2 Law, social science and the humanities – thundering theology or tinkering with engines…

Speculation about the vulnerabilities of law continues to generate hypotheses as to its place. In summer 2008, two articles appeared in the Cambridge Law Journal which set out to explore the relation of law to other disciplines and both connect to notions of ‘integrity’ in different ways. The first, ‘Is Law Really a Social Science? A view from comparative law’,Footnote ⁹ explores the basis of the decision by Jean-Michel Berthelot not to include a study of law in his Epistemologie des sciences sociales. Footnote ¹⁰ Samuel points out that what constitutes a social science in France is somewhat different from the position in the United Kingdom:

Indeed, I hope to suggest that locating history and/or philosophy as purely social science subjects is as insupportable as characterising law itself and legal scholarship according to similarly narrow identifiers. Berthelot’s justification for excluding law (and political science) from the social sciences is based, we are told, upon his belief that law is:

I would suggest that this is to some extent a false dichotomy,Footnote ¹³ in that there needs to be a constant interaction between the two forms of thinking, between the physical, (‘verifiable’ as far as empiricism allows) ‘social reality’ to which the law must relate, and the metaphysically textured ‘norms’ of law interrogating and responding to that reality. Samuel remarksFootnote ¹⁴ that law’s quest to be accorded the status of a ‘science’ may have contributed to the notion that it is a ‘knowledge discipline … isolated from social reality … which has nothing to contribute, epistemologically speaking, to our knowledge of the world as an empirical phenomenon’. Although Samuel qualifies the statement by conceding that law ‘certainly does take account of fact and how it does this is an aspect that needs particular attention’, he confirms the view of law as a system ‘which has as its object only itself’. This seems an extraordinary vision of law. Even at the most basic level, surely it can be argued that the historical and anthropological ‘trail’ created by the legal process – the cases it validates or valorises, the legislative pathway, the ‘norms’ it upholds through different periods and cultural applications – is capable of providing a wealth of information about ourselves, when viewed not merely as a monolithic source of unquestioned authority, but as a pragmatically driven but nevertheless idiosyncratic expression of human creativity and mores. Samuel himself reminds us that the roots of law were somewhat tenuous – quoting Ullman he notes that:

This clearly points up the extent to which early jurists were obliged to build a foundation of assumptions as to social ‘realities’ (which must also have incorporated evaluations of individual human ‘realities’), and in so doing, even bearing in mind the orientations given by ecclesiastical conclusions on the provenance of the ‘natural’, adopted a degree of licence as to the currency of ‘known’ characteristics. Law as a phenomenon, whether one classes this as a ‘social science’ or ‘humanities’ enquiry, thus provides a touchstone as to the development of philosophies, attitudes and beliefs, with the intriguing additional peculiarity that these can be ‘visited’ upon individuals and social groups in a most powerful form. As Samuel (and Berthelot) points out, this results in the creation of a ‘governing paradigm’ – a vision of the world, imprinting upon its subjects and carrying certain dichotomies, such as that between nature and culture, and so on.

Samuel builds his argument to press home a particular conclusion – that whatever the justifications for an ‘inward-looking’ black-letter life for the law (‘a narrow theology’) and for the consequently unreflective nature of its ‘authority paradigm’, comparative legal analysis must be understood to require an interdisciplinary and social scientific complexion. Whilst, in Samuel’s terms,Footnote ¹⁶ the law graduate may continue to resemble a narrowly educated theology graduate, the narrow product of an unreflective authority paradigm, the comparative legal scholar in his view must move outside this orbit. As Samuel concludes:

The example indicates the very difficulty with which we are engaged – believing that an ‘enquiry paradigm’ concerned with ‘persons and things’ and with ‘economic, political, social (including cultural) and psychological constructs’ makes the quest by definition one of social science, or only relevant to comparative legal studies is a narrow view indeed. Any human activity or enquiry premised upon beliefs about the qualities of ‘human nature’ – as all these must be – will contain metaphysical, normative and plain ‘prejudicial’ and ‘subjective’ assumptions as well as scientifically supported, empirically verifiable ones.

