, we see a flashback to a handmaid’s former life. We see Emily (known now as Oflgen in Gilead) attempt to flee to Canada with her wife, and their young son. Both her wife and son have Canadian passports, but Emily, an America, is told that she’ll now need a Canadian visa, despite the couple’s married status. When questioning this, Emily presents her marriage certificate, but she is told it’s not valid: “The document is no longer recognized, you are not married…it’s forbidden…forbidden by the law.” Emily responds by asking what law, to which the airport security agent replies “The law.”


When hearing this blunt response, I couldn’t help but think of Peter Goodrich’s pertinent article: “Specula Law: Image, Aesthetic and Common Law.” Within his article, Goodrich explores the ways in which the law attaches itself to individuals. He argues that the law’s use of images, as embedded within the text is key. These images are sealed within ‘the memory of law’, passed down through custom and tradition: “My point is that in the development of tradition, the text circulates as an image and the point of its effect is largely resident in that aesthetic quality rather than in its supposed rational content, for few ever read the law, none ever read all of it.” Essentially Goodrich is making the case that through law’s use of image as embedded in its very text, certain aesthetic qualities and feelings are left imprinted on law’s subjects. The law attaches itself to the subject’s soul, thus invoking general feelings and reaction to the very concept at law.


Within the example to hand, the security agent referred to ‘The law’- no specific legislation, or provision- he just alluded to certain pre-existing feelings society may have about what law represents. In my opinion, by uttering ‘The law’ in this way, he has conjured images of a powerful source of authority that cannot or must not be questioned. He conjured images relating to the violent side of law, as an institution which lays down rules which must be followed, even if this impedes on personal liberty. These pre-existing images of the law, which are wrapped up in its tradition can be seen as one source of law’s power and authority. These sentiments are felt throughout law’s subjects, and get carried forward through the rituals of the legal institution.


This wonderful example in popular culture only highlights the important work that studies into the aesthetic dimension of law does; it enables us to truly reflect on not only how we imagine the law, but also how the law imagines itself.


Does the documentary “The Art of Killing” signify the futility of Humanism?

With the perpetrators of these obscene acts of torture and politically motivated killings free to boast about their heinous deeds, does this not mean that humanism has failed to make and impact on modern times? The Nazi-inspired Holocaust preceded these events in Indonesia by only a few decades and yet the outcries against that barbarism failed to influence the progress of these equally barbaric and heartless acts. Subsequent to the Indonesian killing spree we have the tacit approval by the Phillipines President of the murder of drug dealers. What will it take for Humanism to triumph and make human beings treat each other with dignity and respect? Should not the powers of the World Court in the Hague be extended and empowered to address these issues of gross disrespect for Human Rights? Could the United Nations not force perpetrators to stand trial, thereby removing them from the false protection of corrupt governments? That would require international arrest warrants to be respected and enforceable in all countries, albeit by force; but entering a sovereign state to arrest suspects against their will, or that of their government is against current International Law provisos. Would these Laws need to change also?


“Sentient Code”

Last month saw the return of ‘Black Mirror’, a British science fiction television series, created by Charlie Brooker. The much-anticipated fourth series continued its theme of how current technological advancements may progress in near distant realities, and the possible implications they may have on civil societies.


One re-occurring advancement, which is seen throughout the anthology series, is the creation of ‘human cookies’: a digital copy of human consciousness. Brooker first introduced this concept in the 2014 Christmas special, ‘White Christmas’, where it was revealed that technology had developed a blank chip called a ‘cookie’ that could be implanted with the purpose of absorbing and copying human consciousness. Once removed, the cookie could then be transferred into a hub, to be used as the software for a ‘smart home’. The idea follows that the chip would absorb the person’s preferences: for example, their preferred temperature in their home or the time they would like to wake up, and effectively work as a personal assistant to their original host. This digital copy is represented as a sentient consciousness, capable of independent thought, and in this case terror over its existence.


This idea is seen again in two episodes of the fourth season: where digital copies, or ‘sentient code’ is used as a player in a video game, a way to extend the ‘life’ of a comatose patient, and to create an authentic hologram of a convicted killer for a tourist attraction. By the season finale it is revealed that the UN had made it illegal to not only delete or erase a copy, but to also transfer human consciousness into limited formats. The copies need to be able to express at least five emotions for it to be considered humane, suggesting that digital copies have been afforded different levels of legal protection.


