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The legal fact as a work of art : artificial intelligence and the pragmatics of legal interpretation Edwards, Richard Charles 1993

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• The Legal Fact as a Work of Art: Artificial Intelligenceand the Pragmatics of Legal InterpretationbyRichard Charles EdwardsB.A., The University of Regina, 1978LL.B., The University of Saskatchewan, 1991A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTERS OF LAWinTHE FACULTY OF GRADUATE STUDIESFACULTY OF LAWWe accept this thesis as conformingTHE UNIVERSITY OF BRITISH COLUMBIAMarch 1993© Richard Charles Edwards, 1993In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)Department of Lotv) The University of British ColumbiaVancouver, CanadaDate^fno,.ry,L,^I/13DE-6 (2/88)AbstractModern legal theory rests on a premise that in revealing a legalconcept we are revealing reality. This traditional (Kantian)approach is reflected most acutely in legal positivism. Theposition of the legal positivist is that of law as constitutive offacts. The fact is our description of relations in the world. Weshould see immediately that in understanding the fact we shouldunderstand how this fact is presented to us. To comprehend themeaning of a fact we must understand the relation of language andreality.The question concerning the legal fact is the question of origin.It comes in response to the question "Why?" For there to be a legalfact there must already be an issue. It is understanding what is anissue and how we express this issue that is the mark of an"expert."An example of the positivist approach to legal reasoning is AnnGardner [1987]. Gardner is confronted by Hart's positivism that weverify legal norms through legal language. That is to say, that thedescriptions found in legal text are what verify our apperceptionsof the legal real. She concludes that hard cases cannot be resolvedin expert systems. If we accept Hart's premise then Gardner'sconclusions are correct.This paper is to reject the positivist premise. This paper sets outlegal language as an artifact of the legal institution. If languageis an artifact, we must recognize that language is a product of thesocial world and not a means of representing the social world. Fromthis, it is apparent that we must go beyond the language of thediscourse not only to uncover the basis of legal norms but mostespecially to uncover a basis for building expert systems. Thisrequires that we move from an epistemological basis for knowledgeto an ontology of law.The thesis rests on two premises: first that we cannot representknowledge in computerized legal databases useful for legal reason-ing without a practical rationality, and secondly that modern legaljurisprudence, inter alia legal positivism and legal realism, hasbeen unable to explain contradictions within the doctrinaldiscourse thus it is unable to provide a practical structure ofrationality. We conclude that legal positivism cannot be the basisfor expert systems in law.The paper is divided into two sections. The first section sets outa philosophical basis for legal understanding. This thinking willdraw heavily on Wittgenstein, Heidegger and Merleau-Ponty. It is toput into perspective the conditions necessary for understanding toexist. We examine the social construction of reality. This willlead to a critique of the current mode of representational thinkingiiiand the reasoning within institutional practice. In the secondsection, we will consider the actual computational application oflegal knowledge in connection with a "deep structured" approach tolegal reasoning.Legal action brings to attention the transparency of human involve-ment with the world. It is then that we become aware of what we do.Our involvement is an issue. This "shock of recognition" is whenmeaning is revealed. This enables the Kantian concepts of intent-ionality and freedom which presuppose our involvement in the world.We will conclude that knowledge representation and expert systemsrequire a sound practical foundation. Positivism proves an inadequ-ate foundation in its attempts to capture the reality of the legalsituation. We argue that if an expert system in law is to be ofpractical value, it must be based on a practical rationality. Atheory of actions provides such a coherent basis upon which todevelop models of reasoning within computer based systems.ivTable of ContentsAbstract ^  iiTable of Contents ^  ivList of Figures  viAcknowledgement ^  viiIntroduction  1Part I^The ThoughtI^The Law as World1.1 The Methodology: Theorizing about Theory . . . .^111.2 The Theory of Law as a Self-Conscious Act . . . .^22II The Social Construction of Reality2.1 Intelligible Acts and Social Realities  ^382.2 The Fact as a Representation  ^432.3 The Metaphysics of the Legal Fact  ^492.4 Legal Theory for Rational Acts  ^562.5 Rule-Following: Expressions of Experience . . .  ^632.6 The Origin of the Legal Fact  ^81III The Real as Reasons: Aspects of Explanation3.1 Interpretation and Expression^ 973.2 Metaphors: Making Sense of Non-Sense  ^1123.3 Perceptions of Reality: The Transparent World .  ^ 122IV Intentionality: Perceptions of Being4.1 Things We Can't Do With Words  ^1374.2 The Intentional Being: Pulling Up the Ladder • •^1484.3 Out of the Mouth of the Lion  ^1584.4 Revealing the Legal Fact: Shock of Recognition  ^ 163Part II The DeedV^Constructing Computerized Legal Knowledge5.1 Introduction: The Domain of a Practical Action .^1725.2 Building Expert an System: Pure Economic Loss . .^1795.3 The Construction of a Database5.3.1^The purpose of SLATE Technology . • • •^1885.3.2 SLATE Template Methodology  ^1915.3.3^Programming Considerations  ^1975.4 The Future Directions for Law and Interpretation^201VConclusions ^Bibliography ^AppendixSLATE Test Results 224204212List of FiguresFigure 1.^The Duck/Rabbit Aspect^ Page 125viviiAcknowledgmentsI must begin this paper by extending great gratitude to my super-visor, Professor J.C. Smith. As well as welcoming me as a graduatestudent, he has indulged me with the scope of this paper. Hisapproach to thinking and scholarship are a model for the academicworld.This paper is also part of a technical project conducted at FLAIR1.Accordingly I wish to extend gratitude to all the staff; DaphneGelbart, and programmers; Keith, Don, and Bruce. Deanna MacLean wasinstrumental in setting up the SLATE methodology which I applied inmy computer program. She extensively researched the Quantum ofDamages Lexicon.I thank many professors and students at UBC who have enriched mythinking. Professors Guth and Potter at UBC and Professor Romero inSaskatchewan were most encouraging. A special thanks to the secondreader, Joel Bakan. I am especially grateful to Professor DorothyEdington of the University of London who introduced me to philo-sophy with a style which I wish I had learned every subject.I thank my parents for their support and encouragement. Manyfriends allowed me to babble about the philosophical ideas I wasencountering and thereby give both them and myself a meaning,particularly to Camilla, Diane, Jane and Yasmeen.I am most indebted to my dear friend Alexander Camera LjungstrOm.His enthusiasm, suggestions, ideas and criticisms have been of avalue beyond words. He has been a peer without equal. Most of allhe has been a friend. Anyone who has embarked on such a journey asthis will know that that is the most valuable thing of all. Thispaper is a tribute to his encouragement. Some materials on Actiontheory and expert systems have appeared previously in our jointpaper, "Legal Understanding in the Era of Expert Systems", Pre-Proceedings of the 7th BILTEA Conference, 1992.The paper owes much to the thinking of Ludwig Wittgenstein. It ishis mind I have most of all tried to comprehend. What he shows meis that above all, life is the attitude we bring to the world. Itis through this attitude our lives make sense. Understanding istied to a certain clarity and sincerity that we bring with us ineverything we do, and to everyone we meet. What we mean byknowledge is the pursuit of what is before our eyes.1 Faculty of Law, Artificial Intelligence Research at U.B.C.IntroductionModern legal theory rests on a premise that in revealing a legalconcept we are revealing reality. This traditional (Kantian)approach is reflected most acutely in legal positivism. Theposition of the legal positivist, articulating the scientificmethod, is that of law as constitutive of facts.What is a fact? The fact is the relation between things in theworld. As Russell tells us, no fact is in the world. The fact isour description of relations in the world. From this we should seeimmediately that in understanding the fact we should first under-stand how this fact is presented to us. To comprehend the meaningof a fact we must understand the relation of language and reality.Legal positivism does not yet appear to have this understanding. Westill see contemporary legal writers taking the traditionalposition that language is a mirror of reality.1 Works by Shiner[1992], Skubik [1990], and Lee [1989] and [1990] among othersattest that legal theorists continue to hold to the philosophicalpremise that reality corresponds to the truth value of its prop-11 This phrase is taken from the title of a text by Richard Rorty;see the bibliography.2ositions.2 What can be represented in language is reality and isthereby perceptible to the reasoning mind.For Wittgenstein, we resolve the confusion of analytic thinking bycondensing "a whole cloud of philosophy into a drop of grammar.°Positivism seeks to show us that because we can speak of laws andnorms as something separate from the human being, then they mustbe. For them, a law is a property of the social world, it is anentity spoken of as an existent.4 What we will during the courseof this paper challenge this premise.Having said this, however, we will see that this paper does not setabout as having legal theory or jurisprudence as its main concern.This paper is a reflection on the relation of language, law andartificial intelligence. Specifically it attempts to place aperspective within "legal thinking" for the possibilities and2 See for example Shiner, Norm and Nature [1992] at 7. There heargues, using Moore's "Common Sense" argument that he is speakingabout the obvious. As we shall see, the transcendental argument(inter alia, positivism), as Merleau-Ponty tells us, alwayspresupposes the reality of its descriptions.3 Ludwig Wittgenstein, Philosophical Investigations [1957](hereafter PI) at 222.4 For example Shiner, supra note 2 in his introduction: "The factof the existence of law is a reason for action." at 6. He infersthere that "law" has causality and imposes limits on how we act."Law" comes into being through the formality of the legalinstitution. Law then is always something "out there" which iscomprehended through the transcendental faculties of reason. Itsforce lies in our moral freedom. (see footnotes infra 95 and 120).While we cannot doubt that the force of law limits our freedom ofaction, we must doubt that it guides us.3utility of a methodology to automate legal text interpretation.This Automation is to more readily facilitate the construction oflegal domain databases used by expert systems5 in law. To do thiswe will develop a philosophical understanding which puts thinkingback into the world.The confusion of contemporary jurisprudence does not leave us as weenter into the world of boolean logic. Current approaches to lawand artificial intelligence (inter alia, Expert Systems) continueto proceed under the notion that an expert system is to capturereality. To do this, they are to incorporate the descriptions ofthe world in terms of legal facts. Again by legal facts this refersto the relation of legal norms and legal agents.Positivism finds itself as the premise in the artificial intelli-gence research work of Ashley [1990], Susskind [1987] and Walhgren[1992]. Perhaps the most notable example of the positivist approachto legal reasoning is Ann Gardner [1987]. Her theoretical basislies with the work of Hart and Dworkin. Gardner is confronted byHart's positivism that we verify legal norms through legal lang-5 By the term "Expert System" we refer to the process of knowledgerepresentation using computer technology. What this conceptincorporates is that we can create a database which represents astructure of legal knowledge within a specific domain. Through theskill of an "expert" advisor inter alia, the lawyer, in the area,we can then develop computer programs which will manipulate theinformation within the domain in accordance with a set of factsprovided by the user of the system. The system then merges thefacts with the knowledge domain to create a "legal" response, orlegal conclusion, which characterizes the given situation. SeeCamera and Edwards [1992], Gelbart and Smith [1990].4uage. That is to say, that the descriptions found in legal text arewhat verify our apperceptions of the legal real. She concludes thathard cases cannot be resolved in expert systems. If we acceptHart's premise then Gardner's conclusions are correct.This paper is to reject the positivist premise. This paper sets outlegal language as an artifact of the legal institution. If languageis an artifact, then we must recognize that language is a productof the social world and not a means of representing the socialworld. From this, it is apparent that we must go beyond thelanguage of the discourse not only to uncover the basis of legalnorms but most especially to uncover a basis for building expertsystems. To do this we adopt a methodology we will call a "Deepstructure" approach. 6 This requires that we move from anepistemological basis for knowledge to an ontology of law.As we shall show through the work of Wittgenstein (and we also noteGodel), we cannot justify a system within its own logic. This istrue of law. This will also apply to our own logic. The study oflegal doctrine is one of reformation and contradiction. We willrequire a theory which goes outside of the doctrinal language oflaw to better reflect the workings of legal practice. A rationalapproach is offered by Smith and Coval [1986]. What is sought hereis a more appropriate methodology for integrating rationality into6 Smith and Deedman, "The Application of Expert Systems Technologyto Case-Based Law" [1987].5expert systems.Thesis:Premise 1: We cannot represent knowledge in computerized legaldatabases useful for legal reasoning without a practical structureof rationality.Premise 2: Modern legal jurisprudence, inter alia legal positivismand legal realism, has been unable to explain contradictions withinthe doctrinal discourse thus it is unable to provide a practicalstructure of rationality.Conclusion: Modern legal jurisprudence, inter alia legal positivismand legal realism, cannot be the basis for expert systems in law.I will adopt a premise that legal reasoning is about acting withinLegal institutions to actualize social objectives.7 It is a think-ing about the language in which legal meaning and legal conceptsare expressed. It is to understand the relationship between how wefind the world in itself and how Legal institutions see the world.7 The "Mystical Foundation" of law, where from law's force isderived, is captured by Montaigne:"And so laws keep their good standing, not because they arejust, but because they are laws: that is the mysticalfoundation of their authority, they have no other.... Anyonewho obeys them because they are just is not obeying them theway he ought to."Derrida points this out. "The justice of law, justice as law is notjustice. Laws are not just as laws. One obeys them not because theyare just but because they have authority." See 'Force of Law ' inCardozo Law Review Vol 11 [1990] at 939.6Mary Hesse provides a warning about attempts to apply scientificmethodology to social domains:"...there will be some environments and some types of datawhich do not permit learning by any computer of limitedcapacity... The social environment may, wholly or partly, besuch an environment... Satisfaction of the pragmatic criterionby particular social science theories needs to be argued caseby case." [Italics mine]8In constructing an expert system in law, we are confronted with thequestion of what constitutes a pragmatic criteria, a raison d'être,for undertaking such a project.9 Effort requires a justification.Scientific progress has been seen to be tied to instrumentalism."Typically predictive success-the ability to correspond formed legalopinions with legal outcomes-is one criteria.Lawyers must be able grasp the legal significance of a social actand bring it forward. That is to say, lawyers construct the legalworld by providing a description of a situation in legal terms.This construction of legal understanding is to be the focus of ourinvestigation.8 Hesse, Revolutions and Reconstruction in the Philosophy ofScience [1980] at 194.9 While the history of the western scientific revolution appearsto be concerned with instrumentalism, others have argued, forexample Popper, that pragmatism has nothing to do with the logic ofscience (as purely the pursuit of knowledge).10 For a review of literature on the role of science, see forexample Mary Hesse [1980], Kuhn [1962]. Much of the literature isconcerned with the proposition that science can no longer offer agrounding for belief in the external world. This scepticism hasmuch to do with both the underdetermination of scientific theory aswell as the theory-laden content of the 'objective' language usedto articulate scientific knowledge. The instrumental mode ofthinking is also examined by Heidegger [1977].7This paper adheres to the notion that understanding is tied to whatWittgenstein calls "following a rule." This paper will explore therudiments of rule governedness and its relation to legal reason-ing.11 By this we are to come to better understand the relationbetween the legal institution and the social world. The intentionhere is that this will better define the task ahead for those whowish to construct artificial legal reasoning. U It is hoped thatthrough this we can better understand how to develop a tool bywhich lawyers can construct proper legal argument.A prominent "Rule" sceptic of the law, the late Fred Rodell ofYale, as a starting point for this paper. Rodell took the positionthat the legal discourse, with its abstract concepts, is tied tothe predisposition of the judge rather than to any systematicrationality;"Legal words and concepts and principles float in a purgatoryof their own, halfway between the heaven of abstract idealsand the hell of plain facts and completely out of touch withboth of them. And that is why, in the last analysis, the11 Dallmayr, "Hermeneutics and the Rule of Law" [1990] at 1449.In his inaugural major work, The Tractatus Logic-Philosophicus[1918], (Hereafter TLP) Wittgenstein sets out in the preface todefine the limits of language, to "draw a limit to thought, orrather-not to thought, but to the expression of thoughts." Inlimiting the expression of thoughts, Wittgenstein attempts todistinguish between what can be said from that which can only beshown. It is because we cannot justify or explain our world that weare driven many times to silence. The point of this thesis then isnot to explain legal reasoning but rather to show or describe howwe can set about the task of constructing a process in order thatwe do legal reasoning.8language of The Law is inherently meaningless."13This is again echoed more recently in the scepticism put forward bythe Critical legal scholar Hutchinson. For these sceptics languageis radically indeterminate and unstable, rendering objectivity ininterpretative argument illusory. Knowledge, rationality, andlanguage are merely the expression of a subjective preference; alegal solipsism." If this should prove to be the case, in whatlies a hope for legal meaning at all?The paper is divided into two sections.The first section sets out a philosophy of legal understanding. Itdraws heavily on the thinking of Wittgenstein, Heidegger andMerleau-Ponty. It is to put into perspective the conditionsnecessary for understanding to exist. We set this out in fourchapters.1. An examination of the social construction of reality;2. the methodological dependence on a jurisprudential theoryof actions and establishing the rationality of the agent;3. Explanation and the metaphorical aspect of understanding,and;4. The limits to representational thinking and a critique ofreasoning within institutional practice.Fred Rodell, Woe unto You Lawyers! [1959] at 136.A.C. Hutchinson, Dwelling on the Threshold. Critical Essays inModern Legal Thought [1988]. For a critique of this collection, seeGene Anne Smith Wittgenstein and the Sceptical Fallacy, CanadianJournal of Law and Jurisprudence, Vol. III, No.2 (July 1990) at 1559In the second section, we will consider the actual computationalapplication of legal knowledge in connection with a "deep structur-ed" approach to legal reasoning. In doing so, we will apply themethodology developed in the first section to a construct of legalknowledge within an expert system. This section will focus on aninnovative methodology of legal text analysis to extract facts fromlegal text.We will emphasize knowledge construction in a philosophical andjurisprudential context. We do not wish to confound the reader withtechnical concepts and jargon. Instead we will outline an approachwhich will justify our thinking that through building expert sys-tems we-practitioners, theorists and students-can come to a betterunderstanding of legal reality.We will conclude that knowledge representation and expert systemsrequire a sound practical foundation. Positivism proves an inadequ-ate foundation in its attempts to capture the reality of the legalsituation. We argue that if an expert system in law is to be ofpractical value, it must be based on a practical rationality. Thisrequires a "deep structure" approach. An action theory providessuch a coherent basis upon which to develop models of reasoningwithin computer based systems. These models are based on ateleological approach which fuses creative understanding with thesocial and legal discourse.10The title of this paper questions the nature of the legal fact. Letme suggest that law, like any human activity, is a manifestation ofan expression of being. The phenomenon of our perceptions of theworld are implicitly tied to this humanness. To speak of art is toraise ourselves above purely rational considerations and to recog-nize that understanding possesses an essential involved aspect.Within a world of images we must grapple with the perception ofwhat lies before us. The act of perception embodies us in theworld.1 1Part One^ The ThoughtChapter One^The Law As World1.1 The Methodology: Theorizing about TheoryWhen we read modern legal criticism put forward by scholars such asRodell and Hutchinson, Supra, our attention is drawn to the pre-suppositions about what understanding means in Law. The question of"What is Justice" has been with us since the days of Plato.Platonism sought to answer by definition of a concept, an Idea. Themethod to grasp understanding was to provide a definition of theterm." An inability to define a term constituted proof of afailure to understand the concept. Within this manner ofcomprehension lies the Platonic notion of form (eidos). Knowledgeis the relation between the sense of words (the form of the Logos)to thing named (the form of the ousia). The form explicates thedesire to establish a standard of correctness for applying anevaluation between the description and the object. In this, thedescription of Justice becomes the measure of what is just.The form then is to be the representation of the entity. It is theself-evident knowledge which delineates the object to that which it15 Baker and Hacker, Understanding and Meaning [1984], at 66812is if it is to be. It names what the thing is and therein what itis not. The interpretation of reality through a form requires thatthat which names the form must likewise invoke a unity and self-identity within thought. By this it is meant that what is singularand presented (through form) in nature, must be also presented soin the human mind.m The form then is that which delimits theobject as knowable to the knower. By this we are able to speak of"truth" in knowledge in so far as the form of the objectcorresponds to the form of the thought. Without form then, matteris to be incomprehensible in human thought."The Platonic error (if we choose to reject this way of seeing the16 This connection between words to things, and then things tothought perhaps culminates in Wittgenstein's Tractatus. There isexplicated the one to one connection of the reality through itslogical form right to the word, such that the word is said to standin place of the form. For a discussion of this and the Aristotelianeidos, see Henry Staten, Wittgenstein and Derrida [1989],introduction. In order for a thing to be knowable, it can