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Is Judgment Inscrutable?

Published online by Cambridge University Press:  09 June 2015

Hamish Stewart
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Extract

Kant described the ability to move from theory to practice, to subsume particular facts under general principles, as “judgment”:

Between theory and practice, no matter how complete the theory may be, a middle term that provides a connection and transition is necessary. For to the concept of the understanding that contains the rule must be added an act of judgment by means of which the practitioner decides whether or not something is an instance of the rule.

But Kant had little to say by way of guidance for the exercise of judgment, because, in his view, judgment itself could not be completely theorized:

since further rules cannot always be added to guide judgment in its subsumptions (for that could go on indefinitely), there can be theoreticians who, lacking judgment, can never be practical in their lives, e.g., physicians or jurists, who, having done well in school, do not know how they should respond when they are asked for advice.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 11 , Issue 2 , July 1998 , pp. 417 - 439
Copyright
Copyright © Cambridge University Press 1998

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References

1. Immanuel Kant, “On the Proverb: That May be True in Theory, But Is of No Practical Use” in Perpetual Peace and Other Essays, trans. Ted Humphrey (Indianapolis, ID: Hackett Pub., 1983) at 275.

2. Ibid.

3. Immanuel Kant, Critique of Pure Reason, trans. Norman Kemp Smith (London: Macmillan, 1929) at A133/B172.

4. Ibid. See also Martin Stone, “Focusing the Law: What Legal Interpretation is Not” in Andrei Marmor, ed., Law and Interpretation (Oxford: Clarendon Press, 1995) 31 at 80 [hereinafter ‘Focusing the Law’] (“law … does not concern itself with the legal result of a case but only with the concepts by which a legal result—hopefully with good judgment—is to be achieved.”).

5. The fact that Kant devoted an entire critique to judgment may seem to contradict the claim that Kant had little to say about judgment. But in the third Critique, Kant made the following distinction:

Judgment in general is the ability to think the particular as contained under the universal. If the universal is given, then judgment, which subsumes the particular under it, is determinative … But if only the particular is given and judgment has to find the universal for it, then this power is merely reflective.

Immanuel Kant, Critique of Judgment, trans. Wemer S. Pluhar (Indianapolis, ID: Hackett, 1987) at 179. For the purposes of this paper, I accept the standard view that the third Critique’s treatment of reflective judgment does not amount to a theory about determinative judgment, which is the type of judgment relevant to political and legal theory. For an example of the standard view, see S. Korner, Kant (London: Penguin, 1955) at 175–82. For a different view see Hannah Arendt, Lectures on Kant’s Political Philosophy, ed. Ronald Beiner. (Brighton, UK: The Harvester Press, 1982) at 65–77.

6. “The pervasive indeterminacy of legal rules has struck many recent theorists as rendering it impossible to think of law as an autonomous discipline … For if the legal rules do not determine the outcomes of adjudication, something else must.” ‘Focusing the Law’, supra note 4 at 32–33. Three Critical Legal texts that exemplify this point are Clare Dalton, “An Essay in the Deconstruction of Contract Doctrine” (1984) 94 Yale L.J. 1007 [hereinafter ‘Deconstruction of Contract’]; Roberto Mangaberia Unger, The Critical Legal Studies Movement (Cambridge, MA: Harvard University Press, 1986) [hereinafter ‘Critical Movement’]; Mark Kelman, A Guide to Critical Legal Studies (Cambridge, MA: Harvard University Press, 1987) at 186–212 [hereinafter ‘A Guide’]. But the same point could be made of any theoretical approach to law that seeks to explain legal doctrine as the manifestation of some other normative framework; economic analysis of law, in its most ambitious form, is a theory of this sort. See Richard A. Posner, “The Economic Approach to Law” in The Problems of Jurisprudence (Cambridge, MA: Harvard University Press, 1990) 353 at 355–62. For a discussion of legal judgment that sharply opposes such approaches, see ‘Focusing the Law’, supra note 4.

7. Fagan v. Commissioner of Metropolitan Police, [1969] 1 Q.B. 439 at 443.

8. Suppose, for example, that Amy and Bob are spectators at a hockey game, and that a puck flies into the stands. Neither Amy’s failure to prevent the puck from striking Bob, nor Bob’s failure to prevent Amy from falling as she tries to avoid the puck, constitutes an assault. The Court in Fagan declined the Crown’s suggestion that it reconsider this well-recognized principle of criminal law. Supra note 7 at 444. See also, ibid, at 446 (per Bridge J. dissenting on other grounds).