Nevertheless, individual scholars have differing views as to their location relative to the humanities and social sciences and the question of where law in particular is located in relation to the humanities and social sciences will receive different answers. The very history of legal theory, with its divisions between, inter alia, positivists and natural lawyers, signals a tendency towards entrenched views of the location and identity of the law as well as of its antecedents. More generally too, academic lawyers hold sharply opposed views as to what ‘counts’ as relevant legal research, positioning differing scholarship on, or outside, a perceived periphery, and this is in part reflected in recent debates as to the role of research funding bodies and state interests in the utility of research.Footnote ¹⁸ In an article entitled ‘Is Law a Humanity (or is it more like Engineering)?’ Howarth asks:

In 2004, Howarth notes that the (then) Arts and Humanities Research Board terms of reference made no reference to law, but to ‘systems of thought and belief of human beings, both past and present’, thereby not entirely clarifying their view of this potential lacuna, although these terms are today more inclusive. Howarth goes on to illustrate the locus of the struggle as it manifests in the United States – as one between the ‘law and economics’ and ‘law and literature’ factions, as Howarth characterises them, the ‘roundheads’ and ‘cavaliers’ of the law schools.Footnote ²⁰

Howarth also alignsFootnote ²¹ these arguments as essentially ‘rightist’ and ‘leftist’, as well as an opposition between ‘technical experts’ and ‘cultural critics’, concluding, however, that both hold in common a view of their role as challengers to the academic ‘mainstream’ of black-letter legal doctrine and pedestrian readings of case reports and legislation.

Howarth’s discussion revolves around a main assertion that, ‘in reality, most lawyers are far more like engineers’. Both law and economics and law and literature movements, he says, ‘tend to miss the point that the main task of lawyers, like that of engineers, is to design devices and structures for specific clients, whether contracts for business clients or statutes for legislators’. Noting that ‘economics cannot inform lawyers how to write a comprehensible and coherent set of rules to promote the common understanding of a project’, he moves, in his critique, to the concerns as he sees them, with law and literature.Footnote ²²

It should be noted that ‘law and literature’ is such a broad church – infiltrating issues across the whole spectrum of legal subjects and utilising hugely variable methodologies – that generalist assumptions as to the potential value of such studies are questionable. It must be recognised, too, that the work of pressure groups and NGOs often has more impact and influence upon an unjust practice or legal norm than practitioners or academic lawyers working in the same field, and therefore the argument about ‘legal structures’ and ‘current expectations’ is already weakened.

Nevertheless, Howarth here is misunderstanding what it is that law-and-literature scholars believe they do. I doubt that many toil under the illusion that tomorrow the Court of Appeal is going to refer – or defer – to Ward or Aristodemou, Weisberg or MandersonFootnote ²³ (or Williams). Writings about the lessons for equity in The Merchant of Venice,Footnote ²⁴ the literary hints of ‘legal’ atrocities at the time of Vichy France,Footnote ²⁵ of the legal issues in Angela Carter’s Bloody Chambers,Footnote ²⁶ or those in Tess of the d’Urbervilles Footnote ²⁷ – all these are clearly likely to be regarded as somewhat peripheral to the everyday work of the courts. (It is, of course, true that judges sometimes resort to literary references to illustrate or emphasise a point, but one can understand that there are good reasons for recognising the need for restraint in this regard.) Many law and literature scholars do not work with any expectation of being cited as a source of authority for the courts, but, like many philosophers, identify an issue which is poorly addressed in life and in current legal scholarship and practice and believe that an interdisciplinary or interstitial enquiry opens or challenges the debate on that topic more effectively than convention allows. In purely intellectual terms it is absolutely legitimate and justifiable to try to approach a problem – be it essentially a ‘practical’ (engineering) or theoretical issue – by exploring lateral as well as linear sources of discourse. (I would add that ‘law and literature’ is probably an ‘easy’ target insofar as it is still very much a new pretender to a little throne in the academy and, as with any field associated with ‘critical legal studies’, is likely to be regarded in some quarters as an upstart pretender.) The vast majority of writings on jurisprudence or legal history or any number of more ‘mainstream’ subjects are also unlikely to ever attract the attentions of the courtroom. Indeed, when one comes to think of it, practice is likely to give greater attention to the brief entries in the New Law Journal and The Conveyancer and Property Lawyer than, say, to the Journal of Law and Society. The Cambridge Law Journal, the Modern Law Review, the Oxford Journal of Legal Studies or the Criminal Law Review, providing extensive case-study or wonderfully apposite doctrinal articles, may, as we all appreciate, attract judicial notice. Yet one can appreciate that an argument about the direct applicability of different sources to the ‘engineering problems’ of the law holds the possibility of dismissing a great deal more scholarship than just that indicated by the ‘law and literature’ fold. Howarth continues:

Howarth’s strong note of irony in referring to non-mechanical analyses of commercial contract as instances of critique of contract as ‘world-revealing text’, followed by the suggestion that those who attempt such engagements in preference to mechanical, ‘engineering’ analyses are ‘refusing to engage with a form of life’ is revealing – it betrays a degree of contempt, suggesting that no one in their right mind would ever look at the commercial contract as a world-revealing text – and also assuming that persons undertaking such critiques are inured or hostile to the wonders of the machine. But this does not follow – interdisciplinary scholars would, I think, appreciate not only the necessity of the practical in life but also its ingenuity. In addition, though I personally would not tend to jump to the commercial contract as the most beguiling source of the ‘world-revealing’, I have no doubt that analyses of such texts could reveal some very interesting aspects of the world (as the critical commentary on Contract LawFootnote ²⁹ developed by Sally Wheeler and Jo Shaw, for example, surely demonstrates). Above and beyond the purely purposive goals of the format, ‘even’ commercial contracts are artefacts which make certain assumptions about power and legality, assumptions which may reveal much about our view of the world and the role of the law within it. Notable, however, is Howarth’s choice of the commercial contract as the example best serving the thrust of his argument, since the ‘human element’ is likely to be somewhat hidden in such texts. Perhaps it is also a question of how one interprets ‘world-revealing’. Though it would seem that Howarth uses the term in a revelation of barely concealed irony, once one moves towards examples of law-making where the ‘human element’ is more evident, the prognostications of the law can indeed be ‘world-revealing’. In the halting and sometimes erroneous presumptions erected as to the ingredients of ‘nature’, with sometimes tragic consequences for the individual ‘human’, law may create injustice.Footnote ³⁰ Howarth’s engineering analogy is indeed a workable illustration for his own purposes, but cannot capture the rich scholarly possibilities created by the artefact that is law. And his allusion to engineering suffers from one further limitation – for it carries the implication that engines are always fit for purpose.Footnote ³¹

Howarth indicates thereby that corrections to the mechanism may be achieved by pure ‘tinkering’, though it should be pointed out that ‘errors due to bad design’ could, on a ‘design theory’, go to small details or to absolute fundamentals. Again, though, Howarth assumes that ‘engineering-type’ lawyers have a monopoly upon achieving insights into such errors and that ‘non-engineering’ types have little or nothing to contribute (and again, one wonders where a calculus of scholarly utility on this front would leave a great number of academic writings exiled from the different fields in law, especially the speculative and more philosophically textured contributions). Nevertheless, this leads Howarth inexorably towards his denouement:

I do not intend to provide a word-for-word critique of these statements; suffice to say that ‘the idiosyncrasy dealt with in literature and history’ can indeed in my view safely teach parallels or ‘lessons’ as well as opening the lawyer to a ‘fuller range of the possibilities of human behaviour’ – apart from the qualification, I would entirely agree that such approaches could open the lawyer to such possibilities. Indeed, such possibilities could well prove to be the conduit for greatly enriched juristic capabilities, perhaps even sometimes ‘world-revealing’ in their impact. According to Howarth then, the humanities may be allowed a somewhat grudging route into the law, though he concludes:

And there we have it – the apparently measured and even-handed critique of the relationship of law to the humanities ends in a dismissal of so much ‘noise from the playground’ (actually playing perfectly into the deepest recesses of my personal neuroses, thank you, Mr Howarth).

