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Nov 14, 2013 (3 years and 11 months ago)

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In the Judgement Space: the Anxiety of the Encounter


Zenon Bańkowski


1

Introduction

What is important about Neil MacCormick’s work on legal reasoning is that he has
always tried to set it in an ethical context and not just in the abstract moral context
of
how it is that legal judgements can be justified. In that latter context we deal
with the familiar categories of morality; when is it right to make a particular
decision and what variables need we adopt when we make it? The ethical is
somewhat different

because it is not about the kind of individual decisions a judge
here has to make. It is something more than that. It is about what sort of life is the
life of a judge, what sort of good and flourishing is involved in that activity?


I want my respons
e to MacCormick’s paper to deal rather more with questions of
the ethical life of a judge. Starting from this perspective, I will deal not so much
with questions of how to judge correctly but with what it means to judge at all.
From the existential posit
ion of someone as judge, I will ask what sort of
institutional arrangements this life can be embedded in so as to contribute to the
good and flourishing of that person and others. This seems to me to be singularly
appropriate for one whose view is develop
ed in the context of the Institutional
Theory of Law.


2

The anxious judge

2.1

The anxious middle

It is appropriate that MacCormick focuses his paper on the interface of particularity
and universals around the judgement of Solomon and the case of the conjoined





I would l
ike to thank Wojciech Jajdelski for discussions, in Polish, of drafts of this paper. He
and the language were extremely helpful

2

t
wins. At the centre of the stage then are an encounter and an anxiety when a judge
has to deal with these children. The judge finds himself in what Gillian Rose (1992)
calls ‘the middle’. This place can be seen as standing between universalism and
partic
ularity; between the rationality of law and the contingent other or between the
law and the existential encounter which is its application. It is a place where the
dichotomies mentioned above meet in a mutually interdependent and constitutive
way.


It i
s however no easy place to be. And in modernity, says Rose, the pressure is to
theorise that space away as impossible to occupy. Thus in our case retain false
dichotomies between the universal and the particular, always trying to collapse one
into the ot
her. Whereas for Rose

“Reason in modernity cannot be said to have broken the promise of
universality
-

unless we have not kept it; for it is only we who can keep such a promise
by working our abstract potentiality into the always difficult but enriched a
ctuality of our
relation to others and to ourselves.”
(
1992: 9)

It is thus an anxious place just because we have no way of precisely determining the
outcomes and things could always change in that encounter. Anxiety can be
debilitating if it prevents us f
rom acting or lead us to inappropriate ways of ridding
ourselves of it. For Rose that is the ‘anxiety of beginning’. The ‘anxiety of the
middle’ on the other hand, is productive since it is the impetus to the creative urge
but step beyond and creatively
manage these tensions. It is also important because
it is that anxiety that is a curb on the tendency to complacency, to simplify difficult
encounters and decisions.

2.2

The anxiety of encounter

So we have a judge in an anxious place because from the web of
the universalism of
rules she is encountering a particular. At the centre of the stage is the anxiety of
the encounter. Let us now explore exactly this anxiety more specifically. In the two
cases MacCormick discusses it seems obvious. Though the judg
es in the conjoined
twin case stress the ‘very uniqueness’ [
sic
] of the case, for MacCormick it is still
something that if the circumstances appear again must be repeated. Thus the
3

decision is difficult to justify universally, to subsume it within the un
iversalism of the
web of rules. The solution then is brilliance in reasoning. But is that the way King
Solomon is wise? Is that the reason for the anxiety that the judges experienced in
the conjoined twins case?


The brilliance and correctness of the

reasoning will not quell the anxiety. Suppose
that I am a judge away on some remote circuit, far away from my books and library.
I have a particularly difficult and troubling case. I make my decision but the case
occupies m y mind all the time I am away.

