Introduction

Two things always bothered me when I was a boy. First of all, I puzzled interminably over my inability to catch a single moment, to identify anything that I could really call ‘the present’. I had been taught in school that time could be divided up into past, present and future and that these three related to each other in particular ways, but I had great difficulty understanding how this relation worked. I could see what the teacher meant when she said that the past was ‘what was over’: it was like the road already travelled, similar to the long stretch of grey tarmac that I could see out of the back window of my father’s car as he drove along. The future, too, I could understand: it was like the road ahead, perhaps less clear because as yet untraveled but able to be anticipated nonetheless. But what of the present? How was that to be understood? Was it the road beneath? My problem was that because the car was always moving I couldn’t fix on anything that I could identify as ‘the road beneath’. Of course, I tried to anticipate the road ahead as it appeared to move towards me (made a little easier by the way it was structured with a series of telegraph poles), but every time I tried to say ‘now’ it immediately became ‘then’, and I could see my ‘now’ out of the rear window. So what was the ‘present’? Was it that part of the road that I could see immediately behind, that we’d just passed over? It couldn’t be: that was ‘past’. Every time I tried to think of this I became very confused. It seemed like everything was changing just a little too quickly for me. Nothing was standing still. The second illustration takes place the day I came home from school after

being told for the first time about fractions and dividing. I remember sitting down in a chair, puzzled, repeatedly drawing my finger down slowly to the arm of the chair and thinking all the time: ‘If I bring my finger down to the armrest I can touch it. I know this because if I continue to press then my finger gets sore and it makes a mark on the armrest’. Yet the teacher had only just finished telling us about fractions, and she had explained how, if you keep on halving something, you will always have something left to half that can itself be halved, and so on. ‘So’, I asked myself, ‘am I not always, at some point, halving the distance between my finger and the armrest? How,

then, can the two ever meet?’ At that early age I could find no way out of this: I concluded that either there must be something wrong with the halving rule, or my finger must never actually touch the surface of the chair. Yet when I tried it with a bowl of water, my finger definitely got wet! In thinking about law, I am continually drawn back to this childhood

puzzle, for traditional approaches to the meaning and practice of law appear beset by this problem, forever stumbling on the same difficulty. In seeking to address the events and circumstances of human experience by means of legal representations of these events, law abstracts from and ‘freezes’ what is essentially a continuously moving and changing flow, progressing by way of a series of static representations of this experience, a collection of ‘snapshots’ of an otherwise ever-changing reality. But, of course, as we know, reality is not static; it only conveniently appears that way. Even the mountains that give the impression of standing firm forever do actually change over time (as, indeed, advances in photography and technology, which supposedly ‘speed up’ time, demonstrate consistently). This connects with my other puzzle, for if law is, as it is commonly sup-

posed to be, a way of understanding reality that involves abstraction for the purposes of representation, a reduction to role and rule achieved through the application of general rules to particular concrete facts, events and circumstances, then how does it not come up against exactly the same problem as my childhood experiment with the application of the halving rule to the continuous action of my finger towards the arm of the chair? If, in my earlier experiment, the difficulty with the application of the universal rule to the particular facts is that it always results in a ‘gap’, then why should this be any different for law, since law also seeks to achieve its purposes through the application of universal rules to particular facts, events and circumstances? Moreover, if this is so, then how is this crossing of the gap achieved in law, and, if not by legal means, what does this tell us about the legal decision-making process and about law in general? This question of the relationship between universals and particulars

against the backdrop of an understanding of reality as constituted by continuous change is really what is at the heart of this investigation. Here, I attempt to examine legal reasoning from a ‘process’ point of view, beginning with an understanding of reality that necessitates a reversal of the normal ontological prioritising of stability over change, asking what it might mean to represent law in these terms. Identifying a way of looking at law and legal reasoning that centres on the relation of particulars to universals, I focus on the problem of finding justifying reasons for legal decisions in hard cases. The difficulties involved in attempting to articulate the legal decision-making experience in this way are well documented in the contemporary literature, being variously described as ‘the particularity void’, ‘the aporia’, ‘the phronetic gap’. In order to deal with this, some theories of practical judgement have been developed that are inherently particular while

alternative theories that give more weight to the role of universals, rules and principles, are also advanced to validate the decision-making process. Between these limits, of particularism and universalism, yet more theories attempt to find a sort of via media, reworking the understanding of the particular/ universal relationship; still others claim that although justifying reasons are offered to characterise decisions as legal the reasons that would ground their justification cannot be found or given in law. What unites all of these approaches is a desire to take seriously the matter

of justification in legal decision-making and in doing so each may be seen to articulate one or another understanding of the particular/universal relationship. But there is a difficulty. Prevalent as these theoretical approaches are, every time an attempt is made to account for legal decisions, they somehow appear to effect an escape. Every attempt to offer justifying reasons for legal decisions appears at best to register only at the level of explanation. Why? I suggest that perhaps part of the problem may be that our inherited conceptual framework is tied to a ‘static’ way of thinking that is now outmoded. We try to understand by objectifying reality, analysing what we objectify. But reality is not static; it only conveniently appears that way. It is not, in fact, composed of simply locatable, separate ‘entities’ but is more akin to a continuous flux, where things merge into each other and the essential qualities seem to be more correctly describable in terms of relatedness than separateness. So any articulation of the problem of finding justifying reasons for decisions conceived in static terms may be misconceived in law. In other words, a decision cannot be ‘caught’ because once a decision is made, it is gone: it is momentous, and all that we observe of it is its trace. In this sense, law can never deliver the reasons to justify a decision, since it

