I have the right to remain silent (2017). Oil on canvas by Albert Barqué-Duran.
Hypotheticals, fantastical beings, and a fictional omnibus: legal reasoning is made supple by its use of the imagination
The legal world is wonderfully strange. Pull down a dusty volume of case law from a barrister’s bookshelf, and you’ll discover a parade of fantastical beings that could have been lifted from the pages of Jorge Luis Borges or Dr Seuss. In the law, constitutions behave like living trees, the island of Minorca is treated as a suburb of London, immobile houses suddenly zoom along beltways, Clapham omnibuses are packed with reasonable men, and spectral officious bystanders routinely spy on contractual negotiations. The legal realm is full of unlikely and improbable possibilities, as well as paths not taken, counterfactuals, mights, perhapses and maybes.
All of this draws on the faculty of the imagination. You’d be forgiven for thinking of a judge as someone who spends all day shoehorning ‘the facts’ into pre-fabricated principles, and laying down determinative rulings like geological strata. In fact, legal reasoning is a much more supple exercise. Individual judges must resolve knotty questions under conditions of uncertainty, and in a context in which there’s usually profound disagreement about both what has happened and what ought to be done about it.
In these circumstances, imagination performs many salutary functions. Indeed, legal reasoning would be impossible without it. Imagination allows judges to explore what might be at stake in any particular dispute, and to provide a set of resources for future decision-makers. It lets them communicate doubt and express hesitation. And it brings the language of law alive, moving us and inviting us to imagine further – and so enables a thriving, interactive community of enquiry.
Of course, imagination also carries certain dangers. It might encourage bias, or signal a departure from common sense. But overall it should be celebrated – in law and, perhaps, in other domains where people must engage in the messy business of public reasoning.
Legal reasoning has at least four imaginative abilities at its disposal. The first is supposing: pretending that something is the case when you know or suspect that it’s not. Judges have been doing this sort of ‘as-if’ style of imagining for thousands of years. Courts in ancient Rome frequently used a mechanism known as fictio civitatis, the fiction of citizenship, which let authorities rule on the behaviour of ‘aliens’ as if they were Romans. As Gaius, a celebrated jurist in the second century CE, said:
If it appears that a golden cup has been stolen from Lucius Titius by Dio the son of Hermaeus or by his aid and counsel, on which account, if he were a Roman citizen, he would be bound to compound for the wrong as a thief.
Fictions are not just the preserve of the West. In 17th-century China, clans of villagers set up ‘companies’ that collected and distributed capital to their members, who were supposedly united by kinship with common ancestors. But as the legal scholar Teemu Ruskola at Emory University in Atlanta argues in Legal Orientalism (2013), ‘the idiom of the family was frequently only a legal fiction used to recruit members, many of whom were not even related by blood to the clan they joined’. Needless to say, this fiction often proved useful in raising revenue for the company.
However, I will focus on the common law – a tradition that comes from Britain, and in which the authority for a principle is settled through the slow accretion of case law and custom, rather than by setting out everything in statutes or codes. This mode of thought involves its fair share of judge-invented fictions. In the 18th-century case of Mostyn v Fabrigas, for example, a resident of Minorca – an island off the coast of Spain that was under British rule – claimed that he had been falsely imprisoned by the British government. To gain jurisdiction, the British court treated the territory as if it were a suburb of London.
Legal scholars usually dislike such judicial inventiveness. ‘[T]he pestilential breath of Fiction poisons the sense of every instrument it comes near,’ wrote the jurist and philosopher Jeremy Bentham in 1776. He said that imagination had infected the law like syphilis, ‘begotten in the bed of metaphor’ – something of an irony, given his own turn of phrase. Bentham claimed that legal language would reflect the truth of affairs only if it were direct and free of ornament, and accused lawyers of deliberately mystifying the law so as to retain sole guardianship over its mysteries – and thereby enrich themselves…