9. I take this phrase from Alan Brudner, The Unity of the Common Law (Berkeley: University of California Press, 1995) at 226.

10. Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1991) at 211–14, 229–31 [hereinafter ‘Metaphysics’].

11. Ernest Weinrib, The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) at 97 [hereinafter ‘Private Law’] (arguing that the distinction between misfeasance and nonfeasance in tort law is congruent with Kantian right). See also Brudner, supra note 9 at 226–27.

12. Supra note 9 at 231; ‘Metaphysics’, supra note 10 at 224, 320–21.

13. Supra note 9 at 258.

14. For a similar explanation of the reluctance of the criminal law to impose liability for omissions, though without the metaphysical conception of the person that informs Brudner’s analysis, see A.P. Simester, “Why Omissions are Special” (1995) 1 Legal Theory 311 [hereinafter ‘Omissions’]. Simester observes that one who does something is more fully the author of the consequences than one who fails to prevent the consequences. Ibid, at 328–31. That is not to say that one who fails to prevent a consequence is not morally blameworthy; it is merely to say that his or her blameworthiness is, at least prima facie, of a different nature than that of one who directly causes the consequence. There is thus a liberty not to intervene, a liberty which, though it may be “overridden by further reasons,” ibid, at 332, is explained in a very liberal manner: “Untrammelled responsibility for harms the occurrence of which one is prima facie unconnected with is, in effect, a denial of respect for the idea that one’s practical choices should be determined by one’s goals and values.” Ibid, at 333.

15. Brudner himself takes the paradigm of pure agency to be incomplete on its own, and argues that it must be united with a welfare-based paradigm to provide a proper understanding of penal law. Supra note 9 at 253–57.

16. I am assuming that there is such a thing as a principle, and that a principle can be applied. There is a strand of Critical Legal scholarship that would deny this assumption. Kelman, for instance, would treat the act/omission distinction as a piece of rhetoric that dresses up a conclusion already arrived at through a largely unconscious and non-rational process of characterizing the facts. Mark Kelman, “Interpretive Construction in the Substantive Criminal Law” (1981) 33 Stan. L. Rev. 591 at 637–40. On this view, the “explanation” for the principle cannot itself be principled or rational. Kelman suggests a connection between the act/omission distinction and the privileged class position of the principal actors in the legal system: “the association between blame and disruption, critical to conservative dominance, is solidified [by the act/omission distinction]: One cannot be a criminal actor when one simply lets things go on as they are, regardless of the consequences.” Ibid, at 640.

17. My concern here—to say something about how to determine the outcome of a case—is rejected by Stone in ‘Focusing the Law’, supra note 4 at 60–66, who argues that nothing beyond “an appeal to good judgment,” ibid, at 64, can or need be said about how to bring a particular factual situation under a rule. See also Bruce Chapman, “Tort Law Reasoning and the Achievement of Good” in Ken Cooper-Stephenson & Elaine Gibson, eds., Tort Theory (North York, ON: Captus University Publications, 1993) 73 at 85–86 [hereinafter ‘Tort Law’].

18. Supra note 7 at 445. There was no difficulty in Fagan about the elements of assault when the elements are taken separately: force was applied to the officer; the force was applied without the officer’s consent; and Fagan knew, after the officer told him, both that force was being applied and that there was no consent. The question was whether, in these circumstances, the application of force should be attributed to Fagan when, or soon after, he became aware of it.

19. Supra note 7 at 445 (per James J.).

20. In ‘Omissions’, supra note 14 at 335, Simester argues that widespread responsibility for omissions would be undesirable in part because it would give others the power to put one under a criminal law duty. This observation could provide a rationale for the distinction, implicit in the majority’s reasons in Fagan, between harm caused by one’s own inadvertent acts and harms caused by other’s acts. A criminal law duty to rectify the former, but not the latter, would make one responsible only for one’s own actions, and would not give others the power that Simester refers to.