While the technical possibilities of the creation of sentient code, and their corresponding legal protections are far from reach, their representation within the series certainly raises ethical questions concerning the present day creation and treatment of emerging Artificial Intelligence (AI) technologies. If one is to create a mirror image of humanity, encompassing key traits, which distinguish humans from other beings, should they warrant similar protections within a human rights framework? There are a few things to ponder here.
If one were to realistically consider the human rights framework being extended to AI, this would mean viewing this technology as something more than pure machinery. When considering ‘Posthuman Rights’, writer Woody Evans asks: “if a thing exists, does it have the right to continue to exist, and would such right hinge on it’s being more than a thing”. Perhaps evidence for such a view can be found within the application of such technology in the fields of healthcare, law enforcement and public service administration; such fields of profession which arguably require authentic human emotions, such as empathy. If humanity programs AI and equips the technology with a set of mirrored traits to enable integration with humanity in this way, does this make the machinery more than a thing?


But embracing AI as a subject within a human rights framework is only one way of looking at the situation. For example Secretary General of Amnesty International, Salil Shetty, spoke at the AI for Good Global Summit held in Geneva, where he considered the human rights impact the emergence of AI could have on the global community. He supports “a future where AI is a technology where human rights is a core design and use principle” and to make his case, he put forward two alternate ways in which their integration could affect humanity.

In one scenario, the use of AI and mass automation could be used to work towards reducing the inequality we see around the world today. He argues that Governments and Companies could support automation that takes workers out of “dangerous and degrading jobs” and implement both educational and economic policies to create “opportunities for dignified and fulfilling jobs”.


But he warns that it is the responsibility of both Governments and Companies to integrate ethical considerations into their policies, and warns that if we continue down our current path we could see ourselves in a society where worker’s rights continue to be precarious, but hundreds of millions of jobs could be lost to automation. Furthermore he warns, “AI systems may become the gatekeepers deciding who can access healthcare and who cannot, who qualifies for a job or a mortgage and who does not”. While this may seem like an excellent premise for season 5 of black mirror, its suggests that not only are humanity considerations imperative in the creation of AI policies and codes of practice going forward, but also that such realities as those seen in science fiction may not be so far out of reach.

LLM Modules, LW927

Moving the Goalposts

The discipline of law sits in an interesting place. It shares qualities with several other disciplines, such as science and philosophy, but doesn’t quite fit in with any of them. Too practical for philosophy, not practical enough for science. As such, it’s difficult to decide where to classify the subject in relation to others that are more concrete. Few, if any other fields of study have this issue, partly because they tend to fit neatly into their boxes, but also due to law having such an overarching practical influence on every individual. Here, I would like to explain some of the reasons why law can never be a science, not even a social science, and why it should be considered as a humanities field of study.

Science is the study of the way the world is. It is entirely a posteriori – a highly empirical method of knowledge acquisition. Philosophy is also a study of the way the world is, but uses a priori thinking to come up with assertions about what is the case, and even then is highly open to debate and interpretation far more so than science is. Law combines the two methods in an interesting way, at times the ratio between the two is one such way, other times it is another – depending on which area of law concerned. Ultimately, to decide which category law sits in – science or humanity – we must look at what the law is trying to achieve.

The dictionary definition doesn’t do much to help with this, but I believe it’s reasonable to assert that the law is there to regulate the behaviour of a population in order to maintain function of society. This can be achieved through granting pleasures (food, housing etc), preventing pains (medical treatment, abuse/exploitation, physical & mental harm), and maintaining free will. Already here, we have three very philosophically charged terms concerning morality. Morality can be defined in the dictionary as “principles concerning the distinction between right and wrong or good and bad behaviour” –  but what is right and what is good may not be either A) the same or B) what needs to be in place to maintain efficient function of society.

The law is therefore tasked with attempting to actualise what needs to be in place to maintain sufficient societal function and to do that, there has to be knowledge of what humans require in order to function efficiently as a group, and that incorporates the studies of psychology, sociology and, I would argue, a bit of history and anthropology. We need to find answers to questions like “what makes people want to work together?” and “what hasn’t worked in the past?”. Only one of the above mentioned disciplines count as a science, and that is psychology. Psychology is a tentative “science” however, with human behaviour being able to be manipulated and changed quite significantly, however it does yield quantifiable results in a manner that sociology may struggle to match. Sociology is instead a social science, and the facts discovered through its study are fluid and highly subject to change over time and place. We can retrospectively observe this phenomenon, with social acceptance of slavery and homosexuality for instance – two practices that had their legal status reversed. It is hard to decide in such cases whether society makes the law or the law makes society.

