In the build-up to the writing up of my paper which is a critique of corporate personhood as a legal fiction for the LW928 Law and Humanities modules, as I was researching, I realised that there are many other ways at which we could look at corporate personhood. From philosophical, organisational to psychological and sociological dimensions- the corporate person does not only have legal implications, something that we often forget as lawyers. I have thus decided to concentrate on the philosophical side of the concept and analyse moral personhood for two of my blog posts. This first post will be about two arguments in favour of moral personhood.

It is also helpful to first set out that the corporate personhood is a legal fiction, in the way that, put very simply, the law treats it as a person but we all know that it is not a ‘natural’ person in a literal manner.

Firstly, moral philosophy believes that corporations, along with their legal rights and duties, also have moral rights and duties. Just like natural persons, corporations should bear the consequences of their actions and assume responsibility for them.[1]

“The presence or absence of corporate moral personhood determines whether corporations are subject to blame for their failure to meet [their moral] obligations.”[2]

Philosophers in favour of the corporation having moral responsibility theorise that the corporation has both the intentionality and ability to act. This means that, despite the fact that a corporation depends on natural persons to run it, all the moral responsibilities and duties cannot be solely attributed to them. By colluding to make up the corporation, which claims rights as an individual ‘person’ under the Bill of Rights, the actions of the each of the individuals become one big corporate action. The underlying principle being that if the corporation wants to claim rights as a person, it should be as liable as a natural person would be when it engages in ‘immoral’ actions.

“It is not always appropriate to limit moral responsibility to the
individual members of the corporation because sometimes immoral
corporate actions are the result of a series or combination of blameless
primary individual actions. No one person is at fault for the harm
caused by the collective corporate act.”[3]

It is quite hard to track who has done what in large corporations and tracking who is to blame when decisions go wrong can be somewhat an impossible task in large corporations. It will most probably be a combination of the actions of multiple individuals. Hence proponents of the moral corporate responsibility theory think it is easier to attribute the burden to the corporation as a whole.

Secondly, philosophers have found a different way to establish corporate moral personhood by projecting the moral features of human beings onto the corporation. Goodpaster and Matthews argue that ‘rationality’ and ‘respect’ are the two components that make the human beings morally responsible.[4] By way of analogy, because corporations possess the ability to research, calculate risks and evaluate the potential impact of that some decisions might have, they prove that they can be both rational and can show respect. They can thus be considered to be moral persons. As giant business and financial players, corporations might actually have access to more information than a normal individual will ever have which cements the argument that they should be moral ‘person’ even more.

The overall underlying justification of those in favour of moral personhood for the corporation is that if the latter wants to have the same rights as a person, it should also have the same moral responsibilities. For them, the corporations have no excuse to not be morally responsible as it possesses more than enough resources to take sound decisions that are not harmful to society.

[1] Paul B. Thompson, Why Do We Need a Theory of Corporate Responsibility? in SHAME, RESPONSIBILITY AND THE CORPORATION 113, 116 (Hugh Curtler ed., 1986).

[2] “Michael J. Phillips, Corporate Moral Personhood and Three Conceptions of the Corporation, (1992)2 Bus. ETHICS Q. 435, 436

[3] Susanna Ripken,  K. “Corporations are people too: a multi-dimensional approach to the corporate personhood puzzle.” (2009) Fordham J. Corp. & Fin. L. 15 : 97.

[4] Kenneth E. Goodpaster & John B. Matthews, Jr.’ Can a Corporation Have a Conscience’ (1982) HARV. Bus. REV;  132, 134.

There is this wide sentiment that corporations are really bad for the society in general because of their contribution to environmental woes for example, or for creating inequalities in wealth distributions in a very capitalistic era. The scale of corporate activity and its influence on everyday life have made people realise how much of a grip these institutions, which are legal fictions,  have on our daily life. This is quite a frightening realisation and people have been vouching for corporations to have moral responsibility and restrictions because after all they have ‘person rights.’

However, attributing them moral responsibility can sometimes not be the best move, however unpopular this assertion might be. In this second blog post about the philosophical dimension of corporate personhood, I analyse the other side of the moral personhood, that is, arguments against corporate moral personhood.

Proponents of this theory argue that the corporation itself cannot have blameworthy intentions but rather, it is the individuals who run it who possess those. Hence, only the individuals can be held morally responsible for their actions.

“Moral personhood requires a certain level of autonomy: moral responsibility for an act can be attributed only to the person who originated the act in his own body, a body over which he or she has direct autonomous control.  Since corporate action never originates in a body belonging to the corporation, but in the bodies of human beings who directly control their own actions, corporations do not originate acts in the manner required for moral responsibility to apply.”[1]

The rationale here being that, since corporate action can never happen without human beings triggering them, the corporations cannot be moral. Here the corporate form wants to be treated as a person under the law but does not want the ‘moral’ responsibility that comes with it as it does not have a ‘body’ its own from which actions can originate. It ironically embraces its fictional side here. Other philosophers have argued that corporations cannot possess the intentionality needed for them to be morally responsible as they do not have minds to think on their own. Whilst others argue that even if we are able to establish intentionality, it would simply not suffice as corporations cannot feel emotions. [2] Whilst human beings can feel regret or remorse for making immoral choices, corporations cannot feel the same, they cannot empathise and this solely invalidates the moral personhood theory.

