When you make a comment like ‘I believe in justice’, you wouldn’t generally expect the answer: ‘Then why do you study law?’

At least I didn’t. Nonetheless, it initiated a wave of laughter throughout the room, not the least of which did come from myself. Nowadays, law is often regarded as a tool to achieve a personal goal. Cases before a court are not always about ‘what’s right’ or ‘who acted fairly’, it’s a question of who can use the law to their advantage in a way that swings the outcome of a case in their favour. It can be perceived as a game of which the rules are constantly changing and whoever can use (or work around) the rules best, wins the game.

TV shows and movies about law and justice reinforce this use of the law. Any of my fellow fans of the TV series Suits would, in my opinion, be inclined to agree. We see Harvey Specter constantly throwing around motions and affidavits to use the law to his client’s or firm’s advantage. We identify with these characters, we grow to ‘love’ them and therefore we have the tendency to root for them to achieve the outcome they’re aiming for. Even if it is not necessarily what the law intended. We hope they get out of whatever illegal thing it is they did by watching the lawyers cleverly bend or break the rules.

Programs like Law and Order or Crime Scene Investigation show the other end of this spectrum. They depict enforcers of the law that push the boundaries and sometimes cross them in order to ensure justice is served. However, if we look at this critically, they are using the law to create the justice they think should be served, as opposed to adhering to how and why the law was actually set up.

And then there’s the cases in which we compromise justice, because, as Nick Rice said in Law Abiding Citizen, ‘Some justice is better than no justice at all’. In the movie, two perpetrators are being prosecuted and the one that is seen as the main actor of the crime agrees to testify against the other in order to gain immunity for the crime for himself. The argument is that it is better to ensure that only one of the perpetrators faces the consequences of his actions, than to risk both of them being exonerated. In other words, it’s better to win part of the game, than to risk losing all together.

We tend to accept these forms of playing with the law because when we watch these shows or movies, we believe in the outcome that is being depicted as favourable. But does that affect the way we see the law in real life as well? Is this the way we want the law to work? Or is it just a reality we’ve come to accept, because we simply don’t know any better?

(Note: This post discusses sensitive issues such as lack of consent and sexual assault)

Often it can seem as though the shared imaginary is one homogenous mass – The sense that most of the public share the same views and perspectives is systematically perpetuated though media narrative. However, what can be observed, is that speaking out and challenging certain public discourses actually serves to fracture that illusion of hegemony.
In recent weeks, from the US, there has been a surge of anger towards Judges for imposing a lenient sentence on perpetrator Brock Turner. This has manifested in a lot of interest on social media, criticising the way in which court proceedings further victimised the female, who had already suffered at the hands of Turner. In court, she was subjected to complete interrogation of her demeanour leading up to the attack – feeding into the sense of the imaginary that is suggestive of the view that if there was alcohol involved, that somehow the woman holds some culpability. The culture of alcohol and campus party culture was pointed to as a instigative factor in the attack. She was not only forced to answer irrelevant questions such as “What were you wearing?” “How much did you have to drink” – thus conferring the responsibility to her to maintain moral codes surround female behaviour – but it was also inferred that because she was unconscious, there was no way to prove that she hadn’t consented and it was left to Turner to “fill in the gaps”
Both of Turner’s parents wrote pleading letters to the judge that have been published within the public arena.

