Guillemette Bolens is Professor of Medieval and Comparative Literature at the University of Geneva. Her research focuses on gestures and embodied cognition in literature. Her latest book Kinesic Humor: Literature, Embodied Cognition, and the Dynamics of Gesture is forthcoming at OUP.
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.
Commentary from Guillemette Bolens.
Artefacts of Legal Inquiry is a remarkable accomplishment. It shows what intellectual curiosity, academic innovative thinking, and impeccable scholarship can achieve. In it, Maksymilian Del Mar brings together with great clarity a vast number of issues, offering an original perspective on inquiry in adjudication. The first part of the book is theoretical and highly interesting, but the second part is simply fascinating, as it grapples with specific legal cases and the ways in which the artefacts of fiction, metaphor, figure, and scenario were used in them. I will focus on one case which substantiates Maks’ claim that we need to think about ‘the dynamic relations’ between ‘forms of language and processes of imagination’ (437).
The artefact of fiction is discussed in relation to the case of McGhee v National Coal Board (1973). Maks characterizes fiction in this legal context as ‘language-based modes of signalling artifice, calling for further work, … and doing so by explicitly or implicitly presenting a tension, if not a contradiction, between what is being supposed to have been proven on the one hand, and what is known…to have been proven on the other’ (255). Fiction in the present case is instrumental to a verdict involving the problem of causation. I will succinctly sum up the case, before focusing on one sentence in the reasoning of Lord Reid.
Living near Edinburgh in Scotland, James McGhee is 31 years old when he starts working in kilns used for making bricks. He ‘was part of the “burnt team,” whose job was to “remove the bricks from the burning zones inside the kiln when the baking process was over”’(259, quoting Hope 589[1]). The burnt team was sent into the kilns to remove the bricks before the kilns were allowed to cool down. The workers were not only exposed to excessive heat: they were also constantly covered in ashes and brick dust. Yet the employers, the National Coal Board, allegedly did not care to alleviate the effects of such work conditions, failing to provide washing facilities and showers. After work, Mr McGhee had to cycle home on a steep road, while being covered in brick dust. In five days, he developed on his whole body a dermatitis (or severe skin inflammation), which led him to sue the Board for breaching ‘a duty of care to him’ (259). The Scottish Courts decided that ‘causal connection between fault and the contraction of the disease [had] not been established’. Mr McGhee appealed to the House of Lords, where the ‘discussion focused on the proof of causation’ and where it was decided that Mr McGhee had in fact proved ‘the requisite causal link between the lack of washing facilities and the dermatitis that he contracted’ (261). Maks argues that this judgement in the House of Lords was enabled by the use of the artefact of fiction. The demonstration, precise and detailed, is extremely interesting (258-277). My comment only bears on a detail in Lord Reid’s speech, which is tangential to the legal reasoning at stake, but which responds to Maks’ attention to the affective, sensory, and kinesic participation in adjudication.
Lord Reid highlighted the ‘uncertainty of medical knowledge’ concerning what could cause dermatitis, by contrast with the medical evidence foregrounded by Mr McGhee. Further, he posited that ‘The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk that this disease might develop’ (262). I am interested in the phrase caked with grime and sweat. This choice of words suggests that Lord Reid was able to infer underspecified sensorial aspects in the case, pertaining to touch and kinesis. He was able to imagine them, to perceptually simulate the action of exerting oneself and sweating when covered with thick brick dust after repeated and lasting exposure to intense heat. Because of its sensorial implications, the phrase ‘to cycle home caked with grime and sweat’ differs from ‘to cycle home unwashed’ (Hope 599). The word grime emphasizes the potentially detrimental nature of this type of dirt, aggravated by the production of sweat. It conveys sensory but also affective information: to be caked with grime may conceivably be felt as debasing. Lord Reid imagined Mr McGhee cycling home caked with a type of dirt that was demeaning and potentially corrosive to the skin. He inferred by means of perceptual simulations the tactile sensation caused by another human being’s predicament, one he most certainly never experienced himself. He never experienced sweating while covered in brick dust, but violence and vulnerability are nevertheless conveyed by, and acknowledged in, Reid’s choice of words. The phrase caked with grime is a lexical fact in Reid’s speech which evinces kinesic, sensory, and affective intelligence. It shows that kinesic, sensory, and affective aspects were intelligible to him via active imaginings and reflective perceptual simulations. And, quite importantly, he acted on such an understanding when he carefully and rationally applied his legal acumen onto the case by using the artefact of fiction to allow for inquiry and to practice adjudication more sharply.