21. Supra note 7 at 446 (per Bridge J. dissenting).

22. Ibid, at 445 (per James J.).

23. Ibid, at 446 (per Bridge J. dissenting).

24. Fagan, supra note 7, provoked a great deal of discussion in England. The commentators focussed not on whether Fagan’s conduct was really an act, but on the appropriate theory under which his unintentional act could be joined with his intentional omission to produce liability. The principal theories were the “duty theory,” which proposed that the reasoning in Fagan imposed a duty on an accused in Fagan’s situation, and the “continuing act” theory, which proposed that all of Fagan’s conduct should be taken together to constitute an act. See J.C. Smith, “Case and Comment: Omission: R. v. Miller: Commentary” [1982] Crim. L. Rev. 527 at 528 (arguing that cases like Fagan should be understood as imposing a duty to take reasonable steps to prevent unintentional acts from creating continuing harm); Glanville Williams, Textbook of Criminal Law (London: Sweet and Maxwell, 1978) at 143–44 (“an unintentional act followed by an intentional omission to rectify the act can be regarded in toto as an intentional act”). In R. v. Miller, [1983] 1 All E.R. 978, the House of Lords considered a factual situation not unlike that in Fagan. Miller, a squatter, inadvertently set fire to his mattress, and, when he discovered the fire, simply moved to another room and did nothing to extinguish the fire or to contact firefighters. He was convicted of reckless arson under the Criminal Damage Act 1971. Affirming his conviction, the House of Lords not only adopted the duty theory proposed by Smith, but also commented that the “notion that failure to act cannot give rise to criminal liability in English law” was “erroneous.” Ibid, at 981.

25. My description of this process has undoubtedly been influenced by Dworkin’s description of legal decision-making. See Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986) at 225–58 [hereinafter ‘Law’s Empire’]. My purpose, though, is not to defend Dworkin’s account as such, but to inquire about the possibility of any account of judgment, such as his, that contains the two ideas of reflection and value.

26. For some recent work in moral and legal philosophy that assumes the existence of such a capacity, see Christine Korsgaard, The Sources ofNormativity (Cambridge: Cambridge University Press, 1996) at 90–130; Jennifer Nedelsky, “Judgment, Diversity and Relational Autonomy” (Paper presented at American Political Science Association, January 1996) [unpublished]; Martha C. Nussbaum, “Valuing Values: A Case for Reasoned Commitment” (1994) 6 Yale J.L. & Humanities 197; Barbara Herman, The Practice of Moral Judgment (Cambridge, MA: Harvard University Press, 1993) at 132–58; Elizabeth Anderson, Value in Ethics and Economics (Cambridge, MA: Harvard University Press, 1993) at 65–80 [hereinafter ‘Value in Ethics’].

27. “The power of [Fish’s] arguments lies not in any particular conclusion, but in wave upon wave of the same arguments crashing down on the shore of belief until finally the reader can predict the direction of his essay from the first four lines. Fish would not take this as criticism.” John E. Morrison, “Doing Fish: A Review of There’s No Such Thing as Free Speech” (1995) 43 UCLA L. Rev. 521 at 525.

28. This example is one of Fish’s favourites: see Stanley Fish, “The Law Wishes to Have a Formal Existence” in There’s No Such Thing as Free Speech and It’s A Good Thing, Too (New York: Oxford University Press, 1993) 144 at 144–47 [hereinafter “The Law’]; Stanley Fish, “Force” in Doing What Comes Naturally (Durham, SC: Duke University Press, 1989) 503 at 506–07 [hereinafter ‘Force’].

29. “The Law*, supra note 28 at 141.

