What can the Humanities do for Law?

When I was talking with my fellow students about our choice of modules for the next term a few days ago, we also reviewed about the previous term and whether we liked our modules.

I was far and wide the only one who did not follow the trend of choosing “remunerative” subjects, such as Commercial Law or International Relations. When I told them that I had chosen Law and the Humanities in order to view Law from a very different angle, their reaction was quite sceptical: of what use are the Humanities? How should they help us in our future career as a lawyer? And what are they actually?

My colleagues might be right in the assumption Humanities being seen as a subject, which is constantly being smiled at when it comes to its practical benefit or discussions about whether to include it in legal education, at least in my home country. But in fact, the Humanities are able to help us as lawyers in our way of understanding our profession and the various factors shaping it. Law is subject to constant change and is deeply interconnected with history, philosophy, politics, and language, just to name a few other meaningful disciplines than “pure” law itself, which impact the nature of our daily work. This does not mean one has to know everything about the Corpus Juris Civilis in order to be a good lawyer. Nor does it mean one has to read Kant`s Metaphysics of morals as a necessary requirement in order to be considered as a well-read lawyer. But it can lead to worthwhile knowledge about the very nature of law, where it comes from and why it might be the way it is.

It is not about finding solutions to specific legal issues, but approaching law from a Humanities perspective broads one`s horizon and raises awareness of all the factors, which create our legal systems. This, in turn, enables us to increase our level of empathy and the ability to question legal systems and norms as well as to develop convincing arguments for or against particular legal issues. Law is about humans and it would be fatal, if lawyers only look at legal norms and how to enforce them like machines, without taking the “bigger picture” into account. Although lawyers need to make a decision at the end, it is also crucial to at least reflect about the law as a complex system, with its origins in history, philosophy, and religion in order to act in a considerate and deliberate way.

And this ability, in turn, is essential for being a good lawyer.


Revisiting Foucault`s discipline and punish: is the idea of rehabilitation doomed to failure?

After reading Foucault’s discipline and punish as part of the discussion about how law can be related to the human body, I got an insight in our modern penal system and the way we punish people, and why we do this the way we do, from a different perspective. Foucault’s main points, which have been argued throughout his book are well-known: from the 18th century on, one can notice a shift in the way of punishing wrongdoers. Cruel, public executions, celebrated as a public events, yielded to prisons, more precisely to the idea of locking perpetrators up in order to change their mind and cure their “soul”. The new aim was to reform them to law-abiding citizens and there was a growing interest in analysing their intellectual world, with the result of shifting the focus from the crime to the criminal. This is all well-known and Foucault embeds this development in a deep analysis of punishment being a complex social and political phenomenon, which is characterized by various dynamics, such as power, knowledge and discipline. But the longer I thought about his ideas and his emphasis on this new aim of punishment, namely to turn the offender into a “better” person, the more sceptical I became about it. This purpose, which is nowadays called rehabilitation or, in some jurisdictions, resocialization, turns out not to be realistic. I started to think about why it might not work in practice. There are many statistics about the number of inmates reoffending once they have served their sentence, which made me seeing prisons, as the common type of punishment, in an even more critical way: I am sure that the high number of recidivism (the statistics reveal numbers from 40 to 60 percent) has many different reasons, which depend on the particular perpetrator, offence and jurisdiction.

But in my opinion rehabilitation itself is doomed to failure, or to put it in other words cannot work, due to the following reasons: the way our modern penal system operates, and Foucault describes this quite to the point when he illustrates the daily routine in a French prison at the beginning of his first chapter, is everything but self-determined. Not only does rehabilitation mean to “reform” the offender, it also aims at preparing him for a life in freedom, a life without criminal offences and criminal environment. But how should inmates ever be self-determined again, if they are deprived of their freedom in nearly every aspect of their life? They have strict timetables about when to eat, when to sleep, sometimes even when to shower. They are permanently being controlled and treated as objects of huge governmental powers. Prisons as an institution to segregate and “hide” offenders from the society create a parallel society which has nothing in common with the “real world”. The second aspect is the wording of rehabilitation in itself: in order to rehabilitate a person, one necessarily has to label it as being “different” in comparison with the social standard. Instead of reintegrating these “criminals” in the society one intentionally stigmatizes them as “not being in line with the required standard”. And as it is with stigmas, one can never get rid of them again.

Due to these reasons, prisons on the one side, and the idea of rehabilitation on the other side, end up in being contradictory. Unfortunately there is no convincing alterative to prisons at the moment, but one has to wait what the future holds in times of on-going debates about alternatives to incarceration, such as restorative justice.



About the “evil monster”

“Why did I have to kill them? I had to kill…my conscience told me they had to be killed.” – that is just one of the many quotes from Anwar Congo, a main character in Joshua Oppenheimer´s unique movie “The Act of Killing”. During that shocking, unsettling and surreal movie, we are listening to a funny, singing and dancing old man, who nearly hides the fact that he killed around 1000 people in a brutal way.

At first glance, Anwar Congo seems to be one of the so-called “evil monsters”“relentless killers”, who enjoy killing and torturing people as sort of “incarnation of the devil”. But as the movie goes on, that view begins to totter: one can see signs of regret, self-reflection and human characteristics.

That is what makes Oppenheimer`s way of approaching the displeasing subject of genocide interesting and different from other movies: I started to compare it with the portrayal of Amon Göth, a German SS Officer, played by Ralph Fiennes in a both impressive and deeply horrifying way, in Steven Spielberg`s Holocaust movie “Schindler´s List”. The officer is shown as a rootedly evil person without any sign of humanity or empathy, so that one can definitely believe in the existence of bad humans, personifying cruelty and sadism – figures of speech often used in public discussions about perpetrators.

Oppenheimer however raises further questions: What is going on in a killers mind? Might we all have the potential to kill people?

In addition to those already profound questions, the movie made me think of another issue: How do we define who is evil and who defines that? And are there really people, who don’t feel any empathy for anyone? And moreover: When was the historical starting point for showing deeper interest in the mind of offenders, rather than just imprison or, in the last resort, executing them?

According to Michel Foucault, as he points out in his paper “Discipline and Punishment”, the latter turned out to get more rational during the 18th century. The function of punishment shifted from corporal punishment to the attempt of changing and controlling the offender´s mind. His implementations increased my interest in examining the reasons for that shift, and how the new type of knowledge, provided by experts, changed the law and our conception of punishment. Might an interdisciplinary approach help finding the answer to the question, whether one is right in calling serious offenders “evil monsters”?


“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?