Chris Dent

The trickster is a mythic figure that features in cultures from around the world. While better-known examples of the figures are evident in non-Western cultures, the argument here is that many features of the law match those of the trickster – particularly those of Hermes. The law is an immortal mortal, an enchanter and disenchanter, and a shapeshifting bricoleur. The law, then is shown to have a liminal role, interceding between “Justice” and humanity. This, in turn, raises questions about our role as legal academics. We are also liminal – holding no obligation toward law, justice or humanity. Our role as “priests” is to offer words as sacrifices, words that may scold, laugh at, or support the immature trickster law.

The challenge to humanity posed by climate change is on a different scale to that of mere “crisis”. Global warming may be in the form of physical feedback from the rise in anthropogenic greenhouse gases, however, the larger impediment to effective reforms is embedded within the systems of governance. The adoption of a Foucauldian perspective demonstrates that governmentality’s target of the “population”, and its reliance on “political economy”, means that humanity (both present and future) will always be privileged over the environment. Because governmentality constitutes individuals, as well as institutions, and because there is an inertia to all practices of (self-governance), there appears to be no way forward with respect to saving the environment for its own sake.

The nineteenth century saw the introduction of at least 20 registers into English statutory law. These were used as techniques of governance, in a Foucauldian sense, and they reflect the shifts in the changing relationship between individuals and the state at the time. The registers include the better-known systems for voters, births, companies and some professions. Less well-known registers were introduced for industrial property, coalwhippers and for deserters from ships. Deploying the idea of governmentality allows the registers to be seen in terms of the externalisation of aspects of governance, the facilitation of the internalisation of specific practices by those who sought registration and, to a lesser extent, by the competitors of those who sought registration. As such, their introduction represents a move away from the pre-existing juridical mode of governance.

The persistence of the road toll suggests that a new perspective may be of value – either to consider new insights to reduce it, or to allow a greater acceptance of the relatively limited number of deaths. The theories of Michel Foucault offer an avenue to both. Applying his version of ‘problematisation’ emphasises the fact that the key driver for the regulation of road behaviour is economic – allowing the efficient transit of individuals and goods from one place to another – rather than safety. This view suggests that his understanding of ‘thanatopolitics’ applies; in that a number of deaths are ‘allowed’ to happen in order for the rest of the ‘population’ to live (better). Conversely, Foucault’s deployment of internalised ‘norms’ as the dominant form of self-regulation raises the possibility that the internalised lives of road users, their thoughts, are similarly driven by their economic (and social) relationships. These offer distractions that impact on their engagement with the road and their risk assessment decisions. The inability of the State to discipline thoughts, as a result, limits its capacity to reduce the road toll.

Science fiction rarely describes a future law that is significantly different from that of the late twentieth century. This is not surprising, given that a key challenge to imagining a different law is the lack of understanding of where the law has come from. The rate of change in society is increasing, and the same could be said for legal processes and rules. Given the shifts in law and culture since the nineteenth century and even those throughout the twentieth, predicting how the law will operate in even two generations’ time is fraught with difficulty. This chapter does three things to engage with the issue. First, it considers the changes in the ‘source’ and ‘subject’ of law from the medieval period to now. Every aspect of law has been subject to change over the centuries. The role of the individual in society is also changing; there should be little doubt that law's engagement with the individual will also change. The law now and the law of science fiction focus on the classic liberal model that was formed in the nineteenth century. This will be demonstrated in the second aspect of the chapter – an overview of key science fiction movies released since the 1990s. This shows how current portrayals of law in the genre are founded on liberal assumptions. Finally, there will be a brief exploration of the possibilities for future change – based partly on the already evident challenges to governance, and the understanding of the individual, presented by the digital sphere.

The nineteenth century saw significant changes in how the law articulated the assessment of those who came before the courts. The judges made greater, and more refined, use of the concept of the mind as a way to refer to the internal lives of the parties. Using a Foucauldian lens, judgments from the sub-disciplines of criminal, succession and contract law will be assessed. Two specific aspects will be considered—the manner in which the law disciplined the subjects themselves and the manner in which the profession operated as a form of externalised governance. This deployment of the term “mind” used by the judges conforms with the idea that the law was taking on a new role in the governance of English society while emphasising specific tensions within each area.

Workplace deaths occur as a result of decisions made by a range of parties — employers, employees and the victim. These decisions can be seen to form the basis of regulatory efforts. This research proposes a categorisation of the decisions in terms of their timeframes — long-term, short-term and emergency — as well as non-decisions. The decisions will be explored through the use of decision-making theory, an engagement with the ‘agency-systems’ dichotomy, the conflict between the underlying policies of safety, efficiency and devolved decision-making, as well the concept of ‘resilience engineering’. By way of contrast, there will be reference to the regulation of iatrogenic deaths to further probe the value of the approach. The outcome is a call for a focus on the regulation of decisions, and a step away from the traditional focus on fatalities as outcomes.

Miyamoto Musashi was a master Japanese swordsman. His text, the Book of Five Rings, sets out his philosophy on combat and the way of the warrior. This article takes his teachings and applies them to art of trial advocacy. The Five Scrolls of Musashi’s text allow for an engagement with the fundamental importance of preparation, the effective deployment of law and fact, awareness and professional ethics. The connections are made through the use of current experts in advocacy, including Glissan and Hampel. The use of techniques involving katana is, of course, only a metaphor – one aimed at getting law students to think of trials in a more life-or-death way. Advocacy is not the showiness of TV, but the hard grind of training and preparation that was the life of a ronin.

There are challenges to teaching law and legal theory to law students in the new millennium. It is a digital world, and the assumptions and foundations of the law do not mesh well with the shifts in identities and communities that are now in evidence. The idea of our universe being a simulation can be used as a metaphor to engage with digital natives about the fundamental uncertainty in the relationship between the law and the individual. The law and the legal theories of even the twentieth century do not suit the fluidity of today's youth. Considering the metaphor of a simulated reality offers a 'hook' for conversations around 'proper conduct' across multiple communities of identity. It is not Truth, as it all may be simulated; instead, the necessary uncertainty around the possibility allows challenges and acceptances without the need for harsh Enlightenment.