I get home and check my books and
cases and I find that my decision is doctrinally correct. Does that mean that my
anxiety has been now been stilled and I can rest assured that I have made the right
decision? No, there is more to it than that
1
. Though
the judge will be pleased that
the doctrine was correct that will not necessarily stay her anxiety. Why? It does not
have to be pathology. Knowing the rule is never enough. The fact that you know
what the rule is and means does not mean that it automa
tically applies. You have
to justify that in the particular case. It might be unreasonable to apply a reasonable
rule and
vice versa
. And the criteria that will be necessary will not necessarily be
those that justify the existence of the doctrine. They w
ill be related to the particular
circumstances of the case and it is always a particular case that the judge is
deciding.


But it is not the particularity of the case that is the issue here
-

that might just evoke
the anxiety of brilliance as above. Wha
t we have is a particular confronting a
particular


the particular judge looking at the particular event. It is the fact that it
is the judge’s decision and the judge’s decision alone that is at stake. And this is
not the Rule of Law claim that all deci
sions of officials must be held accountable
and responsible by some transparent and objective procedure


arbitrariness is
eschewed by ensuring that decisions are subsumed ‘under the net of rules’. Rather
the anxiety in question comes from the fact of th
e existential encounter. Suddenly I



1

See Detmolds’s (1989) discussion of this problem in

4

am left alone with the decision, I have intervened in this particular situation, I do not
know and cannot know the result or the worth of my decision making. The judge
finds herself in that space we called ‘the middl
e’ and all that is solid melts into air.

2.3

Escaping anxiety

We understand the anxiety therein better if consider what people do to close down
this space. One characteristic way is the escape into rules. If you follow the rules
then at least you are not re
sponsible and need not worry.

Kant’s categorical
imperative

ordains that we should act only under a maxim that can be universalised
as a rule for all. Thus our emotions and inclinations, even

our needs, in the
phenomenal world cannot determine what morally one ought to do. What is
important is following the rule of right
-

there are no exceptions. If you do not lie
and someone dies then you are not responsible because you acted according to
right and the rule. Here in a sense you are hiding behind the law afraid to act,
fearful how your intervention might turn out. This is precisely the legalistic
mentality


‘I’m not responsible, I only followed the rules’. So in this the way you
hide yo
ur anxiety by subsuming everything into a universal and abstract rule case.


But what does this method of dealing with the anxiety do to the particularities of the
situation? Firstly, the particular being judged disappears and is lost by being
brought i
nto the universalizing net of rules. What does this mean? Take one of
MacCormick
’s examples. In the case of
Ealing London Borough Council v Race
Relations Board [1972] A.C 342
, the question was whether discrimination ‘on the
grounds of

colour, race, or ethnic or national origin’ includes legal nationality.
MacCormick says that the question asked is not a particular question, rather Lord
Dilhorne


‘conceives it necessary to decide whether any act of discrimination by anyone
against anyon
e on the grounds that he is not a British subject constitutes discrimination
on the ground of ‘national origins’. That is not a question about a particular act of
discrimination: it is a logically universal question.’ (1978: 78)

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But notice what happens. T
he person discriminated against is now out of the
picture. The judges talk of classes of people who might or might not represent him
and Zesko, the Polish national and ex RAF pilot is no longer there.


Secondly, the judge herself can lose particularity
in this effort to universalise. The
judge, by acting in the form of law

is herself subsumed into the universal law and
becomes invisible. Thus when the judge says ‘I sentence you to death but do not
believe in the death penalty as an ethical i
nstitution’ and means it, she hides behind
the universality of the legal reasoning


she is not acting as the judge but as the
Rechtstaat. She is not killing the defender but the Law is. So when the judge
becomes universal she looses particularity and be
comes an agent of the Law. But
in so doing she does not act autonomously but heteronomously and uses himself as
a means


a distinctively unKantian outcome for such a Kantian beginning!


