LLM Modules, LW927

Moving the Goalposts

The discipline of law sits in an interesting place. It shares qualities with several other disciplines, such as science and philosophy, but doesn’t quite fit in with any of them. Too practical for philosophy, not practical enough for science. As such, it’s difficult to decide where to classify the subject in relation to others that are more concrete. Few, if any other fields of study have this issue, partly because they tend to fit neatly into their boxes, but also due to law having such an overarching practical influence on every individual. Here, I would like to explain some of the reasons why law can never be a science, not even a social science, and why it should be considered as a humanities field of study.

Science is the study of the way the world is. It is entirely a posteriori – a highly empirical method of knowledge acquisition. Philosophy is also a study of the way the world is, but uses a priori thinking to come up with assertions about what is the case, and even then is highly open to debate and interpretation far more so than science is. Law combines the two methods in an interesting way, at times the ratio between the two is one such way, other times it is another – depending on which area of law concerned. Ultimately, to decide which category law sits in – science or humanity – we must look at what the law is trying to achieve.

The dictionary definition doesn’t do much to help with this, but I believe it’s reasonable to assert that the law is there to regulate the behaviour of a population in order to maintain function of society. This can be achieved through granting pleasures (food, housing etc), preventing pains (medical treatment, abuse/exploitation, physical & mental harm), and maintaining free will. Already here, we have three very philosophically charged terms concerning morality. Morality can be defined in the dictionary as “principles concerning the distinction between right and wrong or good and bad behaviour” –  but what is right and what is good may not be either A) the same or B) what needs to be in place to maintain efficient function of society.

The law is therefore tasked with attempting to actualise what needs to be in place to maintain sufficient societal function and to do that, there has to be knowledge of what humans require in order to function efficiently as a group, and that incorporates the studies of psychology, sociology and, I would argue, a bit of history and anthropology. We need to find answers to questions like “what makes people want to work together?” and “what hasn’t worked in the past?”. Only one of the above mentioned disciplines count as a science, and that is psychology. Psychology is a tentative “science” however, with human behaviour being able to be manipulated and changed quite significantly, however it does yield quantifiable results in a manner that sociology may struggle to match. Sociology is instead a social science, and the facts discovered through its study are fluid and highly subject to change over time and place. We can retrospectively observe this phenomenon, with social acceptance of slavery and homosexuality for instance – two practices that had their legal status reversed. It is hard to decide in such cases whether society makes the law or the law makes society.

What is clear though, is that the law is subject to change. It is very much a “here and now” set of rules, something that is both beneficial and potentially dangerous. It attempts to cement morality in a way that is compatible with human society both psychologically and sociologically, and attempts to make the world a pleasant place to live in for all, and punish those who threaten that status quo.



Are lawyers the ‘imaginary architect’?

One of the key distinctions between imaginary and ideology is the fact that we do not have to hold our imaginary accountable.

There are no bounders within our imaginary, ‘imagine you are designing a world, you consciously creating each aspect, but sometimes it almost feels like it’s almost creating itself’.

In our imaginary, our mind continuously ‘create’ and ‘perceive’ our reality simultaneously and our mind does this so well that we aren’t even aware of it.

In Wittgenstein’s ‘Tractatis Logico-Philosophhicus’, he argues that language works by triggering the picture of our understanding of how things are in the world. He believes that words enable us to make pictures of facts.

Interestingly, Wittgenstein was inspired while reading a newspaper article about a Paris court case in which, in order to explain with greater efficacy, the details of the accident that had taken place was reproduced visually using model cars and pedestrians.

This illustrates how lawyers can get right into the middle of that process, by taking over the ‘creating’ part.

They create this world of the dream, which I considered as ‘legal presumptions’, and create an imaginary narrative, by bringing the subject into the dream, to persuade and convince the target audiences by twisting the facts, adding stock stories, and subsequently let them make their decisions with their subconscious.