The father’s attempt to make sense of his son’s crimes describing “20 mins of action” – harking to imaginary notions of the simplicity of a promising young man sowing his wild oats. The impact on Brock Turner’s sports career is given great prominence. There is no secret made about their fears for their son. A white, male college kid who would struggle in prison.
But missing from both letters is any reference to the girl their son raped. Her invisibility is utterly striking. At no point is the impact that this has had on her life ever mentioned.
This recent example goes some way to show how the imaginary feeds into shaping perceptions around the sensitive issue of rape and sexual assault. Furthermore what this could suggest however, is that cultural understandings of rape and rape culture require examination.
Within the popular imagination, rapists are often represented as a ‘savage other’ – not a middle class, white, college jock. Moreover, when the issue of rape is framed within tensions of power rather than sex, as well as the discourse of “no- is – no” there is a tendency to ignore some of the more subtly pernicious ways in which forms of power condition the imaginary. Playing into ‘rape myths’ such as the role of alcohol being an excusable causative factor, or the emphasis on the impact that the trial had on Turner and his life chances(!) all play into cultural myths configured through the imaginary.
The role of social media in this is to shift the discourse from one geographical location in America –, to a global platform whereby the situation can be understood for it’s wider implications. The intention isn’t to minimise or exploit the impact of rape, rather to highlight what this tells us about the role of the imaginary in this instance.
A focus on the more subtle forms of power can lead us to a better understanding of how ‘rape culture’ manifests in society. Instead of focussing on rape as a physically coercive event, (such as the image of a stranger in the bushes, who ignores the pleas to stop) – it is perhaps more useful to understand how for conditions for “rape culture” are structured and facilitated.
One possible avenue for understanding is to examine the side effects of the proliferation of pornography – ever pertinent in the digital age of quick and easy internet porn. Internet porn has a tendency toward a world of false image, a symbolic melt down of the barest iconics of sexuality. And the darker side – an arena in which submission and brutality are glorified and normalised and the culture of entitlement to women’s bodies becomes manifested in the imaginary. For it is the generation that are becoming adults that are the ones whose first sexual contact was offered through the screen, long before the real event, by which time a set of false norms and schemas have already embedded themselves.
It is this imaginary that needs to be challenged, as it is the threat posed by this culture of entitlement that needs breaking down. By drawing attention to “rape myths” we can act to disrupt the illusion that these ideas are naturalised within everyone’s consciousness.

British psychologist Bartlett understood the notion of a “schema” as being that which creates a cognitive structure for us to make sense of what is around us – Taylor also discusses this and conceptualizes the idea of “prototypes” – or as Bartlett or Baudrillard (and perhaps many others) would understand as a ‘paradigm’ – that is, the shared expectation of how a something should present itself. So, the prototype of a kitchen would have to include a source of heat for cooking on, or else it would not be a kitchen and would instead fit into another structure.

Schemas are useful for helping us understand the world around us, but what happens when this imaginary gets a bit ‘too real’?  Discourse, social practise and the imaginary can be seen to compose our understandings of the world, Taylor saw it as people  ‘imagining their social surroundings’ in their day to day life, as articulated through expressions of the self, such as the narratives we create and the stories we tell  – as well the images and symbols that hold meaning for us. (This is separate from theory as theorists are immersed within their own specialist knowledge systems.)

As Strauss points out, “paradigmatic examples repeated in popular culture may carry more weight.”  So the repetition of particular media tropes, messages and ideas can very well form a schematic understanding, or if you like, an “imaginary”. This is a concern because even though we may not fully internalize everything, indeed we may well reject much of what we are fed – we still may hold some contradictory and incohesive values as a result. So in this instance we could draw attention to Strauss’ example of a feminist woman, fully aware of the implications of the ‘glass ceiling’ who has still managed to internalize negative discourses around the idea of  the “welfare mother” and is able to view these as completely separate from each other.

I’ve been thinking about to what extent do these shared practises, that become ‘common sense’ understandings of the world, constrain and limit our own agency in how we are able to think about certain things? What actually lies underneath discursive practise? And how possible is it to reach what Saussure believed as a fixed ‘objective’ reality buried beneath layers of signification?

Robert Meister, in his book After Evil, sheds light on a politics of human rights, especially the relationship between the victim and the perpetrator/beneficiary in the twentieth century at the beginning of the book.

Meister states that the concept of forgiveness and vengeance remains as moral imperative to the victim after evil has stopped and before justice comes. According to Meister, forgiveness is only way that releases the people from the fetters of consequences, in other words, it can only bring a new beginning. Vengeance, however, has a possibility to lead a cycle of future vengeance, therefore, justice cannot be achieved. He even argues that forgiveness might sometimes be the best revenge.

