Why is the subject-object relationship so difficult to grasp?

During our time in Paris immersing ourselves in the world of law and the humanities one of the most interesting discoveries was that of the evolving historical relationship between the subject and object of legal thought: between the jurist and the law. Briefly stated, prior to the advent of modern science the subject and object were in a much closer, more reflexive relationship: the jurist could be both subject and object, studying and creating law. Issues of justice and ethics were closely connected not only to the law but also the life and work of the jurist. Following the enlightenment and the development of scientific thought the legal scholar now finds herself divorced from her object of study. The object is now to be kept at a safe distance from the scholar, the better to be observed.


But why should such a fascinating subject also prove to be one of the more difficult concepts to understand? Is it inherently complex?  Or is it rather that whilst the modern subject-object relationship is relatively straightforward, the historical, pre-scientific relationship is much harder to grasp? Kelley provides a potential explanation why this may be so when he explains that in order to understand the renaissance jurist we need to ‘make him out across the great conceptual divide’ created by the scientific revolution. Bridging this gap is not easy: it demands ‘a certain effort of imaginative understanding’.


Indeed from the vantage point of the 21st century it is difficult to imagine oneself, whether as a legal scholar or practitioner, ‘eating, living and revering the law’ in the manner of 16th century jurists. Whilst this is partly due to institutional changes, I suspect that the main reason is that we just cannot escape from our modern, ‘scientific’ mindset. For those who would advocate a return to the pre-scientific relationship between the jurist and the law as a way of counteracting the contemporary ‘value-free’ approach to law this has certain implications. If imaginative leaps are required simply to achieve a theoretical understanding of the medieval legal scholar, consider then how challenging it would be to put it into practice.


Given that the law and humanities movement would like to see the return of questions of justice and ethics to law, it is striking that Sarat, in ‘Law and the Humanities: An Introduction’ highlights the advantages of a distinction between subject and object. Although written in the context of US professional legal education, his point that much legal scholarship takes place within the law and ‘the structures that shape’ the jurist’s ‘legal consciousness’ can surely be applied more generally. For a modern-day scholar to ‘learn and revere the law’ may entail an inability to maintain a critical distance and see the law for what it really is.


Sarat reminds us that in contemporary legal scholarship there may be a danger in too close a relationship between the jurist and the law, given the latter’s shortcomings. Perhaps until there is a return of justice and ethics to law legal scholars are advised to maintain such a critical distance – as too close an acquaintanceship with law may blind us to its faults?


To be or not to be? That is the ethical question!

Almost at the finishing line and things on this Law and Humanities module are finally beginning to make sense!  After studying the history of the relationship between law and humanities vis-à-vis the interpretation of law through literary texts and traditions, examining the critical possibilities of contemporary scholars in certain projects, especially through the mechanism of rhetoric, we are now looking at the responsibility and ethos of scholarship of scholars, lawyers and critics.

In ‘Educating the Total Jurist?’ W. Wesley Pue examines the role of legal education and how they shape future aspiring lawyers, or in his words, ‘citizen formation’.  He describes the image of lawyers as one of ‘gentlemanliness’ as befitting the ‘well-rounded barrister’.  By using the thoughts of eminent lawyers and scholars across the globe, he provides evidence of what he describes as the notion of the total jurist.  One such eminent lawyer includes our UK’s infamous Lord Denning; he talked about the ‘spirit of the profession’ which embraces values as ‘frankness, fairness, honesty, courage and the recognition of one’s duty to the Court and client.’

However, the values of ethics, morality and ‘gentlemanliness, I believe, have diminished over time and empathise with Pue’s view.  In today’s climate of globalisation, it appears that the legal profession is ‘all about the money’ (taken from Jerry Maguire), ‘success’ and what Margaret Thornton suggests as ‘the real danger of returning legal education to the ‘trade school’ mentality of the past’.  It is an uneasy thought to think that law schools are churning out ‘mere half-lawyer’ as Pue advocates.  If this is true, then legal education and the educating of a ‘total jurist’ is doomed.

However, later in his article, Pue suggests that not is all lost.  Even if legal education is being promoted in universities as value-free, there is the hope that law schools will return ‘to a more self-aware legal education’.  Furthermore, he hopes that we, as humans, will take on the responsibility, or ‘ethos’, to instil our own values, not just education and profession, but in everything we do in life!

