Towards a Process Reconstrual of ‘the Middle’

Chapter 5

Towards a Process Reconstrual of ‘the Middle’

We need now to bring this processual understanding to bear on the approaches to legal reasoning represented earlier and the problems presented for analysis in Re A. As we have seen, a fundamental tenet of any processphilosophical approach is the idea that knowledge cannot be simply located as the successive quantitative movement from one homogenous, stable, or independent, state to the next; on the contrary, knowledge is a relational effect and fixed states are but specific cases in point. On this view, legal knowledge is not something that travels across the gap between one pole and another; instead, the institutionalisation of knowledge in law constitutes a particular context that emerges to mediate the tension between these two poles and within which individual terms (such as universal and particular, rule-determination and rule-application) assume subsequent and relative meanings. Thus, where knowledge is institutionalised in law, this should not be understood as the outcome of some pre-existent structuring or patterning of positions but as an establishing of ‘internal resonance’ (Wood 2003a: 226).

It is this ‘fixing of tensions’ that creates the abstracted structure that is subsequently commanded and controlled according to the conceptual categories of legal thought and representation.

What this suggests is a sense in which what we have called the institutionalisation of law is properly understood in terms of the means by which participants make sense of their social interactions. In this sense, institutionalisation comprises both the forces and tendencies that promote order and stability and the mechanisms that tend towards change and de-structuring. It is the continual fluctuation between these that momentarily results in an appearance of order, some thing achieved through reduction, but the two are really inseparable. Law, as a process of institutionalising information, is always-already the outcome of a previous process of institutionalising.

Two Views of Legal Knowledge and its Production

Commonly, when we think of law we think of it as a coherent resource, as something to be applied. As we saw in Re A, there are three aspects to this: first, practical problems are confronted, recognised and addressed in a context governed wholly by the interests of the legal institution, problematised entirely as legal issues; second, all of this, including language, context, concepts and interpretations, is commanded and controlled in an essentially homogeneous, largely hierarchical manner; third, this hierarchical legal institutional structure prevails over the communication of outcomes, disseminated through legal institutional channels. In these ways, by its use of either/or distinctions, its courtroom terms and procedures and its control of the flow of decisions (through the doctrines of ratio decidendi, stare decisis and legal precedent), the legal community defines and deploys the criteria and measurements of its own success.

It is against this background that we must understand Bańkowski’s suggestion that law’s external audience should become more involved in decision-making: as the site of legal decision-making becomes more important so it becomes necessary to seek a more collaborative approach. What we find here is much less a sense of the fixed separation of theoretical and practical and more the recognition of a managed flow back and forth between the two with a movement across disciplines and fields incorporating, within legal decision-making, ideas, methods and procedures otherwise considered as outside. In this way, knowledge sites become more dispersed and new knowledge producers begin to emerge.

According to this view, law requires a more flexible, relational, context-based approach realised through the coming together of heterogeneous assets and continually shifting institutional forms and structures. This is something to be arrived at through participation, negotiation and mediation, and where results are communicated in and through the contexts in which they are to be applied. In this sense, this way of thinking about law might be considered more in keeping with the complexities of situations that law seeks to address. Here, legal practice becomes the difficult task of maintaining the middle position that opens up between abstracted representations and exacting contextual requirements, refusing simply to go one way or the other but always maintaining both the separation and the link, the continual movement or conversation to and fro, between them.

However, from a process perspective, two problems emerge with regard to this. In the first place, those advocating a new understanding of the relation between universals and particulars tend to overestimate the extent to which the determination of legal knowledge, and not simply its confirmation, may originate from outside the limits of the legal institutional structure. Notwithstanding the increased recognition of extra-legal influences, it is still the highly structured, hierarchically ordered institutional framework that is the main site for generating, developing and refining legal knowledge. Changes in law take place by law and according to law’s legal structure, governed by the procedures and mechanisms that limit, order and subjugate according to law’s institutional practices and routines. That is why, in reality, very few of the advances predicted ever amount to anything very novel or surprising. Superficial changes in the institutional context of law make little impact on the basic assumptions underlying and characterising law. Besides, while a more socially distributed form of legal knowledge might well be expected to generate a more relevant and socially applicable type of law, the degree of difference in the legal power/knowledge rhetoric always works, as we saw in Re A, to prefigure what counts as knowledge. It is precisely this ideological aspect of law that we found to be its most disturbing feature. Very little of what appears succeeds in altering law’s privileged and self-legitimating, autopoietic, standpoint.

The second problem concerns the assumption, introduced earlier, of a one-to-one relation of correspondence between living experience and legal representation. In common law decision-making, legal practitioners have to provide justification for their legal decisions, attempting to turn thought back upon action. In doing so, they appear to engage in a sort of action-reflection, a process of re-deliberation or justification of the situations in which they perform. However, as Detmold and Bańkowski show, with their depiction of the ‘anxious judge’, judges inevitably face a crisis of confidence and legitimacy closely related to the adequacy of their legal knowledge reservoir. This crisis of confidence highlights a disparity between traditional representations of knowledge and lived experience, and thus the impossible complexity and the incommensurability of legal decision-making. While assumed forms of technical rationality are based on the presupposition of a correspondence of means to ends, those same means and ends often appear confused and conflicting.

In this way, a gap opens up that must be closed. This is why, for Bańkowski, judges need to attend to the ‘outside’, to bridge the gap between their professional knowledge and the demands of the real world. But even here, a judge’s reflection on action is still always directed towards verbal descriptions, deliberate constructions that must be tested. It is in relation to these that Bańkowski suggests that a judge, in deliberating, must remain open to the unfolding story; letting the story speak for itself, talk back. It is here, with selected information, that the judge works reflectively, always leaving things open to change. We find a similar notion underlying MacCormick’s sense of determining what the ratio of a decision is; that is, it is only when the enacted environment responds and a future judge answers the first that any real decision can be made about what the fuller meaning of the ratio is, what information will be retained for future use.

This distinction between law and its external environment as a critical separation that must be closed is also one which Christodoulidis refers to. With him, too, we can discern a form of attending to the outside that underpins his idea of an enacted environment; however, here, it is more correct to say that any ‘outside’ is created by the decision to ‘draw a distinction’. For Christodoulidis, following Luhmann, a system’s environment is not so much something already external to be reacted to but it is created by the actor through the processing of information according to her focus on a particular task, by the process of selection. Selecting has to do with deciding what is relevant, what to deal with and what to leave alone. Something can only become the object of attention after this selection has occurred. This is how everything becomes noticeable and noticed, registering as occurring only after it has occurred. In decision-making something is always acknowledged retrospectively, related to the specific concerns and motivations of the individual. In this sense, he is quite obviously correct: ‘justification is always justification a posteriori’.

Given the disparity brought about by the lack of correspondence between living experience and legal representation, even paying attention to the particularities of a situation cannot fully account for the mutual inter-relatedness of elements in the originary assemblage. To achieve this will necessitate greater sensitivity to the temporal dimension; in other words, it is crucially important that paying attention always occurs retrospectively.

Employing a Method of Creative Involution

To think about creative involution is, as Wood suggests, thinking differently. It is to treat relations as the primary objects rather than as linkages between separate things. However, this does not involve moving ‘from one actual term to another actual term along a single line, but from a virtual term to the heterogeneous terms that actualize it along lines of divergence’ (Wood 2002: 161). This is what Bergson refers to as intuition. For him, the key to true knowledge and understanding lies much more in asking new questions than in providing answers to already existing questions. While the latter practice is closed and regulated, the former is open-ended, its movement and flow forever resisting representation and regulation.