He, however, points out that “the apparent need to choose between forgiveness and vengeance arises from the standpoint of former victims who are still unsure about whether they have won” (p.9). This argument in particular reminds me of the issue of comfort women, girls and women who were forced into sex slavery by the Imperial Japanese Army during World War II. The existence of the victim of comfort women has been denied by Japanese government for a long time. Recently, South Korean government and Japanese government agreed on a negotiation for indemnification for the victim, but the victim strongly complained that it was unfair and injustice agreement between two governments without the participation of the victim.

The victim of forced sex slavery by the Japanese Army may be seen as they have won because the Japanese government admitted their past crimes by agreeing on the negotiation. It, however, cannot be understood as a complete victory because the Japanese government still hesitates to announce it publicly and internationally, rather they admitted the victim only in South Korea. Meister argues that the past victims never really win. We now know that historical injustice exists behind this issue, but the victim cannot do anything – forgiveness or vengeance – at all. The tragedy from the twentieth century still continues in nowadays; there is no a new beginning and no justice. How can the victim of comfort women issues be free from its chain? The discourse of human rights is still in question.

Digression on the responsibility to protect: “The inevitability of Law and Economics” ?

In “Protection in the shadow of empire”, Anne Orford gives a post-colonial critical account of the concept of “responsibility to protect”. As suggested in the title, a quite clever pun, she argues that the R2P only comes as a theory schematizing already existing practices carried on by former imperial powers. Although a change to “sovereignty as control” to “sovereignty as responsibility” appears like a novelty, it is in fact a long established tradition, especially in the political theory of the social contract. Convening Hobbes and Carl Schmitt, she points out that both theories arose when the State’s legitimacy was being questioned by external forces (the Church or the Bolshevik revolutions). My questions very much deal with the concept of responsibility to protect but placed in a different context.
Indeed, Orford says that “the turn to protection does not have a predetermined political effect and can give rise to a range of projects directed towards quite different ends”. If protection is the raison d’être of a State, then, recourse to the “state of emergency” when the security of the State and the safety of its people are threatened makes perfect sense. It enables the State to take all appropriate measures to ensure the safety of the nation during a limited period of time. It also entails the suspension or limitation of some civic and political rights such as the freedom of assembly. Following the “Paris attacks”, the French President announced that France was at war and the emergency state was declared. However, a few months later, during his New Year’s speech, he also mentioned a second type of emergency state; a state of “economic emergency”. This is mainly so because of the aftermaths of the crisis and the high unemployment rate. In Venezuela, a country that recently made the same statement, “state of economic emergency” is enshrined in the constitution. But in France, it is not.
In my opinion, what it does is to place economy on an equal footing with security, and consequently, opposing it to the more general concept of “right”.
If the state of security emergency requires the suspension and/or limitation of civil and political rights, does its economic counterpart require suspension and/or limitation of economic and social rights? From where I stand, this statement seems paradoxical for the reason that there is an emergency situation precisely because social and economic rights are not being respected/ implemented as they should be.
So according to what standard the emergency of the economic situation is being evaluated? The welfare of the people OR, similarly to the political state of emergency aiming to protect the state’s interests, the State’s economic interests? By whom are these interests being set up? The people? The State? A supra-national entity? Or an invisible hand?
After the securitization of the State raison d’être as theorized by Foucault, should we consider this a symptomatic instantiation of an “economization” of the State raison d’être? As legal scholars, I think these questions are worth asking in order to understand the context in which law operates: as Frank Easterbrook rightly said, the connection between law and economics do seem inevitable.

In the conversation with Ramin Jahanbegloo, Sir Isaiah Berlin, who strongly advocated the value of negative freedom, admits that society would not be existed without some authority. He too worries that the liberty of the individual could be intervened by the authority, but it was almost impossible to assert that individuals can live without society, even for Berlin. The individual, unfortunately, cannot be completely free; it is inevitable to get involved in social relations. Law, from my previous perspective, was simply a sort of societal promise that the people must follow and a method to protect the people from any harm. However, my point of view on law has changed after I read Michel Foucault’s Discipline and Punish which is in the reading list.

