In the Eye of the beholder

In the Eye of the beholder

Wordfulness for Neophytes Putting jurisprudence to work to address pedagogic challenges Max Weaver Visiting Professor | Law Division | London South Bank University Youve seen: NOW Wordfuln ess Jurisprudence and the Pedagogical

Challenge A Word Play by The Pedagogical Challenge The limits of a students language are the limits of that students world Adapted from Wittgenstein in the Tractatus 5.62 Cast in order of appearance A neophyte law student, UCAS casting imminent Karl Llewellyn, played by his spirit Santa Claus, played by a hologram Mrs Beeton, played by various law teachers

and Ernest Weinrib as himself Other parts are played by living and deceased members of the legal, jurisprudential and philosophical communities Armchair Hypothesis 1 One click culture Heres our neophyte law student Taught to the test A customer buying outcomes BUT cultural cognitive clash with

common law methods mix of change and predictability Armchair Hypothesis 2 The thirst for certainty imports a form of philosophical realism an expectation that legal concepts have a mindindependent existence Cf. JL Austins moderate-sized specimens of dry goods But we should disappoint our certaintyseeking neophyte Jurisprudence should be engagedand engaging Cultural Cognitive Clash Unpacked

Our neophyte is conditioned emotionally and intellectually to expect : clear separation of lawapplication from law-making certainty, predictability fixed and precise meanings of words OR AT LEAST definite core of meaning modest interpretational penumbra Whereas: Common law is judgemade changes incrementally, with occasional more radical interventions

Usage determines meaning interpretation can extend to the whole concept often no hard line American legal realism is fundamentally different Legal concepts (e.g. negligence, intention, contract) are mind-dependent investigate the minds involved the common law is judge-madeand changes evaluate laws by their social effects legal changes lag behind social changesmostly rules not always the best predictors of what courts will do [Based on Karl Llewellyn, Some Realism about Realism (1931) 44 Harvard

Law Review 1222, 1234-1238] Armchair hypothesis 3 Law teachers indulge neophytes thirst for certainty much as parents teach the very young about Santa Claus or the Tooth Fairy Choosing formation of contract as a first common law topic lends a mechanistic tone A Mrs Beeton approach is introduced, unless great care taken about to policy aspects Being pre-conditioned, neophytes warm to the mechanistic aspects tend to marginalise the subtler policy points Of course, no law teacher actually believes in Santa Claus

although some might well be described as doctrinalists Weinrib: a paradigmatic doctrinalist [T]he notion of right and correlative duty would be undone by the non-correlative conception of the content of those rights as being based on welfare. Ernest Weinrib, J. Corrective Justice (Oxford University Press, 2012) Kindle Edition, 22 Excludes deep pocket cases from proper private law (e.g.) Nettleship v. Weston (e.g.) thin skull cases vicarious liability

Confronting Santa Syndrome To avoid filling the world with Santabelieving adults, parents will: 1. refuse to teach them Santa begin as we mean to go on 2. teach them Santa but break Santas unreality gently 3. assume offspring will eventually learn the news from others Armchair hypotheses 4 (and 5) I opt for begin as you mean to go on Hypothesis 4 is an important condition precedent: Most neophyte law students have the intellectual equipment to cope with uncertaintyour problem is to overcome their emotionally entrenched pre-conditioning

Not yet tested empirically. Assuming Hypothesis 4 is valid, Hypothesis 5 sets out three distinctions that might overcome neophytes pre-conditioning Armchair hypothesis 5: three useful distinctions Factive (is) (empirical) Verdicts Motivations, Reasons and Justifications This notion gets subNormative Verdicts divided(ought)

later Incontestable Concepts Contestable Concepts Conclusory Verdicts Armchair hypothesis 5: First Distinction Conclusory Verdicts Motivations, Reasons and Justifications Verdicts just are Verdicts are conclusions

Verdicts are not motivations Verdicts are not explanations Verdicts are not justifications Giving Verdicts is what judges are for Our neophyte law student is conditioned to stop at Verdict 2 Verdict 1: D is not liable to C in negligence We might despair of those who stop at Verdict 1 Obviously verdictive Note thatexplanation open-texturedorwords appear, in this example, only at Verdict 3 Lacks any justification Maybe policy reasoning and value-judgements are most likely to be

Verdict 2: Because there is no duty of care implicated at ais, stage that involves open-textured justifications Looks like, and a formal justification forward to the third distinction: incontestable But Points it is itself a verdictand we must

ask howfrom thatcontestable verdict arose, and (and, sometimes contested) is justified Verdict 3: Because there is insufficient proximity between C and D Looks like, and is, a formal justification But it is itself a verdictand we must ask how that verdict arose, and is justified Contract model