be soonly in so far as we are able to conceptualize it-that is to unifyboth the individual with the universal apperception of the thingitself. This is in effect the Kantian problematic.17 The question for Kant is what enables this understanding betweenthe perception or experience of an individual with the form inthought necessary for comprehension. Kant expresses this as throughan a priori; the transcendental unity of apperception. The pureapperception is the possibility of the relation of the I (whothinks) and the it (the matter of thought). It is the element inself-consciousness which synthesises into unity presentations intoa connected whole, necessary for objective experience to make suchexperience thinkable. The product is the transcendental object. Itis an understanding which is available to the conscious being atall times. It enables us, for example, to conceive of objects asbeing in a space and over time. It is in this that we may speak ofa "rule" as entity which is moments in temporal sequence possessingof a unity intelligible in thought. As we shall argue, LaterWittgenstein is attempting to show that rules are nottranscendental objects. KOrner, Kant [1966], at 60-62.13world) is to presuppose that a proposition must possess a parti-cular form, that is to say, that every genuine rule must have aspecific representation which can be formally expressed." This wayof seeing the world continued into the present through Kant and thepositivists. This is the fascination with Theory. It is the beliefthat we can understand world in a detached way using language if wecan explain the principles which underlie the phenomena." This issaid because language is held to possess the same unifying form asreality. In constructing knowledge this way however, we see thattheory does not include fundamental ontology.20This fascination with theory has, in modernity, come to be appliedto human beings and their actions. For example we are developingtheories of mind to account for the way we think, and about thehuman causation in events. Theorizing about human beings and howIbid, supra note 15, at 669.19 Heidegger, On the Way to Language [1982] at 38, tells us thatthe early (pre-Socratic) Greeks saw phenomena as a revealing-aradiance by which things appear. This is unlike the Kantian notionof things as objects of a self-consciousness-things represented andthereby posited in the world by reason.20 That the Greeks forgot the being is the starting point forHeidegger's philosophical investigations. This realization alsopermeates Wittgenstein's critique of the philosophy of language. Itthe understanding that knowledge is a practical matter. It is thispractical aspect, its fundamental ontology, which is unsayable.What we see when we move away from an idealized form is that formis subject to contingency and variation-that nothing is immutable.Staten (supra note 16 at 18-19) argues, in deconstructionistjargon, that form constitutes pure self-identity from which it isdiscernable from that which it is not, and is thereby constitutiveby "otherness". It is in the "essential law of impurity", thevariance from the rule, that the rule can be asserted.14they relate to the world has, however, proved to be inadequate.21It would appear that we may be mistaken in our underlyingassumptions that we actually can derive a theory about how humanbeings relate to themselves and world.22 We must question whetherit is possible to construct formal theories about the ordinarinessof everyday experience.An example of the difficulty in developing a theoretical account ofeveryday life has been illustrated by the work of Edmund Husserl.Husserl attempted to construct a theoretical model, his transcend-ental phenomenology, for the act of consciousness.23 On the premiseThere are numerous works about the failure to constructscientific models of human rationality. Perhaps the most notablefailure of applying theory to human practices is the socialdeterminist models of Marxist philosophy. For a general discussionon this and the theory of social scientific methods see MaryHesse's work, supra note 8. Also Hubert Dreyfus, What ComputersCan't Do [1986].22 For a philosophical consideration of the break from thetraditional assumptions about understanding, see Hubert Dreyfus,Being-in-the-World [1991], Introduction. There Dreyfus points outthat questioning this assumption questions much contemporary workin philosophy and humanitarian science. It particularly poignant inthe current debates about artificial intelligence and models of themind.23 For an understanding of Husserl's work I have relied primarilyon the work of Hubert Dreyfus. He has edited an anthology Busserl:Intentionality and Cognitive Science [1982], and contributed toseveral publications including an Oxford reading in Philosophy ThePhilosophy of Artificial Intelligence, ed Margaret Boden [1990) andThe Foundations of Artificial Intelligence. In his article "Makinga Mind versus Modelling the Brain" (in the Oxford reader), Dreyfusdescribes Husserl as the 'Grandfather' of Artificial Intelligence[hereafter 'Al'].Husserl's project was to explain how consciousness grasped anobject. He constructed the noema as the quality of intentionalitypossessed by the consciousness (noesis; the atomic elements Minsky15that descriptions are composed of atomic elements he envisionedthat meaning could be determined by defining all that thought con-sisted of in representing an object. Husserl's pupil Heidegger wasto argue against him, as corroborated by the later Wittgenstein,that not all meaning is contained in thought, but rather we mustalso consider the ontology, what it means to be.Husserl's task has been taken up in Artificial Intelligence. MarvinMinsky has attempted to design a methodology for representing humanknowledge.24 Minsky proposes a frame data-structure to capture ananticipated situation. The basics of the design is for a network ofand Papert are to call "structural primitives"). Husserl arguedthat the noesis itself was unable to provide meaning but requireda noema for each act. This construct was a necessity because of abelief that the elements themselves must be in some sense context-free for there to be objective knowledge. It is the noema whichimparts "sense" into the noesis by which meaning (symbolicrepresentation) is directed towards an object. These combine intocomplex delineations of complex objects. In this sense intelligenceis seen as the complex combination of facts which are goal-orientated, directed by the matrix hierarchy of the noema. Thehierarchy comprise a set of rules which direct consciousapperception into a predisposition objective type which combinewith "frames of empty sense"-possible meanings, each object mightpossess. These frames can be said to correspond to what we call"common sense", atypical meanings which we possess in situations.The noema can be said then to possess a causal relation betweenmind and world which combines with noesis to create the intentionalobject of consciousness.The task of Al might be seen as an attempt to combine thedefinitive situation (the noesis) with this complex hierarchy whichcorresponds to the capacity we possess to comprehend contingencies;our common sense which apprehends ordinary situations which weencounter in our everyday experiences. (see Dreyfuss and Dreyfussat 320-323).24 Marvin Minsky, "A Framework for Representing Knowledge", and seealso Society of Mind [1986].16nodes and relations consisting of necessary defaults which arealways true of a situation. These defaults are then augmented bycontingent facts which are to be situation dependent. It is thepredetermination of these contingent terminals which is thechallenge to constructing a program capable of dealing with"normal" situations.Natural science (as characterized by the laws of Newtonian physics)attributes a determinism to the objects of its concern. If theseobjects are free, that is to say indeterminate and subject to nolaw, they can not be the object of science.25 It is that "theoret-ical constrain" is part of rationality itself. We impose, as Kantwould have it, determinism on the world rather than allow it todiscover us.26 As Arbib and Hesse relate, our scientificpresentation of the world depicts a natural space-time reality thatis revealed to us through the methodology of the naturalsciences.27 This is a world of "objective" scientific knowledge.Human beings however come together to form societies which createa humanist reality of social rules, roles, norms and institutions.We can speak of the reality of Law-that which exists within theinstitutional; we speak of criteria associated with what we25 McGill, Prophets of Extremity [1985], at 10ff26 Putnam, Reason, Truth and History [1982] at 3127 Hesse and Arbib, The Construction of Reality [1986), seegenerally, introduction.17characterize as law. Yet law appears not to submit itself to anyready measurement. The qualia of the law is intangible. This queryarises out of the difficulty in applying scientific methodology tothe concept of law itself. It is not a reality to which we canapply exact measurement in the way we can discover the physicalproperties of say kinetic energy. Our culture tends to make"reality" dependent upon methodology-that is verification withinthe methodology of the discourse.What we are confronted with then, in constructing "law", is verifi-cation as it applies to a reality which is a human "construct" andnot "natural" or "given" .m We can create a model or schema, forexample a theory of physics of structures, and then test to see ifthe theory conforms with reality (perhaps the question becomesbetter put if we ask does reality conform with the theory). What weare to see is that such a model provides feedback in a spatio-temporal reality. It is a reality which tends to exist independentof human activity.In determining the validity of the projection or model, we canthink in terms of both "idealism" that the model is pure projection(a mental form accessible through experience) and "realism" thatthe model of nature "impressing" the mind via the senses (exper-ience through the form of that experienced). In feedback then, toexplain this, we see that the "ideal" is the model which we create28 Ibid at 218to explain the world which confronts us, and naive "realism"reflected by the process of feedback of the model-its empiricalvalidity. It is in this respect within the domain of cognitivescience.To construct models about the law in a scientific modality, wecreate representations about how we theorize about the world, andthen see how they correspond to what it is we experience.29 Themodel of law then is a "social schema"; it arises in a social worldwhere meaning is derived through interaction and language. Socialmodels are necessarily to transcend the capabilities of the isolat-ed individual. They cannot be limited to purely discrete observat-ions which may or may not be "true" of the whole.30Durkheim's sociological positivism and the neo-Kantian rationalistboth claim that there are "social facts"-just as there are29 [this doesn't explain the world, rather the model-but for thelimited purpose we create the model, this is enough. For examplemodels of the mind which are popular now-ie Minsky, make no sensein terms of reflecting what a mind is, yet in a limited sense, fora limited purpose, they are useful constructs for designingprocesses we wish to create-It is the process we wish to createwhich gives birth to the model rather than the thing-ie the brain-giving rise to the process]30 In the current swing away from empirical science comes thenotion that natural science is not to be privilege over othercognitive systems-science becomes an imaginative schema like othersocial myth (ie the "strong" program of Bloor, 1976, Barnes, 1977,Collins and Pinch "Frames of Meaning, 1982). Arbib relates thatthis rejection of theory can be traced to where there is an overtreliance on instrumental representation-removed from its empiricalbase. Hesse and Arbib supra note 27 at 7.19"natural" or "individual" facts.31 These social facts correspondto a belief that societies can be understood applying scientificmethodologies-such as economic models-and that behaviour has adeterminate predictability.32 Descombes posits the Durkheimposition "that mankind, from its distant origins onward has notceased to progress towards the agreement of all human beings uponcertain reasonable principles."33 Thus we see the social sciencesattempt to embrace the presumption of positivist theory of science;that science aims towards greater prediction and control of theworld and that the relative value of a theory can be measured byits value to that goal.34A point of emphasis for modern science has been that differenttheories can be used to describe the same phenomena in completelydifferent methods. For example the motion of planets has given riseto a whole series of paradigms; from Ptolemy-epicycles with theearth as centre, Copernicus-with the sun centred epicycles through31 Descombes, Modern French Philosophy [1979] at 632 Durkheim claimed in The Elementary forms of the Religious Life[1896] at 225 that "society is God"-that the individual projectstheir idea of society beyond space-time to construct god andreligious symbolisms. What Kant had argued, to reconcilerationalism and empiricism, is that the mind imposes organizationupon the data of experience. Both Spengler and Durkheim melded thea priori structure into a historical and cultural variable. Whatthis structure does is to shape how we see the world-the scientisttherefore must explain this structure and explain its effect onexperience. See Bloor, [1983] at 174-175.33 These principles being identified with those of the French thirdRepublic. Descombes, supra note 31 at 6.34 Steve Fuller, Social Epistemology [1991] at 6820to Newton's inverse square and Einstein's relativity theory. Kuhnhas shown us that language is deeply tied to how we view world. Inhis Scientific Revolution, he shows how observation language adaptsto explain empirical observations. As language proves inadequate,new language evolves to reconstitute the description of reality,creating a paradigm shift.We see then that there is no ultimate knowledge of a thing, no"final" theory.Theories typically possess a pragmatic criterion (Hesse 1980) wherethe truth or acceptability of a theory relates to its practicalapplication. It can thereby be said that the pragmatic criteriondemarcates what we call knowledge and thereby how we construct thescientific, objective natural world. Theory then becomes a matterof what we want to accomplish. What counts as true corresponds toour notion of what is true within the theory.Science constructs facts and creates new ways of seeing the world.New theories evolve and new instrumentation is utilized to extendthe range of phenomena which was previously described. 35 The newobservations are thereby contained within the limits of theory andinstrumentation. These facts are also described in a language whichis theory laden. Arbib has argued that despite the apparent limitsof direct empirical experience, observational language is howeverIbid21rich enough to respond to feedback, even where the language is notespecially well developed for the particular observation.36Two of the greatest philosophers of the twentieth century, LudwigWittgenstein and Martin Heidegger, call into question the epist-emological problem posed by Descartes and continued into thepresent. What is shown by these thinkers is that the background ofeveryday practice is part of our understanding of reality-that theworld cannot be represented by a set of context-free elements.37The context...can be taken formally in the sense of asystem of relations, But,...[t]he phenomenal content ofthese `relations' and Irelata' such that they resistany sort of mathematical functionalization; nor are theymerely something thought, first posited in an `act ofthinking'. They are rather relationships in whichconcernful circumspection already dwells.36Following this recognition we become concerned, not with thetraditional epistemological relation between subject and object(that the truth or falsity of sentences are obtained), but ratherwe must concern ourselves with the ontological question; what weare and how we are bound up in the world.What we shall do in the rest of this paper then, as much as poss-36 Hesse and Arbib, supra note 2737 See for example, Dreyfus, "Making a Mind versus Modelling aBrain" at 321ff, Baker and Haker, Meaning and Mind [1984], thePreface. Gadamer continues with this project in his Truth andMethod [1966] which seeks to outline the necessity of ahermeneutical methodology for understanding.38 Martin Heidegger, Sein und Zeit [Being and Time] [1962] at 121-2, as quoted by Dreyfus, supra at 322.22ible, is to break away from what traditionally underlies our app-roach to human knowledge-the premise that there is implicit a theo-retical basis for knowledge in human action. Instead then we willattempt to draw attention to human understanding as the means bywhich we know our world. By understanding we will refer to theability of human beings in the course of their everydayness to dealwith situations.1.2 The Theory of Law as a Self-Conscious Act"When I use a word," Humpty Dumpty said, in a ratherscornful tone, "it means just what I choose it to mean-neither more nor less.""The question is," said Alice, "whether youcan make words mean so many different things.""The question is," said Humpty Dumpty, "whichis to be master-that's al1."3vAn artifact is the exercise of human productivity, the output ofhuman efforts. Given this, we may argue that law can be viewed asa cultural artifact, the product of cultural action. Broekman hasdescribed law as "an expression of the being or existence ofman . tt40 Following Foucault, it has become a familiar method inlegal theory today to speak of particular human activities in termsof a Discourse.39 Lewis Carroll - Through the Looking Glass40^Jan Broekman, 'Law, Anthropology and Epistemology', in Man,Law and Modern Forms of Life, Law and Philosophy series, Bulygin(Ed) [1985] at 15.23Discourse is to converse, it is the actions, thoughts and speech inwhich we engage.° In order to recognize discourse, we must be ableto recognize the legal speech act.42 These acts comprise a unityof difference-a system alienated by its method and performance fromthat which it is not-law as a separation from other realities. Dis-course becomes a descriptive attempt to make experience intell-igible.By way of illustration, we can contrast the way of seeing legaldiscourse with how we view literature. For the Russian Formalistsin the beginning of this century, "literariness" was a function ofthe differential relations between one form of discourse andanother.° The context tells me it is literary: but the languageitself has no inherent properties or qualities which might0^The term "discourse" has been developed throughout thewritings of Michel Foucault and now appears to be widely used indescription of cultural phenomena. Of particular interest to thosewith an interest in law would be Discipline and Punish, whichoutlines the social dimensions of the birth of the Prison. My ownreadings are from The Archaeology of Knowledge [1972] as well as aselection of excellent secondary sources, such as Dreyfus, Flightfrom Freedom [1990].42 "Speech Acts" has gained wide usage since John Searle's seminalwork of the same name. A speech act suggests a situation withinwhich meaning is communicated through the act of the utterance.Searle's concept is tied to his thesis of "intentional states"which he more fully develops in a later work Intentionality. ForSearle a Speech Act is one where the speaker uses languageintentionally to communicate her intentional state; i.e. it is anintentional act which must satisfy the necessary conditions tofulfil the intentional state. This suggests that meaning is a self-conscious act. We will move against this thesis as the paperprogresses.43 Terry Eagleton, Literary Theory [1983] at 424distinguish it from other kinds of discourse. This is to seeliterature as poetry (that is to say, it is linguistically self-conscious in a striking way). By applying certain conventions ofreading to words, the words are pried from their immediate pragm-atic meaning into something deeper. A self-referential nature oflanguage is revealed where it is the way of speaking, rather thanthe reality of what is talked about that is most significant"-asthough we might say that the language of poetry speaks us.This is not to say that what is said is unimportant, but only thatwhat is described cannot, in a self-referential form of language,be defined objectively. Law then can be said to set itself apart asa meta-language. The meaning is determined by how it is to be read-law is read within a context of pre-understanding. It is to be readpragmatically. This ref erentiality then is connected to theinternal objectives of the discourse-the law's rationality.We find in law, for example when we speak of insanity, that theremedicine is explained through law. If viewed in this anthropolog-ical sense, where we uncover law, its subject can be viewed as abeing in and of the law; the subject made object within a unity ofspeech acts.° It is the speech performance, the manner of speech,which transforms the situation or subject into a legal construct.44 Ibid, at 845 Supra note 40 at 15ff.25This performance ostensibly demonstrates law. To see law qua lawthere must be the appearance of an explicitly legal situation. Lawaccomplishes this by demonstrating the individual, the relationshipbetween the individual and state, and by formal analysis of thatrelationship .46 What Foucault brings to our attention is theseparation of experience and world, the point where the thing isnamed. It is in the name-the sign-that experience becomes differ-entiated and thereby alienated from its signified.47 For Foucaultthen, the world is viewed through its historicity.We can contrast this approach with the scientific or analyticperspective. Analytical theories have incorporated a search for the"higher" truth, the a priori knowledge within which to (objective-ly) ground our beliefs. This search is for an objective reality,that is knowledge which somehow is untainted by any subjectivity,culminated this century with the logical positivism of the earlyWittgenstein, Russell and Carnap .48 As a legal theory, positivism46 Ibid at 20"v' ^shows in this sentiment his adherence to the writingsof Martin Heidegger. It is this, the desire to return to anoriginary experience, that we see the nostalgia so prevalent inHeidegger's thinking.48 Philosophy sought to ground beliefs in Science and so sought tojustify certainty in external reality through an objective,scientific approach to revealing truth about the world. Thisinstrumental view `objectifies' the world in that it sees the`knowing' human being as something separate from world, that is theworld as object. The human being, the positivist argues, can`picture' reality (to use Wittgenstein's metaphor from the Tract-atus logico-philosopbicus) and so capture reality in thought. It issupposed that if we can understand the structure of language, thenwe understand the structure of reality. This belief arises out of26is to be found in the writings of H.L.A. Hart, Kelsen and Bentham.As with all sociological constructs, law is conceptualized as beingcomprised of a set of rules and norms which can be said to be theorder of the world. These rules are set out such as to harmonizeBeing and world.49 Positivistic legal theory sets out to define theentity, the core meaning of these legal rules as they are, whichmake up the legal world. This necessitates a distinction betweenthe notion that language is the expression of thought, and thatthought reflects reality. The work of Gottlob Frege conceptualizedthe logical form of language wherein logic, a priori, is held toexist independently of experience. He stresses that a perfect lang-uage might describe the world objectively. Russell, in The Problemsof Philosophy [1919], builds upon Frege. His approach attempts toestablish specific and verifiable connections between the objectsthrough logical relations. Logic is the vehicle by which all apriori propositions could be established as analytic. It is thislogic through which propositions, reduced to their 'atomic'elements, are rendered as being either true or false. Truth then isthe correspondence between thought (that is to say, language) andthe external world. Twentieth century philosophy has moved toreject the correspondence theory.Needless to say, modern philosophy, which we can for conveniencetrace back to Descartes, evolves from the Copernican and Newtonrevolutions. It is the search for foundations. Kant's Copernicanrevolution saw the severing of mind and the natural or cosmicorder. Cognition was directed towards rationality and theconstruction of knowledge, with its emphasis on critique.Contemplative or 'metaphysical' ontology was thereby displaced.