Maks Del Mar talks to us about his book published by Hart Publishing
The book is a defence of the role and value of certain forms of language – which I call ‘artefacts’ – and the mental processes they invite, i.e. imagination. At the most general level, I am interested in this relation between language and mind, and especially minds in the plural – what kinds of forms of language enable people to imagine together, interactively and collectively? The kinds of ‘artefacts’ I explore are fictions, metaphors, figures, and scenarios, but these are just examples of the broader phenomenon I am trying to identify.
You might ask: what has this got to do with law? The context in which I look at artefacts, and related processes of imagination, is that of common law adjudication. I thus ask: how, if at all, are these forms of language, and the interactive and collective processes of imagination they enable, valuable in adjudication? My argument is that they help advocates and judges identify what’s at stake normatively in cases, i.e. what values, vulnerabilities and interests are at stake in the case they are deciding, as well as in potentially similar cases in the future.
Amongst my examples are: the fictions of causation employed in certain tort cases; the metaphor of the living tree in certain constitutional cases; the figure of the officious bystander, deployed in the law of implied terms; and hypothetical scenarios used in cases of contractual repudiation. My examples thus range across both private and public law.
There is a long-standing prejudice against imagination in theories of legal reasoning. It is thought that legal reasoning must be a matter of rationality in a narrow sense, and thus without the influence of anything as allegedly unpredictable and subjective as imagination or emotion. Even, however, in more sympathetic references to imagination – in law and literature studies for instance – imagination is sometimes referred to, but without really being theorised. One of my aims in this book was thus to provide a well-worked out model of imagination – one that could form a starting point for conversations and debates about its value in legal reasoning.
A related aim was to bring a number of disciplines into dialogue with each other – in particular to enable dialogue between legal theory, philosophy, cognitive sciences, and literary theory and history. I also wanted to show how certain particular areas of scholarship were vital for legal theory, e.g. the theory and history of rhetoric and poetics; and the cognitive literary humanities, especially the work on our affective and embodied experience of reading texts.
It helped me enormously to teach – now for about 6 years – a course in our LLM in legal theory on common law reasoning. It was there, and with those generations of students, that I explored the case studies that found their way into the book. Apart from that, collaborating with scholars in other disciplines, and organising interdisciplinary workshops, was also a vital part of the process.
Here is the beginning of Chapter 7, which focuses on Figures:
As many scholars have observed, humans are prone to extend their own understandings of themselves to everything around them. There is, it seems, an almost irresistable tendency to make sense by ascribing agency, or super-imposing other features of the human: seeing faces in clouds, hearing voices in the dark, making body shapes of trees. As universal as this tendency may be, it manifests itself in different ways in different times and places. After all, what are taken to be the relevant or most important features of the human, the person, or the individual, changes over time and varies across cultures. Intentionality, for instance, and thus treating someone, or anything else, by extension, as having a will, is not a universal feature; neither is the very idea of having a face, voice or name, these being features which we now take for granted.
There is, certainly, a fascinating history to be told of the variety of ways in which we think with figures: projecting differing features of what we take to be human as part of making meaning, orientating ourselves, or communicating with each other. Some scholars have done this by focusing on changes in what has counted as a ‘person’ or a ‘character’ ; others by reference to the very idea of personal names, including the emergence of abstractions such as Somebody or Nobody; and others still by reference to the multi-media expressions of faces and masks. Telling, or re-telling that history is not within the scope of this chapter, though a legally-oriented cultural history of differing ways of appealing to and thinking with figures would be a wonderful project. Instead, what I aim to do in this chapter is to focus on one kind of thinking-with-figures, treating figures as a specific sort of artefact, with related processes of imagining, and trying to see how such figures can enable inquiry.
The example I shall be focusing on, in the second part of this chapter, is the Officious Bystander. This is a figure created in the context of the implication of terms in English contract law. It is used as a test for when terms ought to be implied into a contract. I shall be examining in what sense the Officious Bystander is an artefact, and what processes of imagining it invites and involves. I shall also be examining how, and when, the Officious Bystander enables inquiry in this area of the law: how it assists persons, including individually, interactively and collectively, and in the course of a single case as well as over time, to make insights into what values, vulnerabilities and interests may be at stake.
In brief, the Officious Bystander is an artefact because it signals its own artifice. It does so, for instance, through the capitalisation and use of an abstract personal name (the ‘Officious Bystander’), and by employing a comic term (officiousness) in a non-comic context. As an artefact, this figure not only signals its own artifice, but it also invites us to do something with it, and it does that because it is highly selective and under-specified: it explicitly evokes only two characteristics (officiousness, and being a bystander), leaving other characteristics to be added, or the present ones to be transformed or understood in a particular way, also requiring us to narratively map out the actions and interactions of this figure.
When it functions as an artefact for us (which it may not, for artefactuality is always contingent, and thus the Officious Bystander may come to simply function as short- hand) it then invites us to imagine. To imagine figurally, in turn, is to enter a distinctive epistemic frame, where we suspend, for instance, our usual reliance on treating proper names as referring to real individuals, or our usual commitment to thinking of persons as more than just placeholders for one or two characteristics. At the same time as enter- ing a distinctive epistemic frame, we also participate actively, eg simulating affects via emotional reactions to the actions and interactions of the figure, constructing mental imagery, and enacting kinesically.
In this sense, to imagine figurally is to engage in a thicker, more involved, process of imagining than, say, imagining fictions, and possibly even metaphors. When we imagine figurally, we participate, in the second limb of imagining, with a high degree of involvement along the affective, sensory and kinesic spectrum, with the kinesic being especially intense in figural imagining. Further, we often do this together with others, eg we swap sometimes opposing imaginings of what the Officious Bystander does, eg what questions he asks (always in the cases I have read a ‘he’, and that too is significant) and how those he interacts with respond, ie how the parties negotiating the contract respond to the questions posed by the Officious Bystander. Indeed, the swapping, including the discordances between the different imaginings, is an important part of the value of figures.
The figure of the Officious Bystander is helpful and beneficial in adjudication when it enables inquiry. It does so individually, interactively and collectively: individual judges, in part on the back of already imagined accounts by the advocates in the case, imagine the Officious Bystander, and in doing so, make normative insight as to what values, vulnerabilities and interests might be at stake in a particular case, eg how best to balance freedom of contract with protecting vulnerable parties against exploitation by more powerful ones. Avoiding creating a general, non-figural test, can also help make normative insight over time: in the context of implied terms, it can help a legal community to engage with what the proper limits of freedom of contract might be, and whether English law should have something like a good faith requirement. In other words, not only is the Officious Bystander capable of serving as a justification in an instant case, but its value also extends to enabling inquiry over time, ie allowing members of the community, including judges, advocates, scholars, other stakeholders, and citizens, to experimentally probe and tentatively examine, the values, vulnerabilities and interests at stake, eg the authority of the courts in interfering with freedom of contract, or the vulnerability of parties to exploitation by more powerful parties. The Officious Bystander can assist inquiry in this way, but only if it actually functions as an artefact, and only if persons actually imagine it.