Verdict 1: C is liable to D in contract Obviously verdictive but lacks any explanation or justification Verdict 2: there is agreement, consideration and an intention to create legal relations Looks like, and is, a formal justification , but it is itself a verdictand we must ask how that verdict arose, and is justified Whether there is consideration and/or intention to create legal relations might well involve value-judgements Where neither precedent nor social consensus overwhelms: judges have some wiggle room distinctive features of case-circumstances (call these factors) will be weighed and felt-fairness of consequences will matter (American Realism) Armchair hypothesis 5: Second Distinction

Factive (is) (empirical) Verdicts Normative (ought) Verdicts What is the case? is factive and falsifiable Norms are not falsifiable But norms are contestable unless composed entirely of quasi-mathematically certain concepts (parking meter rules) Fact-sensitivity Recognises that the law under

consideration includes a fact-sensitive normative concept That concept in not mind-independent But fact-sensitive concepts are regarded as contestable/interpretive Contested and applied in the light of past, present and future Mind-dependent Fact-finding is not mind-independent Which evidence to believe? Choosing operative or proximate cause from the numerous causae sine qua non Even when trying simply to explain what happened Determining states of mind

Intention to act Intention to cause consequences Which consequences? Intention to proceed with reckless disregard for consequences deemed actually foreseen Determining motiveor psychological causation But is there one A trap for neophytes real meaning? Judges sometimes On to ouruse third ostensibly factive language when distinction!

considering a normative problem (e.g.) foreseeable (a falsifiable factive is) for reasonably foreseeable (a standard setting ought) Armchair hypothesis 5: Third Distinction Incontestable Concepts Contestable Concepts Incontestable from Contestable This is INCONTESTABLY

a triangle But triangularity is CONTESTABLE Incontestables: Parking Meter Rules Time and space are incontestable components of the rule The bay delineates the space and the meter records the time CCTV can record presence But is this car present at the instant the meter expires? Just a modest interpretive penumbra around the certain core

Conjugating Contestation Call the kind of contestation in our parking meter case penumbral contestation However, non-penumbral contestation or whole-concept contestation is commonplace but likely under-appreciated by neophytes Several examples in the full paper Just two are sketched here L'Hommage Rumsfeld Incontestable Concepts Contestable Concepts

Easily confused Uncontested-Contestables Contested-Contestables Consensus & Contest ~ 100% consensus ~ 100% consens us Incontestab le quasimathemati

cal concepts This line will not often be straight Consensus declines Contestable concept BUT uncontested So too, this line

Contestable concept increasingly contested Example 1: Consideration: Change; Entrenchment; Workarounds Advent of Legal Science Rise of economic individualism Advent of welfarism 1859 Self Help published Other concepts developed

to circumvent considerations rigidity Consideration an essential Mrs Beeton=style ingredient of ~all enforceable contracts. Consideration a something that must move from the promisee. Consideration = a good reason to enforce a promise > 1770 < ~ 1942 <

1778 Rann v. Hughes 1826 UCL Law 1879 Anson 1st edn 1942 Beveridge Report

1976 Liverpool v. Irwin Example 2: Vicarious Liability: Enduring; Expansion/Supplementation Advent of Legal Science Cassidy v. MoH [1951] Rise of economic individualism Advent of welfarism akin to employment 1859 Christian Brothers [2012]

Help Armes v.Self Notts. CC [2017] published Lister v. Hesley Masters liabilityHall Ltd [2001] Eventually justified by Morrison Mohamud v. WM control/agency reasoning:[2016] Supermarkets

Masters often liable for their servants torts Rise of expert employees THEN of more complex business structures etc. Realisation of

abuse issues Deep pockets found to compensate victims employment in the course of > 1770 < ~ 1942 1798 Hern v. Nichols

1826 UCL Law 1860 Addison on Torts 1942 Beveridge Report ~2000< 1942 NHS

Pedagogic Implications Assuming my three distinctions matter: Santa Claus has to go Gradual induction into the distinctions? Introduce (opportunistically) in substantive curriculum? (intuitive preference) Some Suggested Methods Reading Writing Prcis brings these skills together Mootingentails analysis, argument, spotting ambiguity, finding weaknesses, counter-argument Clinicentails finding facts, finding law, devising strategy, anticipating counter arguments Testing and feedback

A long way from reliance on foundational doctrinal exposition alone Max Weaver Visiting Professor | Law Division | London South Bank University

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