[Dallmayr, Between Freiburg and Frankfurt, Chapter 1]Please see the bibliography for some general texts on this subject,for example, Russell [1919], Rorty [1979], and Ricoeur, [1992].49 "Agency and law ought to relate in such harmonies that thelimits of which agency places upon law would be the limits whichlaw places upon itself.... Conversely the limits which law placesupon agency would be the limits which agency would place uponitself." Smith and Coval, Law and its Presuppositions (1986] at100.27subject and world (as object for observation)." With the real-ization that the world becomes world only through a human inter-pretation, contemporary philosophy is seeking to rediscover anunderstanding of the relationship between subject and object, arelationship in which subjectivity is embodied and thereby beyondobservation.Statements of fact are in the end Statements. As such they pre-suppose many value judgements. Questions of fact are contingentupon belief. For example, whether an injury is debilitating asclaimed in a case of whiplash injury is invariably a question ofcredibility, as well as empirical evidence. Such evidence will beweighed in light of the judge's assessment of both the medical re-ports and the demur of the witness. These value judgments becometied to a history, a way of seeing the world. In case law, and theoral testimony upon which it is based, we can say there is no trulyirrelevant statement. All fall into the system and structure ofevidence upon which we base value."We argue, perhaps a given, that a notion of value-free judgments isuntenable. All statements, and the judgments we make about state-50^Positivism is concerned with the world as it is, legalpositivism is the attempt to see law as-it-is for itself, separatefrom the subject. The positivist therefore must attempt to separatethe moral from the practical reason. Law is concerned with what israther than what ought to be.51^For an excellent introduction to the nature of language(statements) and its relation to how we inject meaning to theworld, see Terry Eagleton supra note 43.28ments are tied to a set of value-judgments, a context which injectsthe sense for an utterance to have any meaning at all. We mustformally reject the notion of objective thinking, the idea that"truth" can exist independent of human judgment. We experience andreflect values because language cannot exist outside of a culture,a form-of-life.The dimension of law as discourse, as a unity of speech acts,envelops this set of value-judgments. In light of this, we mustgive some consideration to the image of Being in law, the individ-ualization of the legal subject. Law cannot be adequately compre-hended from the perspective of "subjects of action" (individualism,class, gender) or from the structures through which everyday lifeis produced and experienced.52 The law cannot allow for individualself-reference-a reference outside of its language. If each of usare free to define what is reasonable, proper or "the Rule", therewould be no law as law, only a state of anarchy and conjecture.Power then becomes diffused and disseminated. Accordingly legaldiscourse defines the Being, the "reasonable man" of the law who isto symbolize how Being is to be.53 This presupposes a rationality52 Gerald Turkel, 'Foucault: Law, Power and Knowledge' in Law andSociety, 1990 at 170.53 For a discussion on the reasonable man which brings out thispoint, see for example Flemming On Torts, or any standard CriminalText book.29in both the actions of the individual, and the rule of law.54Broekman has set this out to be a quest for equilibrium between Lawand the image of Being.55The Law's subjective perspective attempts to formulate law andpower in individuals (as agents) and as being centralized in corestructures (institutions) such as the "state". Individuality is themeans by which law confers and defines the dimension of Being and54 Foucault holds that power is as it is exercised; multiple anddecentralized, and productive of social structures and knowledge.Turkel sets Foucault against structuralism claims of universalcategories and its incapacity to analysis social change andtransformation in organization, power and knowledge-which he arguesare a reflection of contingency rather than universality of know-ledge, law and morality. Foucault's historical studies illustratethe transformation in organization to highlight this contingency.Drawing upon Nietzsche, he formulated power as the core relationfrom which morality emerges, rather than structuralism's universalprinciples or transcendental values. The truth of morality is to befound in the particular conditions that give rise to it. Turkel,supra note 52 at 173. In the Archaeology of Knowledge, Foucaultseeks that in our studies we demonstrate the contingency of powerand claims to truth by transgressing that which we take forgranted.55 Supra, note 40 at 18ff. Rilke gives us a description ofCezanne's sense of colour and the harmony to be found in the wholeof the image of a face:In the brightness of the face, the proximity of all thesecolours has been exploited for a simple modelling of form andfeatures: even the brown of the hair roundly pinned up abovethe temples and the smooth brown in the eyes has to expressitself against its surroundings. It's as if every place wereaware of all the other places-it participates that much, thatmuch adjustment and rejection is happening; that's how eachdaub plays its part in maintaining equilibrium and inproducing: just as the whole picture finally keeps reality inequilibrium.See Zimmerman Heidegger's Confrontation with Modernity [1990] at239-240.30is legitimated and lived through by the terms of the social"contract".56 It establishes a sense of one's own autonomy andauthority. Rights and duties are assigned by Law's criteria whichare ostensibly to free the individual from the state, but in soimparting rights and abilities, both the legal individual iscreated and Law's power is established.57 The legal individualcomes before the law with this set of rights within a situation.The situation is one which necessarily contains a legal meaningbecause it pertains to the legal individual.Legal discourse then appears to concern itself with discovering thelegal nature of a given situation. Foucault points out the capacityfor philosophical reason and science to exclude experience, pract-ice and languages that fall outside their logic.58 It is throughre-definement and classification that these experiences are "forcedto be silent' within the discourse-they are created in a language56 Broekman, supra note 40 at 20. We see in such descriptions as"social contract" the play of meaning which in the end is self-referential. To be a contract is to be binding, an obligationbetween two autonomous entities. The notion of the initial contractthen relies on a law of nature-that contract is to be found innature and is therein the natural state of human relations toworld.57 Ibid, at 16.58 The significance of a framework logic will, hopeful, become moreconcrete as this paper develops. At the present, we would suggestthat it is adherence to what makes sense (that which fits with howwe come to perceive the world) that places objects within ourworld. Our ability to perceive is contingent on how we look at whatlies before us. If we don't look in the right way, we denyexperience. Such thinking corresponds to Kuhn's paradigmconceptualizations.31consistent with science and "reason". Law must redefine reality tobe consistent within the legal discourse-to attach legal meaningwithin the legal domain.Foucault's classic example of redefinition is "madness".59 Medi-cine is transformed from a holistic methodology to a science asanatomo-clinical analysis-with hospitals given the legal sanctionas the place of medical practice. The institutionalization ofmedicine located the patient in a quasi-scientific juridical spacesimilar to an asylum. In The Order of Things Foucault sets out toillustrate the transformation of knowledge. From pre-18th centuryorder-where elements are located in spatial relationship with oneanother-the fostering of resemblances, to the modern organicrelationships, processes, functional relationships, temporalrelationships, the sublime and, most importantly, the historicalordering of reality.Knowledge is constructed through discourses which define andenvelop those aspects of experience which are initially excludedfrom reason and science. The formation of knowledge itself canbecome an object of knowledge. Once knowledge forms humanity asboth subject and object, the discourse itself can become an objectof enquiry.59 See Turkel, supra note 52, at 174ff.32Foucault does this by outlining the genealogy.60 Within thegenealogy there are "procedures of exclusion" which limit andcontrol discourse through its internal relations-isolating themfrom the general discourse, removing topics to the periphery. Bymarginalization, its object becomes excluded from determining whatis true and false.m The location of this determination shifts fromwhere it is formed and the power relations within which they areembedded. We see that when we define insanity, we define what it isto be sane. Each discourse, Law for one, seeks to establish its ownrationality and range of empirical validation.There are also procedures within the discourse which impose limitsand controls. In Law we refer to the primary text, the constitutionand the rulings of the court. Law is thus expressed as language,but in a particular kind of language. It becomes isolated-disassoc-iated-from the practices it seeks to regulate. Terms and interpret-ations about what the law is fall to those trained to express law.The discourse limits itself to that text. The boundaries of law areexpressed and thereby law becomes an entity. Law becomes knowablethrough the discourse, and thereby becomes limited to it. Knowledgeis compartmentalized as the world is disassociated.62Access to communication within the discourse is restricted. Speak-60 Ibid at 176ff.m Ibid62 Ibid at 177.33ers are "qualified". Discourse is thereby exclusive communicationand interaction. To overcome this we are to criticize discourse asan "imposition of knowledge practices on things".63 Meaning flowsfrom the effects of the discursive practice (i.e. how we use lang-uage). Language shapes power and vice versa. Foucault then is con-cerned with the transformation of relations between power and know-ledge.Knowledge cannot be represented purely as an expression of power,or as an instrument of power. Knowledge must be classifiable,structural, but it must also be useful. The exercise of powerrequires the formation of useful information:We should admit...that power produces knowledge (and notsimply by encouraging it because it serves power or by apply-ing it because it is useful); that power and knowledge direct-ly imply one another; that there is no power relation withoutthe correlative constitution of a field of knowledge, nor anyknowledge that does not presuppose and constitute at the sametime power relations. These 'power-knowledge' relationshipsare to be analyzed therefore, not on the basis of a subject ofknowledge who is or is not free in relation to the powersystem, but, on the contrary, the subject who knows, theobjects to be known, and the modalities of knowledge must beregarded as so many effects of these fundamental implicationsof power-knowledge and their historical transformation. "It is within the network of social relations that law is formed.Law is reified within these relations through the construction ofrights and duties. These constructs do not stand over any socialo Ibid at 177, quoting Shirden" Michel Foucault, Discipline and Punish [1977] at 27ff, seeTurkel at 179 for a presentation and discussion of this quote.34actuality, as positivists would infer.65 What they represent is notan "objective" reality, but rather they are a thing in-them-selvesrepresented by legal language. As a discourse, we are confined toits dimension. There is to be no question of law itself, as law.66We, as lawyers, must construct and argue upon the basis of thealready existent legal reality.The network of social relations within which law was formed hasbeen structurally altered by law's discourse. To accomplish this,there must be interactive connection between discourses. Analogy isthe traditional means by which the gap between "reality" and thelegal situation is closed.67 Analogy constructs legal knowledgethrough the legal qualification of an event. Analogy can beconsidered in two senses. It is said by Cornu to be the'resemblance or conformity of several things among themselves'. Inthis sense analogy is rational interpretation within the exegeticmethod. Gêny, in the other sense, invokes analogy to be the veryheart of a true science of Law.6865 See Broekman supra note 40 at 25.66 This is in contrast with the work of Jaques Verges, a FrenchJurist, who would take on the most despicable cause. The purpose ofhis efforts are not to seek redemption for the client but to bringinto question the very right of the state to bring violence downupon them. This point was perhaps nowhere so clear as in theNuremburg trials. See Derrida, supra note 7 at 987. See also WalterBenjamin; "Critique of Violence" in Reflections.67 For an excellent discussion on analogy, see ; Jan Broekman'Analogy in the Law' in Legal Knowledge and Analogy, Law andPhilosophy, Volume 13 at 21768 Ibid, See Patrick Nerhot, 'Introduction' at 1.35It is the "factual" elements of legal reasoning which are stressedby making them more general, abstract, which constitutes theperception of legal reality. This is to say that through theprocess of analogy we transpose an event in the non-legal realityinto a legal fact and give it form within the legal discourse. Thistransposition derives its force from being part of an acceptedsocial practice.Analogy then acts to stipulate what is, and what is not, within thelegal discourse-it names the thing itself. In doing so it definesthe legal discourse. Analogy can be inferred to be not merely adescription of the legal rule, but it is the rule itself. It is therecognition of the analogy as a convention, that is to say the waylanguage is used, which separates the institution from thesubject.° Where the institution appears to be acting upon thepredicate of reality, but in fact it is the institution itselfwhich defines the meaning and context of the social form. AsBroekman states:"Law is not only the work of man but the man of today is thework of law! Whoever fails to comprehend this will similarlyfail to make a good jurist. Every speech made by the juristaffirms a specific image of man, sustains it and even delin-eates it more closely."7069 Ibid70^Broekman, supra note 40 at 22. Following the Kantianinterpretation of "man" as the knowing subject, man itself becomesan object which for Foucault is that "strange empirico-transcendental doublet" which serves as a conceptual determinationof human being for study of philosophical anthropology. SeeSchrift; Nietzsche, at 79, and Dreyfus and Rabinow, Foucault at xv.In The Order of Things Foucault states from this that as36The lawyer operates on the basis that behind the image of thislegal person lies a "natural" human being.71 While philosophy sincethe time of Plato admits to universals, anthropology does not.72By acquiescing to the fiction of the legal self, the lawyer part-icipates in constituting even the human being as a legal construct.This construct in turn implies that every natural person is a legalsubject derived from a belief in the social being. Smith describesthis concept of the self as fundamental to Western law, and polit-ical and moral theory.73foundational concept, "man is a recent invention, a figure not twocenturies old." at xxiii.71 Ibid. As with most modern writers, I am confounded with theobligation to use non-sexist terminology. I use the word`confounded' because we do not have ready language which fits thesense of what we wish to express in all cases. Perhaps this isbecause I, like others, do not know what it is I am trying toexpress. We are saddled with an unsatisfactory etymology. Themodern trend in legal literature appears to use the word "she"whenever possible. While this is no doubt acts as an improvementover "he", it should be recognized that this does not make that towhich it refers obtain-that language does not `mirror' reality orhave a necessary causal relation to that reality. To correct thisnow recognized injustice requires changing our form-of-life, ourexperience in the world. We can perhaps see the very problem ofrepresentational thinking by this one dilemma. In keeping with thephilosophical premise of the paper the practice I choose to adoptthroughout this paper is to use the word "they." This may prove tobe grammatically incorrect.72 Ibid at 25.73 See Smith, Neurotic Foundations of Social Order [1990] at 313.He cites Derham "For the logic of the system it [the legal person]is just as much pure `concept' as lone' is in arithmetic. It isjust as independent from a human being is as one is from an'apple" ["theories of legal personality" at 5]. In turning humansinto concepts (that is to say, universals) legal relations can beapplied to anyone under conditions of the rules.37Lawyers premise arguments on the universal. Universals are conceptsderived from such empirical observation as like causes have likeeffects.74 By this even for human actions, what is true for one,becomes true for all. Universality is applied to law by the doctr-ine of precedents whereby like cases ought to be decided alike (tohave the same legal effect). This is the fundamental tenet of theRule of Law.mWe shall move on in the following chapters to re-examine theoret-ical presuppositions of law. We will begin by focusing on humanactivity within a theory of actions for our understanding of howlaw operates as an institution. We will then move toward a deeperconsideration of the role language plays in orientating ourconceptualization of human activity.A Ibid, at 308m See J.C. Smith Legal Obligation [1976] Chapter 6, 7, 12 andsupra, note , chapter 15, fn 63.The assumption of the uniformity of cause is that for a particularstate X under condition S the consequences will be Y, then for allother members of class X, under similar conditions S, the resultwill be Y.The principle of ought judgments is If it is the case that a part-icular person under condition S ought to do X, then any similarlysituated person under similar condition S ought to do X.38Chapter Two^The Social Construction of Reality2.1 Intelligible Acts and Social RealitiesWe have considered the nature of Platonic thinking and itsadherence to eidos. We have suggested that this has directed ourthinking to an objectification of the world. The subject, with itsdetached consciousness, objectifies knowledge into relationsbetween entities. It is this detached consciousness-our reasoningfaculties-which directs our understanding of the world. Thisunderstanding culminates, so Foucault tells us, into a rationalityof the discourse.The paradox to this intelligibility is that it is constitutedthrough concepts which are themselves a rational construct. In thelegal discourse we see that in order to understand the legal worldas law, we set out a priori that by which we are able to see thereality of law. It is a reality which concerns itself withnecessary conditions and sufficient cause which constitute actionand events for human beings.To speak of an act is to suppose both the act and the actor are39intelligible.m What do we mean by intelligible? The propositionhere is that intelligibility rests within the rationality of thediscourse. By this an agent exists within a space defined bydistinctions of worth and that the agent has incorporated thevalues within this space. Let us examine this proposition with someof the considerations Taylor sets out in Human Agency and Language.We begin with the premise of an existent legal system whichfunctions to integrate social relations. We shall set out thatagents act-they do things with a purposive-and what they doconsists of making choices to which we attribute responsibility. Ina liberal democracy it is responsibility which is the groundingupon which the law is applied.We recognize the "agent" as a construct. The very concept of personis necessary only after we presuppose personal intentionality andrationality. To be an agent is to make choices purposively-toreflect and evaluate situations-and apply one's own set of valuesagainst this situation.7 As Taylor suggests, we tend to think ofthe agent not only as partly responsible for their own actions inthe degree that they act (that they make a choice) in accord withthis evaluation, but also as responsible in some sense for the76 Shibles, Wittgenstein: Language and Philosophy [1986] at 7377 Charles Taylor, Human Agency and Language [1985] at 25-2740evaluations themselves •78This is the sense that our values are in some way our own creation-an act of "my" will. But to say that our values exist in and fromour own will would be to say that they flow from our own being,ungrounded in reasons external to our own radical choice!9 Whileit appears simple to "give reasons"-to rationalize-our choicesbetween alternatives, we have no ready language for the radicalchoice of the alternatives.We can understand this conundrum within the legal context throughparallel between easy cases and hard cases. To illustrate the pointwe can consider Taylor's Sartrean example of a hard case fromL'existentialism est un Humanisme. A young man is torn betweenserving his country by joining the resistance, and staying home tolook after his ailing mother. He is confronted here by two moralpossibilities. Are these situations a matter of choice? Is itpossible that the young man simply render one choice inoperative?78 Ibid at 29. Paul Holmer notes in "Wittgenstein and the Self" ofthe necessity for a self. This is a philosophical necessity, not apart of the world but a presuppositions of its existence. The selfacts as a surrogate for all the properties we attribute to thisself; a body, a mind, a soul, a pain. It is this self which acts asthe metaphysical limit to the world making both it and the languagewhich creates it logical. For example, if I say that "I have a painin my ear", we must presuppose the "I" before either the ear or thepain. Essays on Kierkagaard and Wittgenstein [1978], at 18. What wecan recognize is that self-consciousness is not the consciousnessof a self but of an experience.79 Ibid at 2941In our everyday experience most evaluations we make are straightforward 'easy' cases. The decision between paying the rent orbuying a new set of shoes is in the main directed by a sense ofwhat is necessary or proper. While it cannot be said that I willalways pay the rent, one choice speaks. The decisions judges makein determining between crime and social order are similarly drivenby an underlying rationality. In what sense then do we "assent tothe judgment?. f/80Dworkin phrase's this in terms of a "balancing of the interests";the weighing of one choice over the other. The choice is straight-forward where one choice speaks-where reasons present themselves.But in what way does the law speak? To speak of evaluation andchoice is to speak to the necessity of decision between the incomm-ensurable. In this sense we speak of preferences. A choice mustrelate to a preference because a choice unrelated to the desirab-ility of the alternatives would not be intelligible as a choice.mThe point here then is that there are a variety of moral perspect-ives which are open to us. To understand how and why we makechoices is tied to the concept of a self.This identity has a perspective which stands within a background ofexperience. The identity is in a situation. It is this situationm Ibid at 3181 Ibid at 3242which gives the possibility for the self to have an identity. 82 Itis because identity is expressed by this perspective that evalua-tions become inseparable from the agent-it is the situation whichallows us to see agent as choice-maker. It is the agent makingchoices within a background or context which defines theintelligibility of that agent.An evaluation then is not chosen, rather it is an articulation ofwhat constitutes "worthy", "meaningful" within the context of thesituation of the agent. The content of experiences are themselvesinchoate but are clarified by the actions of the agent.