Journal of the case laboratory (1)

Spring term 2016

Below are the sessions of the research project Legal Language of Moral Struggles over the spring term 2016. This period included nine sessions of case laboratory, held in the premises of Helsinki Collegium for Advanced Studies, and one field day for wrapping up the work done so far.

14 January, Setting up the case laboratory (1): Requirements of collective work.

25 January, Setting up the case laboratory (2): What to look for in the cases?

19 February, Case Laboratory

Samuli Hurri presented the following five cases:

• Delfi v. Estonia 2015
• Jersild v. Denmark 1994
• Sunday Times v. the UK (1) 1979
• Wingrove v. the UK 1996
• Open Door et. al. v Ireland 1992

24 February, Case Laboratory

Kati Nieminen presented the following ten cases:

• S.A.S v. France 2014
• Bayatyan v. Armenia 2011
• Saygili & Falakaoglu v. Turkey (2) 2009
• Glasenapp v. Germany 1986
• Peta Deutschland v. Germany 2012
• Herrmann v. Germany 2012
• Lindon, Otchakovsky-Laurens and July v. France 2007
• Tierbefreier v. Germany 2014
• Genner v. Austria 2016
• Mouvement Raëlien Suisse v. Switzerland 2012

March, break

13 April, Case Laboratory

Samuli Hurri presented the following four cases:

• Castells v. Spain 1992
• Grigoriades v. Greece 1997
• Lehideux & Isorni v. France 1998
• Vona v. Hungary 2013

26 April, Case Laboratory

Ukri Soirila presented the following five cases:

• Oliari and Others v. Italy 2015
• Hämäläinen v. Finland 2014
• Parrillo v. Italy 2015
• Dickson v. UK 2007
• Stubing v. Germany 2012

4 May, Case Laboratory

Sanna Mustasaari presented the following five cases:

• Jeunesse v. The Netherlands 2014
• Paradiso and Campanelli v. Italy 2015 (pending Grand Chamber decision)
• P., C. and S. v. the UK 2002
• Söderman v. Sweden 2013
• Gross v. Switzerland Grand Chamber 2014, Chamber of Seven Js 2013

26 May, Case Laboratory
Sanna Mustasaari presented the following five cases: 

• Z.H. and R.H. v. Switzerland 2015 
• Biao v. Denmark 2016 
• K. and T. v. Finland 2001 
• Grönmark v. Finland 2010 
• Neulinger and Shuruk v. Switzerland 2010

1 June, Case Laboratory
Ukri Soirila presented the following five cases:

• Ternovszky v. Hungary 2010
• Odièvre v. France 2003
• S.H. and Others v. Austria 2011
• Mennesson v. France 2014
• Laskey, Jaggard, and Brown v. UK 1997

8 June, Field Day in the premises of Gallery Huuto, Jätkänsaari

Parrhēsia

The research project Legal Language of Moral Struggles will organize a stream on parrhēsia and the law in the Critical Legal Conference in Canterbury on 1-3 September 2016. Click the picture below to read about it!

The creative heart of legal argumentation

Looking at legal argumentation as a form of social action, we share Neil MacCormick’s basic outlook on the targets of analysis. What we call the key components of a complete legal argument should ...  

... describe norms actually operative within the systems under study.(1)

As actually operative within the system, the said argumentative components are to be understood in a certain distinct way: as vital elements of practice. They  are not norms in the sense of external conditions of action that narrow down its possibilities, say, in the way legal prohibitions and permissions do. Instead, key components are structures internal to practice: they generate action and open up avenues for strategic choices. Insofar as key components are to be designated as 'norms' at all, they are so as structures of a social practice (in our case, structures of the legal practice). They are not legal norms that regulate and frame social practices from the outside. 

The importance of the above distinction needs to be stressed for all it is worth. The more so, as at first glance the idea of  'norms of legal practice' that are not 'legal norms' may sound confusing. Therefore, it should be made as clear as possible. On the one hand, key components are not things that could be written down in laws or decided upon in judgments, but structures of the very language in which laws are written and decisions made. On the other hand, the existence of key components is not automatically sustained by some self-evident order of things, but depends always on individual actions that constantly make use of them. (Similarly as the existence of a natural language depends on the fact that someone continues speaking it.)

Returning to the problem, the complete legal argument, what type of things one may have in mind as its key components? We will set out from the following four extremely simple notions: individual right and general law, on the one hand, and ends and means, on the other hand. Clearly our purpose at this stage is to reduce the complexity to the minimum. These are the most basic notions of the law, on the one hand, and practical reason, on the other hand. I will return later to the specific way in which our research materials resonate with exactly this set of notions. For the time being, it may be understood as a rudimentary sketch of what to look for in legal cases.

Mere description of key components is not our main analytical goal, however. The main goal is a comprehensive turn to what may be called the ‘context of discovery’ of legal arguments. Thus far, jurisprudence has felt itself much more at home in the so-called ‘context of justification’, that is, in the context of ex post assessment of arguments. Arguments are easy to assess once they are given, but what is the mystery behind the art of making them? This is not a new research question, far from it, but it is a forgotten one. 

