Figures in the Judge’s Carpet


Review of Artefacts of Legal Inquiry: The Value of Imagination in Adjudication, by Maksymilian Del Mar

Oxford, UK: Hart Publishing, 2020


Imagine adjudication as a collective, interactive experiment conducted over time, having its origin not just in the facts and law of a particular controversy, but also in the minds, bodies, and emotions of many judges and advocates. Imagine a judge, not as a Hercules, a rule-recognizer, or a robed politician, but as a limited human being—hesitant, confessing doubt, working hard to do difficult justice. Imagine this judge, convinced that existing law is a poor fit for the case before her, devising a vivid metaphor to suggest a tentative way forward. Imagine this metaphor catching the attention of judges and advocates in later cases, entering oral argument and written opinion first as an exotic provocation, then slowly working a change in the law, and finally disappearing, as metaphor, into the prosaic letter of accepted legal doctrine. 

This ecology of creative doctrine-making is one of many valuable contributions in Maksymilian Del Mar’s important new book, as is the tom-tom insistence on the centrality of imagination and imagining with which I began each of the first four sentences of this review. Del Mar’s deceptively simple aim, pursued through more than 400 pages of lucid, engaging analysis, is to show that “processes of imagination are valuable insofar as they enable inquiry” (48). Specifically, the judicial work of deciding cases is nourished and sustained, in many of its functions, by four staple products of the imagination: fictions, metaphors, figures, and scenarios.

Del Mar wants not just to identify uses of the imagination as “neglected features of adjudication” (1) but also to celebrate the ability of imagination to reach into a litigated controversy and grasp “the values, vulnerabilities and interests that may be at stake [there] and in cases potentially like it in the future” (9). For all the work of James Boyd White and other cultural reclaimers of law, the imagination remains “side-lin[ed]” in theories of adjudication, Del Mar believes; there has been a general “negativity of common law scholars” concerning legal fictions and other tropological tools of judging (2, 5). Del Mar brings good tidings to those who would take the Coleridgean project of making the imagination a hygiene of everyday life and extend it to the (supposedly) aesthetically barren duties of adjudication. In this respect, as he disarmingly confides, Del Mar has written “an undoubtedly upbeat and positive book” (2).

While there is no reason that Del Mar’s insights could not be applied to the work of trial courts and even to aspects of legal education, his focus here is on “the practice of appellate courts in the English common law in the twentieth century” (1, 10). Appellate courts, in particular, are under a “duty of care not only for the parties in the present case, and for the law’s past, but also for the moral and political quality of the law in the future, and for the authority and legitimacy of the court and related institutions, again in the future” (55). This is a tall order, a job for Hercules, you might say. And yet it is a job that can be performed only by time-limited, resource-limited, and “epistemically-limited creatures” who, while always capable of doing collateral damage in the form of “epistemic violence,” nevertheless mostly try to do justice. “To do justice is always difficult,” observes Del Mar (20-21).

The simple truth of that statement presupposes that the imagination, too, is fallible and time-fettered. “‘Beauty is difficult, Yeats’ said Aubrey Beardsley / when Yeats asked why he drew horrors.” So wrote Ezra Pound in Canto 80, reminding us that the imagination is not always, or immediately, recognized in its own time. The imagination operates within time, but its effects, like those of justice, often appear over time.

Del Mar divides his book into two general parts, “Models” and “Case Studies.” “Models” spreads before us the wide range of his reading and influences, and the pivotal concepts (he dislikes the latter word) that inform his ideas of adjudication: diachronic and experimental inquiry; the types and features of artefacts; and affective, sensory, and kinesic aspects of imagination. I won’t say (as some have said of Pound’s Cantos) that Del Mar is guilty of dumping his notebooks on the public, but I do think that “Models” might have been condensed somewhat and that the detailed presentation of intellectual influences might have been abbreviated. (This is not a major objection.) Most central to “Models” is Del Mar’s intriguing definition of “artefacts” as “forms of language that: first, signal their own artifice, thereby also capturing our attention; and second, call upon us to participate, ie to do things with them” (1). 

Artefacts thus play a two-phase role in adjudication. First, they draw attention to their own artifice—that is, their artificiality—and thereby arrest the attention of the addressee (a future judge, advocate, or legal scholar). This is the self-flaunting aspect of artefacts, the peacock moment when they separate themselves from the ordinary flow of judicial prose and declare an anomalous, glittering independence. In that moment, they may seem unnecessary gauds to many legal addressees, a heretical departure from the decorum of doctrinal scripture, a needless flourish in the homely wallpaper. This is the moment in which poetry makes nothing happen. 