A public torture or execution was the most popular spectacle in France until the eighteenth century, however, the role of physical punishment as a public performance was completely disappeared from the nineteenth century. Torture or execution in front of the crowd was no longer enough to punish the offender effectively. The reform of the entire economy of punishment, according to Foucault, turned out by the emergence of a new theory of law and crime. I suddenly have begun to get suspicious about the position of law in the context of our day-to-day life. I thought the role of law as protecting justice and the individual freedom within society. Law, however, in the Discipline and Punish, seemed like an apparatus to control the liberty of the individual and even the individual themselves. I have begun to think that not only the criminal are regulated by law, but also the innocent are not entirely free from the power of it. Every human beings are existed under the surveillance of law. Law produces disciplines in society, disciplines then create individuals. Foucault’s work eventually has caused me to suspect law itself in various ways and to focus on the study of law.

As a first blog post, I would like to open up the question: does law aim at protecting the people or controlling them? I hope to find the answer through the course.

The judicial need for swift effectiveness brings evidentiary proceedings in a complicated conversation. Even though law is intended to be structured within the pursuit of the good, there is a gap between the true context of visual documentation and its makings as a factual piece of evidence. Margaret Davies asks the question in why science answering sciences natural intervention of empirical scientific theory into legal practice. The intervention of western scientific thought replaced its previous theological practice as a new norm for regulating, and imposing justice. When there is an intent for social regulation, with the pursuit of fact based evidence to impose the law there can be a dangerous space when science does not fit legal interpretation. Peter goodrich in Historical aspects of legal interpretation describes how fickle legal interpretation can be in hermeneutics and exegesis, through the more structured based science of linguistics. the interpretation of text can be a bit more rectified to a truth when analytical space is created for the code. However, the interpretation of language aside law is still left with the question of image based evidence. If there is a semblance of structured legal interpretation of language this leaves no legal standing infrastructure for the image to be correctly interpreted. This leaves the evidentiary image only described, and interpreted through the lense of a pre existing legal language. It is important to note the lack of possible scientific language used to fully contextualize documented events. The image is always vulnerable to altered interpretation to sway what should be a factual argument. We can see this manipulation today in the American prosecution of police violence and their image based evidence. 

One thing will be stressed again and again by the law professor during his introductory course: law is the discipline of rules which are recognized and sanctioned by the state.

Law students will be told  early in their education that they are to become part of  a caste of secular priests charged with translating everyday facts into legal concepts. They are about to learn how to give legal consequences to legal facts.

As lawyers, we tend to see ourselves as depositors of a science of law, a special capacity to understand cases and to predict with certainty the outcomes of legal problems . This exercise in prediction makes lawyers objective seers to the extent that they pretend to interpret neutrally and the legal language.

In the past, lawyers eschewed the idea of a neutral law and insisted on the ideas of justice and virtue. This position seems to have completely lost currency today.

Law and Humanities seems to have the potential to reveal again that law is discursive, a manipulation of language. It can thus been studied as such (and critiqued as such). Some hope that such a conception will once again allow lawyers to re-imagine their role as purveyors of legal meaning in society as including the search for justice.

Lawyers have, however, shown a remarkable capacity for cognitive dissonance. It would not be surprising if humanities were to be recycled into a tool preparing young minds for the demands of the job market, a veneer of self-reflexivity and liberalism on hired guns in the service of power.

Few days ago few friends and I were discussing ways to make extra cash, we were looking for an easy yet “legal” way. One suggested selling of a kidney, as we joked about it. We searched the net and what came to us as a shock one kidney in the US black market can go for $250 thousand dollars.

I always thought of our bodies as our own property, we had the right to do what we want with it. If one wants to engage in surrogacy, prostitution, etc they are free to do so. As I read through the article by Anne Phillips, looking at the word property in a literal way never crossed my mind before. If one is able to to use their body to clean someone’s house or plant a garden then they should be able to use their bodies for other things as well. I’m not sure if I really agree with this justification. Inequality is wide spread and people are looking for ways to try and get out of that state. Placing restrictions on markets might not be the way to go, but I’m also not sure if regulating it will be the answer as well.

We should have control over our own bodies but I think with limitations. And we need to be careful with the use of the language around body property.