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 Catherine Wearing.

Del Mar develops a persuasive account of the positive value that what he calls ‘artefacts’ (metaphors, figures, scenarios, and fictions) can have in the process of legal adjudication. I want to explore the darker side of this story: the potential risks that using artefacts might pose. I will consider two ways in which the use of an artefact in adjudication might not contribute to “the making of insight into what values, vulnerabilities and interests might be at stake in a case and in cases potentially like it” (pg. 1). I will not suggest that these risks outweigh the benefits of using artefacts; the point of asking about potential risks is rather to make the process of inquiry as effective as possible. My focus will chiefly be on metaphors, because (as Del Mar shows) they can be very powerful artefacts. But at least some of what I say carries over to other cases.

According to Del Mar, one reason that metaphors are valuable in inquiry is “because … they connect to us as affective and embodied creatures, who rely on our affects and our bodies to make normative insights” (pg. 280). They do this via the imaginative process in which they engage us. When we explore the juxtaposition that a metaphor presents, we engage affectively, sensorially, and kinesically, as well as cognitively. It is Del Mar’s contention that we cannot generate normative insight without engaging our emotions and our bodies in addition to our rational minds in this comprehensive way (pg. 204).

It is surely right that artefacts such as metaphors engage us in all of these ways and it is plausible that we reason best when we engage ourselves completely (and indeed, when we understand ourselves as engaged in this way). The idea of ‘cold’ reason operating apart from emotions and sensations has been thoroughly debunked. But we should be careful, nonetheless, with the imaginings we undertake in this comprehensive way. For example, our emotional responses to an imagined scenario or our simulated sensations may be good guides to normatively relevant considerations, but they may also reflect problematic biases of which we are consciously unaware. If, for example, our emotional responses are socially shaped in ways that encode oppressive social structures – if they are covertly racist, sexist, ableist, etc. – then they may occlude or distort normatively relevant features of the situation rather than reveal them.

Consider one of the metaphors Del Mar discusses, that of the Dominion of Canada being ‘mistress in her own house’ (pg. 315). As Del Mar notes, this is a highly gendered metaphor (and one which, in the context in which it is used, also functions with strong imperialist implications), but the gendered aspect of the metaphor is not scrutinized when the metaphor is functioning as an artefact. In other words, the metaphor is not offered to prompt scrutiny of this gendered social stereotype. That aspect of the metaphor is taken as irrelevant to the metaphor’s value as an artefact; indeed, the gendered stereotype constitutes the basis upon which the situation of Canada is to be understood. But this characterization is not neutral, and challenging it would reveal more about the relationship between Great Britain and Canada than we see when it is ignored. Our use of artefacts, then, is better when it is sensitive to the potential for distortion as well as illumination.

A second danger which the use of an artefact may raise lies in the power which metaphors (and other artefacts) may have in comparison with more literal language. Suppose that one objects to the use of a particular metaphor; one finds the interpretation it generates problematic or even pernicious. How does one resist it? Resisting a metaphor is generally more difficult than resisting more literal language. Del Mar is attracted to views of metaphor which emphasize the power of metaphors to do more than give us claims to believe. Both Richard Moran and Liz Camp, for example, emphasize the perspective-shifting power of a good metaphor. As Camp puts it, a perspective “organizes one’s attention, thinking, and feeling” (2015, pg. 340). To borrow Moran’s (1989) beautifully evocative example, not only does the assertion that a certain individual is a ‘tail-wagging lapdog of privilege’ cause one to form beliefs about the unctuous obsequiousness of the person in question, the metaphor re-frames the hearer’s entire perspective on that person. Once we have understood the metaphor, we cannot ‘unsee’ the lapdog. The metaphor changes what we see and how we feel, as well as what we believe.

To resist a metaphor, one must resist adopting a perspective. How does one do this? Because a perspective is more than a set of assertions or beliefs, drawing attention to and then denying a set of assertions is not enough. Consider the central example of metaphor that Del Mar discusses: Lord Sankey’s statement that “the British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits” (quoted in del Mar, pg. 315). Del Mar explains the great subtlety with which Sankey deploys this metaphor to (in part) defend the right of the British Privy Council to render a judgement about the constitutional interpretation of one of its dominions. If one wants to object, there are two challenges. One is interpreting the metaphor itself, rendering its indirect assertion more explicit. The other is to put into words those other, less propositional, components of a perspective. Imagine if Sankey’s opinion had argued quite directly that the Privy Council took itself to have jurisdiction (within certain limits) in virtue of Canada’s being an imperial possession of Great Britain, thereby giving it the authority to render a judgement that overruled the opinion of the Supreme Court of Canada. The more explicit the imperial assertion of power, the easier to articulate one’s objection. The metaphor does not make explicit Sankey’s very subtle assertion of the Privy Council’s authority; indeed, Del Mar suggests that this is one of the most striking and impressive aspects of this metaphor. Thus, while we might admire what Sankey accomplishes with this artefact, we should also be mindful of its power to reframe our perspective and the (relative) difficulty of resisting it.