Pue’s article resonates what I have been thinking about legal professionals and its values since embarking on a career in law, but am I wrong?  Are we, as students of law and humanities, not taught how ‘to rise above self-interest and the narrow view’ thus becoming ‘mere half-lawyers’ or are we resistant and/or responsible enough to return to becoming the total jurist of the past?


Should the over-riding of a jury’s remit by a judge be justified to determine facts of a case for ‘significant’ public policy interest reasons?

A man was found guilty of gross negligence manslaughter by a jury in 2004.  The jury were directed by a single judge that the defendant had a duty of care towards the deceased man, a father of several children, as the defendant was the owner of the property.  With the aid of forensic investigation, evidence was uncovered that both men had splashed petrol around the property with the intention of burning it.    The defendant was in considerable debt, the property derelict and the business he ran in it had failed.  He had been unable to secure planning permission to redevelop the building because the façade was listed.  Unexpected ignition of the petrol from a cigarette caused an explosion and the deceased was killed by the collapsing building.  The defendant was just outside the property and only slightly injured.  The property fronted immediately on to the public pavement.  coincidentally no one was passing by at that moment.

The defendant was granted leave to appeal to the charge as the judge was said to have improperly directed the jury that a duty of care existed towards the deceased.  The five principles to establish a duty of care are: the foreseeability of harm, the relationship/proximity between the people involved, the fair, just and reasonableness of the activity concerned.  The jury should have been allowed to determine if a duty of care existed, if so that it had been breached and that it had caused or contributed to the death.  The Court of Appeal held the judgment despite a duty of care not being established.  They determined that the jury would have found him guilty as his actions were deliberate for financial gain and of a reckless nature.  It was deemed by the appellate court to be an exceptional case considering its recklessness and not just a civil unlawful manslaughter case.  In the interest of the public the charge had to be seen to be suitably disciplinary.

The outcome of the case was deemed to have altered the balance of the judicial and jury relationship in favour of the judicial decision in order to give a clear authoritative signal as to the consequence of causing harm by such reckless behaviour and for personal financial gain.  The criterion for gross negligence manslaughter were clarified by the case of an anaesthetist who did not notice that the artificial ventilation for the patient had come loose.  Several minutes passed before the error was noticed and the patient died as a result.  Was a similar charge commensurate for the death of the deceased even though he was an accomplice?  Was the harm caused equal to that of a doctor killing (by omission) a patient?  Was justice served for the public interest by handing down a prison sentence of 12 years?  Could a custodial sentence be considered to give justice to the deceased and his family?


What can the humanities tell us about the relationship between law and justice?

In seminars four and five we asked whether law and humanities offers an alternative means of articulating and achieving justice. Ulllman states that the Commentators developed justice into an idea “manifesting itself in all things legal”.  He goes on to demonstrate that justice was the central tenet of the medieval theory of law that permeated the practical interpretation and application of law.  We can contrast this with the current legal education whereby justice, at least in my experience, is somewhat forgotten.  As Ross states, it seems as though in contemporary legal education appeals to justice are seen as having the same force as banging one’s fist on a table!  Justice is perhaps seen as a principle advocated by the feeble minded and emotional (Douzinas).

I am in agreement with Sarat when he states that a simple recuperation of the humanities is insufficient.  Vecchio defines justice as the requirement that “that shall happen which ought (ethically) to happen.   The obvious problem with this is that people will naturally have opposing views as to what should happen.  Justice has instrumental value and can be used as a means to justify certain ends.  I would certainly question whether a historical humanities approach can achieve justice or whether such an approach then turns law into a tool for the majority.

In contrast, I would argue that the Tamils cases explored by Douzinas show that the current scientific, formalistic approach to law offers a certain type of justice – a commitment to procedure and treating like cases alike.  I wonder whether the social sciences is offering jurists an articulation of justice but by a different name: ‘the rule of law’.  This principle appears to me to occupy the space once governed by justice – both conceptually and in terms of the value ascribed to it by scholars.  Perhaps the reason for the popularity of this term is that the word ‘rule’ is more agreeable to a discipline aspiring to the rationality and neutrality of the sciences.

So what do we  think? Do we attempt to articulate justice using the humanities and if so do others share my concerns of doing so? Or do we follow the approach taken by the social sciences to produce a procedural, ‘thin’ type of justice? If so, is this sufficient for us or should we seek greater utility from justice as the medieval jurists did?