This chapter reflects on Chilean extracontractual liability between commercial competitors for pure economic loss from an English viewpoint. It shows that while the principles and rules contained in the Chilean Civil Code (1855) were not developed by litigation in this area, there were hundreds of cases and court decisions in the years following the enactment of the Unfair Competition Act 2007. Although the case law under the Unfair Competition Act 2007 lacks the degree of originality and depth peculiar to the common law, the specific construction of the 2007 Unfair Competition Act by the Chilean courts is illuminated by a comparison with the English approach to this topic.

John Bell’s work consistently interrogates why legal systems are the way that they are. French legal cultures drew out the importance of understanding a system’s legal culture(s). In a joint project with David Ibbetson, European Legal Development, a broader methodology and programme for comparative legal analysis emerged. Their focus was twofold: to shift analysis from legal rules towards their direction of travel over time and, crucially, to provide insight into the specific factors, perhaps distinct between systems, that accounted for a given national narrative. In this chapter, using a core problem in medical liability, an Anglo-Germanic case study of Bell and Ibbetson’s methodology is provided. First, the German system, which Bell and Ibbetson did not consider in relation to medical liability is examined. Second, through a reassessment of key English sources, a plausible alternative to their suggested narrative of homogenous development is constructed. Finally, their assumptions about the relationship between legal and social change and identify key questions for future applications are reflected on.

All news is fake news, because all reports are to some extent ‘made up’ by the time they are received by a mediated consumer distanced from the original source. ‘Fake’, from the Latin facere (to make, to do), is a member of the family of making words that includes fact, factory, fashion, artificial, and face. It is ironic that the standard test for whether news is ‘fake’ is to subject it to ‘fact-checking’. Facts themselves are things – artefacts – that we make through artificial processes of Creation and Production. Any ‘fact’ deserving of the name is something established by some process involving human skill and judgment. What matters is not whether news or facts are made up – they always are – but how they are made up and what relation there is between the thing at source and the thing as made up for public reception. Public reception also plays its part in the broadcast of fake news. We therefore need to think in terms of ‘receiver responsibility’, from the case of the journalist who receives the factual grain of a promising story to the editor who publishes journalists’ copy to the online user who re-tweets a tweet.

‘Cancel culture’ is a new variant of an old phenomenon. The growth or spread that we associate with the contagion of cancellation has ‘making’ at its heart. The initial judgment plants the germ in Inventive mode. Causing the judgment to increase in consequence and extent makes it grow in Creative mode. Giving the judgment the air of publicity makes something new of it in Productive and co-Productive mode. Making a mistake triggers a whole series of making processes, and our language reflects this. The dominance of ‘making’ language in relation to individual errors and collective responses to those errors indicates that in social contexts an individual’s fracture of the social fabric is more than made up for by the fabricating impulses of society at large. The clustering of criticism operates in this sense almost like the cells of a body that rush to heal cuts in skin and breakages of bone – sometimes leaving the re-created tissue stronger than it was to begin with. On the other hand, where judgments are made hypocritically, too quickly, or with an inadequate grasp of the materials, the Product can be as shoddy as the original infraction.

The products of Artefaction are not just made things but making things. Included in this class are tangible things with a capacity for rhetorical performance – for example a statue or a flag – as well as intangible things, of which the preeminent example is the word. Where words combine in sentences and in speech, they can attain monumental status and influence. Contemplating Edmund Burke’s Reflections on the Revolution in France, in which Burke argued that a word like ‘freedom’ is only as good as the use to which it is put, Richard Dawson observes that for Burke, words are ‘evolving cultural artefacts that shape us and are shaped by us as we use them’. This serves as an excellent definition of the Making Sense informing the term ‘Artefaction’ as it is used in this chapter, as does James Boyd White’s idea (as summarized by Dawson) that language is ‘an evolving cultural artefact for making and remaking ourselves and our world – the real world’. In defence of ‘underwater basket weaving’, this chapter turns to material culture to consider the relationship between the weaving of words and such handcrafts as the weaving of baskets.

The activity of professional agencies, especially those within the legal system, as they participate in the co-Creation and co-Production of a trans individual’s new legal persona is the main focus of this chapter. Yet for all the talk of change and transition associated with transgender identity, the more common account given by transgender people themselves is one of coming to live as the person they have always been. This process of ‘coming to live as’ is in part transformative, but it is also in part confirmatory. The confirmatory character of the trans person’s process of transition can be regarded as being in two key senses a process of making a new social persona. The first sense is making in terms of personal development or growth. According to the definitions set out in earlier chapters, this is making in the sense of Creation. The second sense is making in terms of presenting or performing the new persona in society before the scrutiny of a public audience. This is making in the sense of Production. This chapter explores the implications for talk of ‘truth’ and ‘fiction’ when we think of trans identity in terms of a legal persona as a thing that is ‘made’.

In a Confectionary Performance as that term is used in this chapter, the maker and the spectator will both appreciate that the performance is a deliberate one of making something by combining other things. ‘Synthesis’ and ‘articulation’ would serve as satisfactory synonyms for ‘confection’, but the advantage of ‘confection’ as a description of making processes that persuade spectators is the word’s association with pleasing sweetness. The very word persuasion originates in the idea that a person is moved ‘through sweetness’ (per-suade). Paying attention to the use of culinary and other sensory affective Confectionary Performances, this chapter highlights the significance in our post-truth age of political performances that bypass our logical thought processes in order to influence us through our feelings.

Donald Trump called ‘Make America Great Again’ his ‘whole theme’. He blazoned the slogan in signal white on his red baseball cap and even trademarked it. The use of building metaphors is the standard puff of presidential election campaigns. The reference to building bridges is especially potent, metaphorically, as a way of combining the virtues of building with the political ideal of connecting people. Hence Bill Clinton’s slogan for his successful 1996 presidential election campaign was ‘Building a Bridge to the 21st Century’. This chapter considers how politicians exploit the building metaphor and how the idea of building is integral to the laws by which states achieves a necessary balance between stability and change.

Production fulfils the making of a thing by bringing it to public scrutiny. Production is therefore the cutting edge of rhetorical performance in law, politics, media, and all aspects of civic and social life. The appeal to ‘making with’ has been a technique favoured by orators throughout the history of political rhetoric. Donald Trump employed it when he famously said, ‘we have to build a wall, folks’. Perhaps he borrowed the technique from his background in business and sales, for the appeal to ‘making with’ is also pervasive in modern marketing practices. Companies seeking to sell their goods and services become so beholden to the public that the public as co-Producer begins to market its demands to the supplier. When this dynamic operates in a political context, it can be a force for good and a model of democratic, devolved government, or it can amplify errors by forcing a political leader to pipe whatever tune the public pays for. In the case of Donald Trump, perhaps his more extreme and illogical utterances have less do to with his own manifesto than with maintaining the brand that his market demands.

Smiles were in short supply in the darkest days of the Covid-19 pandemic, in large part because so many were concealed beneath masks. In societies that have no modern tradition of wearing masks or veils, the unfamiliar sight of concealed faces can be disconcerting. This is not because we are unable to see the flesh of the face – a lifeless face can be quite as disconcerting as any mask – but rather because artificial face coverings conceal our arts of face making. The face is, after all, the only part of the body that we commonly talk of in terms of ‘making’ and of being ‘made up’. The very word ‘face’ derives from the Latin facere – to make or to do. This chapter considers the psychological power of face-making and the exploitation of that power in political performance. It also considers, more deeply, how physical face-making parallels rhetorical crafting of persona in politics, law, and society at large.