Del Mar is sensitive to the potential for danger in the use of artefacts. He notes that something which is intended as an artefact may fail to attract our attention to its artefactuality, so that we engage with it without doing the imagining proper to artefacts. More importantly, he allows that someone might encounter an artefact and recognize it as such, but fail to engage in the imaginative activity which is productive of inquiry. Instead, they might “[treat] what once were artefacts as but shorthand for more automatic, thoughtless mental operations … [e.g. imagining] in ways that enhance their already-biased views [or…] simply react emotionally to the scenario and decide accordingly” (pg. 216). In such cases, Del Mar claims, the participant is obstructing, rather than participating in, inquiry.

Later, in discussing metaphor, Del Mar notes the cautionary voice of Marguerite La Caze, who warns that metaphors may function “to persuade and provide support for a particular view and to exclude alternative views and methods” (La Caze 2002, quoted by Del Mar, pg. 230).  Here, Del Mar agrees that inquiry requires openness in order to avoid epistemic injustice, but again argues that when language is used without such openness, it is not functioning as an artefact: “from my perspective, when language functions in this way, it loses its artefactuality, functioning no longer to signal artifice and invite imagination, and instead reinforcing habits and ways of seeing, feeling, and understanding” (Ibid.).

I don’t think this response to worries about the dangers of artefacts goes far enough. It suggests that when we allow our biases to play a role, we thereby fail to imagine. If that is so, then imagining is the same thing as imagining well. But if, as seems plausible, we can never be fully sensitive to all of our biases, imagining in a way that is bias-free should not be the criterion determining whether we imagine at all. Instead, we should make room for imagining poorly, and we should direct some of our attention to identifying what that consists in.

If we recall the ‘mistress in her own house’ example discussed above, we see an artefact which engages its interpreter as an artefact even while it reinforces problematic habits and ways of seeing. Similarly, consider figures like the Officious Bystander or the Reasonable Person. Because they are much more thinly delineated than the characters of a fictional work, an interpreter must ‘fill in’ the figure “with knowledge of social norms, customs and practices” (pg. 349). If it is not an accident that these figures, when they appear in the law, are almost always men, then there is a highly gendered ‘filling in’ at work, and the possibility of being guided by social norms, customs, or practices which entrench and perpetuate sexist stereotypes or structural inequalities exists even while the artefact is functioning to promote inquiry. It seems clear, then, that these figures can and do function as artefacts at the same time that they employ and perpetuate features which may limit the range of ideas that suggest themselves for our consideration. We must be vigilant, therefore, about what artefacts may obscure, as well as what they may reveal.

References

Elisabeth Camp (2015) “Metaphors in Literature” in The Routledge Companion to Philosophy of Literature (N. Carroll and J. Gibson, eds.) London: Routledge.

Marguerite La Caze (2002) The Analytic Imaginary Ithaca: Cornell University Press.

Richard Moran (1989) “Seeing and Believing: Metaphor, Image, and Force” Critical Inquiry Vol. 16.1, pg. 87-112.

Response to Catherine Wearing from Maksymillian Del Mar.

Catherine Wearing is absolutely right that this is an upbeat book – an optimistic one in which I attempt to defend the positive role of imagination, and relate it to the difficult task, facing every judge in a case, of attempting to do justice. As Wearing notes, I argue that it is by imagining that judges can better discern the values, vulnerabilities and interests at stake in the case they are deciding, and in potentially similar cases in the future. This is because, I argue further, we cannot discern normative stakes in any other way: we are embodied, affective, sensory creatures, and our only access to the normative is through our bodies, emotions and senses. Crucially, though, we can simulate such embodied, emotional and sensory experiences: and that’s what we do when we imagine (in different ways, given the richness and variety of ways of imagining). Further, such embodied, emotional and sensory experiences are also subjective ones, so this is also a defence of the value of subjectivity in the adjudicative process (an argument that can also be extended to defending diversity on the bench). This subjectivity is, in the process, tempered in all kinds of ways (e.g., via the requirement for inter-subjective communication of the description of the facts and justification of the reasons in the case), but subjectivity is still involved and, on the view I defend, is an important feature rather than a bug of legal reasoning.

Wearing, however, argues that although this is all well and good, it is also (here I am paraphrasing her comment in my own terms) somewhat naïve: imagination has not only a positive side, but also a negative one. Imagination may, at times, be Jedi-like – but it can also be more like the Imperial Stormtrooper (with apologies – my son and I have been watching lots of Star Wars during the various lockdowns…). Subjective experience, certainly, is infused with biases (indeed, it is hard to conceive of subjectivity operating without them).

