Wordfulness for Neophytes Putting jurisprudence to work to address pedagogic challenges

1. Wordfulness for NeophytesPutting jurisprudence to work to address pedagogic challenges Max Weaver Visiting Professor | Law Division | London South Bank University

2. NOW You’ve seen: Wordfulness Jurisprudence and the Pedagogical Challenge A Word Play by Max Weaver

3. The Pedagogical Challenge • ‘The limits of a student’s language are the limits of that student’s world’ • Adapted from Wittgenstein in the Tractatus 5.62

4. Cast in order of ‘appearance’ • A neophyte law student, UCAS casting imminent • Karl Llewellyn, played by his spirit • Santa Claus, played by a hologram • Mrs Beeton, played by various law teachers • and Ernest Weinrib as himself • Other parts are played by living and deceased members of the legal, jurisprudential and philosophical communities

5. Armchair Hypothesis 1 BUT cultural cognitive clash with common law method’s mix of • change and •predictability ‘One click’ culture Here’s our neophyte law student ‘Taught to the test’ A ‘customer’ buying outcomes

6. Armchair Hypothesis 2 • The ‘thirst for certainty’ imports a form of ‘philosophical realism’ • an expectation that legal concepts have a mind-independent existence • Cf. JL Austin’s ‘moderate-sized specimens of dry goods’ • But we should disappoint our certainty-seeking neophyte • ‘Jurisprudence’ should be engaged—and engaging

7. Cultural Cognitive Clash Unpacked Our neophyte is conditioned emotionally and intellectually to ‘expect’ : • clear separation of law-application from law-making • certainty, predictability • fixed and precise meanings of words • OR AT LEAST definite core of meaning modest interpretational penumbra Whereas: • Common law is judge-made • changes incrementally, with • occasional more radical interventions • Usage determines meaning • interpretation can extend to the whole concept • often no hard line between ‘core’ and ‘penumbra’

8. American legal realism’ is fundamentally different • Legal concepts (e.g. ‘negligence’, intention’, ‘contract’) are mind-dependent • investigate the minds involved • the common law is judge-made—and changes • evaluate laws by their social effects • legal changes lag behind social changes—mostly • rules not always the best predictors of what courts will do [Based on Karl Llewellyn, ‘Some Realism about Realism’ (1931) 44 Harvard Law Review 1222, 1234-1238]

9. Armchair hypothesis 3 • Law teachers indulge neophytes’ thirst for certainty much as parents teach the very young about Santa Claus or the Tooth Fairy • Choosing ‘formation of contract’ as a first common law topic lends a mechanistic tone • A ‘Mrs Beeton approach’ is introduced, unless great care taken about to policy aspects • Being pre-conditioned, neophytes • warm to the mechanistic aspects • tend to marginalise the subtler policy points • Of course, no law teacher actually believes in Santa Claus • although some might well be described as ‘doctrinalists’

10. Weinrib: a paradigmatic doctrinalist • ‘[T]he notion of right and correlative duty would be undone by the non-correlative conception of the content of those rights as being based on welfare.’ • Ernest Weinrib, J. Corrective Justice (Oxford University Press, 2012) Kindle Edition, 22 • Excludes ‘deep pocket’ cases from proper ‘private law’ • (e.g.) Nettleship v. Weston • (e.g.) ‘thin skull’ cases • vicarious liability

11. Confronting Santa Syndrome • To avoid filling the world with ‘Santa-believing adults’, parents will: • refuse to teach them Santa • begin as we mean to go on • teach them Santa but break Santa’s unreality gently • assume offspring will eventually learn the news from others

12. Armchair hypotheses 4 (and 5) • I opt for ‘begin as you mean to go on’ • Hypothesis 4 is an important condition precedent: • Most neophyte law students have the intellectual equipment to cope with uncertainty—our problem is to overcome their emotionally entrenched pre-conditioning • Not yet tested empirically. • Assuming Hypothesis 4 is valid, Hypothesis 5 sets out three distinctions that might overcome neophytes’ pre-conditioning

13. Armchair hypothesis 5: three useful distinctions Conclusory Verdicts • Motivations, Reasons and Justifications This notion gets sub-divided later • Factive (‘is’) (empirical) Verdicts • Normative (‘ought’) Verdicts • ‘Incontestable’ Concepts • ‘Contestable’ Concepts

14. Armchair hypothesis 5: First Distinction Conclusory Verdicts • Motivations, Reasons and Justifications

15. Verdicts ‘just are’ • Verdicts are conclusions • Verdicts are not motivations • Verdicts are not explanations • Verdicts are not justifications

16. ‘Giving Verdicts’ is what judges are for • Verdict 1: ‘D is not liable to C in negligence’ • Obviously verdictive • Lacks any explanation or justification • Verdict 2: Because ‘there is no duty of care’ • Looks like, and is, a formal justification • But it is itself a ‘verdict’—and we must ask how that verdict • arose, and • is justified • Verdict 3: Because ‘there is insufficient proximity between C and D’ • Looks like, and is, a formal ‘justification’ • But it is itself a ‘verdict’—and we must ask how that verdict • arose, and • is justified Our neophyte law student is conditioned to stop at Verdict 2 We might despair of those who stop at Verdict 1 Note that open-textured words appear, in this example, only at Verdict 3 Maybe policy reasoning and value-judgements are most likely to be implicated at a stage that involves open-textured justifications Points forward to the third distinction: incontestable from contestable (and, sometimes contested)

