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

Through the course of the week and discussions that have taken place during the LW928 module, we have tried to grasp and understand what the legal fiction is and what it entails. I have found that a certain example of a legal fiction in particular could be linked to a specific area of law that I’m extremely interested in, which is legal personhood.

Indeed, the fact that a corporation is seen as a ‘person’ in law is a very well established principle that offers practicality and opportunity to both a corporation and the institutions of the law. The aspect that interests me is how this very legal fiction is the argument that environmental lawyers and animal activist and thinkers put forward when ideas of giving natural entities legal personhood or giving animals legal personhood are debated.

If we agree that a corporation is a person, then why can’t we grant legal personhood to a river? And what would it mean to do so?

Eric Posner’s article in particular caught my attention. His very pragmatic and practical explanation of legal personhood and the limits of law gives, in my opinion, a false account of what the law can do, in the sense of meaning. When he writes ‘In none of these cases was a judge fooled into thinking that an animal possesses all the rights of human beings. The lawyers bringing them were simply ensuring that a judicial remedy was available to address the harm that Congress sought to fix’[1], he reduces the law as a tool without recognizing its power.

While granting legal personhood to a river or a tree, as it as been done in recent legal history, might be seen as nothing more than one ‘judicial remedy’ amongst others, it holds a certain meaning. It addresses contemporary environmental and political issues, it recognizes the value of Nature and the need to protect it, it gives a space and a voice to certain indigenous communities for whom this river or tree might be something important. Not to mention, it opens up a new area of law that seemed off-limit before.

Legal fictions hold a practical purpose but it would be too restricting to ignore the situations they can produce and the voids they can fill.

[1] Eric Posner, ‘Stop Fussing Over Personhood’ (Slate, 11 December 2013) < https://slate.com/news-and-politics/2013/12/personhood-for-corporations-and-chimpanzees-is-an-essential-legal-fiction.html >

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 I am about to begin the intensive week of the law and humanities module, I find myself wondering, what are the humanities, really? I am convinced I know the answer to the question and yet I find myself wondering nonetheless.

The humanities are the study of society through different topics like art, history, philosophy etc. They provide a broad array of discussion and thinking that allows us to see beyond what we think we know and ask how or why instead of taking information for granted.

This becomes interesting when paired with the study of law. As a French law student, I have been though through norms, codes and jurisprudence; rarely do we focus on other things. In the past, I personally have chosen modules that included a study of politics and law, philosophy and law and also literature and law.

The study of law and the humanities appeared as a perfect addition to this course. The point being that law is social construct, it can be much more interesting to understand how it works and why it works the way it works through the study of other areas of thought that have influenced it. Law would not have appeared in Ancient Greece and Rome, at the same time as great philosophers, if there was no correlation between the two at some point.

As I read about the imaginary and the difficulty that lies in defining it, I realize that there is a lot we think we understand and yet are unable to define or explain. Albert Einstein said ‘if you can’t explain it simply then you don’t understand it well enough’ – so I guess this is my understanding of humanities. This module will help me make more sense of certain topics and will probably bring even more questions as the week goes by.

Dignity is the condition but also the consequence of human rights (article 22 UDHR).
But what exactly is dignity? The intuitive definition of dignity would be “worthy of respect”… but why is one “worthy of respect”? Then again, the natural answer would be “because he or she is a human being”.
However, Alain Supiot’s ”The Human being as Imago Dei” seems to offer a different perspective. Indeed, in this chapter, we understand that the notion of personality finds its origins in Ancient Rome and initially meant “the death masks of the ancestors”, the imago. It is only later, with the Humanist/Enlightenment surge that the concept of “personality” was progressively bestowed upon every human being as a result of the King ceasing to be the only incarnation of God on Earth. From then on, all human beings were to be equals – because all made in the image of God- and unique- because God is one. Therefore, all human beings were to have “dignity”.
What it means is that human beings have dignity because they wear the mask of their ancestor, the mask of God. They do not hold dignity qua human being but qua persona, qua Imago Dei; because they represent God on Earth. More importantly perhaps, human beings have dignity because they represent the Christian God. Following the Modern era, law, Supiot argues, has become “the authority that vouches for human identity and symbolizes that they are not to be treated like a thing”. However, despite the apparent objectivity the Law claims to have, scholars, such as Anthony Angie, have also made evident the links between Christianity, natural law and positive law and revealed the embedded eurocentrism of modern international law.
This account of the Christian origins of the concept of dignity is at odds with its traditional understanding and raises issues with regard to the universal project of human rights. I am by no means implying that not all human beings must have their dignity respected. My interrogation rather lies in the consequences that such a conceptualization of dignity can have when applied universally: the refugees’ crisis, treatment of indigenous populations in land eviction cases…. How, if at all, does a Christian-western concept of dignity impact on how the Law understands the dignity of others?

I would like to begin our blog series for this module with some reflections on the legal fiction writings, not only because they deal with a topic that is interesting in its own right but because they also exemplify the value of a humanities approach to law.

Having studied corporate governance I cannot help but be aware of the long running scholarly debate on what is possibly the most cited example of a legal fiction: the issue of separate legal corporate personality. Whether the company ‘really is’ legally separable from its members is to a certain extent still contested, with scholars on both sides adducing evidence in support of their views and entire theories of corporate governance built on the foundations of legal personality as a fiction.

