Issues of Fact: the Pathologies of Fact and the Fictitious in Law and
the Humanities
A three-day conference organized by Jeanne Gaakeer and
Frans-Willem Korsten
To be held September 24-26, 2015
Erasmus School of Law & Erasmus School of History,
Culture and Communication – Leiden University Centre for the Arts in Society
Deadline application: a proposal of max. 300 words should be sent to issuesoffact@gmail.com before June 21st,
2015.
Introduction
Truth in law is not written in stone. In
all legal systems, actors submit their findings and views on what is to
constitute that all-important category called “the facts”, in order to have
judgment. What, then, in that process, is “fact” and what is “ficticious”, and
how do we “know”? These basic questions draw the attention to both etymology
and epistemology: fact as the act of “facere”, the act of giving something a
recognizable form is that is in itself a also mode of fiction, a “making up”,
in literary narratives as well as, historically, when it comes to postulates of
science. To Giambattista Vico, for
example, any scientific endeavor is equivalent to knowledge of the way in which
things came into being. If we have a strong belief in, and thorough
acquaintance with a factum as a
man-made thing, then on this
precondition and presupposition we are able to reach a verum, cognition of a truth.
So much is obvious, stating the facts in law is
advancing a claim of (referential) truthfulness: “This is what happened” .This means that jurists should bear in mind the
influence of their own interpretive frameworks and unconscious choices or
preferences on both fact and norm. What is more, ascertaining the facts in the
sense of the selection of what may be looked upon as relevant legal facts is always done literally ex post facto. That too provides a good reason for more research on
how a number of facts “out there” come to be regarded as a string of causally
connected events with consequences as far as imputation and accountability are
concerned, and what factors are influential in the process of the construction
and re-construction of (legal) reality. This is acute because the way in which the facts of a case are narrated
determines to a large part the outcome of that case.The flipside of the meaning of fiction as noted
above is the fictitious, as the act of
pretending, and even willfully deceiving in order to produce a false belief. In
the context of law, it leads to injustice, given the reciprocal relation
between fact and legal norm, i.e. the always combined effort in law of the perception and assessment of the facts against
the background of what the legal norm (including the academic propositions made
for it) means.
From the very start of law as we know it, people have
tried to meddle with the (meaning of) facts in court cases, - think of the god
Apollo in Aeschylus’ Oresteia -,
precisely because trials were aimed first and foremost at establishing the
facts of what had happened (or what might
have happened, in Aristotelian terms) and what that meant. In other words,
narrative plays a role in the forensic statement of fact, the narration. Enter
fiction, with the danger of the fictitious.
It appears that in the contemporary situation the
questions after ‘factuality’ are acute because the powers of the so-called
‘triers of fact’ are confronted with, and perhaps lag behind with, the growing
powers of those who benefit from the specific construction, deliberate
deceitful fabrications included, of the
facts. The problems involved have been dealt with in many forms of art:
literature, theatre, film, the visual arts, participatory forms of art and so
on. This conference wants to read how works of art have been dealing with the
contemporary issue of factuality in the juridical domain, i.e. to place the
factual-fictional distinction in a wider context than that of the original
domain.
Five aspects of the matter
The first aspect of factuality concerns the rapid
growth and growing complexity of scientific possibilities in establishing the
truth of the matter. We would like to consider how works of art have reflected
on the ways in which, on the hand, new techniques and technologies have allowed
prosecutors, judges and lawyers alike to
make their case on the basis of facts that would have been irretrievable in
former circumstances. Yet the flipside is
that the officials working in court often miss the basic expertise to
assess the validity of the facts being handed to them. So, for every prisoner
being freed after a miscarriage of justice on the basis of results procured by
new dna-technologies, there are also cases of miscarriage of justice precisely
because scientifically produced facts were either read in the wrong way or did
not prove to be that factual. For judges, for example,
who are unaccustomed to the specifics of a discipline other than their own, it
can therefore be most helpful to gain insight in the way other forms of
cognition function. This brings us back to the epistemological debate about the
facts and the concept of cognition and knowledge, and reminds us of the
distinction, problematic as legal practice shows, between the factum probandum, the fact which is the
subject of proof and the factum probans,
the fact from the existence of which that of the factum probandum is inferred. Put differently, is there a chain of
circumstance “out there” or does (some)one carefully fit together the facts and
evidence, and the other established facts and so on and so forth?
The second
aspect of factuality concerns the societal respect for the court’s
prerogative to establish the facts. Many works of art have been focusing on the
problem that in a growing number of cases people have been declared guilty in
the context of a ‘society of the spectacle’, or ‘trial by (social) media’ that
thrives on the dynamic of opposing parties that pick their favorite and already
appear to know beforehand what the facts of the matter ‘really’ are. For
example, in many societies people
suspected of pedophilia are no longer able to live their own lives
safely. Or there may be controversial cases that have become the subject of a
society’s spectacle as a result of which the judicial outcome of the case will always lead to a
disqualification of the court (or the legal system) by one of the societal
parties involved. What happened to the respect for facts in the society of the
spectacle?
