Zenon Bankowski

Analogical Reasoning and Legal Institutions

I start by looking at what is involved in moving from a snail in a ginger beer bottle, through sulphites in underpants and antimony sulphide in manganese, to a lift in a shaft. Lawyers from the Anglo-Saxon jurisdictions will recognise these facts as coming from cases in the law of delict or tort and they will recognise that I am starting with the famous case of Donoghue v. Stevenson. Here it was held that Mrs Donoghue, who was made ill by starting to drink, in a cafe, a bottle of ginger beer in which she claimed there had been a decomposing snail, had a remedy in negligence against the manufacturer with whom she had no contractual relation. Lord Atkin said: A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation of putting up the products will result in an injury to the consumer’s life or property, owes a duty of care to the consumer to take reasonable care. ([1932] A.C. at 599)

Don’t Think About It

In Kafka’s story In the Penal Settlement an explorer chances across a prison camp far away. There, one of the instruments of punishment is a machine that works justice by inscribing the punishment on the body of the convict. Things are changing but the custodian of the machine still fiercely believes in it, patching it up with makeshift parts. He is so in its thrall, that when it appears to be breaking down, he submits himself to it to show its purity. It works on him and falls apart, carving out on the body of the unfortunate custodian, the phrase ‘Be Just’.

Transparency and the particular

Abstract Transparency generates a paradox. For the way that we make things transparent is by simplification which at the same time masks all the information and thus contributes to opacity. The paper looks at how this paradox is played out in the contexts of the interplay between legal rules and particularity and between political representation and complete democracy. This raises questions of the Rule of Law and the functions and meanings of democratic legitimacy and though these are different questions, they are closely related and overlapping. Finally, it looks at how the issues come into focus in questions of governance of an entity like the EU which should not be seen either on the model of a union of states or a nation state itself.

Judging and the Ethical Life

This paper seeks to answer a prior question before one can look at how to measure judicial quality. That question is what is it that we expect a judge to do and to be. And that question has to be answered in the context of what we take to be what I call the ethical life of the law and of the judge. What I have argued for is that the judge stands in an anxious place, ‘the middle’, marrying both the universal law and the particular decision, cognisant of the general law and also cognisant of the particular individual or case that they encounter. The paper explores that place and how to teach the judge to use the anxiety therein creatively and not run away from it by collapsing that space into either the universal law or the particular decision.

Double-click Justice: Legalism in the Computer Age

Abstract Legalism seen as a sort of blind rule following (often embodied in the metaphor of the “computer judge”) is often confused with legality, an altogether more reflexive and rational concept. But legality to work properly needs to be related to and articulate with the narrower concept of legalism. Only in the complex interaction of these concepts can we begin to see legality as a mode of organisation appropriate to a free and democratic society. This is here discussed in the context of the computational implementation of legal concepts which is now ubiquitous and makes the “computer judge” something more than a metaphor and instead a serious socio-legal issue, the regulation of cyberspace and other technology enhanced forms of human interaction.

Europe and the Journey

What we have so far been looking at so far can be illustrated by a story. When I lived in Italy I was struck by the seeming chaos on the roads. But drivers did not go out to kill pedestrians at, for example, pedestrian crossings or at traffic lights. They never stopped but rather tried, with more or less success, to weave around the pedestrians who would be scared out of their wits. I then visited Germany where I was struck by how different it seemed. How at controlled pedestrian crossings, cars, when signalled to stop, always did so. If there were a green light for the pedestrian, one could boldly cross without looking out for cars. One could, something not possible in Italy, cross the road and not fear the cars. You knew they would stop. However, if you crossed the road on the red, you were dead! You would not be seen because you were crossing the road contrary to the rules. You should not be there, therefore you were not there.

The Law of Love and the Love of Law

We saw in the last chapter what happened in this dichotomous way of thinking; that one way of life pushed out the other. Both sides have a problem with allowing in any of the other side. If we leave it to the cash-line machine of the last chapter, it will take over and we will never be able to break out of that cycle. The story recalls those science fiction dystopias where law application and enforcement is given over to the hands of a computer/robot. That machine takes over in such a way that humans cannot break in. It just applies its programmes in a relentless way with no regard to concrete reality. If this is too fantastic then think of what happened when world stock markets crashed. One of the causes was automated systems of selling — sell orders being automatically triggered at certain prices. This had a reinforcing effect and created a sort of amplification spiral which drove the price further down, which generated more sell orders and so on. This had its own inexorable logic and nothing could be done short of destroying the whole system by pulling the plugs out.

Reasoning in the Machine

So far I have been using the images of jumping out of law or jumping out of love. This way of putting it implies that we jump from the one to the other. But I do not want this to imply that that we must make this an ‘either/or choice’; that principles or reasons hunt in pairs and, because there is no rational principle of choice from the one to the other, we are doomed to an eternal oscillation. Either/or is still the safe choice for it is at least jumping into something that is clear, even if getting there might appear irrational. Love can also be the safe choice. We saw how Hamish X could in certain instances be seen as selfish, locked in his own desires, certain that this is the right thing to do, unable to see beyond. Recall how Antigone transforms love of the family into a righteous certainty; a certainty that in the end, confident of its rightness, does not care for others. The urge for that form of certainty transforms itself into law and rules (thus Antigone transforms the philia of the family into the law of the gods). Even love can be transformed into legalism, into the rationalism of a coherent and consistent system which can inform our decision-making. But that is not to say that legalism is something perverted — just that in this case it was not appropriate. Let us follow rather, Nussbaum’s reading of Antigone, and say there is no haven and that we have to move into a zone where we cannot be sure that the answer will come out right, where we are holding all reasons and principles in tension, not taking one on board to the exclusion of all others and this includes legalism.

Reasoning Beyond the Machine

In this chapter we again look at some of the ethical problems involved in legal reasoning. In the last chapter we saw one way that the law might be said to stay in touch with the particular. This was through seeing the law as composed of institutions whose formality and exclusionary nature rested on the fact that they rested upon acceptable substantive reasoning. But what can we do when the substantive reasons on the back of which the institutions rest are no longer so? What happens to the institution then? We ended the last chapter by saying it just kept the machine mode, imposing itself on ‘raw events’ and making it impossible to unpick them. In this chapter we start from the other end, as it were. One might argue that ultimately these machines collapse into substantive reason, into particularity — even though we might hide this from ourselves because we want to live like a machine and not take responsibility. We always have the choice but we do not take it because we are blind to it.

Duty And Aspiration

In the last chapter we saw how the world of Creon and Antigone was realised in practice for law and lawyers and the connections to rules and certainty that it had. We saw how in this legalistic world view there was both a psychological and a cognitive problem. How the desire for certainty led to the fixing of modes of ordering both of oneself and society by heteronomous rules; how the strength of this desire was so great that even when rules were seen as wrong the only way to deal with them was by dispensing with them. For rules were seen as something that must be obeyed; either you obey them or you do not have them. That is why some of those keenest in their proclamation of the plasticity of life are really legalists who cannot cope with the burden of rules.