° Languageis used to express the aspect of a perception that is significantin its relation to other human beings.Experience is itself incommensurable; we can only express a senseof a situation. Sense is the human experience of value. Language isused in our experiences to convey the sense in which this situationis valued. The given is the familiarity of experience and that welearn language through which this familiarity can be conveyed. Inthis conveyance is the familiarity of experience before any artic-ulation of its sense.We are thrown into a world where "language already speaks."m WhatIbid at 34m Ibid at 36Martin Heidegger, Poetry, Language and Thought [1975] at 190.43language speaks is that which is about our experience with theworld. It is therefore that language is formed and re-formed toconvey the sense of our experience. Our sense of identity isconstituted by our experience into a space of meaning. To articul-ate is to attempt to show what it is we experience. The sense ofthat situation arises from our form-of-life within which weexperience the world of meaning. It is in this that the sense ofthe world can never be said to be wholly mine.85An action, and the situation within which it is constituted, has anormative origin which determines, qualifies, and impregnates valueto that event. It is in the formulation of the purposiveness towhich our behaviour is directed that value is assessed. What wewill now consider is the composition of the action; the "facts"which are said to exist by which the action is made manifest.2.2 The Fact as a RepresentationHeidegger suggests that "truth" means the agreement or conformityof knowledge with fact. m A fact is that which shows itself to be85 For a Heideggerian consideration of "sense" see Heidegger Beingand Time [1962] S150-166. Also for an interpretation of Telling andSense see Dreyfus Being-in-the-world [1991]; Chapter 12. ForHeidegger, it is this sense which gives us the ground upon whichthe incommensurable of the world is made intelligible for beings-in-the-world. It is for Wittgenstein the certainty without whichour language-games would cease to be.m Ibid at 51-5244the case-it is that which must be if knowledge [and propositions]are to be able to conform to fact; otherwise the fact is not bind-ing on the proposition. The fact then is something which is reveal-ed, rendered unconcealed. The true proposition is that which con-forms to the unconcealed fact-the correct representation.The critical concept of truth which, since Descartes, starts outfrom truth as certainty, is according to Heidegger merely a varia-tion of truth as correctness; truth is that which is correct inrepresentation of the unconcealed fact. Underlying this notion ofcertainty and correctness is something already evident. WhatCritical Theory [Horkheimer and Adorno] shows is that meaning istied to our way of life. In this view, reality depends "not only onnature but also on the control the human agent can exercise overit".87 What counts as real becomes that which lies within thehorizon of our activities within the language-game. m In our every-day activities we are already instilled with being "attendant" tothis manner of discovery-of seeing the world as how we speak it. By87 Dallmayr, Between Freiburg and Frankfurt [1991] at 33 I wasreferred by Mr. Camera to a quote in a text of Von Wright,Ecological Revolutions. There Lyne White writes in the essay"Machina Economicus" at 93, that;We shall continue to have a worsening ecological crisis unlesswe reject the christian axiom that nature has no reason forexistence save to serve A language-game is an expression Wittgenstein develops in thePhilosophical Investigations to show language use within apractice. For example there is the language-game of Chess whichspeaks about "mate" within which the term has a specialsignificance.45this we mean that there exists a pre-understanding, an orientation,constituent upon praxis which will facilitate our use of language.Traditional empirical knowledge is understood to provide us with aknowledge of facts. To uncover these facts we incorporate languagefor both empirical observation and explanation of the object.89 Themore important assumptions of the traditional account include thatthe world exists independent of subjectivity, that language isitself objective, and a correspondence theory of truth.9°From those assumptions there exists a natural world which can beexhaustively represented. In science this world is expressedthrough scientific language; in law, it is expressed in legallanguage. The expert, both as observer and language user, cancapture this reality through propositions which are either true orfalse depending on their correspondence to the domain of the dis-course.91 Law can capture linguistically its explanadum either withpropositions which have a relation to empirical experience or else89 Calvin Schrag, Radical Reflection and the Origin of the HumanSciences [1980), at 79. Schrag goes on to point out that "If factsand values are defined within an objectivist perspective, ofcontrolling knowledge, then the 'problem of value' becomes that ofdetermining the function of facts and values within a logic ofscientific methodology" at 83. What we now recognize in the naturalscience domain is that facts are never value-free-they are alwaysconstrained within theory-as shown by Kuhn and others.90 Hesse, supra note 8, Introduction91 Ibid, at i-xi46through concepts which capture the unobserved.92 Quine and Kuhnamong others have pointed out constraints on this representation inthat many theories can fit observed facts; the so-calledunderdetermination of theory problem of empirical data.Every observation must be expressed in language containing generaldescriptive predicates. Every set of predicates in a natural lang-uage implies a classification of the contents of the world. Thisessentialism is based upon discovering the essence of the object ofinvestigation.93 The discovery of this self-evident natural orderhowever is revealed upon a hermeneutical foundation as we come torely on science to describe what the natural order is; the law todescribe the true social order. In this way we see that we observedata as an element progressing towards a true theory which we mustexpress in the form of a language we have presupposed to be object-ive, which can only be identified as objective ("true") if we knowthe true theory.94A further problem is the necessary acceptance of coherence cond-92 Schrag note 89, supra, at 86 points out that the conceptualframework which occasioned the abstract empiricism of positivismwas one where facts were viewed as discrete, atomistic, and non-intentional. The model of perception (for example Husserl'sphenomenology) was understood as the reception of discrete,isolated and contingent physical properties structured within theform of truth-function logic. Facts thereby become similarlydiscrete entities, isolated from the originary matrix of worldexperience.0 Hesse, supra note 8, Introduction94 Ibid47itions. Kant attempts to show that there are necessary categorialproperties of space, time, matter and causality which must be truefor any claim to knowledge of the world.95 These have in subsequentscientific thinking been shown to be questionable.In the wake of Kuhn's Structure of Scientific Revolution, we seethat in science, as history, no single convergence occurs. Theemphasis is that of revolutionary conceptual changes that occurwithin the sequence of theories to explain a given domain of95 See Roger Scruton Kant [1982]; Kant was particularly `roused'by Hume's theory of causality which rejected knowledge of necessaryconnections in nature. Hume discovered that many a priori beliefspreviously thought to be analytic where in fact synthetic, notablycause and effect, and arithmetic. Hume argued that there was norational basis for the belief that the sun will rise tomorrow. Thisbelief rests only on an `association of ideas', we cannot provethat any factual event will occur. This scepticism threatened toundermine the "logic" of science, that consequences necessarilyfollow from their causes.Knowledge begins, according to Kant, with experience, but it doesnot follow that all knowledge must necessarily arise from exper-ience. Kant identifies a priori knowledge; knowledge about theworld independent of actual experience. Objectivity can be said toexist in the world through analytic a priori knowledge. Here thepredicate is contained within the definition of the subject-such as"All bachelors are unmarried". This appears logically true butprovides us with knowledge of little value. Synthetic a prioriknowledge on the other hand is such that the predicate is notcontained in the subject, but rather it is dependent uponexperience. Kant used mathematics to illustrate this form ofknowledge. For example; 7 + 5 = 12 does not contain the result inthe predicate, but we are certain of the result. Reason givescontent to experience. Knowledge may be said to exist within thesubjective /-but we may have knowledge of the world in experience.We experience the world with a reference to space, time andcausality. These references are all a priori notions independent ofexperience, by which we structure experience says Kant. It is arational (conceptual) perspective of an independent world.48phenomena.% We do see however within this theory that whileconcepts do not converge, that science is instrumentally prog-ressive. This comes about because successive theories interpretpredecessors in terms of an approximation of itself. Science canonly progress using the concepts and methodology of science. Hessedescribes this as an increase in the pragmatic possibilities ofpredicting and controlling empirical events through experiment andtheory construction. This pragmatic progress is relative to a phen-omena which is particular to our objectives.What we are confronted with then is knowledge for a purpose. Knowl-edge which is constructed for a purpose should force us to questionthe objectivity of derived data. Quine, emphasising theory under-determination illustrates" that scientific theories are neverlogically determined by data-they can always be justified or re-jected by appeals to contradictory data. No theory can thereforeadequately capture the "fact". Kuhn (Scientific Revolution) andFeyerbend (Problems of Empiricism) have gone on further to arguethat what stands as theory is itself a point of conflicting inter-96 Hesse, supra note 8 at x.97 See Quine, Two Dogmas of Empiricism, and in a less radicalposition in the more recent Ontological Relativity ch 2,3,5. Quinepoints out the a priori that two parallel lines will neverintersect appears not to hold in all cases. This refutation arisesas light passes by very large objects and encounters gravitationalforces. This concept is explained under Einstein's special theory.49pretation and therefore a product of social beliefs.982.3 The Metaphysics of the Legal FactThe "epistemological obstacle" is the belief that language is amirror of reality." We are tempted by the notion that a legal con-cept can be measured by a capacity to reflect reality.100 This ismanifested by the positivist position of law as constitutive of98 Hesse supra note 8, in section "Theory and Value"; From thecrisis in scientific methodology, we may begin to see the hermen-eutical interpretation of human science revealed more as a contin-uum of natural science rather than a dichotomy. Hesse argues fromthis that the distinction between natural and social science ismore to do with pragmatic or instrumental predictive success thanthe absence or presence of evaluative techniques.99 The mirroring of reality has come to refer to the 'picturetheory' of meaning (See Rorty on this in Philosophy and the Mirrorof Nature [1979]). Empiricists see reality of that which isexternal to the speaker, and language acts to represent therelationships among the elements of sensory experience, they'speak' world. Rationalists see the picture as that which make ourprivate thoughts public. Reality is to be found within the mind ofthe believer. It is that language represents reality that it isseen as a barrier between us and the world, our objects ofknowledge. The "problem" is that the word does not completely"capture" the reality. We shall see later on how this is premiseappears to be implicit even in modern writers such as H.L.A. Hart.Opposition for this notion is now endemic in contemporaryphilosophy. For Merleau-Ponty, like Wittgenstein, language has noclaim to represent reality. Not only is speech not a mirror, but healso claims that thought itself can make no such claim; "We mustrecognize first of all that thought, in the speaking subject, isnot a representation, that is that it does not expressly positobjects or relations. The Orator does not think before speaking,nor even while speaking; his speech is his thought." (Phenomenologyof Perception [1962] at 180). For a consideration of Merleau -Ponty's philosophy, particularly with respect to language andmetaphor, see Jerry Gill, Merleau -Ponty and Metaphor [1990] here atChapter 4, "Language as Gesture" at 82ff.100 Patrick Nerhot, "The Law and its Reality" at 52.50facts, and so in making law, we reveal reality. 101 In this pers-pective, facts are representative of social relations and norms.Legal rationality then is premised on an objectivity based upon amethod of scientific reflection in which there is a logicalrelationship between language and reality. This rationality ispossible only if that which is represented, the natural, is arational order.Central in the exposition of law has been the relation of fact tolegal rules. The distinction between fact and law permits theabstract arrangement of actions. This arrangement is set out toidentify law as an object, to arrange this object within a legalrationality, and to set out the exercise of power.102 This ispossible only because facts themselves, which are removed oralienated from the world, are abstractions. This rationalization offacts is the product of the scientific method. The fact then is notexternal to legal rationality, but internal to it."3When we wish to describe what we mean by knowledge within theparameters of the legal world, we view facts within the context oflegal concepts. 104 The lawyer is obliged to show how a particular101 Ibid at 53102 Patrick Nerhot, Law, Interpretation and Reality at 2ff103 Ibid at 56104 The correspondence theory of truth holds (See Russell {1917)Chapter one), that what is significant for knowledge is not theobject itself but rather the relations between objects. All objects51fact has a relation to a legal concept so as to infuse it withlegal meaning, to impart its relevance. By this, once this fusionis made the fact becomes a particular perception of reality withinthe legal process. This prescription is the cognitive art of thelawyer, and forms the basis of legal argument. It represents thelawyers knowledge of the domain of law to which the fact isrelevant.What the proficient lawyer is capable of doing is removing the"noise" of background events and place the locus upon the conceptswhich are necessary aspects of the client's case. What is relevantis how the lawyer wishes to characterize the events which are thefulcrum of the legal dispute. It is this determination of the"legal" dispute which is the role of the lawyer-what it actually isto be a lawyer. The lawyer accomplishes this by operating within aset of beliefs about how legal argument is conducted and how legalelements are constructed. These beliefs comprise the language orappear to exist within the world. To explain how they really are,we cannot think of any spatial object apart from its space, or anytemporal object apart from time (See Wittgenstein, TLP S2.0121) Itis therefore that the objects themselves are not of interest,rather it is their position in time and space which is significantto us. "The cat is on the mat" deals with two objects, the cat andthe mat. The elementary fact is the cat being on the mat which isto concern us. If the proposition is true, then we can say there isa positive fact which is the state of affairs. If the cat is not onthe mat, it is a negative fact and not the state of affairs. Know-ing the proposition enables me to know the reality it represents.This is possible if we hold the belief that "The world is thetotality of facts" (TLP 1.1). Wittgenstein stresses (TLP 4.002)that natural languages are logically perfect and capable ofexpressing every sense. His later investigations thoroughly rejectthis notion of truth correspondence.52"form of life" of law.105The relevance of any particular "fact"1 06 or event presupposesknowledge. This is because for an event to be relevant, and the lawto be coherent, the significance of an event in relation to a bodyof beliefs must be presumed to be known prior to its actual106 The idea that linguistic practices are an evolutionary productof social practice-the way we do things-as opposed to a view oflanguage as a "mirror" or "picture" of reality belongs to thephilosophy of the later Wittgenstein (PhilosophicalInvestigations). Wittgenstein perceive's language as a tool orsocial artifact with which people do things. Specific uses oflanguage (language games), as for example law, can be said to arisewithin a particular social practice. We give effect or meaning towords by how we use them. For example, the word "mate" in playinga game of chess gets meaning because we use the word to describe arelation between objects on a board. It means the end of the game,and we agree on this because we observe the rule about check-matein chess. In summary, when we communicate we must look to thegrammar to understand what we mean; the practice of the speaker,the hearer and the attitudes which form the background of what wedo.106 It should be apparent here that "fact" relates to thecharacterization of reality. No fact is in the world. As Russellpoints out in the preface to the Tractatus, they cannot be defined-they exist only in logical space. What the positivist argues isthat they are the relations between entities, which we call true orfalse. In this, they are constitutive of what we hold as ourknowledge of things. Before we can say that the couple are married,the reality of that state is to be interpreted, or characterized,through legal rules. For example, where the couple are both of thesame sex; have a consanguineous relationship; are already marriedto another, the fact of the relationship is in doubt. Yet it isonly in the legal world that we can speak of such doubt. It is inthis manner that we cannot refer to legal facts as "brute" facts-facts which have not been, in some way, shaped by legal rules whichdetermine their validity. For an interesting discussion on thisaspect of validation and self-referentiality in law, see PatrickNerhot, "The Fact of Law" in Autopoietic Law: A New Approach in Lawand Society (1988], Edited by Gunther Teubner. This articlehighlights the difficulty in distinguishing between a question offact, and a question of law given that the construction of facts isan interpretive (self-referential) process.53occurrence. That is to say, the legal proposition determines inadvance the necessary fact that must be established to make ittrue, and it is the legal rule which establishes the necessaryproposition.107In this way we are to see that facts are constituted within adoctrinal framework. The "fact" of the man and woman being marriedis relevant where we undertake to invoke the matrimonial propertystatutes. Facts in law are characterized by "proof" which is eitherbeyond a reasonable doubt or true on a balance of probabilities. Inevidence, facts which may be admissible in court must also bedeemed to be sufficiently relevant to the particular legal issue.An event without proof or relevance cannot be constituted withinthe legal question. There must be a legal "qualification" whichgoverns the transition of an external event into the creation oflegal reality.A fact is the means of constituting the state of the world.108 An107 See Baker and Hacker, Skeptism, Language and Rules (1984] at32. This does not imply a metaphysical derivative of reality, onlythat propositions which we can say are true or false, are grammat-ical propositions. Grammar does not represent the ultimate linkbetween utterances and reality.108 See for example Wittgenstein, Philosophical Investigations,§59."A name signifies only what is an element of reality. Whatcannot be destroyed; what remains the same in all changes"-Butwhat is that?... We see component parts of something composite(of a chair, for instance). We say the back is part of thechair, but is in turn itself composed of several bits ofwood...We also see a whole which (is destroyed) while its54occupation, a communication, a vehicle, a snail in a bottle, theseindividual data comprise factual events. Events can then beconstituted within a particular context to form legal concepts.That is to say, a fact can be considered to be relevant when it isshown to relate to a particular legal construct within the law. Thecontent of information is that which categorizes facts into aprescribed correlation between elements and how we construct thelegal question. It is relations amongst facts-information-whichforms the cognitive basis of the legal question.109A gap here is the criteria for imparting the selection of therelevant rule which the judge is to apply in creating fact and law.This gap is filled by the agent, the lawyer and the goal which theagent seeks. To speak of goals is to speak of actions. It is togive the picture its "sense". It is in this that the law ispragmatic. It must address itself to the preference betweenactions.lio Rules confer meaning on actions and account for theordered-ness of the social order, rules which make the situationsintelligible. 111component parts remain unchanged. These are the materials fromwhich we construct that picture of reality.109 See for example, Michael Buckland, Information and InformationSystems and Jon Bing, Handbook of Legal Information Retrieval.110 "To know the Law then requires a cognitive act for which theLaw itself - through the descriptions it supplies - cannot provideclosure. The cognitive contribution of the agent is a necessarycondition for the completeness for any Law.", Smith and Coval,supra note 49 at 106.Schrag, supra note 89 at 11055In the analytic tradition, to speak of an event as an action wespeak of an event as a particular. The fact is an unqualified eventwhich points to a relationship between agents and goals. Toestablish the relationship between the act and the rule we mustparticularize the event with a description so as to give itspecific reference.112 This reference is to that of an actionwhich occurs in a certain way as an already known act.113 It is intying the event to a known act [which is the task of the lawyer]that we tie an action to a rule-governed activity and thereby aconcept of truth.114 This concept of truth is tied to meaningwithin the legal discourse itself which is, as we shall consider,tied to practical rationality. It is in this way that being anagent is itself only possible as a rule governed activity. 115Smith and Coval set out the concept of an action by explaining "Lawis about actions... [t]he law, in order to operate the way it does,112 Smith and Coval, supra note 49 at 98ff.113 What Smith and Coval, Ibid, argue is that an action iscomprised of an action instigated intentionally by an agent in theexercise of its agency. The intentionality is the goal-directednesswhich satisfy an event as being an action. "If goals are eventswhich must satisfy this description then goals are events whichdepend for their identification upon our ability to produce therelevant beliefs [those which qualify agency] which go into theidentifying description." at 99.114 As Nerhot suggests in his reading of Kelsen's Pure Theory ofLaw that no norm can be deduced from a 'raw' fact; " fact canbe stated without a reference to a rule. The fact, as legal scienceunderstands it, is in no way a given that imposes itself by itself,external to legal science." in The Law and its Reality at 59.115 Smith and Coval, supra note 49 at 99.56must in an unself-conscious way already work with some concept ofaction or other. 