30. Ibid, at 142.

31. Ibid, at 141.

32. Ibid, at 143.

33. This ambition, which Fish claims is impossible to achieve, is evidently that of contemporary liberal projects such as Rawls’ political liberalism, Weinrib’s formalism, and Dworkin’s “law as integrity.” See John Rawls, Political Liberalism (New York: Columbia University Press, 1993) at 133–40 (arguing for a political conception of justice that allows for the coexistence of different comprehensive conceptions of the good); ‘Private Law’, supra note 11 at 208–14 (arguing that private law is autonomous from politics); Dworkin, ‘Law’s Empire’, supra note 25 at 225–58 (describing legal practice as producing interpretations of the law that make the law the “best” it can be, where “best” is measured both by consistency with established legal practice and by fidelity to an underlying moral and political theory). Since Dworkin expressly argues that law is both interpretive and political, his version of the liberal project may not seem to fall within the scope of the formalism that Fish criticizes. But Dworkin’s argument does rest firmly on the assumption that some interpretations, or jurisprudential moves, are ruled out by something other than interpretation itself: Ronald Dworkin, “How Law is Like Literature” in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) 146 at 158–61 [hereinafter ‘Like Literature’]. This is the assumption that Fish focuses on when he accuses Fish of taking certain matters, such as doctrinal history, as “brute fact” (Stanley Fish, “Working on the Chain Gang” in Doing What Comes Naturally, supra note 28 at 95 [hereinafter ‘Chain Gang’]) rather than as a matter for further interpretation (ibid, at 98); or when he argues that Dworkin, despite his disavowals of this position, takes some features of literary and legal texts as “self-identifying” (Stanley Fish, “Wrong Again” in Doing What Comes Naturally, supra note 28 at 105) rather than as “interpretive facts” (ibid.). Thus, according to Fish, Dworkin wants to evade the play of interpretation at some level, and so belongs in the same formalist camp as Weinrib or Rawls. See ‘Like Literature’, supra at 168; ‘Chain Gang’, supra at 100–01.

34. “The Law’, supra note 28 at 164–68 (discussing Webb v. McGowin, 168 So. 196 (1935), where a gratuitous promise for value received was enforced).

35. Ibid, at 154–56 (discussing In Re Soper’s Estate, 264 N.W 247 (1935)).

36. Ibid, at 148 (discussing Warren’s Kiddie Shoppe, Inc. v. Casual Slacks, Inc., 171 S.E.2d 643 (1969) and Dekker Steel Co. v. Exchange National Bank of Chicago, 330 F.2d 82 (1964)).

37. Fish says that a leading Critical Legal scholar “anticipates many of my own arguments.” Ibid. at 168 (referring to ‘Deconstruction of Contract’, supra note 6).

38. See ‘A Guide’, supra note 6 at 290–95; ‘Deconstruction of Contract’, supra note 6 at 1113–14; ‘Critical Movement’, supra note 6 at 116–17.

39. ‘Force’, supra note 28 at 519.

40. By way of example, consider Fish’s take on one feminist scholar. Catharine MacKinnon’s analysis of pornography has changed the way that many people think about sexuality, freedom of expression, and equality. Some of these people have regarded this change in their thought as a form of liberation; before considering the arguments of MacKinnon and her colleagues, they were unable to see pornography as a form of harm, or physical manifestations of flirtation as a form of assault. But Fish insists that there is no liberation in MacKinnon, merely a switching of belief from one set of constraints to another: “[MacKinnon’s] rightness does not result from having been released from the grip of objectivity, but from having exchanged one form of objectivity for another, the same exchange she now urges on her readers.” Stanley Fish, “Introduction: Going Down the Anti-Formalist Road” in Doing What Comes Naturally, supra note 28 at 21 [hereinafter ‘Anti-Formalist Road’]. And MacKinnon’s success (to the extent she has succeeded) in persuading people of the correctness of her approach is no different in kind than the success of the patriarchal hegemony she is fighting against: in both cases, success is a function of persuasion and of power. Ibid, at 23–25.

41. Stanley Fish, “Unger and Milton” in Doing What Comes Naturally, supra note 28 at 425 [hereinafter ‘Unger and Milton’]. See also Stanley Fish, “Critical Self-Consciousness, or Can We Know What We’re Doing?” in Doing What Comes Naturally, supra note 28 at 462–63; ‘Force’, supra note 28 at 518.

42. ‘Force’, supra note 28 at 522–24.

43. For such a derivation, since rejected by its author, see Ernest J. Weinrib, “The Case for a Duty to Rescue” (1980) 90 Yale L.J. 247.

44. See, for instance, the brief discussion of legal realism in Stanley Fish, Professional Correctness (New York: Oxford University Press, 1995) at 71–74.

45. This point is developed more fully by Dennis Patterson, who criticizes Fish for equivocating on the notion of the appropriate interpretive community. Dennis Patterson, Law and Truth (New York: Oxford University Press, 1996) at 125 (arguing that “Fish’s conception of an interpretive community is an idea at war with itself’ because Fish has no account of how to draw the boundary between one interpretive community and another).