3

Moral Machines

3.1

Robojudge

This losing of yourself and the object in
to the Law implies the rules are self applying,
that the criterion for application is not the unique circumstances of the individual
and particular case but nothing more than doctrine. The only question for the judge
then is whether the instant case can b
e subsumed under the rule, whether it
instantiates that rule. The judge transforms himself into a machine that is the
agent of the universal law, programmed to apply that law whenever the conditions
for its application are met. This is a common
trope

in

films where machine like law
enforcers apply the law not caring about the actual situation
-

only concerned
whether the event is subsumed under the law. But this is not science fiction it is also
imaginatively recreates what sort of ethical life that migh
t be. Adam Roberts
2




2

See Adam Roberts, Readings in Classical SF in
The Alien Online

http
://www.thealienonline.net

6

imaginatively shows how this is a key
trope

in the Robot stories and novels of Isaac
Asimov many of which deal with the interaction of robot and human detectives, and
robot and human views of justice. In looking at these relations As
imov explorers,
says Roberts, what it would be to act like someone for whom the law is all. How it
is possible to act like the ‘Kantian moral machine’. He quotes Eagleton:


"To act morally for Kant is to set aside all desire, interest and inclination,
identifying one's rational will instead with a rule which one can propose to oneself as a
universal law. What makes an action moral is something it manifests over and above
any particular quality or effect, namely its willed conformity to universal law. Wh
at is
important is the act of rationally willing the action as an end in itself." [Eagleton, 78].


3.2

The Kantian Saint

What sort of life is that? Let us look at the story Maria von Herbert as described by
Rae Langton (1994). Maria von Herbert admits a prev
ious affair to her lover so as
to tell the truth and not deceive him. He disengages and she becomes sad and
suicidal. She gets over it but finds life not worth living. All passion spent, she writes
to Kant that she can easily follow the moral law but s
he finds living pointless,
internalizing the categorical imperative gives her no joy or pleasure and she finally
commits suicide.


Herbert writes that she has lost her love, that here heart is shattered, that
there is nothing left to make life worth livi
ng, and that Kant’s moral philosophy has not
helped a bit. Kant’s reply is to suggest that love is deservedly lost, that misery is an
appropriate response to ones moral failure and that the really interesting moral
question here is one that hinges on a su
btle but necessary scope distinction, between
telling a lie and failing to tell the truth (284)


Langton argues that what Kant fails to realise is that he is dealing with a Kantian
moral saint. She has no desire or inclination and all duty is easy. Witho
ut any
interaction with desire though, life has lost its salt and point


she might as well be
dead. For Kant that would be precisely to give her actions moral worth
-

if they were
done out of inclination then they would lose worth. Langton says (quoting

Kant)

7

The action of moral worth is that of 'the wretched man . . . [for whom]
disappointments and hopeless misery have quite taken away the taste for life, who
longs for death' but who,
notwithstanding, preserves his life. The action that has moral
worth
is that
of the misanthropist, 'the man cold in temperament and indifferent to the
sufferings of others' who nonetheless helps others 'not from inclination but
from duty'.
(287)


Langton claims that Kant is not driven by blind rule worship. Rather he has t
he
sense that the world of inclinations is one where we are like puppets tossed about
on the sea of desire we cannot control. In the world of duty our will gives us control
and freedom. However in a sense this world is one where we become puppets of
the
rule which automatically engenders action and we do not even feel it. Without
the interaction of the contingent and outside we become a cold unfeeling machine.
We are lost in the rule and we do not care as long as the rule is executed. And this
certainl
y was Kant’s performance as an agony aunt!

3.3

Hard Case make Bad Law


For Maria von Herbert the anxiety does not go away. As she loses her particularity
metaphorically, she does so literally by killing herself because she cannot confront
the particular outs
ide the rule. But for Kant it does and he is able to use the affair
as a didactic moral tale. What does this mean for our judge? This sort of ethical
life (that of the automaton), does not imply lack of sophistication in reasoning.
There is scope for
fine and nuanced reasoning but once the rule subsumes the event
then that is all there is to it and you no longer need to worry.


This does violence to the particular. Take the common law maxim, ‘hard cases
make bad law’. This exhorts us, when we find a

decision though doctrinally correct
troubling, to hide and ignore that normative anxiety. Thus the particular event is lost
from sight, or worse, made to fit the law. It is the law that is doing the fitting not the
particular event
-

the awkwardness of
the rough edges are smoothed over to fit the
law because ‘hard cases make bad law’. Take an analogy from Harry Collins
(1990). A robot on a car production line programmed to paint car doors will do so
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perfectly as long as the pieces of metal on the line
are the shape that has been
programmed into it. If they are a different shape then it will still paint the shape
that it has had programmed into it, ignoring the inconvenient bits outside of its
parameters. We do not respect the shape in front of us and
do violence to it.