It seems to me that Howarth wants to have it both ways in this essay – to demonstrate a critical sensitivity to all the possible permutations of social science and humanities jurisprudence, at the same time putting scholarship which is, in his view, overly inclined towards interdisciplinary incontinence, firmly in its place. Since he has hedged the essay about with sufficient caveats to answer any objection that he might not have taken account of this or that argument, it seems difficult to challenge him. Nevertheless, one can discern certain rhetorical drives and semiotic stances in the apparently neutral assay of the social science/humanities nexus. Most notably, perhaps, the work of such ‘cavalier’ scholars is characterised as ‘noise from the playground’ which ‘should not be allowed to distract’ those engaged in ‘serious work’ whilst the central premise – that law is ‘more like’ engineering than either the humanities or social sciences (but of the two, closer to social sciences) – conveys the firm image of a mechanical system, a practical engine, distancing itself from the indulgent fripperies of mere abstract reflection. One suspects that perhaps similar arguments could be raised where philosophy meets pure mathematics, and no doubt such views may be characterised as spurious too.Footnote ³⁴

The clear semiotic message in raising the image of the machine in this way is to drive home the point that such work at the disciplinary and interdisciplinary boundaries of discrete cognate practice has little or no utility. It is true that, when one writes an article about, for example, the questions of rape and seduction in Tess of the d’Urbervilles,Footnote ³⁵ the piece is unlikely to be consulted as a source of practical wisdom in a Court of Appeal – neither the format nor the conduit (perhaps a special collection, or interdisciplinary journal) suggest themselves as sources of authority for the immediate and pragmatic purposes of a contemporary case. Such work tends to be oblique, bringing together the skeins of thought, the connectedness of cognate strands traditionally treated as separate. Rich and infinitely varied, but also vulnerable to the strange byways of intellectual prejudice and predilection, the realms of human thought and discipline are cultural as well as intellectual artefacts, which will not yield their full range of potential insights when examined in a relentlessly linear fashion. In pursuing the issues around rape and seduction raised by Hardy’s Tess, for example, subtle insights are discoverable. The heavily charged polemic around the sexual implications of the book, including the terms ‘rape’ and ‘seduction’, prevalent in the press at the time and still discoverable in debate and decisions concerned with the respective responsibility of principal legal subjects (that is, victim and perpetrator, or participants, depending upon the characterisation of the facts), is no coincidence, but reflects complex semiotic pathways obtaining between the two words. ‘Seduction’ is these days an old-fashioned word, hardly used but generally understood as somewhere between a voluntary enjoyment of illicit intimacy and a less voluntary enticement into less than voluntary activity. Yet researching issues prevalent at the time of the production of Tess, one discovers that seduction, as well as rape, was a crime in some states as well as a civil wrong in others (including England and Wales) well into the twentieth century. Yet (and this will be no surprise to the feminists amongst us), the basis of the offence of seduction arose from the damage done, not to the woman at the heart of the offence, but to her father, as the proprietor and keeper of a valuable property interest now diminished or rendered worthless – indeed one case gave rise to references to flowers and weeds. An American case comment by Edgerton (Reference Edgerton1929–1930) concluded that:

Of course, ‘blame’ might attach to the woman herself for allowing such despoliation to occur, and in the alternative, the despoliation may be more violently intrusive than the property model suggests. Thus, upon examination, the apparent distinctions between the words ‘rape’ and ‘seduction’ become less defined, and indeed the ‘Derridean’ insight about the third term lurking within a semiotic play between binary oppositions well made. Simply, examination of case-law and discourse surrounding the history of ‘rape’ and ‘seduction’ reveal the extent of the unacknowledged and latent violence attaching to the location of women as diminished, as persons only just, forever struggling to be visible in the sea of masculine paradigmsFootnote ³⁶ – which, when one considers the fate of Tess, is the essence of her story. So yes, the courtroom might not rush to examine debates over Tess when presented with a case of rape, but sensitivity to the vast semiotic and linguistic antecedents of the words beyond their apparently unproblematic definition in law might contribute to understanding the still prevalent issues around the management and interpretation of the crime of rape – the appalling reporting rates of victims, the easy manipulation of their vulnerability, the continuing debates over sexual history evidence, the ethical dubiety of strategies of defence counsel, the low conviction rates. Examination of the issues raised by Tess also adds clarity and power to current debates, still not entirely resolved, around the normative status of female victims-turned-perpetrators, of ‘battered women who kill’. Again, researchers might not turn primarily to a critique of Tess when constructing their arguments about culpability or the lack thereof; nevertheless, the text brings together social documentary and philosophical reflection upon the dilemma of manipulation and female impotence and the road to violence, of great power for jurisprudential reflection. Simply, the text puts a powerful case for the possibility of an essentially ‘good’ person who is driven absolutely beyond reasonable tolerance into extreme and fatal action yet in the eyes of the law may seem ‘guilty’. Demonstrating premeditation and sufficient apparent lucidity to be responsible for the action, such a perpetrator is nevertheless propelled by powerful facts, material to the agent but not to the world, and is subject to annihilating cultural currents – of class and gender – invisible in the eyes of the law. Current doctrinal debates concerned with the reform of the issue of provocation in particular have reached tentative and belated conclusions which nevertheless may gain explanatory power from the cogency and authenticity of this vision, born as it was from a carefully developed blending of social enquiry and empathy. Arguably therefore, remaining alert to the messages available from the humanities and arts as well as the findings of social science, is necessary to understanding the ‘wholeness’ of law, of the integrity of law – its integration – in its subtle connections with the world of life in all its richness.