But it is only the artefact’s first phase. In its second phase, the figure moves beyond ornamental inconsequence and, having captured attention, calls upon addressees to participate. Stasis gives way to kinesis. This is the phase of pragmatic action, stretching out over time and many litigations perhaps, when the artefact sparks an awareness that something is wrong or lacking in the received doctrine. The old rule is then abandoned or changed or made subject to an exception. Having done its catalyzing work, the artefact, in many cases, disappears into the prose of the new doctrine. It dies as an arresting figure and decays into the forest bed of the law.

Del Mar’s analysis of legal fictions is an especially good application of this processual theory of artefacts. For him, as for legal scholars Lon Fuller and Simon Stern, a legal fiction is not to be treated as a judicial deception, feint, or sleight of hand—a way of hypnotizing and hoodwinking an audience otherwise resistant to legal change. Rather, fictions are “a means of temporarily suspending operative requirements of an existing rule, while still applying the normative consequence of that rule, thereby signaling to future courts that either the rule ought to be abandoned and a new one created, or that an exception ought to be introduced” (4). 

A legal fiction does not abruptly or corruptly change the law. It plays no tricks. True, it decides the instant case on a new, unfamiliar basis, but it does so without cancelling the rule it provisionally suspends. You might say that it makes use of the present litigants—sacrificial victims or lucky beneficiaries—in a judicial experiment that is also a signal sent out on the law’s frequencies, awaiting some future ham operator who will see its doctrine-shifting value and embody it in an opinion or a brief. This is a timed-release poetry that does make something happen, over time.

The book’s second part, “Case Studies,” offers rich illustrations of Del Mar’s four master artefacts—fiction, metaphor, figure, and scenario—by means of selected common-law decisions. He explores legal fictions in McGhee v. National Coal Board [1972], a personal injury case in which the House of Lords held for the plaintiff laborer by relaxing the usual causation requirement, artificially suspending this operative fact and signaling the need for change in the law (262-64). The function of metaphor is examined in Edwards v. The Attorney General of Canada [1930], where the Lord High Chancellor of Great Britain, discussing the eligibility of women to be appointed to the Canadian Senate, articulated the “living tree” doctrine of constitutional interpretation and the “mistress in her own house” relationship between Britain and Canada (313-19). In Southern Foundries (1926) Ltd v. Shirlaw [1940] and subsequent cases, Del Mar follows the career of a famous figure, the Officious Bystander, employed to test the need for judicially implied contract terms (360-86). Finally, Del Mar highlights the use of short fictional narratives, or scenarios, in a range of cases, notably White & Carter (Councils) v. McGregor [1962], in which the Lords posed imaginary scenarios to probe the values, vulnerabilities, and interests of contracting parties in the wake of a promisor’s anticipatory repudiation and a promisee’s refusal to mitigate damages (426-36).

Del Mar has produced an overview that approaches a grammar and rhetoric of judicial motives. Though he is referred to only once and fleetingly (123), the spirit of Kenneth Burke (1897-1993) seems to me to fill these pages. Burke spent his long career studying languages—the languages of literature, sociology, science, religion, and other fields—as symbolic action, that is, as symbols that motivate human behavior. For Burke, symbols were action, and action symbols; literature functioned as equipment for living. Del Mar says essentially the same thing of the language of law when he observes that artefacts are “shared resources...part of the collective, communal technologies we draw on.” When he adds that processes of imagination are not confined to individual brains but are “activities that we perform together, interactively,” he is very close to Burke’s idea of symbolic action (142). Writing of “perspectival imagining” and “epistemic frames” (136-49), Del Mar echoes the Burke who coined the terms “perspective by incongruity” and “casuistic stretching” to describe methods for fracturing and rethinking accepted ideas. Whether Del Mar came to Burke directly or by tributaries, a reading of Artefacts of Legal Inquiry alongside Burke’s Grammar or Rhetoric of Motives (1945, 1950), or his durable volume, Attitudes Toward History (1937), would reveal a startling and productive kinship.

Del Mar does not offer his four artefacts—fiction, metaphor, figure, scenario—as an exhaustive grammar of adjudicatory motives, but, taken together, they provide a satisfying sense, if not of closure, of temporary enclosure of a subject. The reader comes away with that feeling of having attended an unveiling that can be found in, say, Philip Bobbitt’s six types of constitutional argument, or Wesley Newcomb Hohfeld’s four jural correlatives. Del Mar never poses as a compleat taxonomist—Burke also produced summas that refused to summarize—but once we have absorbed his discussion of figural tests, for example, it is hard to think of the reasonable person, the person skilled in the art, or even quasi-contract’s officious intermeddler, without acknowledging the populous narratological life of the common law.

Figural tests are especially valuable in the area of private law, Del Mar argues, where judges must “balance the intentionality of the parties with the relevant context” (375). Take the familiar personification known to the law as the officious bystander. Suppose that a bystander, overhearing the bargaining of parties, approached them and asked whether such and such a term was included in their agreement. If the parties would immediately reply, “Of course!”, then a judge might confidently imply that term in their contract. Such anthropomorphizing gives judges greater sensory and kinesic insight into the context-sensitive circumstances of parties, into the vulnerabilities created for one party and exploitable by the other. 

