Reading through the Law & Humanities corpus of texts brought about a slight but essential, at least to me, change in the relationship I have towards law. Coming from a civil law background, I always felt like law was imposed upon me. I had to learn “how law is and how to apply it accordingly”, whether I liked it or not. In this sense, it is possible to say I adopted an attitude of “double surrender” as David Kennedy would call it. Law has to be cold, amoral and/or immoral. Law is not about being just, law is about law.

Now, law is no longer something I endure, passively but a subject of which I have a better understanding and therefore, a subject I can actively engage with and that I can accept, or not. I find this of particular importance as an aspiring international human rights lawyer because of the strong ideological stance it involves.
By being aware of the ontological contingency of law, I can embrace a more ethical position by choosing to adhere to it or not. Acknowledgment of this ideological constraint, on the other hand, encourage me, if not force me, to adopt an attitude receptive to challenges and admit the possibility that my principles might not be the same or understood differently by others. Having said that, I do not think it forces me to sink into strict relativism but rather that it enables me to make a conscious and enlightened choice as to what principles I chose to abide to. From an inner perspective, it changes the way I will interact with “others”, it means that my attitude cannot be dogmatic anymore for it would defeat, and in fact, contradict the very idea of universalism.
Indeed, if human rights and liberal values are understood as a rebellion (révolte, in French) – in an “camusian” sense- against the oppression of the absolutist power, and aim ultimately to “free the whole humanity”, it necessarily entails the risk of “losing itself”: “A rebellion that loses the truth of its origins will give birth to a close totality, universal crime, an aristocracy of cynicism and a wish for apocalypse” ( Albert Camus, “L’Homme révolté”).

As you explore legal fictions, you find that it is usual for modern academics to break the concept down into multiple categories. This is often to siphon off the chaf, and enable the academic to focus on the parts of the spectrum that are relevant to his or her argument, or to simplify a highly complex and convoluted area of the law. Oliver for example breaks the spectrum into four sections; legislative fictions, and judicial fictions between arguing that legislative fictions were abhorrent whilst judicial fictions serve a good purpose.

Perhaps the most important distinction however is Franks. Frank separates legal fictions into; legal lies (misrepresentations of law that have the intention to mislead), legitimate legal fictions (untruths that make it clear to everyone that they are fictitious), and legal myths (legal mistakes that result from ignorance or delusion). Frank postulates that the only form of legal fiction that is worth studying is the legitimate legal fiction, and that his other two categories contain doctrines that should be discarded out of hand as they obviously have no place in law. In declaring that there are parts of the spectrum that are evidently wrong, Frank dismisses the careful academic work of numerous past academics who trawled carefully through all corners of the legal fiction sphere. He also however pointedly subverts Bentham’s conclusions on the subject, which led in great part to the law reforms of the 19th century. Frank believes that if Bentham had discarded legal lies and legal myths he might have come to a very different conclusion as to the nature and potential benefits of legal fictions asa whole.

The interesting part of this for me, is the issue it throws up, namely the need for consistency in the study of legal doctrines. It is clear from the writings of Frank, Fuller and Bentham that they all take vastly different approaches to the same subject, and the same body of legal rules. These differences of approach lead to different conclusions and therefore to different beliefs regarding the future of legal fictions. It would surely be better for all academics to at least acknowledge a central system of categorisation, even if they then take a different approach later in their papers. Otherwise we will continue to face academics like Franks who area able to casually dismiss seminal bodies of work without any detailed explanation, before forwarding there argument.

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.

During our time in Paris immersing ourselves in the world of law and the humanities one of the most interesting discoveries was that of the evolving historical relationship between the subject and object of legal thought: between the jurist and the law. Briefly stated, prior to the advent of modern science the subject and object were in a much closer, more reflexive relationship: the jurist could be both subject and object, studying and creating law. Issues of justice and ethics were closely connected not only to the law but also the life and work of the jurist. Following the enlightenment and the development of scientific thought the legal scholar now finds herself divorced from her object of study. The object is now to be kept at a safe distance from the scholar, the better to be observed.

But why should such a fascinating subject also prove to be one of the more difficult concepts to understand? Is it inherently complex?  Or is it rather that whilst the modern subject-object relationship is relatively straightforward, the historical, pre-scientific relationship is much harder to grasp? Kelley provides a potential explanation why this may be so when he explains that in order to understand the renaissance jurist we need to ‘make him out across the great conceptual divide’ created by the scientific revolution. Bridging this gap is not easy: it demands ‘a certain effort of imaginative understanding’.

Indeed from the vantage point of the 21^st century it is difficult to imagine oneself, whether as a legal scholar or practitioner, ‘eating, living and revering the law’ in the manner of 16^th century jurists. Whilst this is partly due to institutional changes, I suspect that the main reason is that we just cannot escape from our modern, ‘scientific’ mindset. For those who would advocate a return to the pre-scientific relationship between the jurist and the law as a way of counteracting the contemporary ‘value-free’ approach to law this has certain implications. If imaginative leaps are required simply to achieve a theoretical understanding of the medieval legal scholar, consider then how challenging it would be to put it into practice.

