The recent case of Jussie Smollett, actor in famous US TV show ‘Empire’, has gripped the attention of the media and the world in the past year. Whilst I do not attempt to find who was really guilty (because who knows ?After all, all charges were dropped against him.) my main interest lies in the way the story was told and how the actual court and the court of public opinion portrayed and judged him.

On 29^th January 2019, Chicago police announce that they’re investigating “a suspected racist and homophobic attack, by two masked man”[1] on the actor. The latter had a chemical substance thrown at him and had a rope wrapped around his neck. According to the actor, during the assault the perpetrators shouted that it was a ‘MAGA country’ (Make America Great Again), famous slogan often used by President Trump and other racial slurs. The case was treated as a hate crime, Jussie being gay and from an ethnic minority. Following those reports, there was an outpour of support towards the actor from celebrities, fans and many more expressed their anger against the outrageous nature of the crime. Jussie described himself as a ‘gay tupac’.[2]

A couple of weeks later, plot twist; reports emerge that Jussie has actually paid the two attackers (who were had worked as two extras on Empire and had known the actors according to their lawyers) to stage the attack. Jussie refused to give his phone for investigations and when he did submit his data, he blurred some messages out. Coupled with the other twists about the fact that the perpetrators were actually black, to which Jussie responded “if I had said [the attackers] was a Muslim, or a Mexican, or someone black, I feel like the doubters would have supported me a lot much more.” and suggestions that he actually paid them to help him train to get in shape for a video he was going to stare in, that was enough to cause a shift in opinion. The police charged the actor with a case of false reporting.

He did lie about the colour of the perpetrators. However, the powerless, gay black man who had acquired so much support, pity and attention, was suddenly the bad guy. Even if the court later dismissed the actual case of false reporting, the police still believed that he was guilty and have since sued him to cover the cost of the manpower involved in investigating the case, which could have been otherwise efficiently used according to them. Most importantly, where the narrative really switches is where the same articles online that would describe him in such an innocent, ‘victimised’ light (before the false reporting allegations) described the drop of all charges against him with a hint of suspicion. The same people who commented on online threads and news outlets ,who were outraged when he was attacked, had suddenly changed their opinion and accused him of not only being guilty, but that he was free just because he had ‘money’, was ‘famous’ and bought his way out of the system.  Empire had decided to get rid of his character for some episodes and it is not sure when or if his character is going to return. He was so longer the vulnerable ‘gay Tupac’ but he had turned into this manipulating monster that was capitalising on a sensitive subject (racism and homophobia) to gain fame. Whilst we still do not know what the truth really is, it is very interesting to see how the court of public opinion can ‘make and unmake you’, using specific narratives to paint victims and perpetrators and manipulating them. In this story, the vulnerable victim from a marginalised background turned into the powerful big bad wolf in a nanosecond.  Imagine this happening in a real court of law- oh wait, it does already !

[1]BBC News accessible https://www.bbc.co.uk/news/newsbeat-47317701

[2] Ibid

Over our first two days, we probed the concepts of the imaginary and the fictitious, and their deep centrality to the law, normatively and critically. As we turn to the final set of readings tomorrow, we will begin to explore what – in my view – may be the most interesting concept: performativity. As Loxley’s “From the Performative to the Speech Act” makes manifest, relying heavily on J. L. Austin’s How to Do Things with Words, the things that we say can in fact do things in the world. Our utterances are therefore not ‘just’ words, but actions too. In the shadows of this impactful analysis of language is silence, a theme lying dormant in the imaginary and the fictitious as well.

A seminal reading for the legal imaginary seminar was Goodrich’s “Specula Laws,” which he ends by discussing a 1990 case when a journalist refused to pass documents to the Court, in order to protect his source, and was therefore held in contempt of court; his counsel was not even allowed to speak. Goodrich writes, “Within that silence resides an entire iconography of the territory of the law for it is in that silence that law may properly be said to speak and in speaking to erase all claims to any other destiny, any other fate or reason but its own.”[1] In a likewise pivotal reading on legal fictions, Alison Young ends her 1998 article on rape trials with a reference to the story of Tereus and Philomela in Ovid’s Metamorphoses: “Closing its dirty ears, law is deaf to the accusations of rape, and silences woman, replacing her tongue with the pathos of wordless song, inarticulate sound, non-language, the pain of alterity.”[2] Both Goodrich and Young chose to end their articles by noting how law speaks loudest through its power to silence, and yet they do not investigate[3] this encompassing power of law, the power to silence.