4

Confronting the Particular

4.1

Domesticating the Particular

Why should we respect it? What is the ethical point at stake here? Firstly we must
respect its ontology, mystery and beauty. What does that mean? What is the
mystery of the w
orld? Mystery is itself a mysterious concept. Here I mean not
something that is clear and in plain view but still we think of it as mysterious, as
something beyond our ken. As Wittgenstein says: ‘It is not how things are that is
mystical about the worl
d but that it exists’ (Tractatus, 6.44). And this can go right
down to the mundane; that you, I, a flower or any part of the world exists is a
mystery. Here then is something that I cannot completely grasp or understand. It is
that which gives it its bea
uty, the fact that it will always be something beyond me. It
is that integrity that I must respect and stand in awe of.


The ethical point is, as Detmold
3

argues, that only particulars give us a reason for
action and universals will obscure them. Rule
s try to appropriate the mystery of the
world by forcing each particular under their aegis and thus denying its particularity
.
Rules are thus a cowardly way out of decision
-
making
. They mean

that I no longer
have to make up my mind in the encounter with the awesome mystery of the
particular before me. The answer is given by a rule which in describing that
particular necessarily misses something and thus tames and domesticates it. Think
of a
tiger in a zoo. Compared with the magnificent animal in the wild it is a poor
and emasculated creature that could not even survive in its natural habitat. The



3

See Detmold (1984) for this argument about the existence of the particular

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zoo, in trying to show us an example of the species, destroys that particular tiger
-

it
stands

for all tigers and becomes a universal. The zoo does this from the best of
intentions


it wants to show and explain to us what a tiger is and in so doing
destroys it.

4.1.1

The Anxiety of the Particular


Here we have echoes of what has been known as the ‘eth
ics of alterity’. However
we should not go too far in this. Take the tiger again. Were we to meet a tiger, then
standing in awe and marvelling at the mystery of its ontology would not be an
option! Tigers are dangerous and can kill


we need to fence t
hem in at least to
some extent. In the same way when dealing with a particular case, we must not be
completely carried away by the lure of its particularity; we cannot let that run
completely free and must to some extent domesticate it by universal reason
. This
then explains what we called the judge’s existential anxiety. The judge is anxious
because she has to respect the particular and also to judge it. Judging implies, to
some extent at least, placing it under the rule case. But doing that betrays t
he
particular by not paying it respect and thus doing violence to it. And it is this
metaphysical violence as much as the actual consequence in terms of the physical
hurts that the judge might administer that makes her anxious. In trying to get away
from

anxiety by moving to the rule case we open ourselves to deeper metaphysical
anxiety.


4.2

Listening to the Particular

What does all this imply for MacCormick’s paper? It means that in all practical
decisions I make I cannot avoid coming into contact with the

particularity and
mystery of the world
-

all the examples in the paper are not exceptions but the
paradigm of all practical decision making and thus law. Further what this talk of
mystery and respect implies, in contradistinction to the rather Enlightenm
ent view
of MacCormick, is that we should concentrate not so much on the knowing subject
10

as the object and let that speak to us. So the judge must stand in front of the
situation and let it speak to her so that a decision can be made. And all cases,
whet
her or not we finally make them ‘rule cases’ must be seen in this way.


We enter here what Detmold (1989) calls the particularity void. This is for him the
space that exists between the rule and its application. It is that space where the
judge is existe
ntially alone, where she has to make the decision. He concretises this
with an example from Tolstoy. Pierre is about to be shot as a Russian spy by Davout
in accordance with the law. But Davout hesitates and does not do so. There are
many problems with
this and they are discussed elsewhere in the book. Here
however what is important is the particularity of the encounter and also the
response to the particular and the event. It is that moment of hesitation that
creates the space that is important.



