Below is the program, speakers and a text describing the rationale for a workshop held in Edinburgh on Friday 6 March 2009.

Photo from the experiential workshop (December 2008) by Alicja Rogalska (c).

11.00 - 11.10: Introduction, Zenon Bankowski and Maksymilian Del Mar

11.10 - 12.00: Julian Henriques, ‘Ways of Knowing’, excerpt from Sonic Bodies, Sound Systems and Bass Culture

12.00 - 12.50: Andy Clark, ‘Connectionism, Moral Cognition and Collaborative Problem Solving’

12.50 - 1.30: Lunch break

1.30 - 2.20: Harvie Ferguson, ‘Embodied Disembodiment: Contemporary Corporeality’ excerpt from Self-Identity and Everyday Life

2.20 - 3.00: Burkhard Schafer, 'Touched by the Strength of your Argument - Towards a Multi-Sensory Jurisprudence'

The workshop was held in Room M3 in Appleton Tower, University of Edinburgh. Room M3 is located on the 1st Floor of Appleton Tower (next to the lift).

The lunch was held at the Common Room of the Law School.

Julian Henriques convenes the MA Script Writing Programme at the Department of Media and Communications, Goldsmiths, University of London.

Andy Clark holds the Chair in Logic and Metaphysics in the Philosophy Department, University of Edinburgh.

Harvie Ferguson is Professor of Sociology, University of Glasgow.

Burkhard Schafer is Senior Lecturer in Computational Legal Theory, School of Law, University of Edinburgh.

When people view art objects in galleries, too often they rely on textual explanation, looking for the text in the catalogue to explain it and not letting the object explain itself. Some curators try to get people to engage the art object without text, to use their imagination to let the object speak to them and not be subsumed by the text. Lawyers face an analogous situation when they encounter events that need decision; too often they look to the text and do not experience the particularity of the situation by letting it speak for itself.

For law is a text-based discipline. That is both its strength and its weakness. It is its strength in that it enables decisions to be transparent and constrained by the text; it is its weakness in that decisions tend to be dominated by text, and situations are shoehorned into the text with stultifying results. The answer is always sought within the text, viewing the situations law encounters through the optic of the text and thus manipulating them rather than transforming them, and not letting the situation speak to the text and the law.

In A Common Humanity: Thinking about Love & Truth & Justice, Raimond Gaita gives us a striking image. He talks of a nun he encountered while working as a student in a mental home. There, as was common in those days, the inmates were treated by the majority of the staff like animals. He and some of the staff tried to treat them, as he hoped, like human beings. But the nun, by the quality of her interaction with the inmates, put them all to shame. A large part of Gaita’s fine book is devoted to seeking to understand the meaning and significance of this encounter and interaction, the quality of what he sees as the nun’s love.

Kant, he says, would deny that this is something upon which one can base an ethic and, of course, he would be right in that you cannot operationalise an ethical and institutional life by making us all like that nun. Why, however, he goes on, would we want to build societies that care and enable us to live together in peace and justice unless we were touched with something of what that nun had? We cannot all be like that and we cannot base a society on our all being so. But the nun and others like her are what we might think of as secular saints; they provide us with models and visions of why we should work to build such a society; they make us see because they make, in Simone Weil’s words, the invisible visible.

How does this nun and her encounters relate to our brief description of our project? Our project is about a particular ethical view of the institution of law; it aims to promote the ethical imagination needed at the moment when law and lawyers encounter these sorts of situations, and when they reach the limits of the text. This is obviously both practically and theoretically contentious.

Our project aims to get lawyers to ‘live the life of the law’ in a fuller way, something first adumbrated by Lon Fuller. There is a view of what the ethical life of the law might be, one that is based on interactivity and not a top-down management of society. Here we do not think of law as a regrettable necessity, something we have to have because of the defects we have in the state of nature (as in the classical liberal story). In that case, our sense of the ethical life of such institutions would be somewhat different than if we had a more positive view of it (as we do) as something that is geared to realising a common good within a human community, while guarding against tendencies to do each other harm (a view akin to that contemporarily put forward by John Finnis (among others)).

