ABSTRACT
Traditional notions of law rely on familiar dichotomies: thought and action, meaning and application, rule and fact. One example of this is the dialectical relationship of correspondence between universals and particulars. When law is conceived in static terms, the legal task is understood in terms of negotiating the gap between these two essentially separate but connectable domains; that is, securing the flow of knowledge, the delivery of communications, between them. Informed by this substance-based immobility, an important challenge for legal theorists and practitioners is to maintain the integrity of legal knowledge involved in this ‘transfer’ between one domain and the other. We can see how Ward LJ attempts to do this with his concluding remarks in Re A, offering his description of the justifying relationship between reason and decision that helps to secure and seal the gaping hole that has opened up in the seamless web of law (though nearly undoing himself as he appears to set Re A in a category of its own but not quite: ‘this is a very unique case’). As a result of this, much of any sense of urgency within the legal theore-
tical arena has naturally gravitated towards the need for a more sophisticated understanding of the relationship between these separate poles (rules and facts, universals and particulars). But the problem with such an understanding, sophisticated as it is, is, as we have seen, that the underlying notion of legal knowledge on which it is based is still one of correspondence between connectable positions. Legal knowledge is still understood as something to be passed on, expanded and developed to meet the practical requirements of everyday life, a form of knowledge directly applicable to action in practical situations. Such a view unashamedly confers ontological priority upon categories of order, stability and communicability, constructing and categorising a world of disparate entities to which legal knowledge can then be applied in a top-down hierarchic, causal mechanistic way. This type of approach to legal decision-making precludes us from seeing the extent to which rule-determination and rule-application, universals and particulars, legal categories and living experience, already permeate each other, benefiting from this interpenetrative difference.