I
, the judge, and Davout, at the moment of practicality entered the
unanswering void of particularity, the realm of love, about which only mystical, poetic
things can be said … or nothing. … Judges enter this realm everyday.”
(
457)


For it is here, in respon
se to the particular, that the judge weighs up what to do. And
this is why the judge is anxious for in this ‘particularity void’ she stands and must
take responsibility. Though the rules cannot absolve her, rules will be necessary
-

the decision to apply

them will be a particular one and will depend on the response
to the actual event.



5

In the Judgement Space

5.1

Attention

To judge appropriately in this space you need to cultivate what Simone Weil (1951)
calls ‘attention’

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Attention consists of suspending o
ur thought, leaving it detached, empty, and
ready to be penetrated by the object; it means holding our minds within reach of this
thought (111)

This is both active and passive. It demands active concentration and intelligence.
One needs to be unselfconsci
ous not grasping but alertly and intelligently waiting.
The key is openness and it is in these moments that one is open to illumination.
Weil applies this to education. Students should ‘pay attention’ and listen, not
expecting a result or outcome straig
htaway but waiting and trusting that it will come
to them. Otherwise, in trying to grasp the meaning impatiently, they will lose it.
Though, as Dietz (1988) says, a significant element of this notion comes from the
connation of
attendre

as to wait for,

to expect, to long for
-

is not just a sort of
active contemplation. It also has other connotations of paying attention to, caring
for. One can apply this to the judge


do not apprehend the particular situation
immediately with the rule lest you lose
its message. Wait and let it speak to you in
the first instance at least.


Above all our thought should be empty, waiting, not seeking anything but ready
to receive in its naked truth the object that is to penetrate it
.

(111)

For her attention is also so
mething that is the ability to hear and receive what
people are saying when they are
in extremis
.


Those who are unhappy have no need for anything in the world but people
capable of giving them their attention (114)

What is important here is that the car
ing for and the listening to are mixed together
and it is the mixture of these that gets to the reality of the situation.


We can see in (Shytov (2001) this sort of thinking developed from orthodox theology
and adapted to law and legal reasoning. We ca
n have rules, he says, but we also
need watchfulness. This can be negative where we must look into our soul to make
sure we are pure, but it is also positive where we must search out for the source of
the truth. One can see, he goes on, how part of this co
mes from the Eastern
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monastic idea of stillness and alertness to inner thoughts. But Shytov also wants to
develop it in more active ways. You turn, he says, to the will to do good to another,
like tuning in a radio, and excluding everything else. Watchful
ness for him is loving
one’s neighbour, which is the impartial sympathy of the judge directed in an agapic
way at the parties. W
hen trying the case, this implies listening to what both sides
say without making one’s mind up. This needs skill and attention
,

especially if some
of the parties are not particularly articulate or clear as to what is going on. But at
the stage of decision, Shytov claims
,
it is not just a listening to the applicants with
equal sympathy for them. The judge also has

to look through
love to the principles
of law and the love which will enable her to apply them correctly.


5.2

At Homeness: Insight and the Hunch


What is the practical intelligence that is required here? Bruce Anderson
(1966)
discusses this in the context of Bernard Lonerg
an’s theory of insight. In
sight is not
something that is purely a subjective intuition. It is the ability to see that something
makes sense, that it has its own integrity and that often precedes what we think are
the principles that guide us in that deci
sion. A lot of the activity here consists in a
series of questions.

Anderson develops this idea

in relation to legal reasoning and
shows how it gives

a more precise structure to the operations of weighing and
balancing


key operations in phronesis. In
sights in practical reasoning, he says,
are not infallible because it also depends upon which cultural context we are in. But
they are not judged valid by rules
-

the case does not depend on a logical deduction
from facts but a judgement as to what is righ
t to do in all the appropriate
circumstances. The universal ruling might be the description of the solution as to
what to do but it is not the conditions for it. The decision ends the reflection. But
the written judgement will never adequately capture t
he actual way the judge
decides.