In the pre-experiential workshop, held in November 2008, we explored the above through legal theory, moral philosophy and theology, looking at the meaning and significance of that ineffable encounter; how that might connect law with the ethics of encounter, and with the experience of empathy and vulnerability. We looked at how law is linked and generated in that crucible and its connection with love of which Gaita speaks.

We also looked at modes of institutional transmission. For Gaita this was mainly through the models that his ‘secular saints’ gave us. We wanted to go further and explore the ways in which we could provide means of helping people to experience and learn at least part of what it means to act like that themselves. Thus the second part of the project was to hold these experiential workshops to see how one might construct ways of developing this way of seeing and connecting in lawyers. The curator in our example wanted visitors to develop the sensitivity to experience the art objects not via text but through other means. We aimed, in workshops lead by artists, dancers and curators (in December 2008), to develop non-textually the skills that will enable lawyers to experience the vulnerability of the situation and allow it to speak and help them move beyond the law by transforming it, but not destroying it.

In the upcoming workshop on Understanding Transformation, we want to look at the physical and other processes that are involved here. Part of what we are arguing is that what is important is the process of what Weil calls attention:

Attention consists of suspending our thought, leaving it detached, empty, and ready to be penetrated by the object; it means holding our minds within reach of this thought.

Weil applies this to education where she says that students should ‘pay attention’ and be attentive and not immediately try to grasp what is said but let it ‘come to them’. One can see how this might transfer to judges and lawyers who should not try to grasp the situation textually immediately lest they miss what is being said to them. Importantly, though it has the obvious connotations of waiting, it is not merely passive but also something active, of paying attention to, of caring for. If we let it speak to us in this way, we might be able to let what we might think of as the internal logic of the situation come to us; we will have what Karl Llewellyn calls ‘the situation sense’ to grasp that and not impose it and then use appropriate rules to deal with it. For Weil, importantly, and for us, attention is also the ability to hear and receive what people are saying when they are in extremis:

Those who are unhappy have no need for anything in the world but people capable of giving them their attention.

We can see the idea of patterns coming into this, but we want to move beyond just the cognitive activity of pattern matching to talk of embodied patterns. Think of a technique common in dance classes. The participants walk ever faster in the room all the time trying not to get in each other’s way. What they are learning to do, sometimes at a subconscious level, is to negotiate their space with someone else’s space. But one can also see this as a way of learning some form of liberalism; how I can accommodate my desires and values with those of others. Only here, I do not learn it through my mind, so to speak, but I learn it through the body.

Let us take with an analogy. What makes a good footballer is not just the skills that she has but also the ability to locate herself in time and space. What that means is that if you were to stop a game and blindfold her, she would be able to tell you where she was in relation to the rest of the players. And this is not only at the particular time, but also where the positions were before she was stopped and where the positions might be at some time in the future. What she is able to do is to see the game as an ever-changing diachronic matrix and everyone’s respective place in it. One might also see morality as something like this, about seeing connections in the never-ending dance of life, but not just synchronically but also diachronically as an ever changing matrix.

We can see how law can typically be said to work in this way. Thus Donoghue v Stevenson, the case that founds the Law of Negligence in the UK, arises from a connection that was never seen before. Someone gets sick from drinking Ginger Beer contaminated by a slug. The obvious connection is between that person and the vendor who are contractually connected. But another connection is seen that between the drinker and the manufacturer who is held to be liable in negligence. But this does not have to be necessarily conservative in the sense of seeing what is already there – for we might think of it also as seeing the possibility of connection and thus both seeing and creating it.

An apt illustration here would be the parable of the Good Samaritan; apt because the judges quote it in this case in looking at the connection, in asking the question, ‘Who is thy Neighbour?’ Christ is not saying in that parable that the definition of neighbour is wider than was thought. He is saying that in treating someone as your Neighbour you make him one. The parable is, as Peter Winch says, a performative as well as a descriptive act. In the upcoming workshop on Understanding Transformation we want to focus on this perfomative sense not only as something to do with speech acts, but also as something to do with the body and how physical actions are implicated in this.