These vivid figures permit doctrine to operate as a mode of discovery rather than an end in itself. Judges can forget themselves and discover the significant contours of law and fact by means of a kind of negative capability, to borrow Keats’s notion. Figural tests are catalysts for kindling the judicial imagination, making it come alive with penetrating empathy. Though they are celebrated as objective canons of law, these tests achieve objectivity, it may be, by first stimulating a kind of selfless subjectivity in the adjudicating mind, a vibrant inwardness that perceives the litigated circumstances more keenly and fully.

Yet great judges achieve context-sensitivity without employing officious bystanders or other figures, because their imaginations already see into the drama of the disputed issues. Judge Benjamin Cardozo in Wood v. Lucy, Lady Duff-Gordon (N.Y. 1917)—one of the great implied-terms cases in American jurisprudence—never adopts a figural test, yet his vivid analysis is instinct, as he would put it, with an almost Dickensian feeling for the parties’ situational vulnerabilities.

You might say that figures function in adjudication the way certain characters operate in fiction. When Odysseus returns to Ithaca disguised as an elderly beggar, he serves as a figural test for the circumstantial fidelity of his household servants and of his wife, Penelope, beset by suitors. On the eve of the battle of Agincourt, Shakespeare’s Henry V wanders disguised among his soldiers, testing their mettle and their devotion to him. In Ben Jonson’s grim comedy, the wealthy Volpone conceals his identity and pretends to be dead so that he can watch the effect of his purported will on greedy claimants. These characters—super-figures, in a sense—function as embodied tests within the rhetoric of fiction; like their legal counterparts, they ascertain reasonableness, values, and vulnerabilities. The implied author registers the effect of the super-figure, just as a judge measures the effect of her invoked figure.

Reading Del Mar’s account of figures, I found myself looking for figures in my favorite judicial decisions, and I lighted on United States v. One Book Called ‘Ulysses’ (S.D.N.Y. 1933), in which Judge John Munro Woolsey ruled that James Joyce’s Ulysses was not obscene under the federal Tariff Act. At a moment in American law when the test of obscenity was still unsettled, Judge Woolsey, without any irritable reaching after doctrine or precedent, concluded that the proper test must be the “effect [of the book] on a person with average sex instincts—what the French would call l’homme moyen sensuel—who plays, in this branch of legal inquiry, the same role of hypothetical reagent as does the ‘reasonable man’ in the law of torts and ‘the man learned in the art’ on questions of invention in patent law.” 

Woolsey foregrounds here his self-conscious use of l’homme moyen sensuel, linking it to other figural tests and stressing its function as a “reagent,” an additive that causes a sort of chemical reaction in judicial analysis. The origin of this Gallic figure is unclear. Something like him inhabits old cases involving contributory infringements of intellectual property. Woolsey might even have met him in writings by Matthew Arnold or Ezra Pound. What’s interesting is that, while Woolsey’s “person with average sex instincts”—that paradoxical embodiment of reasonable lust—had considerable effect on later American obscenity cases, his French twin, “l’homme moyen sensuel,” was hardly ever invoked by later courts. 

The present American test of obscenity, developed in Roth v. United States (1957) and Miller v. California (1973), employs the “average person,” but so crowds that figure with doctrinal embellishments as to render its human lineaments almost invisible. No wonder Justice Potter Stewart, concurring in Jacobellis v. Ohio (1964), threw up his hands and exclaimed, “I know it when I see it, and the motion picture involved in this case is not [obscene].” Stewart in effect eschewed doctrine and made himself his own figural test, acting out the intuitions that always inform the work of common-law judges.

Maks Del Mar’s book brings us back, by a long, learned route, to the human intuitions of adjudication, reminding us that judging is experimental and flawed, a blending of the conscious and the unconscious, a private act expressed in public, shared language, with effects that can be measured only over time in controversies not yet begun or envisioned. Even if law’s artefacts are doomed to fall victim to what Kenneth Burke called the bureaucratization of the imaginative—when the art of terms becomes domesticated as terms of art—we can still trace the work of imagination in the products of judges and advocates. The circus animals perform, after all, before they desert. Del Mar gives us quizzing glasses for viewing those stylized performances and for following their momentous, prosaic consequences, over time, in the common law.



Posted on 28 October 2020

ROBERT SPOO is Chapman Distinguished Professor of Law at the University of Tulsa College of Law, where he is also Associate Dean for Faculty Development. He is the author of Without Copyrights: Piracy, Publishing, and the Public Domain (Oxford, 2013) and Modernism and the Law (Bloomsbury, 2018). For the 2020-2021 academic year, he his a fellow in the Program in Law and Public Affairs at Princeton University.