Secondly, some philosophers fear that granting corporations moral personhood would also mean granting them moral rights. This would mean that corporations would expect to be treated like a person and be respected as such and this is a very uncomfortable notion for society.[3] After all, we would be treating a ‘fiction’ with respect that is normally reserved for human beings. To explain this Ripken invokes Kant and his theory of means and ends;

“According to Kant, all human beings are ends in themselves and should always be treated as such, never as means to another end. In contrast, corporations are human creations that are formed as means to achieve the ends of those human beings who choose to participate in the corporate enterprise. If corporations have the same moral standing as natural persons, then corporations are entitled to the same moral rights, in particular, the right to be treated as an end in itself.”[4]

If they are treated as ends themselves, it would just open the floodgates with both Ladd and Ripken arguing that for example, the closing down of the corporation would be considered to be ‘murder’ as it means it would metaphorically mean that the corporate person is dying. So to avoid these strange assumptions from concretising, the corporations should only just be treated as ‘machines’ that were put in place to advance human ends and should therefore not be given moral personhood and have moral rights and responsibilities. [5]

[1] Susanna Ripken,”Corporations are people too: a multi-dimensional approach to the corporate personhood puzzle.” (2009) Fordham J. Corp. & Fin. L. 15 : 97.

[2] Rita C. Manning ‘Corporate Responsibility and Corporate Personhood’, (1984) 3 J. Bus. ETHICS 77, 80

[3] John Ladd, Morality and the Ideal of Rationality in Formal Organizations, (1970) 54

MOIST 488, 500

[4] Ripken at 123

[5] Ibid

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

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 Dr Silveira of the University of Cambridge has said in one of his papers, Justice is a moral concept that is very elusive and bears no universal definition, despite the agreed notion that everyone should be given what they deserved. The meaning of justice changes according to differing cultures, circumstances and values. So how has the idea of justice changed over time? Inspired by an online article about the topic, I provide a brief overview of some of the most famous conceptions of the notion of ‘justice’ below.

Classical justice as propounded by Plato, is a ‘human virtue’ which would entail that the individual has to balance numerous parts of his soul namely; reason, desire and spirit. Everyone would deal in a fair way in society and will fulfil their duty in   right way and place. This would eventually mean prioritising what society needed and not what the individual wanted- this concept of justice eventually carries notions of a totalitarian regime. While Aristotle would even claim, in Politics, that some people need to be treated in a different way by the law than others, for the greater good, as they are “natural slaves”.

Medieval justice was most famously advocated by St Thomas Aquinas (especially in Catholicism) whose theory is that justice is when one person gives the other only what the latter is due, despite this not being equal. Moral law plays a great part in his idea of justice. He was also a firm believer that there is a just price for everything.

Modern justice on the other hand, is rooted from the period of the Enlightenment, pushed under the spotlight by Kant. This idea of justice is based on how we are all equal before the law and this concept of egalitarianism is expanding more and more to all categories of human beings- from men, to women and children. Marx and Smith have also pushed forward a form of distributive justice that gives the general idea that goods should be distributed according to the moral, rights-based values or in the case of Smith, according to the market.

However, this is just a few examples of how the notion of justice has changed over time. There are plenty more theories and as aforementioned, the idea of justice still differs according to different cultures and circumstances.

The body… is caught up in a system of constraints and privations, obligations and prohibitions
– Michel Foucault, Discipline and punish

I have recently read an article online which connects Foucault’s concept of biopolitics to that of state racism- the piece was so fascinating that I have decided to explore the concept of biopower a little bit more in this brief article. Biopolitics can briefly be described as being the politics of governmentality of life, through the human body. The concept mainly encompasses all the strategies, mechanisms or ‘dispositifs’ as Foucault would say, that govern human life through the ‘technologies of control’, which are numerous forms of authority on knowledge and power. To quote what Foucault said in The Will to Knowledge: The History of Sexuality, these technologies of control exist “to ensure, sustain, and multiply life, to put this life in order”.

Biopolitics is hence, about the human body being subjugated to the technologies of control disseminated through the numerous branches of the social body such as healthcare or punishment (and many more) so that, at the end of the day, the body is functioning according to the norms. Hence, the body becomes ‘normal’. Foucault explains that the concept of biopower also means that the historical power that the sovereign had over society, has thus been split up and extended to these technologies of control. Insomuch that when, for example, an individual is imprisoned, it is no longer to protect the sovereign alone, the argument used to justify the imprisonment is that society as a whole needs to be protected against the offender.

As articulated by many scholars and critical thinkers in the articles regarding Foucault’s work, it is this shift in the dissemination of power, that is, the protection of society instead of the Sovereign alone, that has given rise to state racism. Foucault holds that the post powerful race is the one which is able to define the norm-what is good and what is bad. So that biopolitics entail that there is constant war between this powerful race and the individuals that go against its norms. In his lecture series titled Society Must be Defended, he says

“a racism that society will direct against itself, against its own elements and its own products […] the internal racism of permanent purification, and it will become one of the basic dimensions of social normalisation”

Can this be related to the numerous modern forms of institutional racism that many people face nowadays? Foucault was most certainly right with this theory of biopolitics and state racism, seeing how the income inequalities, the unfairness in the criminal justice systems of many countries (racism by police officers for example) and all the disparities in education, healthcare and fairness in general, rage on across the world.

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.

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 18^th 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.