The court will eventually come up with a judgment. The decision will have an illocutionary or perlocutionary effect, which in a way attempts to amend certain things or may poses a consequence. In the end, depending on what the court’s decision is, aren’t they just trying to implant another person’s idea into our collective thoughts?



While I can choose more relevant movies such as Gary Fleder’s ‘Runaway Jury’ or more recently, David Dobkin’s ‘The Judge’ and Courtney Hunt’s ‘The Whole Truth’ in related to storytelling, I decided to talk about a sci-fi thriller – ’10 Cloverfield Lane’ instead.

Imagine after getting in a car accident, you are held in a shelter by this man who claims the outside world is taken over by aliens. He acts weird, especially the fact that he has storages of supply and everything prepare as he claims that he knew this day would come.

Why am I in this room? What’s this place? How did I get in here? Who’s that creepy yet somewhat reasonable guy?

Questions after questions as the guy who claimed he saved you becomes more and more suspicious. Is he lying to keep you trapped in his place? Is he doing this because you looked like his daughter who is not with him anymore?

Director Dan Trachtenberg was playing the audiences’ mind throughout the whole movie. This is the difference between a horror movie and a thriller. A thriller creates a psychological type of fear that make audiences think and wonder how the characters are going to find their way out. It wasn’t until it was revealed that the guy who sounded insane was actually telling the truth the whole time, that the audiences start getting their questions answered.

The overall screenplay structure and outlining had been very well written in a way that it demonstrates how powerful storytelling can be, especially how it can play with the audiences’ mind.

Watch Dan Trachtenberg’s ’10 Cloverfield Lane’ trailer here:


Absorbing Power: The Courts and Hate Speech

Absorbing Power: The Courts and Hate Speech

In Judith Butler’s ‘Burning Acts, Injurious Speech’, she references the case of R.A.V. v. St. Paul to illustrate the ways in which the courts reabsorb power to incite violence. In this case, a white teenager from Minnesota, burned a cross in front of a house occupied by an African-American family. The defendant was charged and eventually convicted, by the St. Paul City Council in 1990, making it an offence to communicate racially offensive messages. The United States Supreme Court reversed the State Supreme Court decision. One of the most baffling aspects of Butler’s comments on this case, relates to the way in which the court’s use of language transformed the act of burning the cross on an African-American family’s property to the following – “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible” (the words of the majority opinion of the court). This transformation of language strips away any contextual meaning, and denies the racist history of the act of cross burning. John Onyando stated that “there is growing evidence that the government is using prosecution for hate speech as a tool to silence its opposition critics”, and I would have to agree with this. Butler’s example, serves as a constant reminder, as with all of the themes discussed throughout the LW928 module – the imaginary, legal fictions, and performativity, that law’s power reigns. In law’s quest to punish those who spread racist, transphobic, or otherwise out-of-fashion speech, it denies the weaker members of the community e.g. the poor, political minorities, and women, of the protection it claims to afford.


Dante’s Paolo and Francesca and the power of emotional narrative

The Divine Comedy is a literary masterpiece wrote by the genie of Dante Alighieri in the first half of the 14th century (1306/1307 and 1321). The Comedy symbolises humankind’s journey for redemption through the three afterlife kingdoms: Inferno, Purgatory and Paradise.
While Purgatory and Paradise are embedded with theological and philosophical considerations, Inferno is a testimony of the political corruption at that time. Italy was the battlefield for the political fights between the Pope and the Emperor. It was one of the most merciless ‘Games of Thrones’ in medieval history.
Through his journey in the ‘infernal burella’, Dante tells the story of many political and religious figures, who – blinded by political ambitious – committed murders, cannibalism, treason, and suicide all in the name of ‘worldly power’.

In a sense, Dante’s Inferno is the first attempt to challenge the dominant social imaginary through storytelling. Dante is aware that unless humanity achieves spiritual redemption, his world will be forever lost in the wood of sins and corruption.