3 Law and the humanities – integrity, law and human affect: the example of ‘shame’

The second paper in the July 2008 issue of the Cambridge Law Journal – ‘Legal Humanism and Law-as-integrity’ by Mark WaltersFootnote ³⁷ – sets out to explore the antecedents of the Dworkinian notion of ‘law as integrity’ – of a system of law ‘working itself pure’ as judicial decisions honour the need to balance certainty with sufficient sensitivity to the nuances of the individual case. Like Samuel, Walters points out the centrality of the role of history in any understanding of the law and thus demonstrates the humanities orientation not just of the notion of integrity, traced via the early humanists, but of any meaningful understanding of fundamental concepts generally. Incidentally, in excavating the early humanist critiques of law, Walters – more directly than Samuel – indicates the extent to which early legal humanists realised the necessity of re-evaluating that ‘floor’ of workaday assumptions about human nature underpinning the whole system:

It might be said that such processes of re-examination must bear striking connections with scholarly enquiries of the present time – from modern legal and political theory about the relationship between normative and positivist ideas, to semiotics, linguistics and post-modernism.Footnote ³⁹ Walters goes on to explain the conceptual contrasts and inheritances of Dworkin’s Hercules, noting that:

The implication of this contrast – between apolitical and ahistorical analysis and historically aware, normative theory – clearly favours the ascendancy of a humanist perspective. Such debate as to the locus of law as an academic discipline in the pantheon of university deities has a long history; although Blackstone lectured in law at Oxford from 1753, for subsequent decades law was not regarded as a serious academic discipline, but rather a workaday acquisition of skills, creating artificers in the law. This ambivalence towards the status and identity of university legal education is still discoverable at times, reflecting the view that law suffers from an impurity of spirit, both in terms of ontological and epistemological origin. For law cannot claim the direct antecedents of history, of literature, of philosophy and did not originate as a result of a quest to discover the plangent truths of the past or the aesthetic truths of the text.

Sometimes caricatured as a parasitic profession, the contribution of the law to society is nevertheless crucial and omnipresent and this root in practical usage is perfectly noble. One of the great attractions of a law degree is the fact that not only does it deal with authentic social and political issues, but that it does so through the lens of a discipline which must attempt to provide practical responses to those issues, responses which can be utilised – the fact of the utility of the law is a very great inheritance. As with any academic discipline linked to vocational practice, the link may create exacting though positive intellectual pathways and demands. As any jobbing artisan or ‘juriculturalist’ will know, the utility of an instrument depends upon its remaining honed to purpose, and the necessity of recalling a practical locus is key to retaining that functionality.

It may be argued that there are few people qualified to pronounce upon utility and functionality, especially amongst academics, but this would be to accept a narrow view of the field. Without paying attention to the messages – deriving from culture, history, philosophy – law (and society) runs the risk of staggering somewhat helplessly through the challenges of human behaviour, with little hope of ‘working itself pure’.Footnote ⁴¹ For, if law is truly to retain its integrity as a conscientious social mechanism, it must be open to the scrutiny of any number of intellectual enquiries.