46. Patterson, despite his critique of Fish’s notion of the interpretive community, makes precisely this move, not just as a response to Fish (ibid, at 112–13), but also as an account of law’s normativity more generally, (ibid, at 169–79). Patterson denies that his account is interpretive (ibid. at 126–27), but his account plainly locates the normativity of law—which for Patterson seems to merge with “the question of what it means to say that a proposition of law is true” (ibid, at 151)—in the practices of lawyers, specifically in the modalities of legal argument (ibid, at 170–72). For another invocation of legal practice in this manner, see ‘Focusing the Law’, supra note 4 at 49–57.

47. In addition to supra notes 39–41, see Stanley Fish, “Play of Surfaces: Theory and the Law” in There’s No Such Thing as Free Speech and It’s a Good Thing, Too, supra note 28 at 189–91.

48. ‘Anti-Formalist Road’, supra note 40 at 13.

49. Supra note 44 at 71–92; Stanley Fish, “Being Interdisciplinary is So Very Hard To Do” in There’s No Such Thing as Free Speech and It’s A Good Thing, Too, supra note 28 at 231.

50. Supra note 44 at 77–91.

51. ‘Force’, supra note 28 at 519–21.

52. ‘Value in Ethics’, supra note 26 at 4–5.

53. Ibid, at 4.

54. Ibid, at 5.

55. There are many ways in which Fish could invoke his standard set of arguments against Anderson, and I am not suggesting that she is galvanized against his acid in a way that other scholars are not. One strand of Anderson’s argument would be particularly tempting to Fish. She argues, as part of a pragmatic account of what it means to justify an evaluative standard, that “[a]ll participants [in the justification] acknowledge the permanent possibility of a gap between their actual attitudes and judgements and what would be the most rational attitudes and judgments for them to hold.” Ibid, at 93. See also Ruth Anna Putnam, “The Moral Life of a Pragmatist” in O. Flanagan & A. O. Rorty, eds., Identity, Character, and Morality: Essays in Moral Psychology (Cambridge, MA: MIT Press, 1991) 67 at 81–85 (attempting to define a sense in which some ideals are more inclusive than others). Now, for Fish there can never be such a gap, and the sense that there is a gap is an indication that another set of attitudes and judgements has already taken hold.

56. Fish has a set of beliefs on certain issues that might be characterized as leftist; he is certainly on the left of the “culture wars”. See supra note 44 at x; Fish, There’s No Such Thing as Free Speech and It’s A Good Thing, Too, supra note 28 at 51–101.

57. Supra note 44 at vii-viii.

58. Ibid, at viii.

59. Fish’s admission that when he practises his own profession of literary criticism, he does it in a mode which is “dated” (see supra note 44 at 3–13, 25) might be taken to indicate the very sort of critical self-consciousness that Fish says is impossible. Nor does his self-admitted outdatedness as a literary critic prevent him from grasping the methods and procedures of more recent movements such as Cultural Studies or the New Historicism. Ibid, at 76–80.

60. See also Steven L. Winter, “Bull Durham and the Uses of Theory” (1990) 42 Stanford L. Rev. 639 at 681–84 (arguing that the very process of explicating Fish’s theory refutes his claim that reflection is impossible); Michael S. Moore, “The Interpretive Turn in Modern Theory: A Turn for the Worse?” (1989) 41 Stanford L. Rev. 871 at 911–12 (arguing that Fish’s criticisms of foundationalist metaphysics are the very sort of external criticisms that he claims are impossible). But see supra note 27 at 538 (arguing that “the idea of theory as mapping, or describing the frameworks of other practices” does not refute Fish’s arguments).

61. This sketch will be ridiculously brief. The most complete elaboration is found in Weinrib’s ‘Private Law’, supra note 11. For other expositions of Weinrib’s approach, see supra note 44 at 20–24; Supra note 45 at 23–28; Martin Stone, “On the Idea of Private Law” (1996) 9 Can. J.L. & Juris. 235 (1996); Robert L. Rabin, “Law for Law’s Sake” (1996) 105 Yale L.J. 2261 at 2263–69; Hamish Stewart, “Contingency and Coherence: The Interdependence of Realism and Formalism in Legal Theory” (1995) 30 Valp. U.L. Rev. 1 at 13–18 [hereinafter ‘Contingency’].

