Control, Alt, Delete? Information Technology and the Human

With the German jurist-philosopher-author Juli Zeh chapter 13 asks the jurist to consider the effects of contemporary information technologies on the human. It discusses topics such as privacy, surveillance and control societies in relation to individual autonomy and free will. With Zeh’s novel The Method it shows the consequences of state ideology writ large and it asks the reader to consider in which ways humans are being nudged into complacency by modern technologies that provide all our modern conveniences. It shows that as a result of modern technologies human beings run the risk of being reduced to objects ready to be used for further ordering by others.

Metaphor and (Dis)belief

In chapter 7 the importance of insight into how metaphor works in law (“seeing resemblance” according to Ricoeur) is elaborated upon in relation to the legal professional’s development of practical wisdom. The chapter discusses how metaphoric insight is both cognitive and perceptual. It argues that the professional needs to develop his or her legal imagination to be able to perceive similarity in what is initially thought of as dissimilarity to bridge the gap between the generality of the legal rule and the particularity of the individual situation in the case at hand. The chapter also connects the topic of metaphor to an understanding the psychological phenomenon of cognitive dissonance and its negative side-effects such as the confirmation bias and belief perseverance as the obverse phenomena of what Coleridge called poetic faith, i.e. the ability to comprehend contraries and to deal with uncertainties before jumping to conclusions.

Coda

My argument in this book is that a literary turn of mind together with the building blocks from philosophical hermeneutics help form a solid basis for the development of the essential capability of jurists to truly judge from experience: that is, to learn about the lives and experiences of others, and to act on what one learns, while at the same time to cherish an attitude of self-reflection in order to gain self-knowledge. Whatever the global, political, or technological developments, I am convinced that judging from experience is, and remains, the crucial, professional methodology and ...

Towards a Legal Narratology II: Implications and Pathologies

This chapter builds on the suggestions made for a legal narratology in Chapter 9. It deals with the implications and pathologies of narratological insights for judicial practice in criminal law by drawing attention, firstly, to the false dichotomies of common law versus civil law and of inquisitorial versus accusatorial approaches, and secondly, by asking what it is in narratives (and images) in court surroundings that justifies their credibility. The effect of modern media and visuality on juries and judges, it suggests, is not to be underestimated. Its main argument being that to judge is to choose, this chapter offers suggestions for narratological research to differentiate between the pre-trial and the trial stage and to consider carefully how the defendant’s narrative is written down. The ability to “narrate oneself”, it is argued finally, is a matter of voice and this is illustrated by means of John Coetzee’s Disgrace.

Empathy Revisited: Who’s in Narrative Control?

Part III deals with what Cardozo called “the perplexities of judges” that become “the scholar’s opportunity”. Chapter 11 revisits the topic of empathy by distinguishing between forms of empathy and the way in which they are triggered, in works of fiction as much as in our daily lives. It argues that all forms of empathy are connected to emotion(s), first-order emotion such as anger of grief, and second-order emotion as the reaction to another person’s first-order emotion. It then asks what the cognitive turn in narratology means for legal practice, i.e. who is in narrative control of the situation, in court or in other legal surroundings? The judge, the prosecutor or a party? The story of Ian McEwan’s fictional judge Fiona Maye in The Children Act exemplifies the pitfalls of a first-order empathy, triggered as it may be by parties in a case by means of deliberate narratological strategies aimed at influencing the judicial decision.

Narrative Intelligence: Empathy, Mimesis and the Equitable

This chapter discusses what it takes to become a ‘literary jurist’ by returning to the topic of narrative intelligence introduced in Chapter 1. It analyses Ricoeur’s view on mimesis and shows the relevance for legal practice. Mimesis as prefiguration refers to the temporality of the world of human action. In law, the stage of the “brute facts”. Configuration or the world of narrative emplotment of events, this chapter argues, is the translation of the brute facts into the manageable form of legal documents culminating in the trial. Refiguration is the stage when the reader appropriates the text into his or her own world. Success in judicial practice is also closely connected to the ability to empathise and to the equitable in the individual case. The building blocks that this chapter suggests for legal practice at the same time show the importance of the humanities for law.

A Raid on the Inarticulate

Chapter 2 offers an overview of the historical development of the language of law from Euripides to Herder and into the twentieth century, not out of nostalgia to the halcyon days of the unity of law and the humanities, but to show jurists what brought them where they are now. It also provides an overview of the development of the process of differentiation of law, i.e. from the unity brought about by the rediscovery of the Corpus Iuris Civilis in the eleventh century to the diversity occasioned by the rise of national legal systems culminating in the nineteenth century, and from law as an autonomous discipline to the interdisciplinarity of the “Law and…” movements from the late twentieth century onwards.

Practical Knowledge: Facts, Norms and Phronèsis

The chapters of Part II of this book turn to continental-European philosophical hermeneutics, especially as developed by Paul Ricoeur, because his work is rich on the topics of narrative and metaphor, as well as the equitable and the just. They do so to show what the humanities can contribute to the realm of praxis by bringing to the fore the resources that can contribute to the judge’s development of her professional quality of phronèsis, i.e. prudence or practical wisdom, with judicial ethos and habitus included. Chapter 6 deals with the interrelation of facts and (legal) norms in the “application” of law in a specific case, and on the bond of theory and practice. The chapter offers an extended analysis of (Aristotelian) phronèsis (practical wisdom) and épistème (theoretical knowledge) in relation to Ricoeur’s proposal for hermeneutics in law. It argues that iuris prudentia always necessarily combines theoretical knowledge with practical activity.

Explanation or Understanding: Language and Interdisciplinarity

Chapter 3 addresses the topic of law and interdisciplinarity and the question of the meaning of the “and” in Law and Literature and Law and the Humanities. It discusses the Erklären-Verstehen controversy in the scientific and hermeneutic debate of the late nineteenth century on whether the explanatory model of the natural sciences or the methodology based on understanding text and human action of the humanities should be taken as the litmus test for what is to be called “scientific knowledge”. This debate remains important both for contemporary discussions on the academic status of law as a discipline and for interdisciplinarity as such. This chapter also draws attention to the Wittgensteinian idea of the limits of language in their consequences in relation to the concepts of determinism and free will in legal surroundings.

The Enchantment of Knowledge and its Apotheosis: Gustave Flaubert’s Bouvard and Pécuchet

Chapter 1 offers a metaphorical reading of Gustave Flaubert’s Bouvard and Pécuchet to illustrate how the process of differentiation of knowledge culminated in the positivist thought of the nineteenth century. It suggests that legal practitioners should develop narrative intelligence in order to understand in which ways the law follows out of the narrative of the facts, ex fabula ius oritur, and what it is that they do when in practice they construct legal narratives.The chapter offers a blueprint for the whole book in that it lays bare the very real epistemological questions that contemporary legal theory (doctrinal and interdisciplinary) and legal practice have to confront: the construction of, and/or the contempt for facts, and linguistic perversions of the language of concepts.