What is clear though, is that the law is subject to change. It is very much a “here and now” set of rules, something that is both beneficial and potentially dangerous. It attempts to cement morality in a way that is compatible with human society both psychologically and sociologically, and attempts to make the world a pleasant place to live in for all, and punish those who threaten that status quo.



Are lawyers the ‘imaginary architect’?

One of the key distinctions between imaginary and ideology is the fact that we do not have to hold our imaginary accountable.

There are no bounders within our imaginary, ‘imagine you are designing a world, you consciously creating each aspect, but sometimes it almost feels like it’s almost creating itself’.

In our imaginary, our mind continuously ‘create’ and ‘perceive’ our reality simultaneously and our mind does this so well that we aren’t even aware of it.

In Wittgenstein’s ‘Tractatis Logico-Philosophhicus’, he argues that language works by triggering the picture of our understanding of how things are in the world. He believes that words enable us to make pictures of facts.

Interestingly, Wittgenstein was inspired while reading a newspaper article about a Paris court case in which, in order to explain with greater efficacy, the details of the accident that had taken place was reproduced visually using model cars and pedestrians.

This illustrates how lawyers can get right into the middle of that process, by taking over the ‘creating’ part.

They create this world of the dream, which I considered as ‘legal presumptions’, and create an imaginary narrative, by bringing the subject into the dream, to persuade and convince the target audiences by twisting the facts, adding stock stories, and subsequently let them make their decisions with their subconscious.

The court will eventually come up with a judgment. The decision will have an illocutionary or perlocutionary effect, which in a way attempts to amend certain things or may poses a consequence. In the end, depending on what the court’s decision is, aren’t they just trying to implant another person’s idea into our collective thoughts?



While I can choose more relevant movies such as Gary Fleder’s ‘Runaway Jury’ or more recently, David Dobkin’s ‘The Judge’ and Courtney Hunt’s ‘The Whole Truth’ in related to storytelling, I decided to talk about a sci-fi thriller – ’10 Cloverfield Lane’ instead.

Imagine after getting in a car accident, you are held in a shelter by this man who claims the outside world is taken over by aliens. He acts weird, especially the fact that he has storages of supply and everything prepare as he claims that he knew this day would come.

Why am I in this room? What’s this place? How did I get in here? Who’s that creepy yet somewhat reasonable guy?

Questions after questions as the guy who claimed he saved you becomes more and more suspicious. Is he lying to keep you trapped in his place? Is he doing this because you looked like his daughter who is not with him anymore?

Director Dan Trachtenberg was playing the audiences’ mind throughout the whole movie. This is the difference between a horror movie and a thriller. A thriller creates a psychological type of fear that make audiences think and wonder how the characters are going to find their way out. It wasn’t until it was revealed that the guy who sounded insane was actually telling the truth the whole time, that the audiences start getting their questions answered.

The overall screenplay structure and outlining had been very well written in a way that it demonstrates how powerful storytelling can be, especially how it can play with the audiences’ mind.

Watch Dan Trachtenberg’s ’10 Cloverfield Lane’ trailer here:


Absorbing Power: The Courts and Hate Speech

Absorbing Power: The Courts and Hate Speech

In Judith Butler’s ‘Burning Acts, Injurious Speech’, she references the case of R.A.V. v. St. Paul to illustrate the ways in which the courts reabsorb power to incite violence. In this case, a white teenager from Minnesota, burned a cross in front of a house occupied by an African-American family. The defendant was charged and eventually convicted, by the St. Paul City Council in 1990, making it an offence to communicate racially offensive messages. The United States Supreme Court reversed the State Supreme Court decision. One of the most baffling aspects of Butler’s comments on this case, relates to the way in which the court’s use of language transformed the act of burning the cross on an African-American family’s property to the following – “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible” (the words of the majority opinion of the court). This transformation of language strips away any contextual meaning, and denies the racist history of the act of cross burning. John Onyando stated that “there is growing evidence that the government is using prosecution for hate speech as a tool to silence its opposition critics”, and I would have to agree with this. Butler’s example, serves as a constant reminder, as with all of the themes discussed throughout the LW928 module – the imaginary, legal fictions, and performativity, that law’s power reigns. In law’s quest to punish those who spread racist, transphobic, or otherwise out-of-fashion speech, it denies the weaker members of the community e.g. the poor, political minorities, and women, of the protection it claims to afford.