62. Weinrib restricts his analysis to private law and concludes that private law reflects corrective justice; he is apparently content with the legislature’s power to abrogate or modify private law principles in the public interest, though of course any such modification would have to be consistent with the values that inform public law. In this paper, I am not concerned with public law in this sense; I am concerned with criminal law which, in its traditional retributivist guise, is a branch of corrective justice.

63. ‘Private Law’, supra note 11 at 89.

64. Ibid, at 90.

65. Supra note 10 at 230–31; ‘Private Law’, supra note 11 at 94–97.

66. ‘Private Law’, supra note 11 at 97.

67. Ibid, at 11.

68. Ibid.

69. Ibid, at 97.

70. Supra note 10 at 452–54.

71. ‘Private Law’, supra note 11 at 111. Kant himself insisted that, although acting lawfully was one of the demands of ethics, the doctrine of right had to be developed without reference to this demand. Supra note 10 at 231.

72. Weinrib never says that there are only two forms of justice, but his presentation strongly suggests that he so believes.

73. Weinrib is not, of course, arguing that the judge must consciously be a Kantian; he argues, rather, that a judge who has properly understood law as a practice will behave like a Kantian judge.

74. For example, Weinrib argues that loss-spreading, as a distributive value, cannot function as a justification for tort liability. ‘Private Law’, supra note 11 at 36–38.

75. Ibid, at 210.

76. Ibid, at 213.

77. Lamb v. Camden London Borough Council, [1981] Q.B. 625 (C.A.).

78. ‘Private Law’, supra note 11 at 219–22. For a savage critique of Weinrib’s analysis of this case, see Richard Posner, “Neotraditionalism” in The Problems of Jurisprudence, supra note 6 at 447; for more sympathetic critiques, see supra note 45 at 31–35; ‘Contingency’, supra note 61 at 32–36.

79. ‘Private Law’, supra note 11 at 39–42. See also Stone, supra note 4 at 72–80 (criticizing policy-oriented judgments by Lord Denning M.R. in Spartan Steel <& Alloys Ltd. v. Martin & Co., [1973] 1 Q.B. 27 (C.A.), and by Friendly J. in Petitions of the Kinsman Transit Co., 338 F.2d 708 (2d Cir. 1964)) and Chapman, ‘Tort Law’, supra note 17 at 90–94 (arguing that legal judgment, at least in tort, depends on the quality of the reasons and is incompatible with the pursuit of the good).

80. Incoherent judgments are incorrect in their reasoning if not in their results. But there is no criterion for correctness beyond coherence itself.

81. ‘Private Law’, supra note 11 at 223. See also supra note 4 at 66–72.

82. ‘Private Law’, supra note 11 at 224.

83. Ibid, at 226–27.

84. The interest-relativity of description is argued for by Hilary Putnam, Meaning and the Moral Sciences (London: Routledge and Kegan Paul, 1978) at 34–45; Richard Rorty, “Method, Social Science, and Social Hope” in Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982) 191 at 195–98 [hereinafter ‘Method’]; Amartya Sen, “Description as Choice” in Choice, Welfare and Measurement (Oxford: Basil Blackwell, 1982) 432.

85. Stone, supra note 4, recognizes this point: “[I]t is certainly unappealing to think that the world comes with labels instructing us how to apply words to it. [We are] on safe ground in being suspicious of the idea that any facts—by their very presence—signal the proper legal classification of a case.” Ibid, at 61. But he promptly veers away from its implications. He suggests that a common picture of the law, in which there is “a gap between legal rules and the results of particular cases, and … a theorizable thing in virtue of which this gap is bridged in practice,” ibid, at 65, should be questioned; but he provides nothing in its place.

86. Stephen Perry argues that Weinrib’s attempt to derive tort law from abstract right fails, because the subject-matter of tort law is harm, which can get no normative purchase in a scheme based on abstract right; harm is essentially an interest-based notion, while abstract right excludes considerations of interest. Thus, even if Weinrib’s theory can explain why a tort is wrongful, it cannot explain the duty to rectify the harm caused by the tort. Stephen R. Perry, “The Moral Foundations of Tort Law” (1992) 77 Iowa L. Rev. 449 at 482–85; Stephen R. Perry, “Loss, Agency, and Responsibility for Outcomes: Three Conceptions of Corrective Justice” in Tort Theory, supra note 17 at 32–34. Weinrib’s response to this argument is that human interests do appear in tort law, but only to the extent that they are embodied in rights. Ernest J. Weinrib, “Formalism and its Canadian Critics” in Tort Theory, supra note 17 at 20–23. See also ‘Tort Law’, supra note 17 at 77–78.

