In this blog post I want to elaborate on some of the points that I feel are relevant to the discussion of performativity in relation to hate speech.  Butler suggests that a subject is constituted through the repetition of speech acts and she points to the context as the conditions of the violence caused by hate speech rather than the content of particular words.  She rejects censorship or alternative legal remedies as strategies to combat the effect of hate speech and instead sees that hateful words be reclaimed and revalued to ’emancipate’ the individual. Her rejection of the law seems to be based on a distrust of those with legal power to recognise the immediate problem: judges must first decide what hate speech is before it can be regulated which is a political question with the guise of objectivity.  Whilst one recognises this problem, it seems the real issue is not which body of people to trust with this decision but the fact that one relies on people at all.  As Scarry notes, ‘whatever pain achieves, it achieves in part through its unshareability’. The violence of hate speech is that it is a singular experience, inexpressable in language and invisible to others. This is true whether one seeks recourse through law or through society: there is an obvious conflict between the individual pain of hate speech and the remedy that requires others to understand the same.

In my opinion, Butler fails to capture the fact that some words can become so hurtful that they can never be spoken (or indeed written) and so can never be reclaimed by the individual. That every time one goes to speak them one suffers the physical effects of panic and ridicule that coincide with the recollection of those words being used to injure: those words not one off instances but everyday occurrences targeting several aspects of one’s identity. In addition, one is acutely aware of the fact that this experience is counter to the popular narrative that dominates members of my generation – that those things don’t happen anymore or society no longer thinks like that. One feels almost apologetic or embarrassed to fall outside of that narrative.  Indeed, sometimes one feels the force of that narrative so much that one questions those subjective experiences as if they couldn’t have really happened or it wasn’t that bad.  Further, it seems as though by recalling those experiences one is constructing a story in which she is the ‘victim’. Yet, as undeniably formative as that exposure to hate has been, it is only one part of a larger experience in which one has felt as much love and support. Indeed, my impression of Butler is that her explanation of performativity as ritualistic, repetitive and reinforced fails to adequately account for the fact that the subject is constituted by numerous speech acts.  One is neither victimised nor emancipated but always somewhere in between, always conflicted, often ‘unnarratable’.

This could be a topic of its own but to finalise my account of hate speech I want to briefly touch on the concept of coming out.  After reading Butler I realise that coming out is perhaps the most archetypal example of performativity.  It is an act which can’t really be done without words and it is a speech that acts: it affects relationships, forms an identity and exposes one’s vulnerability.  It is of course not a single act like Austin may imagine speech acts but must be repeated and reiterated to new people and in new spaces. At times it may be like stepping out of metaphorical closet but more often when one shares a space with others it is like tumbling out of that collective and into a (temporarily) unknown place in which one stands out as different (though this is probably mere perception). What this means in a larger context I am not yet sure but for me it certainly points to the uncertainty, conflict and constancy of the constituted subject.

I am aware that I have ‘gone on a bit’! But I felt it important to bring to the surface the above elements of hate speech, speaking only for myself, that I felt were missing.

I should also apologise for my extensive use of ‘one’ but it seems it is just as difficult to write ‘I’ as it is to speak certain words.

I would like to begin our blog series for this module with some reflections on the legal fiction writings, not only because they deal with a topic that is interesting in its own right but because they also exemplify the value of a humanities approach to law.

Having studied corporate governance I cannot help but be aware of the long running scholarly debate on what is possibly the most cited example of a legal fiction: the issue of separate legal corporate personality. Whether the company ‘really is’ legally separable from its members is to a certain extent still contested, with scholars on both sides adducing evidence in support of their views and entire theories of corporate governance built on the foundations of legal personality as a fiction.

What the standard corporate governance literature fails to consider, and humanities can help us to answer, is precisely why the debate exists at all. As Fuller states, maybe the issue is one of terminology only (p12). The debate as to the ‘reality’ of separate corporate legal personality could then be characterised as a dispute over the appropriateness of using the word ‘person’ in a particular context. The choice of a certain six letter word may therefore be at the foundation of a decades long scholarly argument. It is fascinating to consider how different legal history may have been if another word or phrase had been chosen: ‘entity’, perhaps, or the somewhat less elegant ‘right and duty bearing unit’ (p14).

Law and humanities here offers an alternative perspective that goes unnoticed by the standard scholarship, much of which is law and economics-based. This perspective is both unsettling (in that so much may be contingent on just one word) and refreshing.

I must admit that as we prepare for the intensive course in law and the humanities I find myself struggling with the concept of ‘legal fiction’. LL Fuller describes legal fiction as a statement which is made with a consciousness of its falsity or a false statement recognised as having utility. A more basic definition is provided by the OED: ‘an assertion that is accepted as true for legal purposes, even though it may be untrue’.  I find it somewhat difficult to understand why the use of such fictions is regarded as controversial. It is especially hard to grasp the reason for Bentham’s demonstrable contempt for them as ‘a syphilis’ positioning the legal system with ‘rottonness’.

In an attempt to understand how fictions can be regarded as such I considered the purpose of law.  In ‘The Inner Morality of Law’, Fuller explains the notion of law as a means of achieving social order by subjecting humans to the governance of rules. This description does not require a connection between law and reality; legal fiction is simply an expedient means of fulfilling the function of a legal system.  As Vaihinger notes, jurisprudence is ‘not a science of objective reality but a science of arbitrary human regulations.’  So there is a sense in which the law is a set of rules necessary for creating social order in which the terms of the legal system do not need to accord with reality but merely be accepted by its citizens.  The system may be conceived as self-contained: it it takes existing terms of language, divorces it from its everyday meaning and appropriates it for its own purposes. As Posner reflects on the legal fiction that a chimpanzee is a person, there is no pretence that this means a person as the term is used in ordinary parlance.  Rather, ‘person’ is to be employed more figuratively as a means by which to ensure that the law has the authority to remedy a perceived wrong.