016 Having given this brief outline of the deter-mination of what constitutes a metaphysics of reality, we shouldnow consider what is necessary to construct the legal domain. Whatcriteria must we set out in order that we can translate legalconcepts into computational terms with a utility in legal argumentwithin the goal-matrix of agent action? We will now turn towardsthe construction of a methodology for a more rational approach tothe modelling of legal reasoning. The basis of this rationalitywill be a theory of actions as outlined by Smith and Coval in Lawand its Presuppositions.2.4 Legal Theory for Rational ActsIt is a cliché to say that the law is indeterminate. A modernsceptic might suggest that the task facing the lawyer is analogousto that of the deal of a hand of poker. To develop computer appli-cations we require a sound methodology. We must develop a rationalframework within which we create a certainty within the legaldomain. Without a basis for certainty, any methodology will proveto be of little value in the construction of a computer expertsystem."7 We need a process which will allow us to construct a116 Ibid at 1.117 See supra note 5.57rational approach towards legal determination.118The purpose of this section is to consider the underlying rational-ity of the legal discourse necessary in the process of developingan expert system. The approach taken at FLAIR is to apply a "DeepStructure" based on an Action Theory as developed by Professor J.C.Smith for the building of expert systems."9 Legal Rationalismmust come in the form of an practical understanding of theunderlying function of law. We must believe in a concept of truelegal knowledge which we can use to make a rational structure uponwhich to base computer algorithms.By relying on a rational substratum the expert system will beeffective in disclosing the social dimension within Law. We mustinfer from this that "legal language" is to be seen as a cultural118 This approach is in contrast with the conclusions of AnnGardner, in her Ph.D. thesis, An Artificial Approach to LegalReasoning, ( 1987). Stanford University Books.Ms. Gardner states that it is not possible to build an expertsystem which deals with "hard" cases. She derives this conclusionfrom the jurisprudential analysis of the Rules-Principledistinction debated by Dworkin and Hart. She concludes thatcomputer logic is inadequate to resolve the use of legalprinciples.We argue that we can go beyond the apparent indeterminacy of law byrelying on a rational construction of legal reality. Thisconstruction is not an apology to contemporary jurisprudentialthinking but rather, we believe it is the recognition of theconsensus of action which is the presupposition for legalcertainty.119 See Smith and Coval [1986], Smith and Deedman [1987], Smith andGelbart [1990] and also Camera and Edwards [1992].58artifact, an abstraction from reality. Expert systems incorporatethe dimension of legal language but they are tied to the practicalrationality of the agent. Therefore by building an expert systemfor hard cases, we must try to minimize the products of the socialand cultural institutions. To gain a more complete understanding oflaw, we must reduce the apparent effects of the representationalpractice. We eliminate this institutional product by reducing ourdependence on the traditional legal discourse. Instead we focus onthe situation of the agent.The application of such practical reasoning is the essence of atheory of actions. 120 The reason for this is that the theory showsScruton provides a summation of Kants Critiques (Kant, hereparticularly "The Categorical Imperative" at 58ff). Kant sets outin the Critique of Practical Reason the ancient distinction betweentheory and praxis; between knowledge of truth and its application.For Kant it is in the application, the decisions we base on truth,that constitute our agency. By the maxim "ought implies can" theagent is posited as always free to act rightly. For the analytic,all effects in nature have a cause. If my free act is one ofspontaneous free will, then a contradiction arises in that if theact is part of nature, it can point to no cause, if it is not partof nature, then this will originates nothing in the natural world.This contradiction exists only if there is free will. Such freedomappears essential to the notion of being an agent. We are compelledthen by practical reason to accept freedom, and by understanding todeny it.To escape this dilemma, Kant relates the transcendental self ormoral agent, a thing-in-itself not bound by causality (theempirical world) but by practical reason. We are at once free asnoumenon and in the world as phenomenon in one's own empiricalconsciousness. We cannot then use pure reason (theory) to arrive atan explantation for our actions (the noumenon outside of theempirical world), but we can translate knowledge about the natureof our judgments by the exercise of our freedom (how we are able,through this transcendental self, to effect change in the empiricalworld is not clear). This exercise will adhere to the unity or lawsof pure reason. Freedom for the agent is possible only because he59us the ultimate relation between law and practical rationality. 12'1Actions lie at the bottom of Law. We must observe therefore thatlegal knowledge depends upon the action itself. It is for thispractical purpose that the legal discourse should also concernitself with the teleology of the law.The deep structured approach to legal reasoning is that judgesdecide even hard cases as a rule-following practice. 122 Inlearning the legal language, lawyers and judges are instilled withhow to apply a legal reasoning. It apparent from contemporaryapproaches to the legal phenomenon that we cannot understand thelegal discourse relying on a purely internal perspective.123 Weadheres to the moral law (the new 'law of causality'). This freedom(the exercise of choice) is constitutive of agency which revealsitself through rational action (an intentionality). Thus an actioncan be explained or justified in reason. What motivates us toexercise our freedom is the categorical imperative which is derivedfrom reason. Freedom is the power to will an end of an actionmyself-its is not free where the action is not truly mine. (see onthis point Smith and Coval p.113). Freedom then is the ability tobe governed by reason, defying the causality of nature (i.e. self-interest and desire) where they conflict with reason.121 This jurisprudential fundament was already established in LegalObligations. There Smith tries to explore the ontology of legalobligations. He exposes Law as a social discourse based on pract-ical reason. See Legal Obligations [1976], especially Chapterthree.122 J.C. Smith and Cal Deedman, supra note 6. This is in contrastto the doctrinal findings of Ann Gardner, supra note 118.123 The question whether we can have an external view of the worldis an old debate within the philosophy of science. Philosopherslike Popper, Feyerbend and Putnam has canvassed whether we can havean objective knowledge of normative phenomenon. See SocialEpistemology [1991], Fuller at pp.51-61 concerning a "third" worldperspective by Popper. The hermeneutical approach taken by Dworkin,especially stated in Law's Empire at pp.82-89, emphasizes that it60argue that we should not confuse the practice of the law, with thepractice of the lawyer within the law. We wish to suggest that anunderstanding of the legal discourse entails realization of thelogical structure of both the process or function of law itselfand, the process or function of the lawyer itself. These twoprocesses are entwined but distinct.The premise: "Before knowledge engineers can model legal reasoningthey must first understand legal rules and how lawyers and judgesfashion and utilize these rules. 024 , will lead us to rely on aninherently contradictory legal discourse. In order for the legalinstitution to function at all, there must be a non-contradictoryepistemological fundament which is accepted by the legalprofession. 125 Relying on how lawyers argue leads us only tounderstand the process through which individuals interact with thelegal institution, but not the law itself. As a methodology fordeveloping expert systems, we are left unable to develop usefulcomputational structures which will reveal the rational function ofis impossible to have an external perspective apart from the legaldiscourse. We are part of the legal paradigm or social world thatwe wish to interpret. The way we will apply the concept "externalperspective" in this paper relates to how we are to picture theLegal Discourse. We believe we must go beyond the product of thetraditional institutionalized legal discourse in order to deal withthe Law in a structured, relevant manner. In other words we believein a rational perspective of human reasoning with regards to thelegal discourse.124 D. Berman and C. Hafner, "Obstacles to the Development ofLogic-Based Models of Legal Reasoning", from the anthology ComputerPower and Legal Language [1989] at p.183125 See Smith and Coval, supra note 110.61legal rules. We are left to wonder how such an approach can lead tothe development of useful applications of knowledge-based systems.The second approach rests on the acceptance of a true belief orpredictability within the law. It is however, not only that we havetrue belief but that these beliefs are connected in complex on-going relations to one another. The relations are observable as agoal-ordering hierarchy which places a rational basis for socialinteractions. Within the body of Law we can see that this goal-orientation is reflected through a matrix.126In the exercise of practical purposes, Agents operate to achieveindependent goals. In a world of finite resources, these goals willinevitably conflict with the goals of other agents. Law representsthe means through which the significance of goal-values are ex-pressed. The law orders goal-values thereby protecting one goal setover another. The rules and principles of the legal institutionsreflect this goal ordering. To illustrate this point, we canconsider the underlying rationale of defamation. Truth is moreimportant than protection of reputation. The protection ofreputation is more important than freedom of communication.127The matrix then represents the ordering of these goal-values whichappears to be the gestalt of law. Our understanding of law rests on126 Ibid at 102127 Ibid at 10362seeing a connection between goals and actions. An expert in theparticular domain will examine the case law so as to establish whatfactual determinants are inherent in the domain. This analysisrepresents the deep-structure of the domain.To characterize a particular action, Coval and Smith utilize J.L.Austin's linguistic analysis of the modifying effect of variousadverbs on an action signifier. 128 Each action modifier adjusts afeature or set of features of a standard act to result in aredefinition of the action. This redefinition gives effect to thelegal possibilities of the act.The question we face in assigning culpability or guilt on agentsbecomes a function of what we can know. In establishing suchculpability, we look to causation in the act and intention of theactor. Such characterizations are necessarily done in an ex postfacto analysis. What the agent does is the act itself, what we thendo is analyze the situation for intent.129 As we have alreadycommented previously, in claiming an intention we are in fact128 Ibid, at 2ff. The modifiers include; Accidentally, Mistakenly,Inadvertently, Carelessly, Involuntarily, and Unintentionally. Inthe way we use these words, as illustrated by Smith's descriptiveexample of shooting a neighbour's Donkey instead of his own, wecome not only to see the meaning a particular modifier effects, butalso the reality of the situation, that is to say, the context forits utterance. See J.L. Austin, IA Plea for excuses', Proceedingsof the Aristotelian Society', 1956-7, vol. 57, pp. 1-29, and alsoJ.L. Austin, How to do Things with Words, 2d Ed.129 See Gilbert Ryle On Thinking [1979]; "Adverbial Verbs andVerbs of Thinking" at 17.63claiming that the person and the act are intelligible.To say an act is intelligible then is to say that it rests upon arationality. Rationality is the ability to attribute an event to anagent in a causal relation. It is to place the act with an intent-ionality. Rationality then is about attributing cause to effect.The legal act is attributed to the agent. To attribute the cause tothe agent, agents must necessarily be autonomous or the definitionwill not stay. 130 The act then must be placed within a frameworkwhich relates the agent, the act and the legal effect. So while wemust speak of autonomous agents, we cannot speak of an independentact. To invoke law-the set of rights and duties-it must relatebetween agents and by its intelligibility it must in some sensefollow a determinate practice. This is to follow a rule.2.5 Rule-Following: Expressions of ExperienceLanguage rests on consensus, but a consensus of action,not belief.131Rule-governedness sits as a premise of modern liberalism.132According to Locke lawfulness is a quality of both nature andsociety: "The state of nature has a law of nature to govern itwhich obliges everyone; and reason which is this law teaches allmankind (who will but consult it) that, being all equal andno Smith and Coval, supra note 49 at 99.131 Ludwig Wittgenstein.132 Dallmayr, note 11 supra, at 1452.64independent, no one ought to harm another in his life, healthliberty or possessions." 133 The essential goals of life, libertyand property then are attained by the laws established in acommonwealth.There has in the past decade been a tremendous amount of literatureproduced in the philosophical discourse regarding the thinkingwithin Wittgenstein's later philosophical ideas. 134 Of particularinterest here are his ideas about what it means to follow arule. 135 In order to grasp language use and the transmutation ofmeaning, it is necessary to be able to follow in the way by whicha particular practice is performed. What Wittgenstein noted is thatthe application of rules cannot in themselves be understood asstrictly rule-governed. That is to say, we cannot appeal to a ruleto justify an application without falling into an infinite regress,133 Ibid, from J. Locke, Of Civil Government: Second Treatise 5-6,109 (1955)134 Although there are many articles in the Legal journals whichincorporate, either overtly or implicitly, Wittgenstein's idea's,I would refer the reader to a recently published text Wittgensteinand Legal Theory [1992], Dennis Patterson, ed., as the most recentpublication directed entirely to his thoughts. Wittgenstein set outto clarify the relationship between meaning and language; how wederive objectivity through social practice.135 Baker and Hacker, supra note 107 at 56 put it that:Morality, social life, law, games are run through with rulesand related normative phenomena. If, in reflecting on thesefeatures of our lives, our concepts of a rule and of what itis to follow a rule are awry, so will much else be too. Anincorrect logical point of view upon rules will guarantee anincorrect conception of ourselves, our minds and our normativepractices.65an endless loop. U6 Rule-following also points to the difficultiesas to why we cannot readily comprehend between discourses andbetween paradigms.137This section is important within the overall theme of the thesisfor illustrating the inter-relation between background and experi-ence in enabling understanding and determinacy. By locating anaction or utterance within a social construct we enable comprehen-sion, and thereby a rationality which we can attribute to futureoccurrences of the action or utterance. The element Wittgensteinillustrates-what it means to grasp a rule and its extension-is thepoint we wish to impart. What is becoming more clearly understood(and argued) is that not only do we derive meaning contextually,but also that in being able to give meaning at all, we do sothrough ancillary beliefs; the network of background experiencesHeidegger attributes to the Being-in-the-world.138136 Ibid at 82. As we attempt to justify a rule by another we seethat we get no further. If I have run out of justifications it isnot that I have no explanation, only that explanations must come toan end.137 For example if we were to come across a tribe which followeddifferent rules (PI S207). They appear to do activities with aregularity but their language appears unconnected to what they do.We find we cannot grasp enough to call this a language. We canreverse this example with common words associated with irregularand incomprehensible actions. It too would not make sense.138 The point of Wittgenstein's treatise is to deal with the use ofordinary language. What he wishes to address is the way in whichphilosophers have come to treat the representational concepts weuse to describe the world, as being the world itself. This is aconfusion between grammar and reality. An illustration of this kindof thinking is how we know pain. We know pain by learning the useof the word-we use the word pain when we see someone in pain. It is66The importance of understanding rule following is ultimately aboutrecognizing how the human being is able to understand and go on;how we can apply and extend actions and judgments of our immediateexperience to new and different actions and experiences based onprior knowledge. In this we speak to determinacy, to the boundaryof the "form" of a rule. Rule-following is, in short, to understandhow actions and language occur. Understanding how a language worksis, for Wittgenstein, about how the meaning of a word is to befound in its use.139 This is a primacy of rule-application overin this that I do not 'know' I am in pain, I experience pain butlearn what we mean by pain. This is Wittgenstein's argument againstprivate language. See, for example, Scruton (1981), Chapter 19, at279 ff. Heidegger also recognized the problem of the confusion wehave between representational grammar and understanding. In hisSein und Zeit, to overcome the problem of misconception broughtabout through ordinary associations with words, he created his ownetymology to force us to go beyond the bewitchment that ordinarylanguage casts over us. We see language as representing the object,and in some sense we attribute this representation as possessing anintentionality which connects the word to the object itself. WhatWittgenstein is claiming is that we do not "mentally" attach a nameto an object, but rather we are trained to use a word in a socialpractice within a situation. Wittgenstein calls literal meaning the"bewitchment of our intelligence by language." The project of boththese philosophers can be said to refute the Cartesian premise ofa primacy of the Cogito, the inner self, through which the world isre-presented to us through our mental faculties. The targettherefore of this contemporary Philosophy can be said to be theimplicit solipsism of the idealist. Yet when we look at what ishit, it seems to be the very notion of philosophy itself.139 For example, in following the rule of word use he emphasizesthe unquestionable application of rules in social practice. It isnot that these rules are in any sense objective, only that they areincontestable within the language-game. In On Certainty [1972] heresponds to G.E. Moore's 'proof' of the external world, proof basedon a common sense argument of the certainty that the hand he holdsup is his own. Wittgenstein emphasises this would be a nonsensestatement in ordinary language unless there was some further pointabout this fact. At S308 Wittgenstein argues that "knowledge" and"certainty" are not different mental states (in that they representdegrees of awareness about an object), but that they are different67rule-knowledge. 140 In so arguing, Wittgenstein goes against thenotion of rules as causal entities, as transcendental objects,categories. By this he is indicating, I believe, the differencebetween philosophy as epistemology, and philosophy of mind. Inconsidering the use of "I know" what we must be concerned with arequestions about empirical judgements about which there is a possi-bility of doubt. If I should "ordinarily" doubt the hand in frontof me, it is not the hand itself we are concerned with, but ratherhow I should come to believe otherwise-whether I am mad. When thereis doubt-and the need for knowledge-then we can give reasons. Weredoubt is logically excluded, then so too is knowledge.It would appear that, within the form of life, there is no room foruncertainty in judgement of the use of a word itself. If I say athing is 'rose' when it is actually red, it may be because I amuncertain as to the proper use of the word used to describe red(i.e. I am colour blind). On the other hand, I may say 'rose' be-cause the light conditions seem to indicate that the colour looksrose instead of red. In neither case can it be said that the thingis uncertain within the proper use of language, only that I ammistaken. This is a personal mistake about how I use language(following the rule of 'red') and not a mistake as to the nature ofthe object itself. Language rests on consensus of action (how aword is actually used in a situation) and not personal belief aboutwhat a word means.If we succumb to a doubt such as Moore is attempting to allay (theuse of a word), we hit rock bottom in language, we come to doubtthe very way we use words. To conclude the nature of the debate, wecan refer to S370The fact that I use the word "hand"...without a secondthought... shews that absence of doubt belongs to the essenceof the language-game, that the question "How do I know..."drags out the language-game, or else does away with it.uo This point is brought out in the philosophy's of both Heideggerand Gadamer. In Truth and Method [1966] Gadamer notes at 274-5 theascendency of the cognitive grasp of text over practical exegesis,yet both are inextricably entwined: "In the course of ourreflections we have come to see that understanding always involvessomething like the application of the text to be understood to thepresent situation of the interpreter." We cannot separate ourinterpretations about the world from how we find ourselves in thatworld.68which in some sense exist in a predetermined way.141As well as the Philosophical Investigations, this chapter drawsupon primarily two sources, Kripke's; Wittgenstein: On Rules andPrivate Language, 142 and Baker and Hacker; Scepticism, Rules andLanguage.143 I will recommend these works for the in-depthanalysis of rule following. Both these works consider what it meansto "act in accord with the rule." The two positions are, statedbriefly; "community standard" whereby our performance is judged by141 See PI S197"It's as if we could grasp the whole use of a word in aflash."-And that is just what we say we do. That is to say: wesometimes describe what we do in these words. But there isnothing astonishing, nothing queer about what happens. Itbecomes queer when we are led to think that the futuredevelopment must in some way already be present in the act ofgrasping the use and yet it is not present.Here Wittgenstein rejects the notion that a rule contains all itsoccurrences, that it is somehow a complete set of all itsoccurrences (as Russell might insist). Instead a rule is theability to apply a procedure.142 Saul Kripke, Wittgenstein: On Rules and Private Language[1982].143 Baker & Hacker, supra note 107. I should add that my interestin this problem was sparked by Norman Malcolm's Essay.... Havingjust read Kripke's work, and feeling something amiss, I was quitesurprised by Malcolm's intense attack on Hacker and Baker'scomments on Kripke's conclusions. Needless to say, I givepreference to the position of Professor's Hacker and Baker overProfessor Kripke. Not only are Hacker and Baker most likely theAnglo-speaking world's most eminent authorities on Wittgenstein,but they bring an intense sensitivity to their analysis whichreflects the Wittgensteinian approach. This is an opinion I alsohold for Norman Malcolm. Although the merits of Kripke's argumentsabout private language and rule following are for themselves tospeak, his approach at apprehending the "problem" seems singularlyunwittgensteinian.69competence in accord with a public standard (Kripke), andalternatively that the rule, and only the rule determines thecriteria (Hacker and Baker). That argument relies on an explanationof what is meant by understanding the "internal relations"connected with the rule.Kripke, to summarize his argument, points out the so-calledSceptical Fallacy to be found in Philosophical Investigations144.The question about a rule is "How do we go on?". Imagine the rulefor a series of even numbers starting at 2; 2,4,6...1000. We nowget to 1002 only to be questioned by the sceptic whether the ruleshould not be 1004, 1008, 1012.The sceptical doubt then is whether we are using words in the waywe have used them in the past. This epistemological problem-that in144 See Kripke, supra note 142 at chapter One, also note Gene AnneSmith, "Wittgenstein and the Sceptical Fallacy", Canadian Journalof Law and Jurisprudence, Vol. III, No.2 (July 1990) at 155. Ibelieve that the historical significance of the PhilosophicalInvestigations should be emphasized. Hacker and Baker point outvery convincingly that one of the concerns of Wittgenstein was tonegate the arguments that provide the philosophical basis forsolipsism. This was part of the scepticism debate created by theBritish Idealists, notably by Bradley. I presume this is whereKripke is able to uncover the "sceptic" in the Investigations whereneither Malcolm nor Hacker and Baker (all life-long students ofWittgenstein's thinking) could not. The solipsist is one who holdsto be the "sole" existent in which the world "outside" exists as anobject or content of my consciousness. Wittgenstein's argumentagainst private languages, which follows in the Investigationsimmediately after his discussion of rules, refutes that thesolipsist a language within which to express their world. Seefootnote 138 supra. Wittgenstein is attempting to refute thementalist position-that the world is created or understood through"reason".70applying a word to accord with what we mean-gives the sceptic theargument that there can be no certainty of meaning at all, thatlanguage is impossible because it can mean anything the scepticwants it to mean.145 Kripke applies the anti-realist (and fund-amentally relativist) position that the conditions for use (i.e.the very thing of which I speak) are in themselves meaningless andinstead uses the assertion-conditions for meaning; My use is validin that other members of the community appear to follow this pract-ice. In other words, I am following a rule because I can show thecommunity agrees with my use. Baker and Hacker refer to this not asscepticism but as conceptual nihilism-an absurdity. 