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.

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.

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.