This week at The Junkyard, we’re hosting a symposium on Maksymilian Del Mar’s recent book Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Bloomsbury Publishing 2020). See here for an introduction from Maksymilian. Commentaries and replies appear Tuesday through Thursday.

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Commentary from Margherita Arcangeli.

Engaging with Artefacts of Legal Inquiry has been a formative training for my imaginative abilities. With remarkable care and rigour, Maks Del Mar brings readers into the realm of adjudication and invites them (especially in the second part of the book) to play with him by exploiting their imaginations. Instead of abstractly theorizing about the imagination, Del Mar aims at showing how it works in the specific case of adjudication. In so doing Del Mar outlines a theory of the imagination, but a dynamic one – as he might say (according to him, theorising is an activity with an undeniable contingent and variable character – see §C of the Introduction).

Del Mar complains that extant theories of the imagination focus too much on framing a static concept, rather than an adaptable model. I will start by outlining his alternative model of the imagination, after which I will examine its relations to other views on imagination – keeping of course an eye out for my preferred one, recreativism!

On Del Mar’s picture, imagining is the combination of two processes. First, we construct “a distinctive epistemic frame”, that is to say, we play with the epistemic constraints that anchor us to reality by loosening some and tightening others. Second, we undergo a variety of participative modalities (Del Mar examines three varieties of participation: affective, sensory and kinesic).

With respect to the first “limb” of imagining, Del Mar stresses five “threshold criteria”, which enable the epistemic frame shift. Entering a distinctive epistemic frame calls for a process that is:

(i) primarily deliberate and conscious;

(ii) active and often social – i.e., implying the contribution of others;

(iii) appropriately (un)tuned with what is (taken to be) true;

(iv) epistemically engaged;

(v) “accompanied by a sense of the purpose-built and time-bound” (p. 147) – i.e., displaying its pragmatic and contingent nature.

These characteristics make the boundaries of the imagination very flexible, which can thus include not only paradigmatic sensory forms hinging on mental imagery, but also cognitive forms, like supposition, conceiving, hypothesising and even (at least some cases of) acceptance. As Del Mar puts it: “I have sought to incorporate what has been excluded by some philosophers as not part of imagination” (p. 149). Indeed, Del Mar’s model contrasts with other accounts of the imagination, which set stricter requirements on what counts as imagining, such as the involvement of mental imagery (as in Kind’s view), or taking a stance “from the inside” (as in Peacocke’s view). This should hold also for recreativism – the view according to which imagining is recreating a non-imaginative mental state. Although Del Mar grants this approach a high level of flexibility, he nonetheless presents his model as an alternative to it.

I am a recreativist who is very sympathetic to Del Mar’s view, so I see more convergence than divergence between his model and recreativism – at least in the version I defend. Let me spell out these convergences (and divergences) more in detail.

Recreativism is well suited to account for the wide range of experiential perspectives we may take up when we are imaginatively engaged. According to this view, imagining is “X-like imagining”, where X is a type of non-imaginative mental state (e.g., sensory experience). The scope of X is a matter of debate in the literature. For instance, some philosophers think that emotions can be re-created in imagination (e.g., Goldman), while others deny it (e.g., Currie & Ravenscroft). Anyway, recreativism is a framework apt to Del Mar’s theoretical needs in building his second limb of imagining.

Recreativism can also accommodate quite well the aforementioned “threshold criteria”. First, on this account, imagination is a will-dependent mental action. Arguably, this does not mean that imaginings cannot be spontaneous or passive: we can fail to recognise our own agency, or fail to control some of our imaginings, yet they are still products of our will (see, e.g., Arcangeli 2018). Will-dependence satisfactorily squares with criterion (i) and, at least partially, with criterion (ii) – I will come back to the social aspect of imagination below.

Second, Del Mar himself stresses that criterion (iii) roughly coincides with what other philosophers have called “truth-independence”. He complains about this terminology, though, insofar as it might convey a misleading picture of the imagination as an escape from, rather than a form of engagement with, the world – thus overlooking criterion (iv). Saying that imagination is truth-independent is a way of stressing the kind of force imagination (qua psychological attitude) gives to its content: imagination does not commit us to take what is imagined to be true. The label choice might be infelicitous, but it certainly does not aim to make imagination disconnected from the world. It is also a way to distinguish imagination from other attitudes, such as perception and belief, but this does not mean that it is severed from and cannot work together with them. This idea is clearly taken on board by recreativists: just think about the many epistemically loaded contexts in which recreativism has been applied (e.g., mindreading, thought experimentation, self-deception, mental time travel). So, although recreative imagination is often associated with the idea of being off-line, I totally agree with Del Mar that imagining is more like being on-line in a particular way.

What about criterion (v)? I take it to hint at phenomenological aspects of imagining: imagining comes as imbued with a feeling of artificiality. Imagining mostly feels like that: when we imagine we are aware that we are momentarily looking at the world from an as-if perspective (of course something may go wrong and we might fail to feel that change in perspective). Recreativism has paid little attention to the phenomenology proper to imagination, having stressed mostly the phenomenological similarities between imaginings and their counterparts. It has, however, the resources to deal with this issue. I have suggested that there might be a specific way it feels to be in some conscious recreated state (Arcangeli 2018). I have not developed this idea fully, but it seems to me that recreation brings with it the pragmatic flavour captured by Del Mar’s criterion (v).