We have come some way from the days when disciplines delighted in asserting their own epistemological purity as a sign of their legitimacy and authority. The new drive for interdisciplinarity recognises the extent to which those cognate divides are to an extent anthropological artefacts; scholarly excellence need not be diluted by intellectual diversity. For the law, acknowledgement of its relation to the humanities as well as to the social sciences is simply a recognition of its roots in the deep questions and mysteries of human being, as well as of the commitment to explore and chart such questions. It is also true that broadly philosophical or cultural commentary may not form a first port of call for those wishing to explore questions in law. Nevertheless, in pure intellectual terms, such commentary may prove extremely germane to the fundamental questions underlying legal theory and practice, especially at the intersection between law and normative judgment. Consider, for example, the normative role of the apperception that is the experience of shame. Current cultural communities around the world exhibit vastly different interpretations of the notion of shame. In Western popular culture, for example, the erotic association between sex and violence has, over recent decades, become increasingly normalised, with such normalisation permitting the diminution of consciousness of shame. The issue is dramatised and anatomised in the text of Crash by J. G. Ballard (Ballard, Reference Ballard1995); the textual critique of the phenomenon providing a serious commentary upon this fundamental cultural, moral, anthropological and physiological phenomenon, significant to notions of human nature and relevant to law. Thus (as indicated hereafter) a ‘literary’ discussion may add to the philosophical, social-scientific and socio-legal perspectives contributing insights.

Of course, shame is a culturally nuanced sensibility, with complex interactions between individual and community which may be exploited for good or ill – as right-feeling, sensitising consciousness or a repressive, political tool, capable of deployment across a wide range of phenomena, from the politics of public discourse to that of private life; of cultural, sexual or textual being. Feelings of shame may be experienced by individuals and by communities, and the implications of each may have practical as well as philosophical implications, implications relevant to the philosophy and implementation of law. Philosophers recognise that there is both a distinction and a relationship between the concepts of ‘shame’ and ‘guilt’. Shame, it is believed, ‘focuses upon the self’, whilst guilt is focused upon specific actions or behaviour.Footnote ⁴² The anthropologist Ruth Benedict,Footnote ⁴³ writing in the 1940s, hypothesised that cultures could fall into one of two types – being either ‘shame’ cultures or ‘guilt’ cultures – with Asian cultures such as Japan typifying ‘shame’ cultures whilst Western cultures exemplified ‘guilt’ cultures. Though such division may be viewed as somewhat simplistic, it may well indicate some fundamental social and cultural as well as innately human elements to the emotions. Martha Nussbaum, writing in 2006,Footnote ⁴⁴ cites some conceptual ambiguities residing in the jurisprudence of shame. She notes an implicit conflict in the desire positively to cultivate a sense of shame in offenders when the pursuit of dignity is becoming recognised as desirable for all and the cultivation of shame would arguably exclude offenders from this ambition. Such opposition, between shame and dignity, may in any event be misplaced. Tarnopolsky,Footnote ⁴⁵ for example, looks at the way shame may be used politically to oppress individuals belonging to disapproved groups, and warns against too-ready assumptions about the relationship between individual freedoms and community integrity and the healthy division between the private and the public. She advocates the cultivation of ‘respectful shaming’, allowing for the preservation of dignity, and follows Socrates, for whom shame was integral to ethics and ‘quite literally practices a politics of shame in his relentless questioning of his fellow Athenians in an attempt to make them more reflective about their collective “others”’. Though the word ‘shame’ is never mentioned, Wayne Morrison clearly signals a call to something akin to such a collective instinct for this reflective shame in his study of the intellectual incoherence that founds modern criminology.Footnote ⁴⁶ Michael Morgan goes further, producing an entire treatise entitled ‘Shame’,Footnote ⁴⁷ which sets out to examine the emotion of shame psychologically and philosophically. The essential theme of Morgan’s text is the assertion that a sense of shame should be present, and certainly cultivated, in all of us, in order to motivate communities to rise up against global atrocities: ‘We should and can I believe, feel shame about living in a world where genocide is always possible and where its prevention is continually negotiable.’Footnote ⁴⁸ It may be suggested that the overall thesis is flawed in advancing the idea that the cultivation of shame can be a motivating force. I would argue that, amongst right-thinking people, though in despair at the capacity of humanity for iniquity, it is indignation which truly motivates; shame – were it even appropriate in such circumstances – would be a paralysing affect. Moreover, this suspicion – that shame creates stasis rather than impetus – is borne out by empirical study. In their 2009 study of the perception of shame amongst sexual offenders, Marshall, Marshall, Serran and O’Brien explain:

Proeve and HowellsFootnote ⁵⁰ admit that some offenders do not experience shame or guilt, but that, for those who do, proneness to shame correlated positively with anxiety and depression whilst proneness to guilt did not, and note research indicating that shame ‘inhibits empathy, as its associated focus on self-worth and fear of contempt … dulls the capacity to experience other emotions’. McAlinden (Reference Mcalinden2005) adds that one must distinguish between ‘disintegrative shaming’ (characterising the traditional retributive framework of justice, with a stigmatising effect and little effort made to forgive, acknowledge or accept offenders back into society) and ‘reintegrative shaming’, where careful management can allow offenders to leave their offending past and picture themselves and their future positively. McAlinden notes that orthodox approaches to such offenders are likely to fail:

Clearly, the issue of shame is complex and the ‘instinctive’ reactions of legal process may not be the most constructive. Though some points may be debateable, the necessity of examining the issue from philosophical and humanities-informed perspectives as well as empirical, social science ones, is indisputable. Indeed, the questions still latent to both forms of enquiry suggest that our understanding of such matters is still at a very early stage indeed, and that not only do we run the risk of visiting punishments or judgments misaligned with the emotional landscape of the offence, but of perpetuating wrongful conduct by such misalignment – the very outcome our system hopes to avoid. With its implication of crude quantification and draughtsmanship, the ‘engineering’ solution would be likely to oversimplify the matter, and indeed, insofar as such mechanistic visionaries may already have shaped policy to a substantial degree, may have contributed to some of the problems inherent to the jurisprudence of such questions.

As already indicated, current debate on social norms may pause to consider the modern perspectives of J. G. Ballard as a commentator upon the unfolding mystery of human being in relation to the notion of shame and obscenity: the issue of shame may be relevant to the shaping of individual and collective values at the very root of social practices and literature, as well as psychology, anthropology and the like; may explore the nuances of such practices. My own work in law and literature has led me to consider Ballard’s work in conjunction with the philosophical–historical scholarship of the philosopher Bernard Williams on the concept of shame.Footnote ⁵² (Such discussions are sometimes discoverable in law commission papers and committee deliberations – coincidentally, it was Bernard Williams who chaired the Williams Committee on Obscenity and Film CensorshipFootnote ⁵³ – though understandably are not continuously consulted in the pragmatic constraints that form the judicial process.) In 1973, J. G. Ballard published his novel Crash, providing graphic narrative of public fascination with disaster, including erotic detail which could be viewed as pornographic.Footnote ⁵⁴ In this text, Ballard imagines a world where sex and violence are combined in consumer culture, a culture where shame has ceased to have a place. This theme is explored in my 2005 essay ‘Savage or Citizen? The Crash of the Moral Mirror’, which I will quote as explanatory background:

Asking himself ‘what is involved in shame itself’, Williams explains that shame derives from the notion of:

In our current world, exposure, whether as nakedness or shame at what people will say about one’s actions, are apparently irrelevant scruples; Ballard illustrates this in the world of Crash: the community works upon an entirely different logic, one of broken boundaries and endless experimentation where care of the other is subsumed by the pursuit of pleasure.Footnote ⁵⁷ And that is Ballard’s point. His is not a canting exhortation against increased personal freedoms. Rather, it is a mirror to our present world, at risk of losing the distinction between empathy and voyeurism. We live in a surreal world where the obscene jostles with the mundane, where personal tragedy is another unit of consumption. Ballard describes a scene in Crash in which the narrator recounts:

This deadening community is quite clearly a crucible for the more stylised and specialised proclivities or activities of particular groups, and such groups – what Bernard Williams calls the community of feeling, in which shame would be a shared product – become a community of appetite. Shame and nemesis will be inverted – the root of indignation will lie in feeling shame. As Williams explains:

Ballard’s point is that, where the community becomes complicit in a harmful culture or practice, the entire ethical edifice loses power. Juxtaposing the cautious, classically sourced philosophy of Bernard Williams with the literature of J. G. Ballard, so exercised by the extremes of contemporary culture, takes the discussion beyond questions of the relationship between art and pornography and pornography and harm usually explored by the jurisprudence concerned with censorship. The novel provides clinically direct and explicit narrative which challenges the reader to confront the assumptions conventionally asserted concerning the separation of violence and the erotic.Footnote ⁶⁰ For the figures in Crash, the immediate and extended ‘community’ of watchers and imagined watchers endorse the aberrant behaviour. This should be a concern for the law, in terms of understanding the growth of clearly ‘deviant’ communities, for whom tangible harm to others is a stimulus beyond conventional understanding, yet reflects disturbingly upon the culture shared by us all. The question is pressing for all society – especially in the age of the Internet – and for the law in particular, concerned with the broader role of legal and other institutions in relation to the freedom and regulation of the legal subject.

4 Conclusion

What this discussion points up, I hope (quite apart from the clear relevance of the fiction to present popular media diets), is the intimate relationship between concepts foundational to the law and to the humanities, and their relevance in turn to the explorations of the social sciences. No aspect of human being, whether it is concerned with legislative, political, socioeconomic, philosophical, historical or anthropological advances, can be understood in isolation. All human knowledge and experience – and that includes aesthetic ‘knowledge’ – provides a window upon the nature of humanity which can contribute to the forms of enquiry founded more clearly upon empirically sourced observation. Researchers of empirically based enquiries in the socio-legal spheres will appreciate the constant and intimately reflexive interaction that must occur between physical data and metaphysical assumptions; that findings resulting from data coordinates in relation to normative conclusions may be influenced by the subjective skew of initial question formation as well as that relating to outcomes; that knowledge is never absolute and human qualities in particular mysterious and mercurial. Neither ‘narrow theology’ nor dextrous engineering can respond to the full implications of law’s influence. Foundational paradigms, indicated by Samuel as fundamental to the legal world, must be revisited constantly to ensure that presumption is not a mask for mere supposition where the human element is concerned. For Bernard Williams, this danger is signalled by reference to ‘folk psychology’Footnote ⁶¹ – a term which plays very closely into the notion of the ‘paradigm’ as the overall concept accepted by most people in an intellectual community.

Thus, in his essay ‘Making sense of humanity’Footnote ⁶² (in the book of the same name), Bernard Williams advances a view which (were it to consider law in particular) would object to an over-mechanistic model – the engineering model – of law’s tenuous relation to the humanities and endorse a slightly more intimate link between the humanities and the social sciences, questioning in particular the implication that empirical studies as science form the most practical and reliable source of wisdom. Williams insists upon the necessity for engagement between the paradigms, or ‘folk psychologies’, of science and the discourses of the humanities, referencing that deeply legalistic issue of ‘intention’ as a prime example of the difficulties:

For Williams, intellectual enquiry which fails to maintain an awareness of the constant interplay between science and the humanities cannot be a meaningful enquiry. Like Ballard, he sees that humanity must be understood as always subject to the vagaries of culture. Notice also that he refers to the ‘human sciences’ and not ‘social sciences’ as against ‘the humanities’:

Law is not merely a forensic exercise, but shares texts, languages and innate values drawn from the humanities. It also springs from the narratives and rhetorics of its ‘subjects’. Charged with the task of formulating responses to the problems thrown up by human being and existence, law must be alive to these insights. Concepts so integral to what it is to be ‘human’ continue to pose deep philosophical questions for the law, not resolvable by stripped machinery. Many of the great advances in modern law sprang from the apprehension of injustices not tangible to the law as it approximated to a ‘narrow theology’ or the engineer’s vice, but through the subtle subversions worked by the perspectives of those invisible to the law and its machines. The integrity of the law is an issue not just of conscience, of a quest for scrupulous practice in form and in substance, it is an issue of wholeness, of engagement with the world it seeks to know.