Maksymilian Del Mar is Professor of Legal Theory at Queen Mary University of London. His research interests are interdisciplinary, but within philosophy, they include philosophy of law, philosophy of mind and language, aesthetics, and philosophy of the social sciences.
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). Today we begin with an introduction from Maksymilian. Commentaries and replies will follow Tuesday through Thursday.
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Does imagination matter to legal reasoning? This is the question confronted in Artefacts of Legal Inquiry. Surprisingly, the question has not been asked, let alone answered, much before in legal scholarship. When it has been, it has often been approached through other categories, such as intuition or creativity, or as a moral virtue akin to empathy. What has not been examined is the importance of contemporary developments in the philosophy of imagination for theories of legal reasoning. It is this challenge that the book seeks to meet. It does so by also drawing on other fields that have a great deal to say about imagination: literary theory and history; and rhetorical theory and history. The book is thus an interdisciplinary investigation into the value of imagination for legal reasoning.
It is also my hope that the interest can swing the other way too: not just from legal scholarship to the philosophy of imagination, but from philosophers of imagination to legal practice. Part of the aim of the book, then, is to showcase the law as a fascinating laboratory for an investigation into imagination in the wild, and thus into its practical value even in as technical a domain as law. Much like philosophical or scientific inquiry, legal judgement also requires imagining: when attributing responsibility, for instance, judges often imagine not only what happened, but what might have happened otherwise, e.g., what would the Reasonable Person have done that the defendant did not do? Not only do judges imagine in this way, but so do the advocates arguing before the judge: there are disagreements about how to imagine what might have happened, and the imagining that goes on is thus intensively social (competitive and adversarial to an extent, but also co-operative).
Judges and advocates imagine together in all kinds of other ways, e.g., they pretend together that something has been proved (e.g., causation) when they know it has not been; they construct and process hypothetical scenarios (or thought experiments) of the possible futures of a proposed rule or principle, exchanging variations of those scenarios, and simulating the emotions of the fictional characters in them; and they juxtapose one realm of experience with another realm, e.g., simulating the experience of being the gardener of a tree alongside being the interpreter of an imperial constitution (through the metaphor of the constitution as a living tree). In all these instances (i.e., through the use of imaginary figures, fictions of proof, hypothetical scenarios and metaphors), judges and advocates imagine, in different ways, together. These interactive and collective processes of imagining are not just entertaining sidelines or optional indulgences: they are an integral part of what it means to reason legally – or so the book argues.
But what is it to imagine exactly – and might there be a model of imagination that can help capture this variety of different ways in which we imagine? Capturing this variety was one of the crucial tasks I set myself in this book: I wanted to find a way of conceptualising the activity of imagining that would include instances where we suppose something is so (as in fictions of proof, supposing something has been proved when we know it hasn’t been), which need not include any mental imagery, all the way to instances where we simulate the emotional experience of characters in hypothetical scenarios, or where we construct mental imagery of the actions and interactions of fictional characters (like the Reasonable Person). I thus wanted to show the richness and complexity of imagination: just as there were potential benefits in supposing something without constructing mental imagery, there were also potential benefits in constructing mental imagery and simulating emotion – we can do many things with imagination, but it is all still part of the one realm of imagining. But what model of imagination can be so inclusive, and still present imagination as a distinct kind of mental process?
On the model I offer, imagination combines two processes: first, we enter into a distinctive epistemic frame, which is an active and deliberative process of constructing a certain epistemic attitude, including selectively suspending certain epistemic norms and commitments, while retaining others; and second, we participate within that epistemic frame along a spectrum of affective, sensory, and kinesic involvement. In the book, I show the range of epistemic norms and commitments we can selectively suspend, and also the range of ways in which we can combine affective, sensory and kinesic involvement. This yields, I hope, a rich but still robust model, capable of distinguishing imagination from other mental processes (like belief), while still incorporating a wide range of different ways we can imagine.
Importantly, and especially if applying imagination to the legal context, imagining, as I approach it in the book, is not solely or even typically a solitary experience: it is a deeply social one, and especially an interactive one. Even when judges imagine by themselves (say, when they are writing their judgement after the trial), they are simulating audiences who will read them, both the parties but also (indeed, especially) later advocates and judges reading the judgement. In a sense, reasoning is precisely this process of simulating conversations with others (it is a kind of internalised, imaginary dialogue with others). This social aspect of imagining is especially intense in the oral argument between judges and advocates: as above, judges and advocates suppose together, play with metaphors together, and exchange variations of hypothetical scenarios and versions of the actions of imaginary figures. The law is made in this process of interactive imagining together, which, again, often involves simulating emotions, and thus feeling together. Indeed, one of the crucial aspects of the model of imagination in the book is precisely the relation between imagination and emotion – though not just or even mainly on the level of the individual, but at the level of collective and interactive dynamics.
But it is not enough to have such a model of imagination when confronting the legal context. This is because of the vital role that language plays in law. Thus, one of the key questions that I ask in the book is: what kinds of language – what features of language – prompt us to imagine? I offer a particular model of this language, which I call ‘artefactual language’ (hence the title of the book: Artefacts of Legal Inquiry). Artefactual language has two features: first, these are forms of language that signal their own artifice, thereby capturing our attention (e.g., they can do so by capitalising the name of a non-existent figure, as if it were a name: the Reasonable Person); and, second, they call upon us to participate, i.e., to do things with them (e.g., to relate two domains juxtaposed with each other in processing metaphor, or to construct mental imagery and simulate the emotion of characters in a hypothetical scenario). It is artefactual language, I argue, that prompts us – invites us, calls on us – to imagine, and, again, often to imagine together.
In offering this model of artefactual language, I wanted to at least raise the following question: what is the relationship between the philosophy of imagination (and, relatedly, emotion) and the philosophy of language? This is important in the legal context, when so much of what lawyers do is read what other lawyers have written, in particular what judges have written in prior cases. In many ways, language, as I see it, is a crucial technology of imagining (not the only one, of course: visual forms, as found in the history of art and design, are another technology). Here is also where we can learn a great deal from literary and rhetorical theory: the rhetors, after all, were experts in crafting a language that invited their audiences to imagine – to see in their mind’s eye what happened, as if they had been there themselves. The so-called ‘ornaments’ of language (originally, ornaments meant ‘weapons’), like the many rhetorical figures of speech (metaphor, metonymy, synecdoche, irony, ellipsis – there are hundreds), are somewhat strange twists and turns of the usual forms of language (‘tropes’, from the Ancient Greek ‘tropos’, are precisely ‘turns’, changes of direction), and in being strange, they capture our attention, but also invite us to do things with them (play with them together). In this sense, imagining – at least in the legal context – includes a kind of playing (together) with language. Literary theory is important here too, especially theories of how readers experience the language of literature, e.g., it is interesting that the mental imagery constructed by readers is often much richer when a literary work uses lots of kinesic terms (i.e., terms describing actions – bodily movements, postures, gestures – from a perspective).
These are some of the main aims and moves made in the book: it would be a dream for the book to have even a tiny role in encouraging more dialogue between philosophers, literary and rhetorical theorists, and legal scholars, about imagination.
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I would like to express my deepest thanks to Amy Kind for organising the symposium, and to the three commentators, each of whom has engaged so richly and generously with the book: Margherita Arcangeli, Guillemette Bolens, and Catherine Wearing. Life has been hard enough during the pandemic – to make it even harder by engaging with a long book in legal theory is truly heroic. I am hugely grateful.