The third aspect of factuality concerns the growing
intertwinement of forms of subjectivity and agency that used to be clearly
distinguishable in previous times. A worker handling a machine could be held
responsible for using it rightly or wrongly, intentionally or not, because it
would be a matter of fact who was doing what. Yet the issue of “who” is it that
acts has become acute , for instance, in cases that robots (like cars) have
become entities that can make assessments on their own, and decide ‘on their
own’, or in the case of devices, as yet a fantasy but a serious one in ambient
intelligence, such as ‘Digital-Me’, a personal assistant that impersonates its
owner and takes his decisions independently. Here questions of personhood and
legal personality come in. A comparable problem concerns the conflation of the
machinic with the human, or of animals that are produced technologically. The question is not so much what all these
new forms of bodies can do. The question is: what are they, as a matter of
fact? Which works of art have been doing research in this domain, and how did they
do it? The paradigm shift in scientific thought that technological advancements
have brought about has not yet been fully understood in and by law. New
technologies are as yet ‘undecided’ since they are ‘undecidable’ from a legal
point of view. As Charles Taylor already in 1991 urged us to do, it is time to
reconsider the primacy of instrumental reason in modernity. So one question we
have to ask is whether we dominate technology or technology dominates us, given
the risk that instrumental reason becomes framed in a project of domination that
seriously affects our freedom in the sense of our capacity to remake the
conditions of our existence.
The fourth
aspect of factuality that we want to address concerns the inequality of arms
and/or imbalance of power between the so-called ‘triers of fact’ and those who
aim at fabricating or manipulating the facts. We think here of works of art
that focus on different variants of so-called ‘grey zones’ in which things
happen that are often impossible to reconstruct on the basis of facts. Secret services
may be operative that willfully produce and use grey zones in order to have the
ability to act without leaving clear traces. Another example would be all those
circumstances where political, juridical, and criminal forces have become
intertwined as a result of which the very idea of a system of adjudication, let
alone one under the rule of law, has
become so perverted that its principal aim of establishing the facts has become
non-existent. A third example would be all those cases where powerful organizations
are at work in, and with circumstances in which other actors do not have the
financial resources to get the proper legal expertise that would be required to
test the facts of the matter, on the view that the fact section of a narrative
before a court of law decides the case. A fourth example would be new forms of
warfare that might be war crimes but that are hard to assess as such because of
missing or basically blurred evidence.
Finally, the overarching question at the meta-level is
how to think of a critical response to the current malleability of facts. One
specific historical irony, here, may concern the way in which pivotal building
blocks of post-structuralism and deconstruction (leading to the so-called
establishment of ‘critical legal studies’) have been incorporated by forces of
the opposition. The major target of criticism for post-structuralism and
deconstruction was the state’s power to ‘make truth’, with the ideologies
underpinning it, and in response these approaches focused on the malleability
of facts. To read this as a support for principal relativism would be simply
wrong. Post-structuralism and deconstruction wanted to break the power grab by
ideologies or states as for their ability to define what was fact and what was
not. The contemporary situation appears to be far more that the malleability of
fact has become part and parcel of an ideology’s or state’s ability to remain
in power. So, should we rethink the philosophies underpinning the malleability
of facts entirely anew, or should we reframe the critical project of
poststructuralism and deconstruction in order to revitalize them? To return to our
opening statement, this question is especially acute if we consider the ways in which
“facts” have their place in law, but, more importantly, if we reconsider the question whether facts
can be thought of as “objects”, or “the way things are” without considering the
cognitive burdens of their disciplinary, conceptual frameworks and underlying
assumptions.
Call for papers
We invite contributions from scholars who are working
in the interdisciplinary domains of Literature and Law and, more broadly, Law
and Humanities in order to include other (interdisciplinary) fields, such as
philosophy, law and theatre studies, law and film studies, cultural legal
studies, and law and technology.
We invite contributions on one or more of the
following aspects of the matter on the basis of the following questions:
a.) Has the establishment of facts become a matter of
scientific expertise that, in some sense, lies beyond the horizon of cognition
and control of those judging the case?
b.)
Does the court
of law’s prerogative to establish the facts still get the respect it once had
in a ‘society of the spectacle’, engendered by modern (social) media that pit
parties against one another and declare people to be guilty before they have
had the ability to defend themselves in a court of law?
c.)
Has the
establishment of fact become a matter of juridico-political-societal concern
because formerly distinguished and accepted forms of subjectivity have now
become mixed or blurred due to recent developments in technology?
d.)
Have the powers
of those who manipulate or fabricate facts
grown stronger so that in a growing number of cases, legal and
otherwise, the very establishment of what happened has become almost impossible?
e.) What would be the philosophical or strategic
requirements for a critical response to our contemporary perceptions of the
malleability of facts?
We intend to
publish the outcome of the conference and will therefore be working with texts
of 3000-5000 words (notes excluded) being sent in beforehand, if your proposal
is selected. We envision an event where not so much academic presentations, but
discussion or dialogue is primary, so selection will be based on the quality of
the proposal to bring in new perspectives or provoke discussion.