In Rae Langton’s “Speech Acts and Unspeakable Acts,” we find a theoretical framework for analyzing the power to silence. Her two central claims are that pornography subordinates women and that pornography silences women. Although her first argument is critical to understanding the normative power of pornography, it is her second claim that offers much to thinking about law’s power to silence. Building on J. L. Austin’s tri-partite notion of how utterances do things in the world, Langton explores a threefold distinction for how speech acts can be silenced. It is the third of these that is most interesting, which is termed illocutionary disablement, and denotes how “the appropriate words can be uttered, with the appropriate intention,” and yet the speech act can still fail.[4] Her example for this is breathtakingly powerful, as she explores how a woman can say ‘no’ to a sex act, while the hearer can fail to recognize what this means: “She says ‘no.’ She performs the appropriate locutionary act. She means what she says. She intends to refuse. She tries to refuse. But what she says misfires. Something about her, something about the role she occupies, prevents her from voicing refusal. Refusal—in that context—has become unspeakable for her.”[5] In her analysis of the reprehensible and nearly incomprehensible, Langton displays how silence does not merely mean restricting what one can say or preventing one from saying anything at all, but also stripping one’s words of their meaning. Furthermore, she highlights the relationship between the positionality of the speaker to both her words and their reception by the hearer. In thinking about the law, this conception of silence seems particularly poignant: the power to enable or disable the meaning of words, to enable one’s voice or to strip it of any meaning. The question that then arises is how this power is weaponized and operated through and in the law. How does the law perform illocutionary disablement? When does it exercise its power of silencing?

Although Langton offers much for thinking about the power to silence, and what it means to be silenced, it remains disconnected from a discourse of law’s power to silence. Moving into the second half of the course, I am particularly interested in how this power of the law operates, what its normative implications are, the ways in which it exasperates existing inequities, and what it means for better understanding the law.

[1] Peter Goodrich, “Specula Laws: Image, Aesthetic and Common Law” (1991) 2 Law and Critique 2, 254

[2] Alison Young, “The Waste Land of the Law, the Wordless Song of the Rape Victim” (1998) 22 Melbourne University Law Review, 465

[3] Young, in some respects, can be seen to be investigating this power at times in her article, notably when she discusses the restrictions on the victim’s voice during the trial. However, the focus here is on the disenfranchisement of the victim through the trial, rather than the power of law to silence.

[4] Rae Langton, “Speech Acts and Unspeakable Acts” (1993) 22 Philosophy and Public Affairs 4, 315

[5] Ibid, 321

Through the course of the week and discussions that have taken place during the LW928 module, we have tried to grasp and understand what the legal fiction is and what it entails. I have found that a certain example of a legal fiction in particular could be linked to a specific area of law that I’m extremely interested in, which is legal personhood.

Indeed, the fact that a corporation is seen as a ‘person’ in law is a very well established principle that offers practicality and opportunity to both a corporation and the institutions of the law. The aspect that interests me is how this very legal fiction is the argument that environmental lawyers and animal activist and thinkers put forward when ideas of giving natural entities legal personhood or giving animals legal personhood are debated.

If we agree that a corporation is a person, then why can’t we grant legal personhood to a river? And what would it mean to do so?

Eric Posner’s article in particular caught my attention. His very pragmatic and practical explanation of legal personhood and the limits of law gives, in my opinion, a false account of what the law can do, in the sense of meaning. When he writes ‘In none of these cases was a judge fooled into thinking that an animal possesses all the rights of human beings. The lawyers bringing them were simply ensuring that a judicial remedy was available to address the harm that Congress sought to fix’[1], he reduces the law as a tool without recognizing its power.

While granting legal personhood to a river or a tree, as it as been done in recent legal history, might be seen as nothing more than one ‘judicial remedy’ amongst others, it holds a certain meaning. It addresses contemporary environmental and political issues, it recognizes the value of Nature and the need to protect it, it gives a space and a voice to certain indigenous communities for whom this river or tree might be something important. Not to mention, it opens up a new area of law that seemed off-limit before.

Legal fictions hold a practical purpose but it would be too restricting to ignore the situations they can produce and the voids they can fill.