Given that the law and humanities movement would like to see the return of questions of justice and ethics to law, it is striking that Sarat, in ‘Law and the Humanities: An Introduction’ highlights the advantages of a distinction between subject and object. Although written in the context of US professional legal education, his point that much legal scholarship takes place within the law and ‘the structures that shape’ the jurist’s ‘legal consciousness’ can surely be applied more generally. For a modern-day scholar to ‘learn and revere the law’ may entail an inability to maintain a critical distance and see the law for what it really is.

Sarat reminds us that in contemporary legal scholarship there may be a danger in too close a relationship between the jurist and the law, given the latter’s shortcomings. Perhaps until there is a return of justice and ethics to law legal scholars are advised to maintain such a critical distance – as too close an acquaintanceship with law may blind us to its faults?

Almost at the finishing line and things on this Law and Humanities module are finally beginning to make sense!  After studying the history of the relationship between law and humanities vis-à-vis the interpretation of law through literary texts and traditions, examining the critical possibilities of contemporary scholars in certain projects, especially through the mechanism of rhetoric, we are now looking at the responsibility and ethos of scholarship of scholars, lawyers and critics.

In ‘Educating the Total Jurist?’ W. Wesley Pue examines the role of legal education and how they shape future aspiring lawyers, or in his words, ‘citizen formation’.  He describes the image of lawyers as one of ‘gentlemanliness’ as befitting the ‘well-rounded barrister’.  By using the thoughts of eminent lawyers and scholars across the globe, he provides evidence of what he describes as the notion of the total jurist.  One such eminent lawyer includes our UK’s infamous Lord Denning; he talked about the ‘spirit of the profession’ which embraces values as ‘frankness, fairness, honesty, courage and the recognition of one’s duty to the Court and client.’

However, the values of ethics, morality and ‘gentlemanliness, I believe, have diminished over time and empathise with Pue’s view.  In today’s climate of globalisation, it appears that the legal profession is ‘all about the money’ (taken from Jerry Maguire), ‘success’ and what Margaret Thornton suggests as ‘the real danger of returning legal education to the ‘trade school’ mentality of the past’.  It is an uneasy thought to think that law schools are churning out ‘mere half-lawyer’ as Pue advocates.  If this is true, then legal education and the educating of a ‘total jurist’ is doomed.

However, later in his article, Pue suggests that not is all lost.  Even if legal education is being promoted in universities as value-free, there is the hope that law schools will return ‘to a more self-aware legal education’.  Furthermore, he hopes that we, as humans, will take on the responsibility, or ‘ethos’, to instil our own values, not just education and profession, but in everything we do in life!

Pue’s article resonates what I have been thinking about legal professionals and its values since embarking on a career in law, but am I wrong?  Are we, as students of law and humanities, not taught how ‘to rise above self-interest and the narrow view’ thus becoming ‘mere half-lawyers’ or are we resistant and/or responsible enough to return to becoming the total jurist of the past?

A man was found guilty of gross negligence manslaughter by a jury in 2004.  The jury were directed by a single judge that the defendant had a duty of care towards the deceased man, a father of several children, as the defendant was the owner of the property.  With the aid of forensic investigation, evidence was uncovered that both men had splashed petrol around the property with the intention of burning it.    The defendant was in considerable debt, the property derelict and the business he ran in it had failed.  He had been unable to secure planning permission to redevelop the building because the façade was listed.  Unexpected ignition of the petrol from a cigarette caused an explosion and the deceased was killed by the collapsing building.  The defendant was just outside the property and only slightly injured.  The property fronted immediately on to the public pavement.  coincidentally no one was passing by at that moment.

The defendant was granted leave to appeal to the charge as the judge was said to have improperly directed the jury that a duty of care existed towards the deceased.  The five principles to establish a duty of care are: the foreseeability of harm, the relationship/proximity between the people involved, the fair, just and reasonableness of the activity concerned.  The jury should have been allowed to determine if a duty of care existed, if so that it had been breached and that it had caused or contributed to the death.  The Court of Appeal held the judgment despite a duty of care not being established.  They determined that the jury would have found him guilty as his actions were deliberate for financial gain and of a reckless nature.  It was deemed by the appellate court to be an exceptional case considering its recklessness and not just a civil unlawful manslaughter case.  In the interest of the public the charge had to be seen to be suitably disciplinary.

