This third annual Law and Humanities roundtable features four original, interdisciplinary, and humanities-focused paper presentations that reflect on the theme of change – both in terms of legal change that impacts on society and culture, and changes in society and culture that can lead to new directions for law. The event will consider questions such as how change comes about, what determines its pace and direction, how we judge its significance and desirability, and its capacity to inspire hope, create opportunity and induce shock or dread. How can humanities scholarship on law make sense of the notion of change at whatever scale we examine it?

Paper presentations:

Kamil Zeidler and Aleksandra Szydzik (Faculty of Law and Administration, University of Gdańsk), Aesthetics of Law: Does the Beauty of Law Play any Role During Times of Pandemic?

Dorothea Endres (Graduate Institute, Geneva), Norm-knitting

Lorna Cameron (The School of Architecture & Design, University of Lincoln), Change, Opportunity, and Court Systems: Exploring Access, Architecture, and Aspirations in a Post Covid-19 Future

Guilherme Vasconcelos Vilaça (Instituto Tecnológico Autónomo de México), The Role of Myth in Legal Change

This roundtable event is organised in association with the journal Law and Humanities – and its publisher (Routledge/Taylor & Francis). Informal questions about the event can be directed to David Gurnham (School of Law, University of Southampton, and co-Editor of the journal - d.gurnham@soton.ac.uk).

The event will be held online, using Microsoft Teams (meeting link & joining instructions will be sent to all registered participants nearer the time).

Abstracts

Kamil Zeidler and Aleksandra Szydzik (Faculty of Law and Administration, University of Gdańsk), Aesthetics of Law: Does the Beauty of Law Play any Role During Times of Pandemic?

In the 14th century a pandemic of bubonic plague, later known as the Black Death, swept through Europe, killing millions of people and heralding the twilight of the Middle Ages. In Italy, however, the Black Death not only marked the end of an era, but it also happened to usher in a change that opened doors for the Renaissance – the most beautiful of epochs for art, architecture and literature in human history.

Bearing in mind past experience, a reflection on COVID-19 pandemic and its impact on various areas of life can be also considered on the grounds of law, in reference to the category of its beauty and ugliness. Thus, it should be questioned what beauty has to do with law and how the times of pandemic affect it.

The answer to this question must be given from the perspective of the fifth branch of the philosophy of law – the aesthetics of law. It turns out that aesthetic aspects of law may have practical significance in all of its five phenomena, that is: creating, binding, observing, applying and interpreting.

In times of a pandemic, particular importance should be attached to the aesthetics of legislation, which concerns beauty in terms of lawmaking. Currently, the COVID-19 pandemic has resulted in a multiplication of legal provisions. The law is ill-conceived, short-sighted and enacted in a rush, becoming a misused tool of crisis management. These circumstances have a direct impact on its quality, effectiveness, and certainty Therefore, in these unpredictable times, the requirement that a law should also be beautiful acquires particular importance. The classic demands vis-à-vis the law, understood as lex, come down to those that it be: certa (sure), scripta (written), stricta (exact), praevia (anterior) and finally pulchra (beautiful). However, a deeper analysis leads to the conclusion that the requirement of beauty prevails over other features, in the sense that it conditions them. Only certain, written, exact law can be beautiful, which particularly confirms the case of Poland as it moves away from liberal democracy in a break that is even more noticeable in times of a pandemic.

Dorothea Endres (Graduate Institute, Geneva), Norm-knitting

Understanding law as a continuous process with circular and interacting phases of selection, construction and reception makes it possible to account for the variety of actors and resources implicated in the process incrementally changing a norm of international law. This process can be visualized in analogy to knitting:

One can start the knitting project with one needle, but to actually construct anything, more than one needle is necessary: at least two actors need to collaborate and build upon each other’s work. If those two actors neatly agree upon the pattern to be knitted, the resulting sheet may be uniform and dense, able to cover all situations it is intended for. However, it is not that easy to knit in exactly the same pace and pattern. The constructed law may not fit perfectly all situations it is intended for, because the different actors may have had different patterns in their head. Also, sometimes, the wool is held too tightly, and the net becomes too dense; sometimes the wool is held too loosely, and the net will have holes.

