Two Ways of Thinking; Two Types of Knowledge

Chapter 6

Two Ways of Thinking; Two Types of Knowledge

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 theoretical 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.

However, taking our cue from Henri Bergson, I have argued that we should not say that law is a system of rules applied to facts or, indeed, any form of reflection on this. On the contrary, rule-determination and rule-application, legal universals and legally relevant particulars, the ways in which we understand certain particulars as instantiating certain universals, our system of laws and our processes of decision-making, are all snapshots of reality, images extracted from an otherwise continuously moving and changing flow, simply ways that we break into this, halting, holding and handling what we abstract, in order to try and make sense of its elusive, enigmatic, otherwise inexpressible qualities. We can understand this as we realise that even our attempts to ground the act of giving justifying reasons for a legal decision in the particulars of the lived situation to which that decision refers is already something beyond the decision itself. 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, the multiplicity of points through which the movement has passed, rather than the unity of the action experienced. In this sense, law can never deliver the reasons to justify a decision. Some gap always remains, the distance represented by the question concerning the appropriateness of that universal continuing into these particulars. (In the same way, we cannot capture the living experience of conjoinment in the legal representation of it.) Rather, we always miss the target we aim at, the decision-making act always remaining a decision already presented. Clearly, there is a flow of knowledge, but, on Bergson’s view, not in the sense of some derived relationship connecting discrete spatial positions. For that to be true we would have to be able to completely isolate the different elements that occupy those positions so that we could identify them conclusively as like or unlike each other, spatially distinct and bounded (and to be connected they must be separate, they must each have a boundary and there must be a space between them). In spite of this, we continue to adhere to precisely this sort of unrealistic approach when we think about law as a system of known rules applied to facts. In addition, I have suggested that utilising Deleuze and Guattari’s concept of the rhizome can help us to see how the movement or spread of information in law is best described as a forever jumbling up of distinct phases, stages and patterns, a complex form of growth like that associated with the roots of certain plants.

Employing a Metaphor of Rhizomic Communication

Christine Battersby (1998) highlights five features of Deleuzean ‘rhizomatics’ that may help to show the relevance of this way of thinking about legal knowledge. First, the rhizome involves the bringing together of diverse elements. Second, the rhizome brings together elements that are not usually thought of as belonging together: it is based on heterogeneity. Third, the rhizome is not reducible to a series of points or individual parts. Fourth, the rhizome is ‘subject to ruptures, breaks, discontinuities anywhere within it’ while retaining its self-organizing structure. Fifth, the rhizome cannot be traced back to a principal root or source; rather, it is a form of nomadic mapping that ‘moves across the landscape without fencing in the land’ (Battersby 1998: 192). Rhizomes appear without recognisable beginnings or ends but are always an in-between, a middle that allows for the continual participation of all points within each other even if in reality one point does not become the other or achieve correspondence with it. In this way, the apparent stabilities of universals and particulars might be exchanged for the awareness that although we live in a world of change the processes of change are imperceptible to us. In this sense, the relationships between universals and particulars, rule-determination and rule-application, operative and evidentiary facts, legislation, adjudication and enforcement are not simply connective; rather, they involve the becoming of law through a movement that is neither universalist nor particularist, neither containing nor instantiating but always somewhere in-between. In this way, the assumption of a boundary between the legal and the extra-legal, law and life must give way to an understanding based on interconnections between different patterns of relations.

As an institution, law relies on explicitly formulated rules for its functioning, but law’s institutional context relies on much more than explicitly formulated or formulatable rules. Through socialisation, judges internalise law-specific distinctions and their legal expertise is learned within the context of their discursive practice. This forms an unarticulated background that undergirds a judge’s representation of their decisions. In this sense, the application of a rule is really not an individual achievement at all but derives essentially from collectively shared meanings, within a tightly related network of communications in and through which these shared meanings are attained. In this chapter I suggest that attempts to manage judicial decision-making actually involve rhizomic systems of communication rather than a series of linear connections. My aim is to demonstrate that the kind of continual movement being alluded to here already permeates the practice of law, at all levels, thus helping to prepare the way for a novel understanding of the diffusion of legal institutional knowledge.

It is often said that law is the prime example of a hierarchical institution, where normative procedures structure, order and shape all of its aspects. A taxonomic and classificatory urge controls the admissibility of its constituent parts – its formal and substantive rules, its rules of evidence, its requirements of coherence and consistency, its customs and practices, principles and values – all neatly ordered from the top down. Accordingly, legal professionals can be seen to approach their work in a pseudo-scientific manner, with judges in particular concerned to find the best possible fit of rules to facts, bridging the gap under the watchful eye and guidance of their peers and counterparts, whose control is exercised through procedural techniques such as the doctrine of precedent, ratio decidendi, and so on; indeed, any appreciation of law as an institution depends on a proper understanding of this hierarchical ordering of decisions. Simply looking to an individual judge’s decisions in isolation will tell us very little. In such an environment only those aspects of a decision that can properly be said to form part of the ratio of the decision are authoritative, everything else is obiter dictum. The more that a form of reasoning can be considered part of the ratio of a decision, the more chance it has of being taken up in future decision-making. The more impressive an individual judge’s justification of their decisions, the greater the impact and the more authority their reputation acquires.

But there is a flip-side to all of this, too. As we see in Re A, decision-making takes place under pressure of time and a lack of resources (and there is the inevitable threat of one’s decisions being scrutinised by one’s peers on appeal). The peculiar nature of the rules of evidence, and burdens of proof, and their corresponding impact on the public acceptability of decisions all, from time to time, provide sources of frustration for the judicial decision-maker. Therefore, in the real world of judicial decision-making there is a true sense in which, in tailoring his decisions, a judge ‘cut his suit according to his cloth’. So law is a system of rules, yes, but it is a very peculiar system of rules, with the hierarchical ordering of its doctrine of precedent and ratio decidendi, examples of this. Precisely because of this, frustrations appear over and again, and we find that from time to time a decision is ‘justified’ where the facts and the rules do not overlap but public opinion or social mores have moved on to a position where the reasons given are deemed sufficient to persuade that the decision is acceptable, or a decision is deemed right and proper and in line with modern understanding, but that cannot be justified purely on legal grounds.