Imagination and Legal Reasoning: History, Theory, Pedagogy

by Paul Maharg on 15/06/2016

Maks Del Mar, Simon Stern and I had the idea, quite a while back now, to hold a series of workshops, internationally, on the subject of legal reasoning.  But not only legal reasoning, but the concept as within the context of other disciplines, other bodies of knowledges and practices.  The workshops and background information are at our PEARL site, listed below:

  1. London 2016: ‘Legal Reasoning and Imagination: History, Theory and Pedagogy’ ( 15 June, 2016, organiser Maksymilian Del Mar)
  2. Canberra 2017: ‘Legal Reasoning and Communication: History, Theory and Pedagogy’ (mid-June, 2017, organiser Paul Maharg)
  3. Toronto 2018: ‘Legal Reasoning and Cognition: History, Theory and Pedagogy’ (mid-June, 2018, organiserSimon Stern)

.   And here we are, at Queen Mary, at the first of the three events.  Information on the first event, at Queen Mary University of London, here.

Thanks to Easyjet (shd be renamed Latejet) I missed the first speaker, Greg Currie, and was trying to reconstruct it from the remarks of the commentator, Mathilde Cohen, itself an intriguing activity.  The failures of imagination in legal reasoning.  Legal norms fail to take into account those who don’t fit into white, male, able scripts.

Next up, Kendall Walton.  He’s interested in prop-oriented make-believe rather than content-oriented make-believe.  Eg when a mum, encountering a game with children playing with bicycles as horses, says OK now, put your horses in the corral, ie your bikes in the garage.  Similarly, computers get ‘viruses’.  The fictional world that the prop generates gives us indications about the nature of the fictional world.  Alluded to theories of fictional discourse.  We don’t mean a literal virus — it’s a prop-oriented game of make-believe.  Imagination comes in more or less indirectly when we imagine the proposition is true.  But in prop-oriented make-believe we may not make the proposition true at all.  Commented on by Susanna Lindroos-Hovinheimo.  She began by considering the most extreme way of imagining law and imagination by taking the law as an imagined structure.  Law is a game when parties engage in general and abstract rules that require rule-making and imagination-making.  Witnesses tell their stories, evidence considered.  Prop-oriented make-believe is part of this.  Lawyers need imagination to be able to stretch the law.  Eg the place of metaphor in stretching the law.  Sometimes we engage in make-believe for fun, sometimes for other reasons.  A legal person is generally considered a fiction.  Susanna proposed the legal person is a prop.  What would the personhood alternative be?  Actual personhood?  Is there in reality such a thing?  She thus proposed that legal reasoning is caught between fiction and reality, has its existence there.  But if the law is a game she warned us that it is also a game of power and violence, and we must always bear that in mind.

Fascinating questions and comments later, many I agreed with, some not.  We teach students to play the game of law, said one commentator.  I think it’s a curious game, though — and stretching the metaphor rather a lot.

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