It then came to mind the notion of precrime contained in The Minority Report: individuals are charged for murder despite the fact that they were stopped before committing the act through the invention of technology that enabled the prediction of inevitable acts.  This appears to me to be be a legal fiction: stating that someone has committed murder despite the individual never in reality committing the act. This seems to be unjust as it does not reflect the social reality. Alternatively, the employment of the fiction allows the legal system to achieve social order by subjecting its citizens to its rules.

I am very much looking forward to tomorrow when hopefully the notion and controversy of the legal fiction will become clear.

It is indisputable that legal fiction plays a major role in the law, from land laws lost modern grant, which every law student is forced to study to the slightly less well known doctrine of survival. Though such concepts permeate the common law, and arguably subvert the essential doctrine of legal certainty, the article makes the point that the layman rarely complains that the law is founded upon fictions. Bentham names legal fictions ‘the most pernicious and basest sort of lying’, whilst Blackstone considers them ‘highly beneficial and useful’.

In Motives of the Legal Fiction the author attempts to deal with a number of questions, the one that this post will focus on however is ’what should we do about the fiction?’. The issue here is that many fictions exist because of their utility, something the article recognises. Therefore, so long as we cannot fill the void that would appear if we were to remove them from the legal sphere there is not much to be done about them at all. This clashes however with the articles concurrent realisation that a fiction is only safe ‘when it is used with a complete consciousness of its falsity’. The issue is that doctrines like that of the post modern grant have become so ingrained that many practitioners and academics no longer question their mechanics. It is possible to postulate, having recently completed an undergraduate degree myself, that few people appreciate that the creation of an easement through prescription relies on the fiction of the lost modern grant, they simply see the test of nec vi, nec clam, nec precario and the subsequent result of its application over a lengthy time period. This however clashes with the articles need for a consciousness of falsity and suggests that we have taken the legal fiction to far in England and Wales.

The fact that there might be a need for change however in no way diminishes the need for legal fictions. Furthermore, whilst legal fictions have been removed from the legal gamut in the past, it is arguable that the process has left us with the most utilitarian of fictions, for which there can be no easy replacement. The author of the article seeks to replace fiction with ‘presumptions’ and examines a potential test for doing so. The issue here however is that there is little practical difference; whilst the author relies on the linguistic impact to make their case for presumptions, this in no way changes the practical reality of mechanisms like the lost modern grant. That is, if society desires doctrines like that of prescription it requires a method for letting them sit well with the law. One is forced to conclude that the article takes the wrong direction, and that until some creative academic of legislator invents a suitable tool to replace the most utilitarian fictions, they must continue to subsist within the legal sphere.

William MacNeil’s account of ‘Minority Report’ and Law and Economics calls into question the use of preemptive strikes, and draws on questions of lex populi (popular law) and the commitment to pre-empting the law trough prediction. The idea that law can play a role in both addressing and redressing potential legal problems before they occur is presented as a hypothetical, futuristic trepidation to mankind, but is it really so unheard of in current legal discourse?

The idea that an economy has the ability to transform law into an instrument of coercion and the state behind it into an authoritarian security system seems farfetched. After all, isn’t the law one of the strongest tools we have against authoritarian power under human rights, judicial reviews and public enquiries? But what about when the context is changed to a legal system where there are little to no sources of redress?

MacNeil links the themes of precrime to that of the Bush Administration in relation to the threat of the Islamic Middle East before it materialises (irrelevant of evidence) and draws parallels later in the article to pre-emptive strikes against precrime nations which are modelled on a set of assumed and selectively sifted facts. International law and the International system is rife with predictions of threats to the peace and collective security measures. The idea that prediction and lex populi can reduce the law to a status of a security system is hardly farfetched when you look to what the United Nations deems itself to be.

MacNeil argues that those behind such systems have the power to manipulate and even manufacture consensus for such measures in order to promote the PreCogs as fool proof. In the International legal system, PreCogs are known as ‘intelligence agencies’, and the questions as to their durability is protected as state secrets and sovereignty. The willingness to believe in the necessity of the system comes arguably from scaremongering and isolating minority groups with little ability to stand against allegations; how can you prove you are innocent of a crime which has not yet been committed, and when the evidence of the crime is not open information?

In relation to the terrorist listing process, a Canadian Federal Court Judge related the situation of a listed suspected terrorist to that of Josef K in ‘The Trial’, who awakens one morning and for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecific crime. Not only is international law tending to focus on individuals predicted to be capable of committing a crime, it is enabling punishment of them without their knowledge of the crime. MacNeil’s assertion that rights are being displaced seem hardly fictional when put into contexts such as this.

But MacNeil goes further and asks argues that this is for a commodity. Skin deep criticisms of international law would argue such commodities such as oil, or political power, but a more thorough assessment would look to the benefits of an international legal system with inconsistencies. The benefit to the US of such inconsistencies, such as deligitimation of the system may enable states to defer from responsibilities. But for a state that claims to uphold values of Human Rights (and impose those values on the rest of the world), how can they justify removing rights and ignoring law so blatantly?

MacNeil presents how Minority Report demonstrates a world without right, and without the law, because prediction has rendered it irrelevant. The international Legal system, already heavily criticised for its weaknesses, gives us plenty of parallels with the minority report’s destructive future for the rule of law and justice.