87. Ernest J. Weinrib, “Formalism and Practical Reason, or How to Avoid Seeing Ghosts in the Empty Sepulchre” (1993) 16 Harv. J.L. & Publ. Policy 683 at 693.

88. Perry’s rejoinder to Weinrib’s response focuses on the inability of Weinrib’s formalism to deal with human interests rather than on its inability to define rights independent of human interests: “[Weinrib’s] response does not deal at all with the central objection, which is that in Weinrib’s version of formalism human interests are only protected by rights because, and to the extent that, they embody abstract agency …; rights do not protect interests qua aspects of human well-being.” Stephen R. Perry, “Professor Weinrib’s Formalism: The Not-so-empty Sepulchre” (1993) 16 Harv. J.L. & Publ. Policy 597 at 604 n. 19.

89. This response has been suggested to me by David Dyzenhaus. It is reminiscent of Hart’s description of law as a set of open-textured rules, in which the answers to some legal questions are determined, but others remain open. H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) at 120–32. See also ‘Private Law’, supra note 11 at 227–29 (arguing that, at least sometimes, opposed doctrines may both be adequate to express corrective justice).

90. Dennis Patterson argues that human interests inevitably play a role in the definition of the forms that Weinrib works with. Supra note 45 at 39–42. In contrast to Patterson, I am primarily concerned with the role of human interests in describing particulars and thus bringing them under forms. This difference may seem slight, or even non-existent, but it affects one’s understanding of the relationships between form and content. Patterson argues that “[i]t is the form, and not the interpenetration of form and content, that enables us to see … different cases as instances of the same thing.” Ibid, at 42. He presents this argument as opposed to Weinrib’s view that “[florm is not separate from content but is the ensemble of characteristics that marks the content as determinate, and therefore marks the content as content.” Ernest J. Weinrib, “Legal Formalism: On the Immanent Rationality of Law” (1988) 97 Yale L.J. 949 at 958. In contrast, while I agree with Patterson that human interests affect the constitution of forms, I also accept Weinrib’s claim about the relationship between form and content; I quarrel with his (implicit) view that the content can be characterized with the degree of neutrality that his exclusion of interests seems to require. As Stone, supra note 4 at 34 n.5 puts it, “a legal theorist might hold fast to the idea that the outcome of each case is determined by the legal grounds of decision, but then take the necessity of interpretation to require a conception of those grounds that incorporates open-ended political considerations.” (Stone, of course, would not adopt this approach himself) – See also ‘Contingency’, supra note 61 at 18–23.

91. Kelman, supra note 16, would read the judgments in Fagan rather differently. Kelman describes various interpretive patterns which commonly appear in leading criminal cases, and traces their appearance in various criminal law doctrines. Of particular relevance to Fagan is his discussion of the broad and narrow time-frames. Any criminal law problem can be examined narrowly (e.g., what was the nature of the interaction between the accused and the victim at the very moment the offence was alleged to occur?) or broadly (e.g., what previous conduct of the accused or characteristics of the accused’s personality are relevant to any mistake or other excuse pleaded by the accused?). Ibid, at 600–16. Once the problem is time-framed, the application of the relevant legal principles will often appear unproblematic. Fagan, though not discussed by Kelman himself, presents a particularly clear instance of the use of framing. As we have seen, the majority regarded Fagan’s conduct as constituting a continuing act; thus, in Kelman’s terms, they used a broad time frame. The minority, detaching Fagan’s inadvertent application of force from his intentional failure to relieve that force, used a narrow time frame. But Kelman regards the decision to adopt one or the other time frame as an “arational choice.” Ibid, at 594. He would thus regard the ideas I pursue in this paper as “rational rhetoricism,” ibid, at 592, rather than as rational arguments intended to “explain why we use one time frame or another.” Ibid, at 592–93.