13

This also has affinities to American legal Realism and the i
dea of the judicial
‘hunch’. But the ‘hunch’, when unpacked, becomes less based on the subjectivity of
the judge than might at first sight appear. Llewellyn w
ants to move away from the
subjective nihilism that Realism might bring and show how what he thinks of as
reckonability can be obtained. This is through what he calls the ‘Grand Style’ which
demands practical reasonableness or situation sense. William Tw
ining (1973) in his
intellectual biography of Llewellyn gives us the best discussion of this concept.
Llewellyn, he says, quotes Levin Goldschmidt in explanation:

Every fact
-
pattern of common life, so far as the legal order can take it in,
carries within

itself, appropriate, natural rules, its right law. This is a natural law which
is real, not imaginary; it is not a creature of mere reason, but rests on a solid foundation
of what reason can recognize in the nature of man and of the life conditions of th
e time
and place; it is thus not eternal not changeless nor everywhere the same, but is
indwelling in the very circumstances of life. The highest task of lawgiving consists in
uncovering and implementing this immanent law. (217)

This does appear as though
, as Twining says, hard nosed Realism has a soft
metaphysical centre. But Twining juxtaposes this with this passage from Llewellyn

It is rather a standard which aims to get idiosyncratic preferences largely hewn
off until the standard becomes what the cou
rts also are reaching for; something which
can be hoped, on thought, to look reasonable to any thinking man; something that can
even be hoped to look reasonable in the light of that uncommon sense, horse sense
224 (apud Twining)

The ‘Grand Style’ then focu
ses on the judge as something more than an automaton
in the Kantian metaphorical sense


Only as a judge or court knows

the facts of life,
only as they truly understand

those facts of life
, only as they have it in them to rightly evaluate those facts and
to
fashion rightly a sound rule

and an apt remedy,
can they lift the burden

Goldschmidt
lays upon them: to uncover and implement the immanent law. Life circumstances in
general, like case circumstances in particular, work in appellate deciding only on and

through definite human beings: the sitting judges. ( Llewellyn (1960: 127)


Part of this will be seen in sensitivity to the fact, to the ability to grasp them as they
might be if working properly within the situational context. Llewellyn, according to
Tw
ining, thinks the view of experts and people working in these situations and their
expectations will be useful. The appropriate level of generality is necessary and one
14

should always state narrowly and be careful not to conflate and bring together
differe
nt social situations. There might be, once this has been done, a reasonable
consensus among those the situation affects or the society as a whole as to what to
do. Even if not, there might still be some areas of common ground which limit
choices. In the

decision phase care will have to be taken to as to what specific
prescriptions might be necessary in the appropriate circumstances.



Reckonability is also achieved through looking at ‘law jobs’. In this we get a sense
of the ethical life of the institu
tion and we can see the case in its contextual setting.
This is important for it situates the judge in a particular tradition from which
practical wisdom comes. Sensitivity to the ethical and social logic of the practises
uncovers its ‘immanent law’. Th
is gets the ‘internal morality’ of an institution, that
structure of values which gave it is meaning and point as an institution which gave
it its ethical life
4
. What the judge must do is to exhibit an ‘at homeness’ to that
institution
5
.


6

Masters of

Law

How does one learn this skill in practical intelligence, this sensitivity to the case, this
situation sense? Sundram Soosay
6

presents a new model which sees these
processes revolve around the way in which we acquire skills and habits. He applies
thi
s to law to show how it is embodied and experiential rather than abstract and
logical. By drawing on the model of skills acquisition provided by Dreyfus and
Dreyfus (1986), he shows how repetitive and automatic behaviour and habits should
be at the centre

of our account
-

it is through this that we feel ‘at home’ in our
institutions and environment. The model envisages moving from dealing with



4

See Selnick

5

This of course has its problems and it is not to be taken as saying that one should decide cases
by looking at the practice of, for exam
ple, estate agents!

6

In his Edinburgh Doctoral Thesis 2005

15

events as they come up, to formalising them in rules to gradually becoming
embedded in the situation so that the
rules are no longer a conscious part of our
activity. This gives one competence and one moves to expertise (which will also
involve creatively dealing with the rules) by effectively repeating the process from
that baseline.


