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 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.

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?