Imagination and legal reasoning, session 3

by Paul Maharg on 16/06/2016

I’m chairing this (predominantly pedagogy) session so comments will be short.  Useful paper by Paul Harris on developmental psychology.  Causal thinking is often influenced by counterfactual thinking — explored by psychologists in the late eighties eg Wells & Gavinski 1989, particularly with regard to children’s development.  He cited Harris et al 1996 (cited here).  He cited new data, from Iceland and Japan (Hiro Terada).  Conclusion: counterfactual thinking comes easily to young children.  They conceptualise the world not just in terms of what was done but also in terms of what was not done.  They also invoke what was not done to block the assignation of causal responsibility to a potential action for bringing about a given outcome.   From an early age, he avers, counterfactual thinking is intimately connect to judgments of responsibility and innocence.

Sanne Taekema in her reply focused on the general points of the paper and how they could be applied to legal education.  Counterfactuals is central to how we reason in law, she said, and particularly the assignation of legal responsibility.  Is it, she asked, part of our development in morality?  A further question — why do we rely on counterfactual legal reasoning?  Should we rely on such early childhood mechanisms?.  And counterfactual reasoning is actually very selective.  Are we influenced by what is considered normal, and don’t question this?  Surely we do.

Sanne said she wanted to know how the variations of upbringing would affect counterfactual thinking.  And how could we use the insights Paul gave us, in legal education.  Eg the process by which we force students to limit their attention in a fact pattern to very specific narrative types and patterns.  We teach students to take multiple perspectives; but only those of legal personae, not eg a black New Orleans bus driver.  Or selling kidneys as an example of immoral contract.  To Sanne’s surprise, her students didn’t think that this should be an immoral contract.  What about western, northern lawyers understanding honour cultures, she asked?   Interesting questions, well-structured response.

Joshua Landy next, focusing us less on content and more on other things — emotional benefit, providing of story shapes, self-knowledge and — what he focuses on today – is the cultivation of self-capability.  He took the example of the parable of the seeds in Mark’s gospel, 4, and the difficult Marcian explanation of why Jesus teaches in this way.  First point to make about this is that it divides audience into insiders and outsiders.  As to outsiders, what determines if you’re worthy, is your capacity to handle figurative language.  Odd?  Perhaps but what is interesting about metaphor is that it gives things a new and often intangible meaning.  Eg seeds are not just seeds, and bread not just bread: it transmutes, literal to metaphoric, physical to spiritual worlds.  This isn’t just restricted to the gospels: Bocaccio, Proust, Flaubert, Austin, many others are offering similar experiences of pattern-recognition and many other reading experiences.  It’s not just about textual content but about formative texts, possibly also the role of narrative in the well-lived life.  Regarding another point, Maks made reference a little later to Mary Carruthers and her work on memory and imagination; but when Joshua constructed this interpretation of Mark (which he said later agreed with Frank Kermode’s interpretation in The Genesis of Secrecy) I was struck by how the reconstruction by Carruthers and others of medieval reading and writing habits, and the ways that medieval readers read the world into their texts prefigured this form of analysis.

Isobel Roele, commentator on Joshua, since this is an education panel, talked about two things Joshua’s paper raised re legal education. She discussed the issue of training, as Joshua put it.  The first activity — moving from the idea of Socratic dialogue (and she cited Joshua on Socrates), she pointed out that we’re not learning from Socrates, but learning through Socrates, the idea of stepping in and filling holes in faulty arguments.  Re undergrad skills?  Isobel mentioned a few — that students can read a case and think about unintended judgment.  But ‘what’s missing’ skills are important too — eg marginalised or silenced alternatives, rather than just faulty reasoning.  How to do this?  Oral dialogue?  Could be long and involved.  She proposed (with reference to Dworkin) a faulty herculean judge writing judgments that students would contest and rewrite.

Second example: in international law, the movement from enchantment to disenchantment in the power of international law to re-enchantment.  She takes Mallarme as the example for this from Landy’s text, describing it as a process of lucid self-delusion.  So what would a correlate self-deception text look like?  She described the UN Charter as a correlate fiction — a project that attempted to project a particular type of ordering on the world.  A utopian charter.  It is interpreted by lawyers, interpreted internally in its own terms.  But if you stick at disenchantment, according to Isobel, you’re not training international lawyers, you’re training political scientists.  Would be interesting to hear a pol sci’s take on that one.

Lots of questions and issues, in fact so many that as Chair and blogger I couldn’t keep up.  Please do read Joshua Landy’s article — extraordinarily interesting, as were the responses by Sanne and Isobel.

Final thoughts about the day and how we could take this forward.  Empathy and its role in moral thinking was raised by Greg Currie.  I answered by saying it was front and centre in a lot of research, citing the recent work by Rachael Field published in Emerging Legal Education and discussed much in the US legal educational literature.  Paul Bloom’s Against Empathy, discussed here, was cited by Paul Harris as a useful contrasting approach (though it’s certainly a contentious one).   Joshua talked about medical humanities and the way that doctors are trained, eg how empathy is handled in the medical curriculum (which reminded me of the great session the medics from NYU gave at the Third Symposium on Experiential Legal Education).  Some scepticism around the room as to the utility of empathy.  Sorry folks, not with you on that one.  I think it’s essential, and inconceivable that any discipline could proceed educationally without enhancing that quality.

There were some comments at the end from Paul Harris and one or two others about the focus of the day’s activities.  As for me, I found the workshop very helpful to clarify a number of issues on legal reasoning.  The topic of imagination and legal reasoning is vast, and impossible to encompass in a single day’s workshop.  Joshua Landy’s article in particular was a powerful, generous defence of an approach to textual understanding that I liked a lot and will return to, and which had much to contribute how imagination shapes our understanding of the world.  Many thanks to Maks del Mar for bringing together the speakers and commentators and organising an excellent workshop.  Next year, PEARL and ANU will be hosting the second workshop — Legal Reasoning and Communications: History, Theory, Pedagogy.  Don’t miss it.


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