[1] Eric Posner, ‘Stop Fussing Over Personhood’ (Slate, 11 December 2013) < https://slate.com/news-and-politics/2013/12/personhood-for-corporations-and-chimpanzees-is-an-essential-legal-fiction.html >

On 2007, the Museum of Ethnology of Hamburg decided to reimburse more than 10,000 visitors of an exhibition of the Terracotta warriors because it came to light that the figures on display weren’t ‘original’. They were mere copies of the original figures. The museum’s director at the time, Wulf Köpke explained that ‘he had agreed to the exhibition on the firm understanding that the exhibits were genuine.’ ^[1]

At first glance, the measure appears as correct. Why charge people to see alleged original figures when they were, in fact, fake? However, what if we think of the incident with a different narrative? What if we abandon the western tradition and analyse the work of art within its tradition?

Lisa Sarmas (Sarmas, 1994) describes legal storytelling as a methodology interested in what is excluded by the hegemonic or dominant legal narrative. By focusing on what’s structurally excluded by the dominant legal narrative, we could challenge and transform the legal system in order to make it more inclusive and responsive to real social practices. In what follows I will briefly draft the dominant narrative of law’s originality and then compare it with a counter-narrative that may help us to identify some discontinuities or exclusions made by the law that affects how we understand certain artworks such as the Terracotta Warriors.

For western law a piece of artwork is original if it is possible to find that its author has exercised some effort in its creation; if the work isn’t copied and (at least for continental law) if the work bears the imprint of the author’s personality. It is said that this account of the author, the work and originality is strongly influenced by German Romanticism, which deemed the author as he who, by applying his genius, is the unique originator of the work. To that extent, individualism and originality appear as central for the western tradition. I what matters is the genius of the author, then the only thing that matters is the unique piece of work that was made by the author. Moreover, such work is deemed as a stable and finished piece; the signature of the artist both authenticate and closures the artwork. That explains, according to Latour, this age’s obsession for the original (Latour, 2010).

Viewed from this narrative the Terracotta warriors were, in fact, mere copies. They were neither authenticated nor closured by their author’s signature. Moreover, the author of the original never touched the copies being displayed in Hamburg. Does this mean that they were not original?

Here we can introduce a counter-narrative. Byung Chul-Han (2017) explains the oriental notion of originality as a deconstruction of an invariable and unmistakable presence that is confined to itself. For the oriental tradition, the notion of a finished artwork is unintelligible. In fact, the artwork is understood as an infinite process without a teleological purpose. The artwork (and its process) does not aim to a definitive and stable identity. On the contrary, it is thought as a piece of incessant transformation.

Within this counter-narrative, the copies of the Terracotta warriors were not different from the ‘originals’. Chinese people, explains Chul-Han, even use the concept of fuzhipin to designate exact reproductions of the original; such concept, in any case, has a negative connotation. Because the object is an exact reproduction of the original (or the first) work, they are convinced that in their essence they are not different.

Why then the Hamburg’s Museum of Ethnology claimed that they were deceit and reimbursed the visitors of the exhibition? Legal storytelling can help us to explain this situation by saying that the dominant narrative of legal originality, institutionalised by copyright’s law, is obsessed with individual originality exerted to produce unique pieces of works; this obsession excludes entire traditions, such as those described by Byung Chul-Han, and social practices such as indigenous people creation processes, collective authorship, among others.

Legal storytelling can be a very fruitful methodology to highlight how the law exerts violence when determining its scope of operation. However, a further question can be made: It is just a matter of who’s narrative is hegemonic? What if the limits of the law to grasp that exclusions are not an issue of a discriminatory narrative? What if such limits are, in fact, structural limits of the law as an institutional artefact?

The law, like language, has limits. Such limits are exacerbated when the language institutionalise and categorise social practices, as the law does. If we think about legal concepts as being construed by constitutive rules in the form ‘x counts as y in c’ (Searle, 2018) exclusions are inevitable. No matter how inclusive a legal system could be, there will be violent exclusions. I think this is not solely a matter of narratives, but, in fact, has more to do with the very nature of law.

Works cited:

Chul-Han B, Shanzai. El Arte de la Falsificación y la Deconstrucción en Chino [2011] (Caja Negra 2017).