We believe that the context of discovery may be retraced in the footsteps of Cicero, who placed the invention of arguments in the center. Should we believe this splendid master of judicial oratory, invention of arguments is indeed a different matter from judging on their validity (Topica, II.8). One may say that judging as justification may simply take what is given to it: facts of the case, on the one hand, and legal norms, on the other hand. By contrast, invention is a creative art. According to Cicero, this creative art may be tracked down and even learned by looking for the places (the so-called topoi, ‘regions’) from which arguments at law courts are drawn. Accordingly, one may speak of the topology of legal argumentation beside its grammar.

This way the key components may be understood, not only as elements of a grammar, but also as something like Cicero's argumentative places or topoi. But then, and more importantly, Cicero’s broader vision gives also some deeper sense to our analytical efforts. We would like to view the key components, and the invisible system of their possible connections, as nothing less than the creative heart of legal practice. This heart would have always fed juridical discourse with substance. Moreover, it would have always given legal language a rational structure. Finally, it would have always secured the integrity of the law as one of the most ancient fields of social action. Should we find out where the heart is hidden, we will know the source of its power.

Note

(1) Neil MacCormick, Legal Reasoning and Legal Theory. Oxford: Clarendon Press 1987, p. 13.

Legal argumentation and the ethics of struggle

As a subject of jurisprudence, legal argumentation has always been prone to intimate relations with other fields of enquiry. Aristotle himself arranged for the connections between legal argumentation, practical reason and rhetoric (Eth. Nic. V; Rhet. I.1, 10–15; Top.). Jurisprudence has thrived well on these connections, for long they were appreciated as entirely sufficient. However, the perception cannot be avoided that practical reason and rhetoric are not sufficient any more.

Regrettably, today’s academic research on legal argumentation is increasingly exposed to the danger of insulating itself from the outside world. A vision of the wider worth of one’s investigations has not been secured well enough, not at least in the analytic direction. In any event, argumentation has over the last twenty years lost its former impetus as the major subject of jurisprudence. At the same time, however, nobody questions the importance of the subject and its demand is not waning in the field of practice.

Problems of argumentation may and should be revitalised. This can be done by generating a robust critical dimension to them, which would provide the work of analysis with perspective and final cause. Our initiative is to build this critical dimension on the notion of moral constitution.

What is moral constitution? To begin with, it as a matter of an individual’s relation to oneself. A solid self-relation may protect the individual from the surrounding society, but it is the work of social experience all the same. Confrontation with others and with the impersonal society will constantly put one’s moral self-defences to a test of endurance. At stake is an individual’s idea of oneself that is shaped by and defended in social interaction. What sort of critical support the law may give to individuals going through such moral trials and tribulations?

On the analytical side, legal argumentation may be modelled on structural linguistics. This allows posing the following type of questions: What are the key components that make up a complete package of legal speech? Which of these components may and may not go together in particular cases? In the background of these questions is Ferdinand de Saussure and his famous langue/parole distinction: language is an underlying grammatical structure that is ‘executed’ in the individual acts of speech.

Manifestations of legal argumentation – acts of legal speech, expressions of good justifying reasons – may be seen as execution of underlying structure. At the level of structure, a set of key components may be individuated and a system of their relationships exposed. But this is not all. Drawing on Noam Chomsky’s generative grammar, one may set out from a counterintuitive postulation: abiding by norms is not what the law is about, like it is not what speaking a language is about. Instead of putting reins on action, the underlying legal grammar generates social action – like linguistic grammar generates speech – by setting up a reservoir of ‘finite means’ that actors may arrange for ‘infinite uses’.

Yet language is not a mere means in the hands of its speakers, but a social fact to which people will have to adapt. Moreover, the assertion that language exerts formative power on human individuals needs to be taken seriously. Drawing on Emile Benveniste on this score, we may even say that ‘it is in and through language that man constitutes himself as a subject’. This last point about subject-constituting language brings us back to the critical dimension: the moral constitution.

The idea that language somehow constitutes the subject makes a connection between the critical and the analytical sides of researching legal argumentation. This is no novelty, in fact the idea is very old. It, too, may be ascribed to Aristotle. For him, what makes human beings (distinct from animals) is language, notably the language by which we are capable of judging between the good and the bad, the advantageous and the detrimental, and the right and the wrong (Pol. I.2 12353a10–17). Remarkably, one of these functions points to legal language, the language of the right and wrong.

Taking our cue from Aristotle at that point, the problem of moral constitution may be addressed: What are the effects of legal language on the moral constitution of individuals? Two additional questions put some flesh on the problem: How far is the formative power of legal language based on external force and pure threat of violence? Conversely, how far this power can work properly only as an internal force through the mindset it inculcates in individuals?

Many of the ways in which human subjects are moulded by social powers work through the legal language. That language functions as a mould for those powers, but also as a mould for human subjects. However, the psychic effect of this language is not only subjection to power, but also certain type of ethics that results from subjection. This ethics is inherent to social existence, one may call it the ‘ethics of struggle’. The task will be to investigate legal argumentation in that context.

Legal Language of Moral Struggles 2016-2018

From 2016 onwards, the Right and Wrong group has transformed into reserch project Legal Language of Moral Struggle. The grant was given by the University of Helsinki Funds for three years. The group is grateful! Information of its past and future activities will be given in this blog.