Claire Henderson Davis (2005
)
7

has an analogous way of looking at it. We learn a
learn a skill, like music by practising, repeating until we internalise it in such a way
that we can go beyond and express in this language things as yet inexpressible but
which stir us from the outsid
e. We can think of the judge as this sort of person.
Someone who is skilled in the language of the law and in being so skilled can
express inexpressible outside she encounters. She shows this by looking at the
Gospels and Jesus. Jesus can be seen as a
‘master of the law’. The gospels are full
of his precocious genius but the way he teaches law is in a form of breaking it. For
in internalising thus he is able the better to fulfil if even if that means breaking it.


Language moves because we experience
the desire to express that which
language cannot yet contain. This desire leads us to the limits of our present language,
and at the edge, we find what is as yet unspoken within ourselves, within others, within
our social world, within the physical world.
Working at this edge puts us in touch with
what is as yet unknown, where there are no straightforward rules to govern our work
because we have exceeded the known territory of the law.

What Jesus teaches is a form of relationship to this outside, a form gov
erned
by love instead of judgement. When I judge someone or something, I apply existing
categories to the situation before me. But if what is before me cannot be expressed
within existing categories, then judgement is a form of violence enforcing conformit
y
and doing nothing to expand my vision.

The love which Jesus teaches requires that I suspend my adherence to existing
categories in order to allow space to the different reality before me. In this form of love, I
am seeking to establish a new relationship

where one doesn't yet exist. Not a
relationship dependent on conformity, but one in which the difference I encounter is
allowed to call my own language and vision

into question.





7
I am deeply indebted to Claire Henderson Davis for many insights and fruitful collaboration .
See also our joint piece Bankowski and Davis (2000)

16

She illustrates this in a discussion of the parable of the Good Samaritan.
For what
Jesus is doing there is helping imaginatively the lawyer to move through love beyond
the limits of his language. Jesus does not answer the lawyer’s question by
straightforwardly saying it is the Samaritan one should love. That would not have
giv
en the lawyer the imaginative insight to go beyond, see the Samaritan as
neighbour, and see inclusion as applying to enemies. The parable asks us, says
Davis, to identify with the lawyer, the one who is trapped in the old categories, who
did not have the
imagination to go beyond. And too often neither do we.


This then is also a parable about our anxious judge for one must preserve that
anxiety and concern so as to be able to move beyond. The danger is that we get
stuck in the old categories; that beco
ming skilled in the language of the law through
our repetitive behaviour keeps us in that place, unable to move beyond the
categories. Because we have seen it so many times we think it is the same again.
The paradox is that ‘seeing it all before’ is also

the condition for our being able to
move beyond. As we come up against the limits of what can be spoken in language
and struggle to express that, we do so from our experience of that language. We
are thus enabled to do something that though beyond us is

prompted by our
encounter with it. What we need then is a creative and loving anxiety, caring and
anxious attention. We must let the story

speak for itself and not be too quick to
apply closure by imposing a principle or pattern on it. We
saw elements of this
anxiety in looking at the judges’ reactions in the conjoined twin’s case. Part of the
anxiety was not merely that it was hard, that the consequences were far reaching.
What was also important was the existential encounter with the two

girls and the
judges were not convinced that dealing with it in the standard categories, or dealing
with it by rules at all, was at all appropriate.



17

7

Conclusion: Institutions of Anxiety


Our final question is how do we institutionalise this and tie thi
s act of judging to its
institutional normative order. How do we produce law institutionally whose ethic
has that form of life? Law needs closure; a rule category must in the end be applied
continually creating order and coherence. I have not got the spa
ce to go into this in
this paper so I will finish with a few remarks
8
. How can we produce the social
equivalent of anxiety, the ‘moment of hesitation’ when everything is still, when the
inexorable running of the legal system stops and it has to rethink or

recalibrate?
What is important is to attach the system to something from the outside in such a
way that it does not ruin the running of the law but rather helps it to fulfil itself by
reaching beyond. Lay justice might be seen in this way. Much researc
h shows that
by and large systems of lay justice and juries operate within the parameters of the
official justice system. But this is not to say that lay justice is thereby subverted.
Rather, one could see the whole thing as one, with the lay element as t
he opening
to the outside providing a constant steam of potential input. The same could also be
said of