is always ‘catching up’. In that sense, law is always the observation of the trace left behind, the multiplicity of points through which the movement has passed, rather than the experienced unity of the action. The application of universal rules might reduce indefinitely the distance that must be bridged to cross the ‘particularity void’ but, like the repeated application of a halving rule, without closing the gap. Understood thus, some gap always remains, the distance represented by the question concerning the appropriateness of that universal continuing into these particulars. So, one of the questions I am grappling with is: in what sense, if at all, can

this ‘gap’ be closed? How, given the difficulties mentioned, does a judge acquire knowledge of any particular set of circumstances and link this to rule-like generalisations to formulate a decision? How do the universal and the particular meet? My contention is that judges do not simply use, instrumentally, already existing propositional knowledge, but they also draw upon the reservoir of their own factual knowledge and upon a collective knowledge of which they may or may not be wholly aware, and create new knowledge. In this way, to use the same terminology, the gap is closed, but not in the obvious way of bringing together the two extremes or bridging the

distance between them: rather, through experience and through participation in a ‘community of practice’, judges develop a ‘sense’ of what is going on, of what is at stake, a legal skill that over time becomes instrumentalised. It allows them to reflect on things as they are going on: a skilful intuition that they develop and use as an extension of themselves to focus on the issue at hand. This is what accounts for the moment of decision, and the closing of the gap, and is one reason why it is so important that decisions must then be justified by providing reasons for the decision. But this intuitive, insightful aspect of legal decision-making reflects a knowledge that cannot be told, one that is difficult to put into words let alone be put in the form of propositional statements. In this latter sense, in terms of social practices, legal knowledge has a narrative structure, to complement its institutional propositional form. And what all of this points to, I suggest, is the fact that we need to revise our understanding of what is going on here. The supposedly unreflective practice of applying general rules to particular cases must somehow be transformed into a reflective one. The skill of legal decision-making needs to be augmented by an understanding of what judges are doing when they practise that skill. Since what we know and how we know are recursively linked then we need to begin to think more seriously about how we think about things. Thus, I argue in favour of the importance of creative personal understanding – a method of decision-making obtained or employed by judges using the exploration of possibilities rather than by following set rules; that is, heuristic knowledge. And what this implies is an activity that is as much about changing understandings as about changed procedure. It must involve the embracing and articulation of a vision and a definition of a new institutional reality and the ability and expertise to control information imaginatively. So while my contention is that reality is properly understood only when

it is perceived as dynamic, and not static, my task has been to try to provide a thoroughgoing processual account of the nature of legal reasoning to meet this; that is, an account that sees everything in terms of process all the way down. In attempting to articulate such a view, I suggest that repositioning law within a processual world-view allows a better understanding of the dynamic between institutions and practices and provides a more adequate description of the nature of law and legal reasoning; in particular, how a legal decision is created, maintained and employed within the decision-making system. There is an overriding conviction identifiably present throughout. Since

reality must always be infinitely more than our ideas about it then it is important always to be critical of abstractions, not interpreting the whole of reality by way of only some of its aspects but trying to remain faithful to the totality of our experience, helping to show the limitations of our way of thinking and identify what is being ignored. In this way, not only will we understand how the different forms of abstractions that we make relate to each other, but our critical approach may also help to resolve conflicts of

interpretations. This means a continuous effort to refine understanding and an implicit acceptance that there can be no final knowledge: there is only progress in the process of discovering the limitations of past understandings and moving beyond them. The book is presented in the following way. Part I begins by revisiting a recent controversial case involving a pair of

ischiopagus conjoined twins, the questions surrounding their legal separation and the issues arising from that, and identifies a way of looking at law and legal decision-making that centres on the relation between universals and particulars. Explaining how attempts to understand law in these terms encourages a dualism that results in a shortfall between lived experience and that which can be accounted for by legal representation, a number of different approaches to legal decision-making are considered to show how certain influential schools and strands of theories of legal reasoning have attempted to address this. I engage with a number of influential theories of legal reasoning, including the ‘institutional’ school of Neil MacCormick (and Ota Weinberger); the natural law approach of Michael Detmold; American Legal Realism, as updated by certain varieties of Critical Legal Studies; Bernard Jackson’s ‘narrative structure’ approach; and the ‘discursive turn’ that considers institutional discourse as a special case of practical discourse. Part II outlines an alternative approach, derived from the Whiteheadian

tradition of process thought. Building on recent developments in organisation studies, these chapters demonstrate how, while much of contemporary legal theory is effectively the expression of a continuing concern to bridge the gap that opens up in law between theory and practice, these should not be thought of as two separate but connectable areas; rather, as outlining a mutually constitutive process of becoming, interpenetrating and interrelating. Employing Henri Bergson’s notion of ‘creative evolution’ and Gilles Deleuze’s metaphor of ‘rhizomic’ communication, together with Michael Polanyi’s notion of ‘tacit’ knowledge, this approach is viewed alongside Edward Levi’s familiar account of legal reasoning. Part III focuses on the position of judge as institutional actor and decision-

maker to describe how the different types of institutional knowledge that exist in law interact with each other and can be seen to be founded on different features of the legal institutional context. Building upon the constructionist approach developed and deployed within the context of organisation studies to illustrate the links between individual knowledge, organisational knowledge and human action undertaken within organised contexts, these chapters explore the relations between institutions and practices, propositional knowledge and narrative knowledge, within the formal legal context. This is explored further through ideas associated with chaos theory and complexity. Part IV brings the preceding argument towards a conclusion by dem-

onstrating how the judge’s role in managing the tensions that arise here may be seen to suggest an alternative process-theoretical understanding of the nature

of law and legal reasoning, emphasising creative potential, novel adventure and continuous change. This paves the way for a creative reconstruction of law according to the conceptual categories of process thought, offering a description of how a discrete instance of legal judgement is created and maintained within the decision-making process.