Each girone (the circle that constitutes Hell) introduces characters that embed a specific characteristic of the dominant imaginary that needs to be criticised. The only exception can be found in Canto V (chapter V), in which – only on this occasion- Dante took pity of two condemns: Paolo and Francesca di Rimini.

“Love which quickly takes a gentle heart, took him for my fair shape.

Love which does not allow not to love back, took me for him.

Love lead us to one single death” (vv. 103-105, Canto V, Inferno)

Canto V is the testimony of Dante’s powerful narrative technique that triggers empathy in the readers. Even though Paolo and Francesca committed adultery and therefore had to be put in the circle of the lustful, their love story is so moving that the readers conceive them as the innocent victims of a dreadful/unjust fate.
Francesca di Rimini was a beautiful noble girl – destined to become a nun – but she was kidnapped and forced to marry the violent Gianciotto Malatesta, Paolo’s older brother. While living together, Paolo and Francesca fell in love. Unfortunately, the brother discovered their affair and killed the two lovers, condemning his brother and his wife to an eternity in Hell. Nevertheless, Paolo and Francesca’ sin becomes secondary to the readers because what really matters is that their life was brutally interrupted. Paolo and Francesca can be finally together and free to live their love but they have to go through eternal suffering.
In this Canto, Dante uncommonly employs a sweet, romantic and poetic language. The tercets are characterised by a slow rhythm that creates emphasis and pathos to the story. The readers are capable of creating an emotional connection with the characters and cannot help identifying themselves with the pain and sorrow these two star-crossed lovers have to go through every day to be together.
Paolo and Francesca’ story is an outstanding example of the emotional power of language that may open doors to change and better justice.


The Power of Fiction

When Johann Wolfgang von Goethe published his novel ‘The Sorrows of Young Werther’ in 1774, he would not have thought that this piece would bring many of its readers to kill themselves. However, that was exactly what happened – but not because they found it dead boring, quite the contrary. Lovesick Werther, the hero of the novel – spoiler alert – shoots himself in the end. This, in combination with the popularity of the book, unfortunately led to quite a few copycat suicides among its deeply impressed readers. As the plot of Goethe’s novel was the source of inspiration for these deaths, this kind of connection between a published work and a wave of suicides has since been known as the ‘Werther effect’.

Thus, a piece of fiction can have considerable power. It can make the difference between life and death, between existence and non-existence of a person. Similar to literary fiction turning into reality (see the Werther example), legal fictions can also strongly influence our life. Some scholars take the view that legal fictions are mere tools or placeholders within the law that are necessary for it to work (that is, to fulfil its function). Nevertheless, fictions like the ‘legal person’ can shape the way we perceive and treat others – they can, for example, enhance their value in our view.

This March, legal personhood was granted to the Whanganui river in New Zealand. This was done to protect the river’s health and to preserve it for future generations. So, the government probably had positive effects of the personhood fiction on reality in mind. Moreover, the legal personality of the river should reflect the view of the local indigenous people that the river is a living entity in itself, is their ancestor, and is incapable of being owned as property. In our view, this is a fiction that has a – hopefully powerful – influence on how people treat the river. In the view of the indigenous people, the personality of the river might not be fictional at all, but real. Over time, while being obligated to treat the river better (like a person), we will possibly also perceive it as a gradually less fictional and more real person. This effect of a fiction would at least be more pleasant than the ‘Werther effect’.


‘World-Destroying’? Law and Recalcitrant Life

The destructive function that shadows the constructive promise of legal interpretation stands out as one of the key provocations in Cover’s ‘Violence and the Word’ (1986). I wish to raise here a couple of questions relating to the limits of the ‘world-destroying’ violence with which the author tries to displace the ‘world-making’ fixation of the jurisprudence of Dworkin and White.