Although the word grime conveys affective connotations of inferred sensory and emotional vulnerability, I am not implying that Lord Reid felt any particular emotion vis-à-vis Mr McGhee. He may have felt sympathy for him or none whatsoever. Regardless, he drew some affective, sensory, and kinesic inferences concerning the facts of the case, when he was not necessarily expected to do so. My suggestion is that this cognitive act may have played a part in his decision to elicit an inquiry sharpened by the use of the artefact of fiction—not because he was a nice man, but because he was an able judge. The skin is the largest organ of the human body, and touch is not an optional source of perceptual and sensorial information. To endanger a person’s skin and touch is an excessively violent action. Yet, the National Coal Board considered themselves entitled to have a group of employees risk their skin literally. Those workers were named the burnt team by contrast with the green team. ‘Burnt’ in that name may be meant to denote the state of the baked bricks, ready to be removed from the kilns. But it also gestures toward the predicament of the workers, whose skins were exposed to heat, ashes, and brick dust. The naming of that team seems to signal an entitlement to harm on the part of the employers. Maks rightly stresses that ‘the dynamic relations’ between ‘forms of language and processes of imagination’ are historically and socially situated. The existence of a ‘burnt team’ and a practice substantiating such a name were imaginable and acceptable in 1973. The use of fiction was a way to change that fact.
It is notable that Lord Reid felt the need to make the following comment regarding the distinction between ‘materially increasing a risk that the disease would occur and making a material contribution to its occurrence’ (Hope 593):
‘There may be some logical ground for making such a distinction where our knowledge of all material factors is complete. But it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which a man’s mind works in the everyday affairs of life’ (Hope 593).
The sense of hierarchy Reid suggests between philosophico-logical thinking and the human experience of practical reality could sound like a disclaimer on his part. Again, kinesic, sensory, and affective inferences do not necessarily entail sympathy, or any other emotion. But Reid is in fact ‘calling for further work.’ And it turns out that he applied a reasoning that did improve the law, not immediately, by changing the law in McGhee’s case, but by using fiction as Maks defines this cognitive artefact, thereby signalling to future judges that the law needed to evolve. He did so thanks to the way of thinking about causation of a man cycling home caked with grime and sweat. He decided to make the ‘everyday affairs of life’ matter.
In some vital fields of knowledge, decontextualized logic is irrelevant and potentially misleading. A judge such as Lord Reid showed particular acumen when he was able to practice the law more fully thanks to his kinesic intelligence and a highly focused form of imagination, applied to the specificity of context (including the historical limitations of medical knowledge). This made room for better justice and improved the law. In his impressive book, Maks advocates the value of rich and deeply complex ‘everyday affairs of life,’ which ground various ways of thinking, including inquiry in adjudication when the judges, in search of relevance, know how to use their imaginative power with targeted precision.
[1] Lord Hope of Craighead, “James McGhee—A Second Mrs. Donoghue ?,” Cambridge Law Journal 62 (3), pp. 587-604.
Response to Guillemette Bolens from Maksymillian Del Mar.
Does imagining sensory experience (including how something might feel on the skin or to touch), and simulating the movements, postures and gestures of the body, play a role in legal reasoning? In Artefacts of Legal Inquiry, I argue that it does. Law is made, and thus also changes, at least in part, through such sensory and kinesic exercises of imagination. By paying close attention to sensory and kinesic language, and how it shifts over time, we could thus construct a sensory and kinesic legal history. This is visible in three of the four artefacts I examine in the book: metaphors, figures and scenarios, e.g., the legal significance of a metaphor changes as our sensory and kinesic associations triggered by metaphor change; the legal significance of a figure also changes when we describe that imaginary figure’s movements, postures and gestures differently (e.g., as when we describe, for the first time, the Officious Bystander as ‘lurking’ near the contracting parties). The changes in language (which may be quite subtle) via which we extrapolate and play with metaphors, figures and scenarios is a vital part of legal history, and what makes that possible – or so I would argue – is the sheer cognitive importance of affectively-mediated sensory and kinesic imagination.