Wearing is absolutely right to pick up on a certain imbalance in the book, though, as she also notes, this was deliberate. A good deal of scholarship on legal reasoning is shot through with the hermeneutics of suspicion (including a distrust of subjectivity): I wanted to offer a way of thinking about the legal imagination, and its subjective experience, and inter-subjective sharing, that was not beholden to critique, but instead showed how important imagination was to the difficult task of attempting justice. As chapter 1 discusses, none of this means that the justice that is attempted, with assistance from imagination, guarantees it some kind of privileged status, as if justice really was done. Rather, the argument is that without imagining – without engaging in the effort involved in imagining – we will struggle to even attempt the difficult – and never complete, never entirely satisfactory – task of doing justice.

But there is more to Wearing’s challenge than this reply suggests. It is no accident that Wearing picks on metaphor, though also (at the end) figural imagining: these involve us in high degrees of affective, sensory and kinesic participation. As Wearing observers, the high level of participation in these kinds of imagining means they are difficult to resist: once we are invited to imagine by a certain metaphor, or a certain figure, we are likely to find ourselves adopting certain kinds of perspectives and emotional reactions, which may well entrench certain forms of (epistemic) injustice, such as, again, colonial and gendered biases. This is an important challenge – for if Wearing is right, then, although she says so to the contrary (she says that she is not arguing that the potential risks outweigh the benefits), it may be that we are better off, at least in the legal context, without artefactual language, and at least the highly participatory forms of imagining.

How to reply to Wearing’s challenge? My first step is to emphasise the first limb of the model of imagination, and also the first dimension of artefactual language: to imagine, and to play with artefactual language, is not only to participate (e.g., take on a certain perspective) and do things with those forms (e.g., fill in certain hypothetical scenarios) – it is also to consciously and deliberately enter into a distinct epistemic frame, with awareness of the artifice of those forms of language that invite us into that participation. It is the combination of the two processes – of the of the purpose- and time-bound, self-reflexive awareness of artificiality – with participation that is key. Participation on its own would not be enough – it would precisely carry more risks than benefits. It is participation in an epistemic frame, and thus also playing with language that one recognises is artificial, that is crucial.

This is also why I insist that it is only when a certain form of language still functions as artefactual (e.g., dead metaphors have arguably lost that capacity, at least in large part), and only when judges actually make the effort to imagine, that we can speak of these forms of language, and the related processes of imagining, being valuable to inquiry. Part of what I mean by ‘effort’ is not just the effort to participate (along that spectrum of affective, sensory and kinesic involvement), but also the effort of retaining the sense that we are in a distinct epistemic frame and thus playing with artifice. The importance of this (self-reflexivity, as part of imagining) suggests that we can imagine more or less well – that imagining is a skill, if not a virtue. It requires training: perhaps some of it comes naturally to us (in childhood games of pretence), but, as we know from those childhood games, it is all too easy to get lost in them (though children are actually much better at tracking what is real and what is not than we tend to think: see Paul Harris, The Work of Imagination, 2000). All too easy, perhaps, but not impossible: we get caught up in processes of imagination, but they are still there, tapping us on the shoulder, reminding us that we are playing. It also reveals the importance of keeping legal language alive in its capacity to strike us as artificial: to keep legal language strange, to a degree.

But – and here I return again to Wearing’s challenge, and offer a second step – does this kind of self-reflexive awareness, combined with the sense of artificiality of the language being played with, amount to the epistemic vigilance that (I think) Wearing has in mind? No: I think more is required for that. Artefactual language, and its related processes of imagination, are probably not well-suited to full-scale scrutiny of the epistemic injustices carried by our language and how we experience it. I agree completely that communities need this sort of scrutiny – there are many dangers involved (as Hannah Arendt, amongst others, pointed out) for a community that loses that ability, and is governed by a language that is too ready to hand. But can that full-scale scrutiny be expected of judges and advocates in the course of legal practice? Also probably not (literature and the arts – and other kinds of activities, such as some forms of stand-up comedy – are perhaps our most powerful fora for that). What I try to offer in the book is a quite grounded, realistic, undoubtedly limited, account of imagining in the legal context that is not wholly thoughtful, but is also not a process of mindless, unreflexive participation (all the more so given it is social, and thus involves exchanging sometimes very different imaginative experiences). Imagining in this way, by fallible, limited beings such as us, cannot avoid re-enacting existing biases and entrenching some forms of epistemic injustice (language itself carries that to an extent) – but it can still play a vital role in the task of attempting to do justice. This is certainly an upbeat and optimistic view, but I hope not a naïve one.