The first concerns the intrinsic limits of ‘common meaning’ that Cover suggests to be implied in the unhealable rift that separates law and the criminal. For Cover, the prisoner’s ‘co-operation’ with the legal system evidences not so much his/her repentance as the coercive domination of the machinery, which extinguishes the possibility of cohabitation in a normative universe. Already thinned by the institutional division of will and labour, the ‘common meaning’ of law is further delimited by the wound that law burns into the ‘body of the condemned’ (Foucault). My question: would this ‘hole’ mark the horizon of the nomos (‘the one ends here; there lies the other’), or might it further indicate an impossibility within the nomos (‘there is no “one” to begin with’)? Is a world being destroyed (‘I am if you are not’), or might it already be destroyed (‘you are not and neither am I’)?

The second concerns the possibility of resistance, of which Cover cites three instances: martyrdom, rebellion, and revolution. These scenes evince a militant refusal to accept the substitution of one law with the other (‘I would rather die than be you’) or even a repetition of world-destroying violence (‘be me or die’). They suppose the sacrifice of the outlaw or the coup sought by a counter-community. They rehearse the destructive function of law. But not every prisoner is destroyed by law. Aung San Suu Kyi survived her 15-year house-arrest. Indeed, criminal recalcitrance suggests the very longevity of the condemned. Sade’s libertinism resumed between his incarceration, not to say it flourished then — in those 27 years behind bars he wrote the copious pornography that were destined to outlive him and the regimes which sanctioned him. So if worlds survive law, is law’s operation ‘world-destroying’? Or does this characterisation, however well-intentioned, collude with law by concealing its limits? And, with Sade in mind, could life resist law without destroying it? Give in to law without giving in?


Is pornography dictating social norms? Or are social norms dictating how we view pornography?

Double standards for men and women when it comes to sexuality have been around for a long time. We all know the typical picture of a man whose masculinity is enhanced by having a high number of sexual partners, whilst a woman’s virtue is negatively affected when her number of sexual partners rises. The modern movement against what we like to call ‘slut shaming’ aims to eliminate these biases and double standards and to let women employ their sexuality on an equal level to men. In other words, whatever opinion you have of the number of sexual partners of men, the same should apply for women. Whether you think positively or negatively about (casual) sexual encounters, what’s important is that it applies equally regardless of sex or gender.

However, this double standard is still embedded in our culture and generally speaking it does still exist. This is what I thought about today when we discussed the topic of pornography and its supposed degrading force on women. There has been a large movement of women, feminists and other ‘allies’ that write porn off as intrinsically biased towards gender norms and as enhancing those stereotypes.

However, I don’t feel we can say this about pornography in general. Maybe around the time and Langton wrote ‘Speech Acts and Unspeakable Acts’ (1993), the overwhelming majority of pornography did depict women in a less than favorable light. It may have given women a submissive role that could have been picked up by men as ‘the way women should behave’.

Or maybe it was the other way around. Maybe because of the stereotypes surrounding women and because of the double standard between men and women, women felt degraded by these images. Because what is really degrading about a woman engaging in a sexual act with a man? We do not see it as degrading to the male participant. Men are completely free to engage in casual sexual activity without anyone batting an eye.

In addition, pornography has become much more diverse. Different people fantasize about different things and for every category of fantasy there is probably an innumerable amount of visual images available that portray that particular sexual fantasy.

Of course there are types of sexualizations that are troubling. Depicting (and ‘romanticizing’) rape as something sexually arousing (to both the perpetrator and the victim) is not a positive way of putting sexuality into imagery. First and foremost there should be consent between the parties engaging in any type of physicality. Equally, putting minors at the center of sexualization is unacceptable. Sex is something to be had between consenting adults.

But if all parties are, in fact, consenting adults, who is anyone to say their depiction is wrong? We can see promiscuity as degrading, or we can see it as empowering. Or as neither of those things. But nothing is offensive unless someone is offended. Can we not choose to not be offended? If we assume that men and women are on equal footing and different people simply like different things, can we not just choose which ‘type’ of (if any) pornography we want to watch?