146145 Kripke's so-called "Wittgenstein's Paradox" is derived fromS201 of the Philosophical InvestigationsThis was our paradox: no course of action could be determinedby a rule because every course of action can be made out toaccord with the rule. The answer was if everything can be madeout to accord with the rule, then it can also be made out toconflict with it. And so there would be neither accord norconflict here.One of the problems of philosophy has been the problem oftemporality. The source of this debate has been that if an objectis a representation within the conscious mind (an object ofconsciousness, sense-data) how can we be sure that the objectcontinues to exist? How can I be sure that the object ofconsciousness, perhaps a memory, continues to refer to anything inthe world? This dilemma applies equally to acts such as rulefollowing practices. Both Wittgenstein and Heidegger have dismissedthis problem by detaching the question of personal existence fromthe empiricist scheme and have given existence as a givenphenomenologically. Wittgenstein establishes the "form-of-life, thebackground of our entire social world within which we interactthrough language-games which recognize the contingencies of actionswithin which language is created, and Heidegger's Dasein, the beingwhich questions being, as a point of reference.146 Baker and Hacker, supra note 107 at 6.71The question is what do we mean by acting in accord with therulew and what is it to go against the rule? The position advan-ced by Kripke's community consensus argument implicitly relies uponthe psychological state of the rule-follower. Rule-following is tobe seen as the person in some sense trying to follow or obey therule. This places the rule as a mental act or representation.Hacker and Baker in contrast see rule-following as related to theactual practice of doing; a sense of the activity of the individualembodied in the event by which it is intelligible as an action.This "internal relation" accentuates Wittgenstein's radical moveaway from "form" where language is seen as a representationalobject which is in some sense predefined and complete.A rule can only be discerned at all if we can say there is a regul-arity of behaviour, a criteria. In other words there must be somecustomary observable action, a use which creates context for comp-arison. The key point is that to follow a rule involves Praxis.148The practical manifestation of rule following need not however beperformed by a multiplicity of agents. As long as it is possible toobserve a recurrent action, a multiplicity of events, then we may147 At PI S201 it is set out that every interpretation of a rulecan be said to comply with the rule. If this were so, then therewould be no sense in speaking of following a rule. From thisWittgenstein concludes there must be something behind the rulewhich is not what we call an interpretation. This is what he meansby the expression "it is what we do". What lies behind the rule isthe logical framework within which we act, the form of life whichcreates language-games, by which things have sense.148 Ibid, at 2072in some sense be able to determine if a rule is being followed.149Obviously this creates the question as to how the observer is ableto evaluate rule following without knowing the rule? The answer isthat the mere observer can not."° The radical point here, contraPlatonism, is that the rule itself cannot fix the meaning. The veryfact of language as a social practice means that language is an149 It should be emphasized here that we cannot "follow a rule"privately. For me, there is no distinction between thinking I amfollowing a rule, and following the rule. It is in this thatintrospection does not fix meaning. Accord then can only be fixedagainst a background of social practice. In order to say someone isfollowing a rule is to assert a grasp of something which makessense. It is this aspect which is the following of the rule. Toassert that a rule is followed means that another person mustunderstand the object of the action. The criteria to evaluate whatit is that is really going on is the explanation I give for what Ido. It is only by doing, and getting an insight of the rule by theact, that I can know the rule. For example an act may have amultiplicity of consequences of which the agent is only partiallycognizant. We may act privately, and even consistently, but thiscannot be said to fix the meaning of a rule. If we are able tocommunicate the action and show the Ding-an-sich to another (thatis to train another to understand that which is the object orcontinuum of the act and its application) then it becomes possibleto fix meaning to a rule which can then be followed or goneagainst. Rules arise as relations between agents.150 In trying to imagine interpreting the signs of a solitary cave-dweller, In a footnote (fn 29, p20-21) Hacker and Baker note asection from Manuscript 165;"Provided he uses simple signs which we could interpret, wecould come to understand him...[T]o understand a language ofa people is to describe a regularity of their behaviour, andto describe a language which someone speaks only to himself isto describe a regularity of his behaviour, and not somethingwhich can only happen once"and further;"of course, we could not understand another's language unlesswe could grasp the rules of his language, follow them as hedoes, agree with him in the manner of applying them"73activity. Where we do not engage in the activity, it becomesquestionable that we can understand. In an observation we surmiseeither a behaviour which is unintelligible, a rationalization ofthe behaviour based on a theoretical premise rooted in our ownexperience, or we might guess right. To understand the lion is tobe in the lion's world as a lion. It is a question of how the lionunderstands it's world. Language is a matter of context andbackground; conditions which come forward and reveal the utterance.This leads us to question how we can ever be certain we have"grasped" the rule.The representational view of language; that "I" subjectively havethe experience such as red-ness and then we all agree on aninterpretation of red, is unattainable because there would be nopossibility of establishing the internal relations between one'ssubjective interpretation, and its use as being in accord with therule. Everyone would hold that they are applying the rule "red"correctly. This is the solipsist's problematic. Wittgenstein'spoint (PI §198) is that an interpretation is of no value except inthe context of its application. Only where there is a rule estab-lished by custom, which can be gone for or against, is there roomfor interpreting its veracity.niIn our comprehension of an expression, we are concerned with themeaning of a statement, the understanding of its use. This is not151 Baker and Hacker, supra note 107 at 18.74to presuppose that grammar metaphysically connects a mind to aworld, rather it is to presuppose that language and experienceexist. The meaning of an expression is tied to the explanation wegive for its use and the manner it is used.152 Understanding istied to an ability to use the sign in accordance with its rules.This means that as we act, we do so with a sense of understanding.To speak of a rule we must agree both in judgments of ourexperiences (that red is red and not pink), but also definitions(that "red" signifies red).153 For Wittgenstein this is possiblebecause we share a custom or practice which forms the logicalframework of what we do. What we mean by a language is a customarybehaviour, a form of action not thought.154 The foundation of alanguage is a normative regularity of conduct by the agent.155152 Ibid at 43. Wittgenstein says at PI S43For a large class of cases-though not for all-in which weemploy the word "meaning" it can be defined thus: the meaningof a word is its use in the language.153 Ibid. What is perhaps the most, for me, perhaps the mostprofound statement in the PI is at S241It is what human beings say that is true and false;and they agree in the language they use.That is not agreement in opinions but in form of life.154^Hacker in^Wittgenstein Meaning & Mind, An analyticalcommentary on the Philosophical Investigations, Volume 3 writes:.."indeed there is no such thing as justifying grammar by referenceto reality on the model of verifying an empirical proposition byreference to what makes it true. Grammar consists of rules for theuse of words and has no such justification. It determines what wecounts as possible descriptions of how things are in reality,fixing a logical space which the facts, so to speak, may thenoccupy or fail to occupy.", as quoted by Camera (unpublished),footnote 12.155 Baker and Hacker, supra note 107 at 21.75The "internal relations" which connect the agent to the worldthrough action are derivative of the sharing of an experience. Thesharing of an experience is that instant of where we attain thesame conception about an act. This moment typically occurs at themoment of "naming"-the moment when one person is able to grasp thesense of an unknown reference through "training" by other humanbeings. It is in this sense that rule-following is the mostprofound of all human abilities, it is the ability to relate anexperience, something that cannot be said but only shown. Thisunion by gesture is the deepest intimacy. 156Rule-following is embodiment in a practice or situation. It is notonly that we each make the rule our own as we comprehend, but thatit is our own-it is something we have experienced for ourselves,something singular. This knowledge of the rule is impressed throughthe application-the actual doing. We cannot fully be said to knowthe rule without this impression. It is in this that the being isengaged and becomes possessive of insight. By insight we mean thatwhich connects the being with the world and its order. This insightattunes us to the way our world is structured, our way of being inthe world.156 It is in this sense that every word spoken, every act fulfilledaffirms or denies the being. This is most true of children.Underneath language lies that which cannot be said. What cannot besaid is the whole of experience. As we share the word within theact we affirm the unspoken, we create the world. World is createdas we speak and as we act together.76It is because of this intimate nature, this embodiment, Hacker andBaker's version of rule following is more plausible. To rely uponthe community consensus view is to resort to the idea of a meta-physic ideal; a rationality existing independent of our personalexperience and understanding. It is in our individual grasp oflanguage, established through a "quiet" consensus of sharedexperience, which proves the objectivity of our world. This isperhaps Wittgenstein's great "philosophical" insight.157 Agreementarises as we grasp meanings for ourselves acting in a community.This agreement however is not an internal property of the ruleitself.158 Through interaction an understanding is established. Itis this that is the wonder; that we experience the world so muchthe same. For Wittgenstein this arises out of sharing a form-of-life. We live and experience the world together. In this way wecreate world as a world where "language is the house of being".159157^Scruton (1981] at 284 suggest's that this completes thetranscendental deduction. This argument, a conclusion to Kant,explains the natural world. In society we see that this"objectivity" amounts to the experience of the discourse. Derridahas responded to this objectivity with the "corruption" of theword-that no experience is ever identical with itself. There arealways margins which constitute the other, another way ofexperiencing world. To answer this is well beyond me. However wemust keep in the back of our minds what is language-what is it todo? Language is there, we must act in the world. Derrida's task isultimately I believe to remind us about the marginal experiencewhich can never conform to the "community standard" because it cannever experience the world with the same "intimacy" of which Ispeak. It is forever alienated and disassociated by the community.In this, the margins remain outside of language.158 Baker and Hacker supra note 107 at 75.159 To use Heidegger's conception of language, see his Language,Poetry and Thought [1975].77The rule then is the ability to understand a practice. It acts asa signpost which directs us in future actions. Rules may not beclear but their resolution resides outside of "interpretation"because rules are affirmed in their execution. The internal relat-ions of the rule itself (that is how the agent sees what is to bedone and the act itself) establish that the justification of therule can only be set out by an explanation. 160 In other words therule is constituted by whatever it is that is done as set outagainst the explanation given by the actor. It is in this that twomyths are dispelled. VAFirstly, the rule is not an objective reality-there is no rule of"red" which exists independent of how "I" grasp its use. We cannotjustify grammatical connections by reference to reality. 162 Therule of "red" is something learnt by repetition and patience. Thisis done within the form-of-life in which we live. It is within theform-of-life that red is a significant aspect of what we are. It isthis significance that draws us to it and so calls upon us to nameit. Without our utilization of colour, there would be no rule of"red". It is in this that the rule of "red" does not contain itsown application.163 Under normal circumstances we do not interpretMO Baker and Hacker, supra note 107 at 106ff.161 Ibid162 Ibid at 83. What justifies calling rubies "red"? That this isthe correct application of the rule "red". What makes this correct?Nothing other than that's how we apply the rule "red".163 Ibid at 123.78the sign when we use it. It is simply a signpost which we under-stand, without need of interpretation. To take a sign and isolateit for interpretation does away with the sign.164Secondly, there is no "correct" application of a rule which comesfrom a mental act of meaning alone. The meaning of the rule comesto us by virtue of how we have learned to use "red", not by virtueof recognizing what red is.165 The way I act is part of thecriteria for understanding (going in accord with) a rule. I actbecause it is something I understand how to do. We admit withMalcolm that community consensus is part of why we choose to dowhat we do. 166 There is what Wittgenstein calls "consensus in164 Philosophical Investigations at §219"all the steps are already taken" means; I no longer have anychoice. The rule, once stamped with a particular meaning,traces the line along the whole of space.-But if something ofthis sort really were the case, how would it help?No; my description only made sense if it was to be understoodsymbolically.-I should have said: This is how it strikes me.When I obey a rule, I do not choose.I obey the rule Blindly.165 To emphasis this point Wittgenstein starts his Investigationswith the Augustine concept of naming (see PI §§1-3). This comprisesthat an object is ostensibly defined. In this, every word has ameaning. Yet Wittgenstein moves radically away from this picture.Imagine a red teddy bear. I point at it and say to the child "red".What is the child to make of this? How do they view my finger-fromthe nail to the joint? First they must learn what it is to point!Then we discover the bear. Does "red" refer to the bear, the shape,its material, its nose? No, to learn "red" we must show manyexamples, many shades, which eventually lead to the recognition notwhat red is, but rather that "red" is used to indicate red. Thechild can already see red.166 Norman Malcolm, Wittgenstein on Language and Rules [1989]. Imust agree here with Michael Lynch that Hacker and Baker have per-haps been too "zealous" in advocating the internal relations argu-79action". It is by this that we mean rules arise through actionswhich are a social relation. We act together in "quiet agreement"within a form-of-life which constitutes the framework of what weare.The background of a rule rests in customary response-not intellect-ual understanding but an unreflexive reaction. In this way ruleslose their hold on our attempts to provide an explanation for rat-ional thought and action.167 They do not transcend the pre-suppositions of our actual understanding. Our understanding is ourment. We live in community and accordingly, we seek to fit in andbelong to community. In this we tend to let our own identity "giveway" to cultural norms. But this in no way diminishes the mainpoint of the internal relations argument. Rationality is ultimatelythe ability to accomplish things for ourselves-to make sense ofwhat we do. Malcolm is a great variance with Kripke's reading onRules.167 See J. C. Edwards, Authority of Language [1990] at 167-8. Smithsupra note 73 points out the Greek presuppositions found in ourLaw's Roman origin. "Roman law contains concepts which aretheoretical, having "image-less" logical rather than "image-ful"naive realistic properties." This transformation to law as scienceis revealed in his quote of Saivgny at 312:"The conceptions and rules of their science do not seem tothem to be products of their own creation-they are realbeings, with whose existence and genealogy they have becomeacquainted through long and intimate association. That is whytheir whole procedure is tinged with an assurance not foundelsewhere except in mathematics, and it is no exaggeration tosay that they make calculations with their conceptions."What will be of interest will be the effect of opening up thejudiciary to "non-insiders"-those whose experiences in life do notconform with the traditional characteristics of the legalprofession; women and minorities. How will their backgrounds cometo play in legal practice? If Law itself remains unchanged we mayfind that, in adopting the role, the impact of their views ismitigated by a belief in the system as system.80ability to relate to our social world in a way that makes sensewithin it. If my actions does not accord with the "rule", I amsimply doing something else.The following of rules is the open-ended regularity which is nec-essary for language to work-what we are trained in must be capableof going further than the set of examples we learn. This capacitysets out our actions as rational in contingent circumstances. Whata practice needs to be able to accomplish is that we can go furtheron together.1 In justifying what we do, there must be anexplanation which satisfies others.This lends itself to question the Kantian notion of the autonomousbeing-we assent to or reject the rule-which identifies rationalitywith moral freedom. To represent oneself metaphysically as a rulefollower then is to make a choice of the rule as one's own-torecognize oneself as the determiner of the principles upon whichone acts.From our examples we see however we cannot determine for "myself"the ground upon which language rests within the language-game it-self. Language is social. Experience always contains unforseencontexts upon which our language is, and must be, rich enough torespond. What rule following is about is explaining or justifying168 Edwards, Ibid at 173-180.81our behaviour. It is to give explanations for why we do what wedo.169 The need for explanations and conceptualizations is afetish of both philosophy and law-a need for rational explanationwhere none is available.2.6 The Origin of the Legal FactIf a lion could talk, we could not understand him.170The evolution of legal theory illustrates the growing recognitionof the importance of understanding the relation between languageand reality. As this thesis is concerned with the construction oflegal reality, we must consider how the practitioner understandsthe process of law and speaks a legal language, rather then how lawis. How the law "is" is to be left within the representationaldomain of legal theory. This section will deal with the resolutionof the hard case within the thinking of rule-following.Contemporary accepted theories of how judges decide hard cases have169 We seem to need the security of certainty. For us, certaintyresides within rationality-a belief that things are so because theymust be so. The search for certainty, from the greeks on, has beenthe search for absolutes. Wittgenstein's real point is that we canbe certain of things in our world, but there are no absolutesbecause nothing we do is tied to truth."How am I able to obey a rule?"-If this is not aquestion about causes, then it is about the justificationfor my following the rule in the way I do.If I have exhausted the justifications I have reachedbedrock, and my spade is turned. Then I am inclined tosay: "This is simply what I do." §217, PhilosophicalInvestigations.170 Wittgenstein, Philosophical Investigations at 22382incorporated a positivist perspective.m H.L.A. Hart has arguedthat "Hard cases" are determined by the judge exercising adiscretion.172 Law consists of the primary social rules which areto be found in any society by virtue of being a society where thereare norms of interaction. With this there evolve secondary formallegal rules which impose obligation. The assumption is that legalrules have a clear core meaning. Beyond this core meaning driftsinto ambiguity, and therefore uncertainty. The lawyer thereforemust attempt to characterize the facts as falling within this core.If the lawyer is successful, then the judge must apply the rule,even if the result is irrational (the "rule of recognition"). Ifthe lawyer's characterization takes the situation outside of a coremeaning, then the judge must legislate.Ronald Dworkin argues that law is more than rules, it also consistsof principles and policies."3 Here the judge is to weigh orbalance the interests of the parties and must find for the moreimportant interest. This appeals to an objective standard whichlies within the law and remains for the judge to find.A current approach to legal rationality is based on a coherence171 Smith and Deedman, supra note 6 at 87172 H.L.A. Hart The Concept of Law [1961] Chapter VII.173 Smith and Deedman, supra note 6.83theory-law as a narration.174 This notion of creating the world byinterpretive or hermeneutical understanding is a an idea thatknowledge can be derived through language which is embodied in asense of purpose-a sense of social actions. This current turn to anintersubjectivity in communication and meaning (that is to say, the'interpretive turn') is a further attempt to found a rational dis-course which makes the break from positivism.175 Dennis Pattersonhas endorsed this model applying a Wittgensteinian approach to rulefollowing. 