The Power of Fiction

When Johann Wolfgang von Goethe published his novel ‘The Sorrows of Young Werther’ in 1774, he would not have thought that this piece would bring many of its readers to kill themselves. However, that was exactly what happened – but not because they found it dead boring, quite the contrary. Lovesick Werther, the hero of the novel – spoiler alert – shoots himself in the end. This, in combination with the popularity of the book, unfortunately led to quite a few copycat suicides among its deeply impressed readers. As the plot of Goethe’s novel was the source of inspiration for these deaths, this kind of connection between a published work and a wave of suicides has since been known as the ‘Werther effect’.

Thus, a piece of fiction can have considerable power. It can make the difference between life and death, between existence and non-existence of a person. Similar to literary fiction turning into reality (see the Werther example), legal fictions can also strongly influence our life. Some scholars take the view that legal fictions are mere tools or placeholders within the law that are necessary for it to work (that is, to fulfil its function). Nevertheless, fictions like the ‘legal person’ can shape the way we perceive and treat others – they can, for example, enhance their value in our view.

This March, legal personhood was granted to the Whanganui river in New Zealand. This was done to protect the river’s health and to preserve it for future generations. So, the government probably had positive effects of the personhood fiction on reality in mind. Moreover, the legal personality of the river should reflect the view of the local indigenous people that the river is a living entity in itself, is their ancestor, and is incapable of being owned as property. In our view, this is a fiction that has a – hopefully powerful – influence on how people treat the river. In the view of the indigenous people, the personality of the river might not be fictional at all, but real. Over time, while being obligated to treat the river better (like a person), we will possibly also perceive it as a gradually less fictional and more real person. This effect of a fiction would at least be more pleasant than the ‘Werther effect’.


‘World-Destroying’? Law and Recalcitrant Life

The destructive function that shadows the constructive promise of legal interpretation stands out as one of the key provocations in Cover’s ‘Violence and the Word’ (1986). I wish to raise here a couple of questions relating to the limits of the ‘world-destroying’ violence with which the author tries to displace the ‘world-making’ fixation of the jurisprudence of Dworkin and White.

The first concerns the intrinsic limits of ‘common meaning’ that Cover suggests to be implied in the unhealable rift that separates law and the criminal. For Cover, the prisoner’s ‘co-operation’ with the legal system evidences not so much his/her repentance as the coercive domination of the machinery, which extinguishes the possibility of cohabitation in a normative universe. Already thinned by the institutional division of will and labour, the ‘common meaning’ of law is further delimited by the wound that law burns into the ‘body of the condemned’ (Foucault). My question: would this ‘hole’ mark the horizon of the nomos (‘the one ends here; there lies the other’), or might it further indicate an impossibility within the nomos (‘there is no “one” to begin with’)? Is a world being destroyed (‘I am if you are not’), or might it already be destroyed (‘you are not and neither am I’)?

The second concerns the possibility of resistance, of which Cover cites three instances: martyrdom, rebellion, and revolution. These scenes evince a militant refusal to accept the substitution of one law with the other (‘I would rather die than be you’) or even a repetition of world-destroying violence (‘be me or die’). They suppose the sacrifice of the outlaw or the coup sought by a counter-community. They rehearse the destructive function of law. But not every prisoner is destroyed by law. Aung San Suu Kyi survived her 15-year house-arrest. Indeed, criminal recalcitrance suggests the very longevity of the condemned. Sade’s libertinism resumed between his incarceration, not to say it flourished then — in those 27 years behind bars he wrote the copious pornography that were destined to outlive him and the regimes which sanctioned him. So if worlds survive law, is law’s operation ‘world-destroying’? Or does this characterisation, however well-intentioned, collude with law by concealing its limits? And, with Sade in mind, could life resist law without destroying it? Give in to law without giving in?


Is pornography dictating social norms? Or are social norms dictating how we view pornography?