It’s difficult to enhance a stereotype that does not exist, or no longer applies. So if we stop seeing sex as something to be ashamed of, the visual depiction of it might stop being shameful.

LLM Modules, LW928

The Imaginary: an undervalued, yet precious, method of assessing our legal traditions

I believe the imaginary is an underestimated tool for analysing and understanding the history of our legal jurisprudence.
Through the assessment of ordinary people, it is possible to determine the motives behind a specific socio-political period that led to the development – or sometimes retrocession – of the law.
Fascinating is also the fact that the imaginary brings together two different perspective of modern societies: the “communal rights” dimension and the “individual rights” movement.

Communal rights reflect better the vision of Anderson and Castroriadis and coincide with the birth of the concept nation.
Ordinary people coming together sharing values about their common languages, traditions, culture and history led to the creation of constitutional laws that safeguard those principles. Another more current example can be the establishment of the European Union, where member states created a new code of laws based on unified economic and cultural principles.

On the other side, the imaginary explains the development of individual rights, bringing on to the table even more current topics of discussion within the legal word. According to Lacan, the imaginary is strictly connected to the psyche, i.e. the individual experience/the Freudian Ego. Lacan’s contribution to the theorisation of the imaginary helps understanding the formulation of other important legal movements such as human rights law and feminism. Through the assessment of the Ergo, new opportunities are opened to learn and understand what shall be done to improve our ‘social’ and legal dynamic.

Finally, the combination of such communal and individualistic interplay raises new challenges, questioning the role of the law and the society in a modern and globalised society which constantly defies history and tradition leading to the legal evolution/change.


I pray but I am lost. Am I just praying to silence?

After watching Martin Scorsese’s ‘Silence’, it gives me the same feeling I had when I watched Oppenheimer’s ‘The Act of Killing’, the feeling where it just destroy your mood for the rest of the day…

While ‘Silence’ might not be as appealing as it is compared to Scorsese’s previous movies such as ‘The Wolf of Wall Street’, ‘Hugo’ or even ‘The Departed’, the amount of killing and torturing involved really reminds me of the incidents described and revealed by Anwar from ‘The Act of Killing’.

I guess you can say ‘Silence’ is a movie version of ‘The Act of Killing’. Instead of documenting the killing involved from the killer’s perspective, ‘Silence’ surrounds missionary Father Rodrigues (Andrew Garfield) in his attempt to look for Father Ferreira (Liam Nelson) in Japan, who renounced his belief on Jesus after being tortured. During his journey in search for Father Ferreira, Father Rodrigues encountered a lot of local Christian populations hidden underground.

You have to understand that minority culture and belief such as Christianity cannot exist in Japan, as Japan operates under militarism. They see religion as a demonstration of authority.

Once they captured Father Rodrigues, they did not kill him. They see priest as the root to the problem of Christianity. Therefore, instead of killing him, what they did was to force him to renounce his faith. They did this by village massacre, drowning Christians, burning them alive, and having their head chop off…

All of these were done to question Father Rodrigues’ ethical dilemma, who struggles as he questions whether if he’s being too self-centered or too unmerciful to commit apostasy. The dilemma where he is not helping those who are suffering as a Christian priest because he is unwilling to give up his religious belief.

And of course, it didn’t take long until Father Rodrigues breaks down from this ethical dilemma and chose to accept this painful truth.

Throughout the movie, it illustrates the three key areas of ‘humanities’, the correlation between value, culture and the normative. You can see how Father Rodrigues firmly hold on to his belief and see it as a responsibility to have such an ethical guideline. It is this responsibility given by God that gives him such a burden not to commit apostasy.

Watch Martin Scorsese’s ‘Silence’ trailer here: https://www.youtube.com/watch?v=IqrgxZLd_gE