To give another example, which I do not discuss in the book: I’ve recently been reading some of Edmund Plowden’s 16th century common law case reports. These were pioneering reports – they are some of the first instances in which someone in the common law recorded the details of judicial reasoning. Plowden, however, did not just record the reasoning of the judges: he also gave his own opinion. In doing so, he often engaged in poetic legal making (a famous example of that is his reference to the king’s two bodies, but there are many more riches in his reports). On one occasion, Plowden refers to the task of equitable interpretation: interpreting the spirit rather than the letter of a statute. His proposed test for how judges should do this involves constructing an imaginary figure, who is imagined in a certain posture: we should imagine, Plowden says, that we could bring before us, now, in our presence, the very legislator who authored the statute, and ask this ‘upright legislator’ a specific question about the meaning of a certain term. We can then imagine that upright legislator’s answer. In this way, we can make sure we interpret the statute equitably. This imaginary exercise of bringing back, into the presence of the mind’s eye, a past legislator, has itself a long history – appearing in Aristotle, and thereafter in various rhetorical handbooks. But notice also the importance of the kinesic term: uprightness. This is not just any legislator we are asked to imagine: but an upright one. What work does this kinesic term do in our imagination? This is a fascinating question – not one I can answer now – but an example of a question that would be pursued by kinesic legal history.
My inspiration for many of these insights as to the importance of kinesis in imagination (again, for imagining movements, postures and gestures of bodies) is the work of Guillemette Bolens. I cannot recommend highly enough her 2012 book: The Style of Gestures. I draw on her scholarship in my book, along with a number of other cognitive approaches to literature, such as work by Terence Cave (Thinking with Literature, 2016) and the collection of essays in Kathryn Banks’ and Timothy Chesters’ Movement in Renaissance Literature (2017). Indeed, part of my aim in the book is to argue for how important these works are for both the philosophy of imagination and for legal theory and history.
So it is a real honour, and delight, to have been commented on by Bolens. And it is fascinating what Bolens picks up on: a ground level description of a fact by a judge in the McGhee case. I call it a ‘ground level’ fact, as lawyers – and legal theorists – tend to be interested in the ‘upper level’ facts, i.e., the ones that have, in all kinds of ways, been elevated to more abstract status, and thus said to be necessary to the justification of the case (the so-called ‘material facts’ – there’s an interesting sensory term there already – as if the other facts were without ‘matter’). It would probably not occur to many lawyers – it did not occur to me – to pay much attention to that phrase, i.e., that the plaintiff had cycled home ‘caked with grime and sweat’. The more abstract fact of having to cycle home without washing is what most lawyers would mention instead. But it is Bolens’ gift, so visible in her scholarship, that she pays attention to what others have tended to pass over, and in particular, highly sensory and kinesic terms, and their cognitive effects. Crucial to her argument is that this term is affectively tagged and affectively processed: to say that someone is cycling home ‘caked with grime and sweat’ is not affectively, and thus normatively, neutral. It is associated with something demeaning and debasing: it points, as Bolens notes, to Mr McGhee’s vulnerability and to the violence done to him (by not having showers available at his workplace). Equally crucially, for Bolens, is that this is not about the judge expressing sympathy for the plaintiff. Rather, it is the judge making the plaintiff’s experience intelligible to himself, and communicating that intelligibility to others. It is the judge being a good judge, not (necessarily) a nice man.
I’ve repeated what Bolens has argued because I agree with it entirely. My main aim has been to show just how generative and significant it is. Bolens has also made me see that we need to dig deeper: to see how law arises, and is made from, descriptions of ground-level facts, including (or perhaps especially) ones that seem incidental. One clue to finding these is precisely paying attention to terms that invite us to imagine with our senses, or to simulate the movements, postures and gestures of bodies – and to consider how they are being affectively tagged and affectively processed. As much as other domains of everyday life, the law too – in all its technicality, perhaps especially in its technicality – depends on the sensory and kinesic resonances of language. This sensory and kinesic quality of language is present not only in artefactual language (like metaphor, as Conceptual Metaphor Theory has shown); rather, it permeates language throughout, and is crucial to our processing of it. This is also why language, our arguably most powerful technology of imagination, with its sensory and kinesic resonances, is such a wonderful resource. In the legal context, in brief, it is one of the key motors of legal poetics, of the making and changing of law.