A post by Simon Stern.
Just as, according to some realtors, aluminum siding covers a multitude of sins, so “the legal imagination” has been invoked to cover a variety of proposals for bringing imaginative resources to bear on the practices of judges, lawyers, and litigants—involving, for example, the need for judges to cultivate their empathetic capacities; the skill of thinking outside the doctrinal box to develop novel litigation theories and strategies; the adaptation, for legal use, of creative techniques recruited from other intellectual and artistic endeavors; and the importance, for lawyers, of using literature to understand people from other backgrounds, so as to become more proficient in effectively representing clients from all walks of life.
Evidently, what is legal about the legal imagination, and what is imaginative about it, are both questions that vary significantly depending on the problem being diagnosed. In most of these formulations, imagination proves to be a remedy, imported from outside the law, to solve problems resulting from the law’s imaginative failures. The law itself turns out be a barren and arid domain, replete with ossified, regimented, hidebound abstractions, and characterized by devices like balancing tests, burdens of proof, standards of review, bright-line rules, and similar bureaucratic tools. What’s required is an antidote, a balm that will rejuvenate this desolate landscape and help life to flourish there again. This view of the legal imagination emphasizes the imaginative capacities that the law lacks, and evokes a wide array of creative techniques that have no particular habitation. It is, in short, a conception of what the legal imagination could be, if only it would avail itself of various resources that legal thinkers have ignored.
But what if, instead, we asked what kinds of imaginative devices we actually encounter in the law? According to Giambattista Vico, “all ancient Roman law was a serious poem … and ancient jurisprudence was a severe poetry,” emblematized by its use of legal fictions—“empty masks without subjects, iura imaginaria, rights invented by imagination.” For Vico, the poetry lay in the law’s capacity for treating actual events as if they had not occurred, and vice versa: by the fictions of Roman law, “what had happened was taken as not having happened, and what had not happened as having happened; those not yet born as already born; the living as dead; and the dead as still living in their estates pending acceptance.” In modern legal parlance, these examples would all be characterized as deeming provisions: for certain purposes involving the distribution of a decedent’s estate, a fetus might be counted as (deemed to be) alive when the parent died. For similar purposes, a citizen who was captured by the enemy, in war, might be regarded as having died (the fiction of “civil death”).
Modern law abounds in deeming provisions, which exhibit a similar form. For certain purposes relating to environmental regulation, an underground pipe will be treated as a river; in some instances, the ability to control an asset is sufficient to count as possession of it. What all these provisions is an understanding of the limited-purpose use of the proposition. The civilly dead citizen is not treated as dead for all purposes, but only for the specific purpose of distributing the assets of the estate. The pipe which “is not a pipe,” but rather a river, for certain regulatory purposes, nevertheless remains a pipe for other purposes. The premise (that the pipe is a river) has a certain reach, specified in advance, and it goes no further than securing a particular result.
One way to characterize the imaginative impulses at work, in the case of deeming provisions, depends on Vico’s suggestion that the law is busy imagining things to be otherwise, knowing the facts but energetically revising them, exercising a kind of poetic license by which a legal speech act brings the dead back to life and repopulates the world according to law’s own conceits. This has remained a common theme in the writing on legal fictions, which often places them among the law’s most inventive—and most literary—devices. But another way to understand what is both legal and imaginative about these fictions is to inquire into their limited-purpose aspect. In many areas of intellectual life, we use stipulations, conditional provisions, and hypothetical assumptions to explore the implications of an idea, but in law these devices are omnipresent. As an imaginative technique, the habit of constraining the implications that flow from a premise may be one of the characteristic features of legal thought.
The Harvard law professor Thomas Reid Powell famously said that “if you think you can think about a thing, inextricably attached to something else, without thinking of the thing it is attached to, then you have a legal mind.” The statement is often interpreted cynically, and it seems to invite this interpretation: “if you think” you can undertake that operation, then you have a legal mind, because you believe yourself capable of the impossible. Even if this kind of compartmentalization is possible, it may sound so strained and artificial as to reflect precisely the kind of arid and purely analytical mindset mentioned earlier, as typical of legal thought. But the statement is also open to a more positive interpretation: the ability to divide and limit implications and consequences in this fashion opens up other ways of thinking, encourages a kind of lateral thinking that becomes possible just because the results can be cabined. If there is indeed a characteristically legal means of exercising the imagination, it may have to do with the devices by which lawyers turn constraint into possibility.