The outcome of the case was deemed to have altered the balance of the judicial and jury relationship in favour of the judicial decision in order to give a clear authoritative signal as to the consequence of causing harm by such reckless behaviour and for personal financial gain.  The criterion for gross negligence manslaughter were clarified by the case of an anaesthetist who did not notice that the artificial ventilation for the patient had come loose.  Several minutes passed before the error was noticed and the patient died as a result.  Was a similar charge commensurate for the death of the deceased even though he was an accomplice?  Was the harm caused equal to that of a doctor killing (by omission) a patient?  Was justice served for the public interest by handing down a prison sentence of 12 years?  Could a custodial sentence be considered to give justice to the deceased and his family?

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?

Costas Douzinas in his article “A Short History of the British Critical Legal Conference or, the Responsibility of the Critic” examines the role of critics and intellectuals. He distinguishes between intellectuals of the past and the present arguing that the former had a clear aim to fight for universal values, while the latter are incorporated into the social system and are in a way “institutionalized.” There is a tendency to distinguish legal from other texts on the grounds that they operate differently. Law is seen as an objective set of rules necessary for a functional society and as such it is immediately thought of as a special kind of text not to be treated like the rest. But texts are imbued by ideology and represent a position, as Michel Foucault has argued. This is especially the case with Law where the correlation between power and text could not be clearer.

What Douzinas argues and what is a crucial point, is that Law and legal texts are to be analysed and interpreted as texts produced by someone rather than accepted as given, objective rules to be obeyed. In that sense, he agrees with Chomsky, as he states in his article “The Responsibility of Intellectuals,” that intellectuals are to “speak the truth and expose lies” and to “see events in their historical perspective.” Legal texts need to be contextualized and recognized as authored texts. Identifying Law as discourse and analyzing it as such is the role of the modern critic/intellectual who has to respond to the needs of a changing world, interpret it, and criticize it, if there is any hope for a better society. However, the ubiquitousness of power declared by Foucault does question whether it is even possible to separate texts from power.

Is Law an Art?

My perception of law has changed and developed throughout my life.  Before entering education as a mature student, as a lay person, law was about what you read in the papers (mostly criminal activities), what you watched on TV and thinking you know your rights whilst going about your everyday life.  As a student of law, my initial thought was that to study law was to learn about the offences and to learn statutes (what I now know as ‘black letter’ law) and to learn it ‘parrot-fashion’!  What a shock it was!  I soon began to realise that studying law, through various lens, enabled students to gain a full understanding about the foundation of law.  These lenses included looking at law theoretically, conceptually and, studying at Kent Law School, critically – this was alien to how I had originally expected to learn law.

In 10 years gone by, whilst teaching, I am now studying law once again.  This time, examining law in conjunction with Humanities.  In the few sessions we have had, I am now beginning to realise that I am studying law through another lens – law as an ‘art’.  The question asks whether law is an art but one thing I do know is that I have never considered myself as ‘arty’ or creative being a lawyer!  However, after reading the material for this module, I am having to reconsider my initial thoughts about the creative lawyering.  The first thing that sprung to mind when considering law as art was that the most important skill a barrister has to learn (or a solicitor-advocate) is the ‘art of persuasion’ (something I learnt in Ian Morley’s book – The Devil’s Advocate).  Thinking about the influential characters in fiction and on TV – Atticus Finch, Rumpole, Kavannagh QC and in recent time, Martha in Silk – you appreciate that these great characters possess the ‘art of persuasion’.  By articulating creative arguments, they have achieved ‘justice’ for their clients – another notion discussed in the readings to come.

As Clive Anderson wrote in the Telegraph in 2009, in his piece about Garrow’s Law, William Garrow, an 18^th Century barrister, was a  key figure in developing the trials at the Old Bailey and began the adversarial system we have today because of his “art as an advocate”.  So in answer to the question, is law an art, it has to be answered in the affirmative – so bring it on!!

The above ‘title’ is based on a comment in the article – The Medieval Idea of Law (Walter Ullman). The article discusses the role the Glossators, who rediscovered ancient Roman legal texts, played in the advancement of Roman law; and the Post Glossators who expanded the early work of their predecessors and developed Roman law into something more than just ideas, more than just a virtue. The Glossators did not attempt to harness any new concepts to the ancient texts, they simply commented upon them using their singular belief that law was only based on Justinian teachings. The Post Glossators took this and built upon it, introducing a philosophical undercurrent. They formed a highly regarded European school of legal studies, creating universities such as those in Bologna, Peruvia, Padua and Siena; and devoted much of their energy to determining how law could be applied in practice rather than just principle.

Law is a system for governing society, a way to maintain, support and protect public order, and as such it cannot be based just upon one tenet as the Glossators suggested. In my view, and in common with the notions put forward by the Post Glossators, law is not only based on an ethereal notion of justice, but has as its cornerstones morality, philosophy, religion, history, science, sociology and yes, ethics. Therefore the many and various ideas introduced and evolved by the Post Glossators helped to develop law from a narrow concept into a multi faceted principle.

But were they correct? Were their endeavours misplaced, and is too much made of law today. Should law be an insular notion, untroubled by consideration of philosophical and moral direction?