Double standards for men and women when it comes to sexuality have been around for a long time. We all know the typical picture of a man whose masculinity is enhanced by having a high number of sexual partners, whilst a woman’s virtue is negatively affected when her number of sexual partners rises. The modern movement against what we like to call ‘slut shaming’ aims to eliminate these biases and double standards and to let women employ their sexuality on an equal level to men. In other words, whatever opinion you have of the number of sexual partners of men, the same should apply for women. Whether you think positively or negatively about (casual) sexual encounters, what’s important is that it applies equally regardless of sex or gender.

However, this double standard is still embedded in our culture and generally speaking it does still exist. This is what I thought about today when we discussed the topic of pornography and its supposed degrading force on women. There has been a large movement of women, feminists and other ‘allies’ that write porn off as intrinsically biased towards gender norms and as enhancing those stereotypes.

However, I don’t feel we can say this about pornography in general. Maybe around the time and Langton wrote ‘Speech Acts and Unspeakable Acts’ (1993), the overwhelming majority of pornography did depict women in a less than favorable light. It may have given women a submissive role that could have been picked up by men as ‘the way women should behave’.

Or maybe it was the other way around. Maybe because of the stereotypes surrounding women and because of the double standard between men and women, women felt degraded by these images. Because what is really degrading about a woman engaging in a sexual act with a man? We do not see it as degrading to the male participant. Men are completely free to engage in casual sexual activity without anyone batting an eye.

In addition, pornography has become much more diverse. Different people fantasize about different things and for every category of fantasy there is probably an innumerable amount of visual images available that portray that particular sexual fantasy.

Of course there are types of sexualizations that are troubling. Depicting (and ‘romanticizing’) rape as something sexually arousing (to both the perpetrator and the victim) is not a positive way of putting sexuality into imagery. First and foremost there should be consent between the parties engaging in any type of physicality. Equally, putting minors at the center of sexualization is unacceptable. Sex is something to be had between consenting adults.

But if all parties are, in fact, consenting adults, who is anyone to say their depiction is wrong? We can see promiscuity as degrading, or we can see it as empowering. Or as neither of those things. But nothing is offensive unless someone is offended. Can we not choose to not be offended? If we assume that men and women are on equal footing and different people simply like different things, can we not just choose which ‘type’ of (if any) pornography we want to watch?

It’s difficult to enhance a stereotype that does not exist, or no longer applies. So if we stop seeing sex as something to be ashamed of, the visual depiction of it might stop being shameful.

LLM Modules, LW928

The Imaginary: an undervalued, yet precious, method of assessing our legal traditions

I believe the imaginary is an underestimated tool for analysing and understanding the history of our legal jurisprudence.
Through the assessment of ordinary people, it is possible to determine the motives behind a specific socio-political period that led to the development – or sometimes retrocession – of the law.
Fascinating is also the fact that the imaginary brings together two different perspective of modern societies: the “communal rights” dimension and the “individual rights” movement.

Communal rights reflect better the vision of Anderson and Castroriadis and coincide with the birth of the concept nation.
Ordinary people coming together sharing values about their common languages, traditions, culture and history led to the creation of constitutional laws that safeguard those principles. Another more current example can be the establishment of the European Union, where member states created a new code of laws based on unified economic and cultural principles.

On the other side, the imaginary explains the development of individual rights, bringing on to the table even more current topics of discussion within the legal word. According to Lacan, the imaginary is strictly connected to the psyche, i.e. the individual experience/the Freudian Ego. Lacan’s contribution to the theorisation of the imaginary helps understanding the formulation of other important legal movements such as human rights law and feminism. Through the assessment of the Ergo, new opportunities are opened to learn and understand what shall be done to improve our ‘social’ and legal dynamic.

Finally, the combination of such communal and individualistic interplay raises new challenges, questioning the role of the law and the society in a modern and globalised society which constantly defies history and tradition leading to the legal evolution/change.