176174 This approach is expressed by Dworkin in "Law asInterpretation" 60 Texas Law Review 527 (1982), and see also his"Law's Empire", particularly chapter 2; also the anthology ofStanley Fish, Doing What Comes Naturally.With the recognition that understanding is tied to culture, andtherefore becomes a hermeneutical viewpoint, theory attempts torestore the possibility of a rational discourse. This theory is putforward for two distinct tests for coherence; "normative" coherencewhich seeks to justify legal rulings, and "narrative" coherencewhich seeks to justify findings of fact and inference fromevidence. As MacCormick posits, Coherence is always a matter ofrationality, but not always a matter of truth. See Jaques Lenoble"Narrative Coherence and the limits of the Hermeneutical Paradigm",at 135-139.175 This phrase (from Jaques Lenoble, "Narrative Coherence" at 138)refers to the turn away from a representational view of language tothat of an interpretative methodology (perhaps best characterizedby the differing hermeneutical philosophies of Habermas andGadamer) derived from our lived-experiences which begins in thethinking of the later Wittgenstein. See Rorty on this in PMN.MacCormick suggests that "Hart's primary distinction as a legaltheorist is that he introduced the hermeneutical method to ourjurisprudence." See N. MacCormick and 0. Weinberger, AnInstitutional Theory of Law - New Approaches to Legal Positivism,at 135. The theory consists of two coherence criteria; normativeand narrative (factual).176 Dennis Patterson's "Law's Pragmatism: Law as Practice andNarrative", in Wittgenstein and Legal Theory. I refer also to twoother writers who have considered Wittgenstein's thinking; Hart'swell-known The Concept of Law, and Alexander Camera in his84In a recent article on Wittgenstein, Dennis Patterson examines theKripke/Hacker debate on rule-following. Mr. Patterson accepts themerits of both positions but then suggests that:"...the determination of what a legal rule requires is arrivedat through the disclosure of the point of the rule in a legalsystem, a 'disclosure' that is essentially a matter of socialanthropology. In order to follow a rule, we must know thereasons why the rule exists as part of the normative structureof law."177He distinguishes social practices, such as law, as having prescrip-tive as well as constitutive elements. That is to say he arguesthat a social practice such as chess as a game is constitutive;identical and co-extensive with the sum of the rules. Law on theother hand, with "primary" and "secondary" rules, embraces whatHart describes as a "critical reflective attitude" that entailscriticism, conformity and justification.mIn contrast to games, normative practices like law provide forthe evaluation of conduct by reference to norms that areanalytically antecedent to the rules that embody them. Normsare embodied in legal rules that are comprised of conceptshaving the character of "open texture".mPrescriptive rules state "ought" conditions. It appears then thatit is this moral constituent which lies as the reflective criteria.This model of rule following adheres to Dworkin's "InterpretativeAttitude" in Law's Empire.18°"Linguistic Study of Legal Reality", who has effectively exploredHart's restricted application of Wittgenstein.177 Ibid at 96.178 Hart, supra note 172 at 56.179 Patterson, supra note 176 at 97.180 Dworkin, Chapter two, "Interpretative Concepts" at 4585Having tersely, and hopefully not prejudicially, set out Patter-son's premise, we will seek to place this within the current debatebetween knowledge-as-practice (ethnomethodological study of work(ESW) as held by Garfinkel/Lynch) and the knowledge-as-scienceschool (the sociology of scientific knowledge (SSK) set out byBarnes, Bloor and Shapin) which incorporates the arguments of theprevious section.m Although both camps incorporate Wittgen-stein's thought, as with any expropriation, their fidelity shouldbe questioned.Lynch sets the rule-following debate as being between rule-sceptic-ism; that the relation between rules and conduct is indeterminate,and that it is social conventions and learned dispositions whichaccount for rational conduct, and antiscepticism; that rules areinseparable from practical conduct.182We will place Patterson within the rule-scepticism camp because wesee him as placing meaning as isolated from the practical exper-181 For a current assessment of the state of this debate, seeAndrew Pickering's anthology Science as Culture and Practice[1992].182 Michael Lynch, "Extending Wittgenstein" in Science as Cultureand Practice [1992] at 217. Lynch falls squarely into theantisceptic camp. He places rules for the ESW as being an internalrelation (and hence determinate based upon the criteria set out foran act), while he places Bloor and the SSK camp as being scepticsand constructionists.86ience of the agent who constitute's the rule.m While this maywell be the appearance of law, as seen in legal doctrine, we argueit is not the actuality of law. "Interpretation" reveals theproblem raised in our discussion on theory underdetermination. Ifwe cannot explain an action based on the facts (because they arealways inadequate) how do we relate the point of law?The effect of the antisceptic argument is to place, as we have seenin Foucault's inference, that institutional practices establishmeaning through ostentation (the point) rather than the social(internal) conditions which give rise to language use. Social valueis thus consigned to the wisdom of the institution. The means ofverification is precedent. The sceptic effects closure between therule and the practice using the (external) convention of judicialarbitration which lies outside of the practice itself. 184 Yet we183 I could paraphrase Kripke here and say "Patterson, as he struckme." His sociological stance is set out by his initial assertionthat "...what constitutes acting in accordance with the rule isdetermined by the point of the rule and is analytically andspecifiable apart from the rule." I do see his initial stancehowever as being "constructive". By this I mean that Patterson isattempting to inject a validity or justification for legal ruleswhich lies outside of the practice itself. Patterson adheres tooclosely to Hart. I am not sure if Patterson has acknowledged thatHart, who although he uses Wittgenstein's thesis, does not draw theradical consequences of Wittgenstein's ideas i.e. Hart sees law asa unity of rules. As a positivist, Hart continued to hold toempirical criteria as a means of justifying legal validity. This isa point brought out by both Smith [1976] and Camera [1992]forthcoming.184 We shall, in the following Chapters, give an description oflanguage use which suggests the effect of institutional thinking.We recognize that language is figurative. We agree with Foucault(and Heidegger) in that Institutional thinking takes its precedentsas literal interpretations of reality. The position we are87see that this point gets ahead of itself. From where does thisinstitutional thinking arise? The question we must ask is; what isthe origin of the precedent?As lynch notes, the critical move for the sceptic is to isolate theformulation of a rule from the practice which it formulates.185This is Foucault's point. Once we are left with merely the literalform of the rule, we are forced to interpret the rule in its exten-sion. That is the explanation of the rule is made outside of itsapplication through a social construct. Wittgenstein sought todissolve this kind of "foundational" dilemma (i.e. the realist-antirealist debate) by the examination of grammar in which suchpractices are conducted.186If we think of Chess it really makes no sense to think of it as aattempting to put at this point in time is for those cases wheregoal values are legitimately uncertain; the so-called hard cases.The hard-case is where there is no institutional position that thejudge can readily speak. It is something which calls for adecision.185 Ibid, note 181 at 226.186 When we speak of a "rule" we are saying there is a way of goingon. If I have a formula such as Xn + 2 then to doubt the followingof the rule is not to doubt its application but rather it is todoubt that there is such a thing as a "rule." At S189 Wittgensteinasks "But are the steps then not determined by the algebraicformula?". So the question is miscast. To follow a rule is tofollow something within what the rule itself sets out. The questionthen turns to simply whether it is correctly applied. This is nota question of interpretation but of knowing the rule. S189 then isa question which presupposes an independence between the rule andits application, i.e. that rules are "entities." This is thePlatonism which Wittgenstein sets out to refute. See Lynch at 227,also Baker and Hacker, supra note 107 at 74.88collection of rules which comprise its self-identity. Chess, likeall games, is social activity involving strategies and decision-making. Rules are about explaining the parameters within which anaction within the game occurs. We cannot think of a game as a gamewithout an already present notion of what games are. In this senseit is wrong to say that a game is the sum of its rules.187 Do weperceive Law as something other than a phenomena arising from oursocial world?Smith and Coval have set out for us that decision-making is tied tothe functions of agency and the set of values to be found withinthe relations of its practice. What we must ask when a legal deci-sion is made is: Of what does the Law speak? The being of the lawmust come before the speaking of the law. We have been tempted tosee law as something separate from the activities which it regul-ates, as if it sits atop of our social life guiding us in oursteps. When we wish to know "right" from "wrong", we find this in"Law" itself. This picture is reinforced by the way we "do" law. Welook at statutes and precedents to validate what it is we say. Yetthere is a certain fallacy to this. The presupposition fallacy(which Patterson, like Hart before him, falls into) is that because187 At S68 (PI)For how is the concept of a game bounded? What still counts asa game and what no longer does? Can you give the boundary? NO,you can draw one; for none has so far been drawn"But then the use of the word is unregulated"-It is noteverywhere circumscribed by rules; but no more are there anyrules for how high one throws the ball in tennis, or how hard;yet tennis is a game for all that and has rules too.89the "Law" speaks that it in some way exists independent of oursocial life. This is the fallacy which arises if we fail torecognize the true relation between language and reality; thatlanguage is a cultural artifact.188 The speaker of this languageis the institution itself.In looking to Patterson's position we see that it flows fromWinch's early sociological study of Wittgenstein.189 Winch showsthat human beings follow rules because they "know the right way togo on from their training. "m Winch contrasts this to dogs wholearn tricks and are merely acting the same way based on pastbehaviour. It is this example which is to show us the differencebetween the dog's stimulus-response and the human being's "criticalreflection". 191 Dogs then are without an origin, without a history.188^Hacker, in Meaning and Understanding at 614, canvasesWittgenstein's treatment of the effects produced by a machine. Thepoint here is to distinguish the ability of the object and itssubstantial form, to point out that the ability is not identicalwith the object. "science explains powers by discovering underlyingstructures, but it is a mistake to think that it reduces powers tothe structure of their vehicle." at 611. This is a revolt againstreification of grammatical concepts [such as "mind" or "law"]. Itis instead that through our construction of law and world in thelegal case that we provide a sense of what it is we experience.189 Peter Winch, The Idea of Social Science and its Relation toPhilosophy [1958], particularly pp.24-40, and pp.62-64Ibid at 62191  This argument sounds very much like G. E. Moore's attempt toprove the external world to the solipsist by arguing that the handin front of him is his own, and he "knows" (i.e. has a consciousobject) that the hand in front of him is his own, and that everyoneelse knows it too. We know rules by applying them correctly in thepresent situation. A dog behaves like this no less than a person.A dog seems to able to grasp the point of learning tricks. We call90Hart's "critical reflection" leads us to examine our history. Inlooking to law's doctrinal discourse, Hart find's "open-texture"terms which are unintelligible without context structuring. Howeverif we are speaking about a rule following practice, then the ruleitself must be practically rational or else it is makes no sense tospeak of "rules" which constitute a practice. This is that theextension of the rule, its future application, is internallyconnected to how we apply a rule. Patterson states that it isHart's critical reflection which separates what is a rule in lawand in chess.192 Yet this reflection only arises if we see law asseparate from the actions of its concern.David Bloor points out a weakness of Winch's argument, which alsosuggests a problem inherent in Patterson's approach.m Bloorsuggests that Winch, unlike Wittgenstein, tries to draw boundariesaround our social behaviour.194 What Dworkin, Hart and Pattersondo is to set out that the judge is free to discover the "proper"dogs "intelligent", "clever" and such. It's merely that we don'tattribute human thinking to a dog. There is much argument (Bloor,Putnam) that suggests Wittgenstein wants to look at human responseand action as a biological derivative. Dogs are presumably firmlyin the ethnomethodological camp.192 Ibid at 96-7193 David Bloor, Wittgenstein: A Social Theory of Knowledge [1983],in chapter 8 "Positivism and Social Pessimism".194 Ibid at 17391interpretation of the rule.195 The community-consensus constructimplies there is an authoritative (i.e. "correct") position whicheliminates the so-called indeterminacy of multiple perspectives.Bloor points out that rule-following is about the agent actingrationally. To reflect on this rule other than in its applicationmeans that we must follow another set of rules; the rule which, forPatterson, tells us what the point of the rule is, a rule which isrevealed through an interpretation.m It was this observation195 For Habermas it would appear that in order to interpret, theobserver is to renounce the privilege position of the observer,they are to become involved. In becoming involved in communicativeacts the observer assumes in principle a status identical to thepeople whose statements they seek to understand. This understandingthen, like law, is undertaken in every speech act, in every case sothat reality is reconstructed. The consequence would appear thatthe validity of the normative proposition is not truth (which canbe neither verified or falsified) but "rightness". This rightnessthen is dependent upon the carrying out of the argument rather thanthe monological play of thought. The argument must constitute an"ideal" speech act where every avenue is open for interpretation.Such a universalization is contingent upon the pragmaticpresuppositions by which meaning is deduced. This is clearly anidea in the Kantian sense-a transcendental ideal. It is a modelwhich presupposes a critical self-reflection which can thenprogress to the ideal of transparent communication. This is firmlyrejected in Gadamer's hermeneutic model in which all reference isprejudiced. In this Gadamer rejects the possibility of a meta-language within which questions the link between legitimate actionand truth (through reason) which Habermas seeks to obtain. SeeLenoble's "Narrative Coherence" at 141-157.196 This is Winch's conclusion, supra note 189 at 85:"The Phenomena being investigated present themselves to thescientist as an object of study; he observes them and noticescertain facts about them. But to say of a man that he doesthis presupposes that he already has a mode of communicationin the use of which rules are already being observed. For tonotice something is to identify relevant characteristics,which means that the observer must have some concept of suchcharacteristics; this is possible only if he is able to usesome symbol according to a rule which makes it refer to those92which led Dworkin to argue that the sceptic cannot both attack theground upon which rests our moral values, i.e. the belief thatslavery is a bad thing, and at the same time hold these moralvalues herself.w The belief that reflection is required in rulefollowing separates the actor from the act. It severs the internalrelation between acting and understanding.To ascertain the point of the rule through critical reflectioncreates an intractable problem.'" To place the reason for a rulerequires that we must observe; we theorize a judgment about theconcept. Yet Winch has told us that to observe we must use conceptswhich make the act rational.'" For Patterson, it is a matter of"constructing a purpose or rationale for law. "1200 Yet if weseparate the rule from the act, we deny the understanding of theagent (i.e. those who "do") for the understanding of the jurist(those who "know"). This understanding is indeterminate. It is theagents understanding, set against a background of customarycharacteristics.197 Dworkin, supra note 174 at 82-3.198 Bloor, supra note 193 at 175.199 Bloor points out that Winch's approach to culture is similar toKant's transcendental unity of apperception (see Chapter One, note17, supra). To see the world, for Winch, requires an a prioristructure of the mind and an organization which is imposed upon thedata of experience. Spengler and Derkheim posited this ashistorical and cultural. It is however precisely this kind oftranscendental argument which Wittgenstein is attempting to escape.See Bloor, ibid at 175.200 Patterson, supra note 176 at 9993practice that counts as being in accord, or going against the rule.It is this language of the agent which sets out the law.mWhat is required then for legal validity is to show that lawconforms with our way of being in a community, our form-of-life,and not be seen as the imposition of a particular point of view.This "point" of view is always the obstacle to legal validity andnot its verification. A point of view arises when we are notembodied in the action itself. To see this is to see that we do notact because of the law rather we act within law. What counts ascriteria for following the law is set out in the action itself.Obeying the law is tied the explanation for our actions.Putnam relates that an institutionalized use of language (within alanguage-game) is necessary for language (or thought) to have anymeaning at all. 202 What I think I mean must fit with what I mean,201 Smith and Coval, supra note 49 at 98-99 put it this way insetting out the language of an action:The manner in which we must particularize an event is withdescriptions which refer to it uniquely. The event we wantwill have to satisfy that description, namely that it is theevent which in the particular circumstances of itsoccurrence...will satisfy the events within the agent whichcaused it.What is being suggested is that if the law is connected toregulating actions (and therefore goals) of agents, it must do sothrough the language which particularizes the event. Otherwise itis not regulating that action. The law therefore is derivative ofthe activity itself along with the goal-matrix which constitutesthat activity.Putnam, Reason, Truth and History [1982] at 107.94and my thoughts fit within a language. When I say, with Putnam,that "Cats don't grow on trees", I am sure that cats are what theyare because I don't think of a cat any other way. The truth "value"of this statement cannot be justified any further than by the factthat cats don't grow on trees. Institutions, to make any sense atall, develop a use of words tied to the rationality of what it isthey speak.Legal language is used to sanction the function of agency fromwhich law is made manifest. As is implicit in Wittgenstein'streatise, while we can observe that judges make verbal utterances,we cannot be sure from a detached perspective what rule is beingapplied. To understand a concept is to understand the grammar forits use. Legal rationality is to be grounded within what constit-utes acceptable actions and goals.Our presupposition is not that we must reveal reality through legalargumentation, but that we use legal language to justify actionswhich are already set out in social practice. When we seek, in themanner Patterson does, "what is the point of the rule?" by examin-ing with Hart for a construed rationality, we risk mistaking ajustification of the imposition of legal force with the validity ofthe rule itself. The point is already set out within the Action. AnInterpretative methodology is an attempt to inject humanism in thelaw. We argue that the language of law is not interpretation butrather that it is authoritative; constituted to enforce the95relations between agents.Smith puts it that for law "the social pressure generally entailscoercion through the application of authorized power or force."203If we recognize Smith's argument, then legal language is part ofthe practice of rule following but it is not the rule itself. Lawcannot be validated by reference to its stated rationality. Lang-uage follows understanding.We come to what is basic in our understanding. What is most basicis what we do, the everyday activities of our lives. The attempt toget beyond this subjective aspect of our lives leads to presupposi-tions about the world which are unverifiable. An objective accountof the world cannot get us beyond the subjective account whichconstitutes this world. 204 What is objective for us is the socialplain within which actions take place. A subjective account cannotmake sense outside the world which gives subjectivity its place.Any argument for a "ground" for a rule is to miss Wittgenstein'skey point about rules. Rules are reasons. We get no further usingrules to justify a rule. There lies nothing below the meaning humanbeings give the world. In this we say that law is about "what we203 Smith, Legal Obligation at 31. See also the pointDerrida, supra note 7.204 This is the main point Dwyer makes in his Senseivity [1990] which is an interesting assimilation ofand Merleau-Ponty's methodologies.made earlier;and Subject-Wittgenstein96gg 205do.^Rule application is not a matter of interpretation. Thereappears to be no rule, no circumspection, which can fit over bothwhat the law says and what it does.205 Wittgenstein recognized that the hardest thing for us torealize is that there is no ground to explain why we are: to givea "true" meaning of why we do what we do. In On Certainty at §110he states:"What counts as a test?-"But is this an adequate test? And ifso, must it not be recognizable as such in logic?"- As ifgiving grounds did not come to an end sometime. But the end isnot an ungrounded presupposition: it is an ungrounded way ofacting."In Philosophical Grammar (§244) Wittgenstein remarks that "Youcan't get behind the rule because there isn't any behind." Theworld gives us truth, and human beings give meaning. Life just is.97Chapter Three^The Real as Reasons: Aspects of Explanation3.1 Interpretation and ExpressionWe possess art lest we perish of the truth206We have suggested that law is tied to practical action. In this theunderstanding of legal language is an ability to effect goals.These goals are constituted within our form-of-life. When agentsact they affirm a rationality which is derivative of socialpractice.207 Legal language is to be seen as an artifact of thesocial world. We have suggested one thematized understanding of lawas purposive; law manifests as the ordering of agent actions andgoals.We will now consider the legal qualification of an agents' action.We have seen that to follow a rule is tied to the explanation wegive for an action. An action can be interpreted by the various206 Nietzscheaw As Heidegger tells us, expression reveals itself as such onlybecause it is previously understood as expression, that Languagealready speaks. Experience (Erlebnis -the sense of immediacy)therefore cannot transcend itself-it is in the sphere of subjectiv-ity in that language refers back to the "I" (who has learnt itsuse).98aspects or the sense of the situation. NM The role of the lawyeris to articulate the intelligibility of the sense of the situationthat accords with the client.In this we mean that the lawyer is concerned with justifyingagency: showing that the agent acted in accord with a rule. It isin this that the lawyer becomes concerned with facts. By tying theactions of the agent to customary practice, the lawyer seeks toplace the an event within the rule. In this the lawyer constructsthe legal reality of the agent. This we might call an act ofimagination.209 Legal understanding is the capacity to see therelationship between actions and the creation of legal concepts.The articulation of law is derived through the use of analogy.Analogy is used in law as a means of predetermining the content ofthe legal debate. It transforms the facts of the external world toNM We have already noted in Chapter two that, for the actor, thereis no gap between an interpretation and its application. We meanwhat we think we mean. We believe what we think we believe. This isnot something thought like an opinion. It is reflexive.Interpretations are a social element. They are a form of knowledge.An interpretation acts as the signpost to the rule. Withoutapplying the rule, the interpretation "hangs in the air" (PI S198).209 Sartre, in a line of thought we will reject in section 3.3,characterized the imaginative act as constitutive, isolating andnihilation of the world. Sartre means that in imagination, a self-reflective conscious attitude towards the world, we posit theobject as existing somehow apart from the world. In this way wecreate world as world. Before consciousness, there is only theundifferentiated being-in this way the imaginative function is thesame as conscious in general, its essence, its means of distingu-ishing itself from world. See Sartre, The Psychology of Imagination[1991], in the chapter on Method, and Being and Nothingness [1966],the Introduction, "The pursuit of being".99possess a legal meaning. It can do this because analogy resemblesthe real world. This resemblance rests on the belief that you cancompare that which exists in the external world to that whichalready exists in the legal discourse. This represents the fusionof experience with legal knowledge. In this fusion we createlikeness within the context of what we, the lawyers, already know.The use of case law doctrine articulates a representational imagethat creates the basic meaning in the legal domain. This way ofarguing reflects a circular picture, that is, a mirror of the worldwhich is in its essence a reflection of the "legal self".Legal knowledge is ultimately, for the lawyer, about acting inorder to resolve situations. The lawyer adopts a certain attitudeabout what is open for them within the context of legal situations.When we consider the role of computer technology within thepractice of law, we are to consider the computer's utility inassisting the lawyers to satisfy the legal situation.2" In this,Gadamer has recognized a separation of the cognitive from thepractical aspects of discoursel:210 For perspective on Artificial Intelligence which seeks to setout an approach based on situational context, see Winograd andFlores Understanding Computer's and Cognition [1986]211 Dallmayr points out supra note 11 at 1462 the linkage of under-standing and praxis has implications for the approach to all humanscience.In both legal and theological hermeneutics there is theessential tension between the text set down-of the law or ofthe proclamation-on the one hand and, on the other, the sense100The jurist understands the meaning of the law from the [vant-age of] the present case and for the sake of this presentcase. As against this, the legal historian [theorist] has nocase from which to start, but he seeks to determine themeaning of the law by considering constructively the wholerange of its application.212What the lawyer necessarily does in a legal situation is to inter-pret and apply legal text to the facts of the world. It is in theinterpretation itself that the meaning of the text is made con-crete. In this the lawyer sets about seeing the world intention-ally, with a purpose of making it her own. Reading the text is withthe necessity of making the text conform with how the agent acts inthe world, and in conformity with how the lawyer understands thelegal presuppositions. It is in understanding the presuppositionsthat the lawyer reveals imagination; the ability to see the textcreatively and to construct a legal reality. 