juries (Bańkowski 2001). They have often been thought of as a way of
injecting “lay acid” into the system as much as instruments for arriving at the truth
of the matter. We can see this as a way of sensitising the court to the other
impulses that come in
from the outside. Part of the process here would also be
something that would help the judges to pay attention and be watchful. The lay
elements could be seen as ways of randomly stopping the inexorable universal logic
of the law and forcing the court to
reconsider; to reconfigure the system in the event
of a decision that seems to subvert the system. For example, the offence of
“causing death by dangerous driving” was introduced in response to the refusal of
juries to convict when the only available crime
, in these situations, was culpable
homicide. After the change, convictions rose. One might see this as an example of
“jury nullification.”




8

There are many theories that do embody some

of these ideals (models based on the ideas of
responsive law (Selznick 1992) and reflexive law (Teubner 1983), for example).

18



We might call such institutions ‘bridging institutions’ in that they are both inside and
outside. In this way the

law can regenerate itself and the coherence that we seek
from it can be formed anew. But it is not a pre
-
fabricated coherence rather it is
always something driven by the outside, by an encounter with the particular
situation or case. The key aspect is t
hat of the encounter. It is thus not to be
understood in a Dworkinian way. Yes, the anxious judge is always making and re
-
making coherence, standing in the anxious middle, but she is not re
-
making in the
law’s image. The Dworkinian metaphor is one of the

law swallowing and
incorporating everything in its own pre
-
ordered image


the movement is from the
inside to the outside and not the other way around. That image is one of
imperialism, Law’s Empire indeed. But here we embark on a journey that does not
have a destination. It is what Fuller (1969) calls the morality of aspiration. The key
word here is excellence


excellence always has room for improvement and nor do
we know where it will lead us. The anxiety gives us the strength and the faith to
move
forward without clinging to the safe haven of the established categories.



References

Anderson B (1996) “Discovery” in Legal Reasoning , Dordrecht: Kluwer

Bankowski Z Davis C (2000)‘ Living In and Out of the Law’ in Faith in Law (Oliver,
Douglass Scott,
Tadros eds) 2000 Oxford: Hart Publishing) pp. 33
-
52

Bankowski Z (2001) Living Lawfully , Dordrecht:Kluwer

Detmold M (1984) The Unity of Law and Morality, London: Routledge and Kegan
Paul

Detmold M(1989): “Law as Practical Reason”, in 48 Cambridge Law Jou
rnal, 436
-
471

Collins Harry (1990): Artificial Experts. Cambridge, Mass.; London : MIT Press

19

Dietz, M (1988) Between the Human and the Divine New jersey, Rowan and
Littlefield

Dreyfus H and Dreyfus M (1986) Mind over Machine New York Free Press

Eagleton
, T (1990) The Ideology of the Aesthetic Oxford: Blackwell

Fuller, L (1969) The Morality of Law, New Haven: Yale University Press

Henderson Davis, Claire (2005) ‘Love/Beloved: Dancing the Divine Encounter’,
Faith
and the Arts:

Hugh Price Hughes Lectures 2
005

Llewellyn, K (1960) The Common law Tradition Boston: Little, Brown and Company

MacCormick D N (1978): Legal Reasoning and Legal Theory. Oxford: Oxford
University Press

Rose G (1992): The Broken Middle. London: Blackwell

Langton, R ‘Maria von Herber
t’s Challenge to Kant in Singer P (ed) Ethics. Oxford UP,
1994

Selznick P ( (1992): The Moral Commonwealth. Berkeley and Los Angeles: University
of California Press

Shytov, A N. 2001 Conscience and Love in Making Judicial Decisions Dordrecht:
Kluwer

Teubn
er G (1983): “Substantive and Reflexive Elements in Modern law”, in Law and
Society, 239
-
85

Twining, W (1973) Karl Llewellyn and the Realist Movement, London: Weidenfield
and Nicholson

Weil, S. 1951. Waiting For God. New York: Harper