92. Supra note 7 at 445. The Court listed a fourth factor, the use of “words indicating the intention of keeping the wheel in that position.” This factor must be at best evidence of the accused’s intention, rather than part of the act constituting the assault. Ibid, at 444–45.

93. See, for example, the discussion of proximate cause in ‘Private Law’, supra note 11 at 158–67.

94. Supra note 7 at 445.

95. “The fallacy of the appellant’s argument is that it seeks to equate the facts of this case with such a case as where a motorist has accidentally run over a person and, that action having been completed, fails to assist the victim with the intent that the victim should suffer.” Ibid, at 445. This distinction would make liability for assault turn on, among other contingencies, where one’s vehicle stopped following inadvertent contact with a pedestrian.

96. Ibid, at 446.

97. For a convenient summary of these criticisms, see Richard Rorty, Contingency, irony, and solidarity (Cambridge: Cambridge University Press, 1989) at 3–22.1 do not mean to suggest that Bridge J. was consciously adopting a particular philosophical view of truth, but his language, like the majority’s, assumes that there is a way of describing Fagan’s conduct which corresponds to what Fagan was “really” doing.

98. Supra note 7 at 446 (Bridge J. dissenting).

99. Ernest J. Weinrib, “Right and Advantage in Private Law” (1989) 10 Cardozo L. Rev. 1283.

100. Fish has recently invoked Weinrib’s formalism to support his own account of professionalism in literary interpretation. ‘Professional Correctness’, supra note 44 at 19–39. He describes his difference from Weinrib as “a historicist twist [Weinrib’s] neo-Kantianism would disdain.” Ibid. at 24. Weinrib does not argue that his legal theory has no implications for practical judgment. Quite the contrary: He argues quite forcefully that arguments based on distributive justice cannot be legitimately employed in judgments about corrective justice. ‘Private Law’, supra note 11 at 70–80, 212–14. But the force of this argument is considerably reduced if, as I have argued above, judgment as to whether any particular facts fall under a given principle of corrective justice must advert to human interests, which can never be wholly insulated from distributive concerns.

101. See ‘Unger and Milton’, supra note 41 at 430–31; “The Law’, supra note 28 at 178; supra note 44 at 104.

102. Fish criticizes the Legal Realists for believing that, in tracing the connections between legal categories and other interests, they had found a realm which was somehow more “real” than the law itself. Supra note 44 at 71–72. See also supra note 4 at 44.

103. “Pragmatism” is a term which has been adopted by many legal scholars to describe a wide range of sometimes inconsistent positions. See Michael Brint & Williams Weaver, eds., Pragmatism in Law and Society (Boulder, CO: Westview Press, 1991). My sense of what it means to be pragmatic largely follows ‘Value in Ethics’, supra note 26 at 91–116; Cheryl J. Misak, Truth and the End of Inquiry (Oxford: Clarendon Press, 1991) at 126–37; Hilary Putnam, Pragmatism: An Open Question (Oxford: Basil Blackwell, 1995) at 57–75. For an indication of how this sort of pragmatism might apply to a central legal problem, namely, the legitimacy of legal decision-making, see David Dyzenhaus, “The Legitimacy of Legality” (1996) 46 U.T.L.J. 129 at 165–80.

104. I am echoing Rorty’s critique of the idea that we can have access to, or that there even exists, “Nature’s Own Language”. ‘Method’, supra note 84 at 192.

105. Kelman, supra note 16, has emphasized, quite correctly in my view, both the importance of characterizing the facts for reaching a result, and the impossibility of characterizing the facts in a neutral way. But I think Kelman is excessively pessimistic about the possibility of rationally characterizing the facts. As we have seen, reasons—perhaps not conclusive or eternally valid reasons, but good reasons nonetheless—can be offered for the broad time frame in Fagan.

106. “[F]reedom has nothing to do with lack of training; it can only be the product of training. You’re not free to move unless you’ve learned to walk, and not free to play the piano unless you practise.” Northrop Frye, The Educated Imagination (Toronto, ON: Canadian Broadcasting Corporation, 1963) at 64. See also Northrop Frye, The Well-Tempered Critic (Bloomington: Indiana University Press, 1963) at 43; Northrop Frye, Words With Power (Toronto, ON: Viking, 1990) at 281–82.