The process is of course further complicated, when more needles are introduced, even if maybe not necessary, or if there are less needles available than actually needed. Then, for instance, one cannot knit a sock, but has to knit a blanket which can also cover feet, but will never work as well as socks. So, it may not be possible to actually make the convention intended because too many actors are unwilling or un-interested or unable to participate. In that case, a guidance endorsed by the actor most interested in the legal change may be issued. For instance, in his reports, the special rapporteur on human rights and environment knits together all sorts of sources that advance support for a human right to a healthy environment and does not take up the resources that contest such right.

With this visualization in mind, we can think of paths of change as continuously intermingling and building upon each other: international law is generally knitted with different colours of wool, each colour representing one path of change. The needles are held by actors varying in shape and numbers.

Unsurprisingly, the constructed norms are seldom perfect, and even more seldom entirely covering what they were intended for. For instance, the OHCHR may be quite successful in knitting a new human right to a healthy environment. The blanket may however be knit so widely that the actual human rights issues will never be caught in what is more a net than a blanket. Nevertheless, the process of change never stops, and actors continuously keep knitting on the project of international law.

In sum, this paper aims at providing an innovative analytical tool that makes it possible to demonstrate the variety in ‘successful’ change of a given norm in international law in response to specific challenges the actors face.

Lorna Cameron (The School of Architecture & Design, University of Lincoln), Change, Opportunity, and Court Systems: Exploring Access, Architecture, and Aspirations in a Post Covid-19 Future

This presentation explores how design processes were used to inform intervention strategies applied to the Criminal Courts in the Nightingale Courts Report in May 2020 during the Covid-19 pandemic. I will address the effects of changing design on access to justice through the criminal courts of England & Wales (EW); the impact of remote access technology on the cultural heritage of the rule of law; and, the design and resilience of future criminal courts.

Covid-19 is creating change in how we experience and engage with criminal justice systems. Recent cost-cutting reforms aim to provide greater access in the online context but will result inevitably in less access to a physical court. Based on the idea that the adoption of new technologies can allow remote access, and provide a cheaper alternative to physical court buildings, there is discussion on the possibility of entirely virtual criminal courts.

Detractors say that Court reform has been destroying the tangible cultural heritage of the ‘rule of law’, as it systematically closes and sells off the courthouses of EW. Proponents claim that the process of replacing with a new system based on internet access through virtual, online and AI technologies will generate greater access for all. Whilst there is potential for adverse effects on access to justice, to public perceptions of justice, and the rule of law, the extent to which this is either detrimental or beneficial has only barely begun to be assessed through research.

Research through design allows courts to be analysed as architectural spaces, tangible artefacts, created to give effect to the presence of justice and the rule of law. In this case, design as research has allowed resolutions to problems to access to justice posed by the pandemic in the courts to be trialled through the implementation of the Nightingale Courts Report.

Guilherme Vasconcelos Vilaça (Instituto Tecnológico Autónomo de México), The Role of Myth in Legal Change

In this article, I first draw a distinction between surface-level and deep change in law. Surface-level change in law is studied by describing and analyzing the emergence of different cultural and legal objects and signs such as new laws, values, social movements, actors, and discourses. Deep change in law, however, concerns the shifting position and role of law in society that may well remain undisturbed even in the face of highly disruptive events. Based on this distinction, I then make three claims: (i) deep change in law requires examining its living foundational myth; (ii) this task requires the resources of humanities; and, (iii) if we wish to trigger deep change in contemporary law we need to upset its mythological foundations.

To illustrate my approach, I focus on Covid-19, which has been unanimously interpreted as having destabilized and challenged existing legal and social arrangements: from lifestyles and forms of economic activity to the nature of governmental legal intervention, experts’ authority, and citizens’ sphere of choice. Normative evaluations followed with authors taking sides seeing the event as either a precious opportunity to reconsider the canons of social life or the proof needed to rehabilitate the role of hard law and politics. While the description and evaluation above carry some weight, I believe instead that the produced and foreseeable changes in law remain at the surface-level – they do not shake the function of law. This is because, I claim, of the underlying mythology of contemporary law that sees it as a living being that ought to and can engulf social life – the Ouroboros – even in the absence of extraordinary events like Covid-19. In that way, cultural, social, and legal changes can be captured by law itself, preventing the materialization of the expectations some associate to those surface-level changes.