Sociality is where I see the main divergence between Del Mar’s model and recreativism. To my knowledge, the latter has focused on imagination as an individual capacity, rather than as an activity that can be collectively carried out. But there does not seem to be anything to prevent recreativism from being applied to social contexts. In fact, Del Mar’s book can be seen as pursuing exactly such an application!

To my eyes recreativism, more than being an alternative to Del Mar’s model, provides the building blocks needed to articulate it. So why not endorse recreativism? Del Mar worries (p. 132) that recreativism does not do justice to the two processes he has identified as vital for explaining how imagination works (i.e., constructing an epistemic frame and participating within it). But it is likely that these intimately connected processes – as Del Mar himself recognises – only become visible when imagination gets applied in a particular domain, such as adjudication. This is one of the many merits of Artefacts of Legal Inquiry, a fascinating read that provides food for thought. I cannot dwell on the case studies analysed by Del Mar here, but they enrich the theory of imagination making it more fine-grained.

Response to Margherita Arcangeli from Maksimillian Del Mar.

Let’s suppose that you’re just starting out to think about imagination. You sense there may be something interesting to explore about it, but you’re not at all sure what that might be. Not quite knowing where to start, you talk to a few colleagues. You say, ‘I’d like to work on imagination – any idea where I should start?’.

The first colleague you come across says: ‘What? Imagination? Don’t waste your time. There’s no such thing. It’s a misleading word for a non-existent entity. Work on something else with a solid philosophical reputation – try belief, acceptance or perception.’ This feels like a smack in the face, but hey, this is just the first person you’ve asked – you’re not someone who gives up easily. So you decide to ask another colleague.

The second colleague says: ‘Yes, not a bad topic, but don’t get too carried away. Don’t make the mistake of thinking imagination is something distinct – as if it were its own kind of mental state or process. Rather, imagination is just a handy, shorthand term we have for what is really just a combination of other basic states and processes. So by all means, study imagination, but curb your enthusiasm: don’t look for something special.’ This is certainly better than the first response, you think – but, even though your topic has not been wholly eliminated, you do feel deflated. Still, you keep going, and ask a third colleague.

The third colleague says: ‘Imagination – ooh, nice. Yes, there’s lots of new, interesting work out there. There’s no doubt that imagination is a distinct mental state or process – it’s sui generis. There’s nothing quite like it, and it can’t be explained simply by combining other allegedly more basic states or processes. How is it sui generis? Well, it recreates other mental states or processes – studying imagination is like studying other mental states, like belief or acceptance, but with a twist. Imagination adds something to the experience of these, but it’s really difficult – but also fascinating – to understand what. Anyway, that’s where you should look’. Now you’re starting to get excited. This topic might have legs after all. You decide, now that you’re gaining momentum, to ask one more colleague.

The fourth colleague says: ‘Imagination: absolutely. I’m so delighted you’re going to work on this. Imagination is fundamental, and has been entirely neglected. You do realise that imagination is a distinct faculty of the mind, don’t you? Don’t for one moment think that you can explain or understand it by approaching it from the perspective of other mental states or processes: it is entirely its own beast. Again, it’s fantastic you’re going to do this: if only more young philosophers were like you.’ Now you feel really euphoric… but then doubts creep in and you start worrying a little: are you getting too excited? Are you being careful enough? Is there really a distinct faculty of the mind called ‘imagination’, and should you assume that from the outset?

Amongst these four colleagues, the person I feel like talking to most is colleague three: the moderately enthusiastic recreativist (for instance, I like how richly this colleague approaches imagination: it has as many instantiations as there are mental states and processes to recreate). This is also the colleague I would identify most closely with Margherita Arcangeli. Indeed, I found her work – especially her Supposition and the Imaginative Realm (2018) – very helpful and inspiring. It made me want to think further about imagination – to keep exploring.

But, as Arcangeli observes in her comment, I’m not entirely comfortable myself adopting the position of colleague three. I find myself wanting to create more space for options between colleague three and four. For instance, if imagination is approached as X-like imagining, then it feels like one needs to get a handle on the X’s first (belief, perception, acceptance), and only then see how they are changed when imagined: but this is quite a lot of baggage to carry when approaching imagination. My sense, too, was that approaching imagination as X-like imagining already under-sells the epistemic potential of imagination: that it makes it seem like a poor cousin of the real mental state or process, rather than a fully epistemic, online process in its own way.

Certainly, I want to keep an open mind that any one of the above colleagues could persuade me – but, as a starting point for my own inquiry, my sense was that it would be better to hypothesise the existence of something, not quite a distinct faculty, but still a distinct state or process (or distinct group of states or processes) that are not recreations of other states or processes. Can this hypothesis, at least as a starting point, be justified? What explains why one is drawn to a certain philosophic topic, and then a certain way of approaching it? Hunch? Gut feeling? Temperament? Aesthetic disposition?

Let me add one more meta-philosophical thought prompted by Arcangeli’s excellent comments: should we be pursuing general models of imagination that, we then claim, apply to many different kinds of practical contexts, or, should we, instead, not assume that the cognitive activities (including, potentially, imagining) that goes in those contexts is the same, but is rather very different, shaped, for instance, by that context’s peculiar institutional history, material ecology, and social dynamics? I call what I construct in the book a ‘model’ of imagination in part because it is purpose-built for helping us see, including see the value of, certain cognitive processes we might otherwise miss in the legal context. I’m not sure if this is a model that would help in other contexts.