Latour B and Lowe A, ‘The Migration of the Aura or How to Explore the Original Through its Fac Similes’ Thomas Bartscherer (ed.) Switching Codes (University of Chicago Press 2010)

Sarmas L, ‘Storytelling and the Law: A Case Study of Louth v Diprose’ (1993) 19 Melb. U. L. Rev. 701

Searle J, ‘Constitutive Rules’ (2018) 4 Argumenta 51

The Guardian, ‘German museum admits terracotta warriors are fakes’ Available online: https://www.theguardian.com/world/2007/dec/12/china.germany

[1] https://www.theguardian.com/world/2007/dec/12/china.germany

I have recently finished reading and annotating the substantially interwoven literature for this course, Law and the Humanities 2. Without an overarching conceptual infrastructure in which I can encapsulate these particular reflections and critiques of the law and its role in society, I find that there are many areas of intersection between the three stipulated categories – the imaginary, the fictitious, and performativity. I aim to sketch one of these here. While Lon Fuller explains architectonically how the fictitious is elemental to the law, Robert Cover displays the violence inherent in judicial interpretation. Taken together, they highlight how the violence of law consists precisely in its architectural build, in its institutionalization of fiction, and its necessity for categorization. Both the violence and the fiction in law are perhaps a reflection of not only our imperfect intellectual structures, but also our imperfect world.

In the first chapter of Fuller’s Legal Fictions, the centrality of the fiction to the law is laid bare, not only through the distinction between the fictitious and other categories (lies, erroneous conclusions, and the like), but also through the instantiation of the fiction in common legal tools, such as the legal presumption. One clear example of the fictitiousness of the legal presumption is the conclusive presumption, which is not in fact a fiction because the assumed fact is false, but rather because of the nature of its presumed truth. As Fuller argues, take the statement ‘Fact A is present,’ which would no longer be fictitious if Fact A is, in fact, present, but the conclusive presumption says, ‘The presence of Fact X is conclusive proof of Fact A.’ Therefore the fiction of the conclusive presumption does not rest on whether Fact X is present, but rather on Fact X not being conclusive proof of Fact A.[1] The law relies on distinct categories, and requires sharpness in its lines, but these lines do not always produce the desired results – and so we need fictions, to smooth out the lines. As Fuller notes, “fiction is the cement that is always at hand to plaster together the weak spots in our intellectual structure.”[2] While there is no immediate and necessary normative conclusion to be brought out here (i.e. fictions do not, in themselves, cause harm), one quickly follows from Cover’s article on the violence of legal interpretation.

By arguing that legal interpretation cannot be complete without violence, Cover is not merely saying that legal interpretation produces violence, but rather that legal interpretation is predicated on violence.[3] This implicates legal interpretation beyond the mere understanding of a text or word: “bound at once to practical application (to the deeds it implies) and to the ecology of jurisdictional roles (the conditions of effective domination).”[4] In this way, Cover reads violence into legal interpretation by tying it both to the act of carrying out a judge’s orders, as well the conditions for a legal system, those that ensure that defendants walk into a courtroom, and if necessary, into a jail cell. Putting this in conversation with Fuller, normative conclusions begin to manifest. The fiction that binds together our legal framework has normative character if we accept that all legal interpretation is predicated on violence.

Although I do not yet know how to reconcile these aspects of the law, they seem to me deeply intertwined and illuminating. As we begin the course tomorrow, I look forward to better understanding how these various threads are woven together within the law, ensuring the law’s dynamism and notable limitations.

[1] Lon Fuller, Legal Fictions (Stanford: Stanford University Press, 1967), 41-42

[2] Ibid, 52

[3] Robert Cover, “Violence and the Word” (1986) 95 Yale Law Journal, 1612-1614

[4] Ibid, 1617

As I am about to begin the intensive week of the law and humanities module, I find myself wondering, what are the humanities, really? I am convinced I know the answer to the question and yet I find myself wondering nonetheless.

The humanities are the study of society through different topics like art, history, philosophy etc. They provide a broad array of discussion and thinking that allows us to see beyond what we think we know and ask how or why instead of taking information for granted.

This becomes interesting when paired with the study of law. As a French law student, I have been though through norms, codes and jurisprudence; rarely do we focus on other things. In the past, I personally have chosen modules that included a study of politics and law, philosophy and law and also literature and law.

The study of law and the humanities appeared as a perfect addition to this course. The point being that law is social construct, it can be much more interesting to understand how it works and why it works the way it works through the study of other areas of thought that have influenced it. Law would not have appeared in Ancient Greece and Rome, at the same time as great philosophers, if there was no correlation between the two at some point.

As I read about the imaginary and the difficulty that lies in defining it, I realize that there is a lot we think we understand and yet are unable to define or explain. Albert Einstein said ‘if you can’t explain it simply then you don’t understand it well enough’ – so I guess this is my understanding of humanities. This module will help me make more sense of certain topics and will probably bring even more questions as the week goes by.