17. Contract model • Verdict 1: ‘C is liable to D in contract’ • Obviously verdictive but lacks any explanation or justification • Verdict 2: ‘there is agreement, consideration and an intention to create legal relations’ • Looks like, and is, a formal ‘justification’ , but it is itself a ‘verdict’—and we must ask how that verdictarose, and is justified • Whether there is consideration and/or intention to create legal relations might well involve value-judgements • Where neither precedent nor social consensus overwhelms: • judges have some ‘wiggle room’ • distinctive features of case-circumstances (call these ‘factors’) will be weighed and felt-fairness of consequences will matter (‘American Realism’)

18. Armchair hypothesis 5: Second Distinction • Factive (‘is’) (empirical) Verdicts • Normative (‘ought’) Verdicts

19. ‘What is the case?’ is factive and falsifiable • Norms are not falsifiable • But norms are contestable • unless composed entirely of quasi-mathematically certain concepts (‘parking meter rules’)

20. Fact-sensitivity • Recognises that the law under consideration includes a fact-sensitivenormative concept • That concept in not mind-independent • But ‘fact-sensitive concepts’ are regarded as contestable/interpretive • Contested and applied in the light of past, present and future • Mind-dependent

21. Fact-finding is not mind-independent • Which evidence to believe? • Choosing operative or proximate cause from the numerous causae sine qua non • Even when trying simply to explain what happened • Determining states of mind • Intention to act • Intention to cause consequences • Which consequences? • Intention to proceed with reckless disregard for consequences deemed actually foreseen • Determining ‘motive’—or ‘psychological causation’

22. But is there ‘one’ ‘real’ meaning? On to our third distinction! A trap for neophytes • Judges sometimes use ostensibly factive language when considering a normative problem • (e.g.) ‘foreseeable’ (a falsifiable factive ‘is’) for ‘reasonably foreseeable’ (a standard setting ‘ought’)

23. Armchair hypothesis 5: Third Distinction • ‘Incontestable’ Concepts • ‘Contestable’ Concepts

24. Incontestable from Contestable This is INCONTESTABLY a ‘triangle’ But ‘triangularity’ is CONTESTABLE

25. Incontestables: ‘Parking Meter’ Rules • Time and space are incontestable components of the rule • The bay delineates the space and the meter records the time • CCTV can record ‘presence

26. But is this car ‘present’ at the instant the meter expires? Just a modest interpretive penumbra around the certain core

27. Conjugating Contestation • Call the kind of contestation in our parking meter case ‘penumbral contestation’ • However, ‘non-penumbral contestation’ or ‘whole-concept contestation’ is commonplace • but likely under-appreciated by neophytes • Several examples in the full paper • Just two are sketched here

28. L'Hommage à Rumsfeld • ‘Incontestable’ Concepts • ‘Contestable’ Concepts Easily confused • ‘Uncontested-Contestables’ • ‘Contested-Contestables’

29. This line will not often be straight Consensus & Contest Consensus declines ~ 100%consensus ~ 100%consensus So too,this line Incontestable quasi-mathematical concepts Contestableconcept BUT uncontested Contestable concept increasingly contested

30. Example 1: Consideration: Change; Entrenchment; Workarounds Advent of Legal ‘Science’ Rise of economic individualism Advent of welfarism Other concepts developed to circumvent consideration’s rigidity 1859 ‘Self Help’ published Consideration = a good reason to enforce a promise • Consideration  an essential ‘Mrs Beeton=style’ ingredient of ~all enforceable contracts. • Consideration  a ‘something’ that must move from the promisee. > 1770 < ~ 1942 < 1942 Beveridge Report 1826 UCL Law 1976 Liverpool v. Irwin 1879 Anson1st edn 1778 Rannv. Hughes

31. Example 2: Vicarious Liability: Enduring; Expansion/Supplementation Cassidy v. MoH [1951] ‘akin to employment’… Christian Brothers [2012] Armes v. Notts. CC [2017] Advent of Legal ‘Science’ Rise of economic individualism Realisation of abuse issues Advent of welfarism ‘Deep pockets’ found to compensate victims Rise of ‘expert ‘ employees THEN of more complex business structures etc. 1859 ‘Self Help’ published Lister v. Hesley Hall Ltd [2001] Mohamud v. WM Morrison Supermarkets [2016] Masters’ liability Eventually justified by control/agency reasoning:  ‘employment’  in the course of… Masters often liable for their servants’ torts > 1770 < ~ 1942 ~2000< 1942 Beveridge Report 1860 Addison on Torts 1826 UCL Law 1942 NHS 1798 Hern v. Nichols

32. Pedagogic Implications • Assuming my three distinctions matter: • Santa Claus has to go • Gradual induction into the distinctions? • Introduce (opportunistically) in substantive curriculum? (intuitive preference) • Some Suggested Methods • Reading • Writing • Précis brings these skills together • Mooting—entails analysis, argument, spotting ambiguity, finding weaknesses, counter-argument • Clinic—entails finding facts, finding law, devising strategy, anticipating counter arguments • Testing and feedback • A long way from reliance on ‘foundational’ doctrinal exposition alone

33. Max Weaver Visiting Professor | Law Division | London South Bank University