What the standard corporate governance literature fails to consider, and humanities can help us to answer, is precisely why the debate exists at all. As Fuller states, maybe the issue is one of terminology only (p12). The debate as to the ‘reality’ of separate corporate legal personality could then be characterised as a dispute over the appropriateness of using the word ‘person’ in a particular context. The choice of a certain six letter word may therefore be at the foundation of a decades long scholarly argument. It is fascinating to consider how different legal history may have been if another word or phrase had been chosen: ‘entity’, perhaps, or the somewhat less elegant ‘right and duty bearing unit’ (p14).

Law and humanities here offers an alternative perspective that goes unnoticed by the standard scholarship, much of which is law and economics-based. This perspective is both unsettling (in that so much may be contingent on just one word) and refreshing.

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.

It is indisputable that legal fiction plays a major role in the law, from land laws lost modern grant, which every law student is forced to study to the slightly less well known doctrine of survival. Though such concepts permeate the common law, and arguably subvert the essential doctrine of legal certainty, the article makes the point that the layman rarely complains that the law is founded upon fictions. Bentham names legal fictions ‘the most pernicious and basest sort of lying’, whilst Blackstone considers them ‘highly beneficial and useful’.

In Motives of the Legal Fiction the author attempts to deal with a number of questions, the one that this post will focus on however is ’what should we do about the fiction?’. The issue here is that many fictions exist because of their utility, something the article recognises. Therefore, so long as we cannot fill the void that would appear if we were to remove them from the legal sphere there is not much to be done about them at all. This clashes however with the articles concurrent realisation that a fiction is only safe ‘when it is used with a complete consciousness of its falsity’. The issue is that doctrines like that of the post modern grant have become so ingrained that many practitioners and academics no longer question their mechanics. It is possible to postulate, having recently completed an undergraduate degree myself, that few people appreciate that the creation of an easement through prescription relies on the fiction of the lost modern grant, they simply see the test of nec vi, nec clam, nec precario and the subsequent result of its application over a lengthy time period. This however clashes with the articles need for a consciousness of falsity and suggests that we have taken the legal fiction to far in England and Wales.

The fact that there might be a need for change however in no way diminishes the need for legal fictions. Furthermore, whilst legal fictions have been removed from the legal gamut in the past, it is arguable that the process has left us with the most utilitarian of fictions, for which there can be no easy replacement. The author of the article seeks to replace fiction with ‘presumptions’ and examines a potential test for doing so. The issue here however is that there is little practical difference; whilst the author relies on the linguistic impact to make their case for presumptions, this in no way changes the practical reality of mechanisms like the lost modern grant. That is, if society desires doctrines like that of prescription it requires a method for letting them sit well with the law. One is forced to conclude that the article takes the wrong direction, and that until some creative academic of legislator invents a suitable tool to replace the most utilitarian fictions, they must continue to subsist within the legal sphere.

William MacNeil’s account of ‘Minority Report’ and Law and Economics calls into question the use of preemptive strikes, and draws on questions of lex populi (popular law) and the commitment to pre-empting the law trough prediction. The idea that law can play a role in both addressing and redressing potential legal problems before they occur is presented as a hypothetical, futuristic trepidation to mankind, but is it really so unheard of in current legal discourse?

The idea that an economy has the ability to transform law into an instrument of coercion and the state behind it into an authoritarian security system seems farfetched. After all, isn’t the law one of the strongest tools we have against authoritarian power under human rights, judicial reviews and public enquiries? But what about when the context is changed to a legal system where there are little to no sources of redress?

MacNeil links the themes of precrime to that of the Bush Administration in relation to the threat of the Islamic Middle East before it materialises (irrelevant of evidence) and draws parallels later in the article to pre-emptive strikes against precrime nations which are modelled on a set of assumed and selectively sifted facts. International law and the International system is rife with predictions of threats to the peace and collective security measures. The idea that prediction and lex populi can reduce the law to a status of a security system is hardly farfetched when you look to what the United Nations deems itself to be.

MacNeil argues that those behind such systems have the power to manipulate and even manufacture consensus for such measures in order to promote the PreCogs as fool proof. In the International legal system, PreCogs are known as ‘intelligence agencies’, and the questions as to their durability is protected as state secrets and sovereignty. The willingness to believe in the necessity of the system comes arguably from scaremongering and isolating minority groups with little ability to stand against allegations; how can you prove you are innocent of a crime which has not yet been committed, and when the evidence of the crime is not open information?

In relation to the terrorist listing process, a Canadian Federal Court Judge related the situation of a listed suspected terrorist to that of Josef K in ‘The Trial’, who awakens one morning and for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecific crime. Not only is international law tending to focus on individuals predicted to be capable of committing a crime, it is enabling punishment of them without their knowledge of the crime. MacNeil’s assertion that rights are being displaced seem hardly fictional when put into contexts such as this.

But MacNeil goes further and asks argues that this is for a commodity. Skin deep criticisms of international law would argue such commodities such as oil, or political power, but a more thorough assessment would look to the benefits of an international legal system with inconsistencies. The benefit to the US of such inconsistencies, such as deligitimation of the system may enable states to defer from responsibilities. But for a state that claims to uphold values of Human Rights (and impose those values on the rest of the world), how can they justify removing rights and ignoring law so blatantly?

MacNeil presents how Minority Report demonstrates a world without right, and without the law, because prediction has rendered it irrelevant. The international Legal system, already heavily criticised for its weaknesses, gives us plenty of parallels with the minority report’s destructive future for the rule of law and justice.