213arrived at by its application in the particular moment ofinterpretation... (Gadamer, Truth and Method at 275).212 Mid, See Gadamer at 290. Dallmayr argues that for Gadamer thisdoes not suggest an objective versus a contingent meaning of law.Neither the jurist not the theorist can fully extract themselvesfrom a practical engagement with the law. Gadamer's point is thatwe are embodied within the present, we are in a temporality. Howcan we know the change in circumstances which give meaning now, themeaning previously? As we have seen from Wittgenstein'scontribution, we can only understand a situation by "grasping" orunderstanding the constitution of its content which gives thatsituation its meaning-it is a lived experience dependent on how wecome to know the world through being in the world and engaging inthat world. The problem Gadamer notes is that "...when faced withany text, we have an immediate expectation of meaning." (Truth andMethod at 292).213 The genius of the lawyer is that they are obliged to express aworld in which they are not part, to speak of something theythemselves are not engaged. The lawyer is not a mere observerhowever in that a case is presented with a client. The ability ofthe lawyer is tied to this relationship and the ability of thelawyer to understand the client's case. The "expert" is one who has101Hermeneutics is the recognition that the individual is embodiedwithin a social and cultural life.214 This life is largelymediated to the individual by social practice. It is because ofthis that history; traditions and pre-understanding, cannot beeliminated from an individual's perspective. As a social being weare bound within an ideology. Hermeneutics then, according toGadamer, is not merely an approach to interpretation, but ratherbecomes the very means to knowledge. There is in dialogue a "fusionof horizons" between the subject and object.215 The fusion iscontingent upon the presuppositions speakers bring with them. Gad-amer phrases it that "In the course of our reflections we have cometo see that understanding always involves something like the appli-cation of the text to be understood to the present situation of thea deeper understanding of the actions of the agent and theapplication of law. Genius lies within the rhetoric they bring tobear on the dispute.214 Hesse supra note 8 at 180 in Chapter 9, "Interpretation andReality". Hermeneutical Phenomenology recognizes that the itsproduct is the interpretation, it is not a methodology.215 Wilhelm Dilthey, in his later works, suggests that thehistorian need not see the text limited solely to an objectrequiring an extraction of the psychology of the author. In histheory of the "Geisteswissenschaften" he recognizes that the eventswe experience as presented to our conscious (i.e. intentions,ideas, emotions) are private for us. Yet humans, in the very act ofexpression, objectify this in the intersubjective world, as forexample in a work of art. It is this objectification we understand-"We call understanding a process by which, thanks to the sensuallyperceptible expressions of mental life, the latter is made known".Understanding becomes perceptible, a consideration of theexpression-consciousness is no longer transparent to itself buttied to a social, cultural, artistic product. See Stephan Strasser,Understanding and Explanation [1985], at 5ff.102interpreter. ,,216For Gadamer all text is situational. It is subject to new inter-pretations and meaning which are contingent upon our orientationand perspective. Interpretation becomes a dialogue between the pastand the present. With this view of the world, a reconstruction ofmeaning for "truth" must be abandoned.217 In the course of everylegal action a legal world is reconstructed.218 Gadamer puts itthat cultural variations merge into "understanding". Each case isa reappraisal of "truth" where social goals are in contradiction.Meaning is circumscribed within the parameters of the legal216 See Gadamer, Truth and Method [1966] at 274-275, as quoted fromDallmayr, supra note 11 at 1461.217 Habermas warns us here however that we cannot deny the effectof ideology in language. We must be sensitive to the negation itimposes on the non-dominant class. We are therefore confronted withthe challenge of giving voice to that experience which does notspeak within the language. This is his quest in the search for aconsensual ideal speech act.218 Fish [1989] points out in "Working on the Chain Gang" at 95,that Freedom of mind and independence of text embodies legalrealism and positivism, something Dworkin particularly denies. Hesummarizes at 102 that:"In order for a case to appear readable independent of someinterpretative strategy consciously employed, one must alreadybe reading within the assumption of that strategy andemploying without being aware of them, its stipulated ...definitions, terms, modes of inference, etc.... I would bedenying the distinction between hard and easy cases, not as anempirical fact (as something one might experience), but as afact that reflected a basic difference between cases that areself-settling and cases that can be settled only by referringthem to the history of procedures, practices and conventions.All cases are so referred (not after reading but in the act ofreading), and they could not be anything but so referred andstill be seen as cases."103discourse because every social practice is subject to a change inthe dynamic which creates the rule.The Romantic notion of empathetic understanding-with its concernfor reproduction-gives way to the active or productive interpret-ation, as exposed by Nietzsche (active within the notions of commonsense) .219 This is an important aspect in that it is a mistake ininterpretation of a text to see it as the recovery of the mind ofthe author. Because no situation is ever identical with itself wecannot re-create the setting of the text. For Gadamer, there can beno independent validity for each element of understanding betweenthe theoretical, practical and the aesthetic. 220The notion of determinacy within a text appears entwined with the219 McGill, supra note 25 at 20ff.ZM Ibid at 24. Gadamer, echoing Heidegger, argues for aestheticsbecause art is the attempt to bring in the unspeakable, thebackground within which we dwell, into a communicative form. We areto realize this message is recognizable only for those who alreadydwell there.In On the Way to Language [1982], at 17, Heidegger suggests thatJapanese culture and 'the film' are incompatible because the mereframing of a film forces an objectiveness onto the sphere of theworld. This, the product of mechanistic art, destroys that which itattempts to capture. The 'gesture' in the work of a No-Play (thetraditional japanese form) is what creates the space within whichthe art occurs. Walter Benjamin has previously recognized thiseffect in an essay entitled "The Work of Art in the Age ofMechanical Production." There we see how the modern western actoris turned from creator to object as the camera destroys the elementof distance, of space, which is so important in the japanese No-Play. To understand this is to understand that the world is neverempty, it is never devoid of meaning. Emptiness becomes anencounter in which we bring present that which is concealed.104principle of identity. m As we have argued, it is not the rulewhich causally determines an effect but rather it is the manner inwhich the action is explained, how the action is said to be what itis, that concerns the lawyer. 222 It is how we make sense of theworld. The "intentionality" of this meaning is directed by mypurpose. It is this purpose (telos) which must guide the lawyer inm Staten, supra note 16 at 131-135. Eagleton supra note 43 at 82-86 sets out Hirsch's alternate position which moves for thepreservation of the text independent of the reader-the meaning ispurely the author's without alteration by a reader. Hirsch arguesthat without a rigidity of the rule, there is no norm of interpret-ation. In a world of public language we may ask if it makes senseto speak of meaning as being one's own. A problem with his positionis that we cannot know outside of our own hermeneutics what a textmeans, what the author intended. It always is interpreted in time,within a temporality. Hirsch is attempting to circumvent completerelativism-where there is no fixed meaning.Staten (at 140ff) sets out Hisrsch's phenomenological approach tomeaning. To preserve determinacy it is, for Hirsch, necessary toconstruct meaning as an object which is of, and belongs to, aconscious subject. In rendering meaning as an object, Hirsch wishesto detach psychologism from the text (which would be variable andunstable). Hirsch draws upon Husserl's phenomenological distinctionbetween the act of conscious and the intentional object ofconsciousness (see footnote 24, supra). Verbal meaning, asintentional object, remains stable across the accidentally varyingmoments of consciousness of the intending subject.The verbal meaning is a theory of "type"- a class conceptindependent of its actual embodiment in a specific instance. It isin this that verbal meaning is sharable, a possibility of multipleapplications or contexts. This application-its determinacy-isconstrued by the interpreter through an act of will. My will makesmy meaning my own. In so exercising my will I have created then theintentional object which is embodied within the text. The reader toconstrue the meaning of the text must be subservient to my will.222 What Kant saw is that in applying thought to experience, wecannot avoid to some degree a conceptualization. It is languagethen (the naming) which subdues the object it creates. So inthinking we subdue what we seek, so that we can never actuallyattain the goal of the thing itself. See Heidegger, supra note 19at 25.105the interpretation of the text.mThose who argue that law is indeterminate focus on the word whichis incomplete and therefore ambiguous. This ambiguity is thefountain of indeterminacy. For the Rhetorician however the partialdefinition is what enables thought.224 In classical Rhetoric it isthe play or invention which enables multiple judgments to be app-lied in a situation which has multiple possibilities. This play isfacilitated by relative indeterminacy rather that the radicalindeterminacy of the legal realist or post-modern deconstruction-1st.Staten relates to us Plato's attack on poetics (that which dividesthe soul) in Book X of the Republic:The higher part of the soul, on the other hand "trust measureand reasoning" which provides a standard against which indiv-223 This requires an orientation, a pre-understanding. Gadamernotes that we bring to the text an expectation of meaning. AsWilliam James puts it "We feel its meaning as it passes." (WilliamJames, The Principle of Psychology Vol 1, at 253; as in Hacker;Meaning and Understanding, at 601).Under the traditional epistemological view of knowledge, Husserland Kant argue that we can never know the thing-in-itself, therecan be no absolute knowledge because our perspective is temporaland partial. To know the whole, the phenomena, would blind us inits excess. we are able to speak because knowledge is not entirelypresent within conscious, it lies waiting in an idealized formwhich is actualized in speech. Consciousness is the essential now,which arrests the unseen-already-there of the unconscious. WithWittgenstein in mind however, we would argue that "knowledge" doesnot sit there waiting to be discovered. Instead the world is aprocess of new understanding, new ways of doing what it is we do.224 Wendy Olmsted, "The Uses of Rhetoric", in Philosophy andRhetoric, Vol. 24, No. 1 [1991] at 2106idual perspectives may be set. But this higher part of thesoul is seduced away from the objective measure by the charmof language. "the poetic workman dabs on certain colours byusing the words and phrases of the various thatothers, as ignorant as himself, taking their view from words,think he is speaking magnificently...So great is the naturalcharm in this manner of speaking. u225The higher part of the soul seeks that which is unchanging, theabsolute truth. We, the audience of this speech act, must be waryof the speaker's truth, its seductive rhetoric.Olmsted uses Levi's text to illustrate legal ambiguity over theshifting of referents as the use of the words apply to new situa-tions. 226 She makes the distinction between "inherently dangerousthings" and "things not of themselves dangerous" which change asthey came to refer to new objects-loaded guns, defective lamps,defective coaches and finally defective automobiles. "What waslatently dangerous in Thomas v. Winchester became.. .just plain orprobably dangerous.11227 In this light, indeterminacy isrecognizable only where the world is rigidly divided into theliteral and the figurative.The forms of rhetoric relevant to legal reasoning are argument byexample (analogy) and analogical figures (including metaphor andsimile). To argue by example is to cite the circumstances of onecase and to show how they resemble the facts of the present case.Staten, supra note 16 at 135.Olmsted, supra note 224 at 7.227 Ibid107In this legal analogy resembles faulty inductive logic.m Itinvariably strains the facts to fit the picture. "The steps arethese; similarity is seen between cases; next the rule of lawinherent in the first case is announced; then the rule of law ismade applicable to the second case. " 229As we have noted in section 2.3, the similarities are a matter offact construction. This is a rhetorical discovery as the lawyerargues the existence and relevance of a state of affairs, "thefinding of similarity or difference is the key step in the legalprocess.1,23o Similarity of sense is conveyed through themetaphorical quality of words to evoke an experience. It is throughderiving similarity, the construction of what is, that the judgecan then determine the issue of conflict. Rhetoric acts as theguide in its construction of facts as to where lie the socialtensions. What we may recognize from our discussion on rulefollowing is that at this point the case is essentially determined.We have explained the action. If the action and the customarypractice has been properly presented through the language of theJohn Stuart Mill's in a supplement to Logic outlines thepossibility of applying inductive logic to human sciences. Humansciences are, according to Mill, concerned with establishing thesimilarities, regularities and conformities to a universal law thatwould predict individual processes and phenomena. This is known asthe Geisteswissenschaften. See George Wright, "On a General Theoryof Interpretation", in The American Journal of Jurisprudence Vol.32 (1987) at 191 for a discussion on the work of Emilio Betti onLegal Hermeneutics.Levi, An Introduction to Legal Reasoning [1949], at 2230 Ibid at 2108agents, then we have as noted in chapter two, even hard cases aredecided. We apply the rule blindly. It is in this that what the lawdoes is not a question of what the law is, rather what isestablishes the possibilities of what the law does.z"An interesting point which Olmsted brings out is that legal termsbecome too determinate.222 What ambiguity enables is the transmut-ation of meaning from one situation to another. As she says "theinability to formulate a term may prevent change. The legal under-standing of a single case can change when that case is set next toa later one; reasoning by example may allow new considerations to231 This raises two points. Dwyer, Sense and Subjectivity [1989]at 215 speaks of freedom. He quotes Hegel's pun "essence is whathas been"; that is, we are our past. Yet the notion of freedom istied to choice. Choice is the transcending of our past. This isHeidegger's point. We are always projecting ourselves forward. Weare never wholly constituted by the present.The second point is that of determinacy. In terms of theapplication of a rule, the indeterminacy of sense arises out of anindeterminacy of appearance. Once the picture is clear, so is therule. This raises what is perhaps the question. If the meaning ofa word is its use, how do we communicate this meaning. This is theproblem, in the building of expert systems, as to how we create aformal representation of practical actions. Lynch suggests (at 285)that "...once we no longer assume the classic posture of anobjective observer, the general problem of indexicality dissolves."We will discuss the schematization of practical actions further inChapter Five. (Indexicality is the dilemma of a standard meaning ofa term; such use cannot be readily "objectified" if the meaning iscontextual. i.e. does "here" refer to this page, this place, thistime?)232 Olmsted supra note 224 at 14. This remark reflects SarahKofman's treatment of metaphor in Nietzsche's work (infra). It isthe play of words which enables the expression of new experience,it allows the human will to speak. Where words become rigid, theylose the play which enables freedom of thought.109emerge."2253 It is in the placing of situations in juxtapositionthat reveal we the characters of both.Analogical figures are also a means of revealing what is constitut-ed within an event.254 Simile reveals a picture which evokes ameans of going on, of seeing what to do. Simile is a means ofanticipating how we should look at the extended simile. Suchcomparisons are not guided by the terms used, such as "inherentlydangerous" but by the whole situation, a way of relating the storyto human action.25To practice in law would appear to be a matter of remaining loyalto the myth and the metaphors. Loyalty is established by severinglegal reasoning from the contingency of culture. Legal concepts arebeing hypostatized and therefore neutralized. This fundamental con-fusion is vitalized as a way of keeping the wheel going.2253 Ibid at 15234^Here Olmsted provides the illuminating example of aninstruction to a woman in labour. "Pant like a puppy". It seems toinstantly evoke an image of quick, rapid and yet restrainedinhalations. Yet the point to realize, as we have covered inchapter 2, is the notion of understanding. [In conjecture] we seethe woman responding by obeying as any man would, but in doing thething itself (i.e. embodying herself in the act) she should insomeway grasp for herself why she pants like a dog. She should (ifthe instruction is valid) experience the purpose of this way ofbreathing in response to her situation. She should take over forherself the breathing and breath like a woman in labour whosuddenly feels the effects of breathing like this.235 Ibid at 20110While some argue that the hermeneutic model of interpretation ismerely the downgrading of reason to relativism236, others seeinterpretation as a method of preserving the myth of legal ration-ality.237 In his deconstruction piece, Haverkamp attacks the law'srhetorical use of metaphor. He sets out"The rhetoric of persuasion, it seems, endorses unity; itlegitimizes and stabilizes, formalizes and institutionalizesmeaning. The rhetoric of tropes, on the other hand, does notcare about unity, works on the grounds of arbitrary positions,and endangers the process of institutional evolution wheneverits..Ifocusing' work [per Max Black] gets thematized and themechanically produced tropes are exposed. But it is only withthe help of tropes that persuasion comes about and the reflex-ivity of legal institutions is possible. The sheer force oflaw would be just that: sheer force, no law. It takes thetransformative power of tropes and the situating potency offigures to make the law the law."2:58He goes on to argue that it is metaphor which, as used, imposes theforce of law; "Is it surprising that Paul Ricoeur's La Mêtaphorevive has been translated as The Rule of Metaphor? It is not un-restricted metaphor that rules the reflective mechanism, but thetropological potential is used to the self-maintaining effect of236 S. Rosen, Hermeneutics as Politics (1987) at 193 for example.Also the works of Emilio Betti, Hermeneutics as the GeneralMethodology Geisteswissenschaften, in Ormiston and Schrift, eds,The Hermeneutic Tradition. Albany:State University of New YorkPress, 1990, and Hirsch, E.D. Validity in Interpretation, NewHaven: Yale University Press, 1967.237 The leading critic of Gadamer is Jurgen Habermas. Habermas seesGadamer's method as being uncritically accepting of tradition. Itis tradition which incorporates the ideological forces orrepression and domination which are incorporated within languageitself. See Dallmayr's Between Frieburg and Frankfurt, andSchrift's Nietzsche and the question of Interpretation [1986].Anselm Haverkamp, "Rhetoric, Law and the Poetics of Memory", inCardozo Law Review, Volume 13, No.5 [1992] at 1644.111law's empirical rule. The marvellous efficiency of world mainten-ance rests on this use..."2" He attributes the flexibility ofmetaphor as producing what Staten calls Law's 'super-hardness'.We return to the performance of the speech act. Law maintain'sitself, as suggested by Broekman supra, by its metaphorical self-reference.The performance of the law draws upon a violence founded uponnothing but historical contingencies.... But the "performativ-ity" of law's discourse ... is nothing but the metaphor oflaw's model of performance, the proliferation of thismetaphorical process •241We have already noted Humpty Dumpty's now classic mot on meaningand language. The attack that language is without content implicit-ly contends that we can do whatever we wish with language. This isnot really the case. Heidegger's has provided us with an emphaticargument that we are thrown into a world where "language alreadyspeaks. 11242 This speaking is our social world. What we should now239 Ibid at 1647.Ng) See Staten, supra note 16 at 152.241 Ibid at 1650. See also Derrida, supra note 7 at 969.Na For Heidegger, language is a revealing of the world. Theprimacy of language reveals itself as we name, and in so doingbring a nearness to the thing - we bring forth the thing itself-the physis. If we recognize that language is experienced in thisway, as contingent upon experience, we cannot representing languageas a set of rules. In On the Way to Language at 133 he states;"There is no such thing as a natural language that would be thelanguage of a human nature occurring of it's self, without adestiny." In The Authority of Language, James Edwards at 116ffrelates that it is possible to formulate rules-to make languagestatic, captured, but only at the cost of losing what language is.We must therefore, according to Heidegger, realize the nature oflanguage, submit to it, to see it as something beyond ourselves112consider is how meaning is injected within the social experienceand through language.3.2 Metaphors: Making Sense of Non-SenseReality is a cliché from which we escape by metaphorsmMetaphor is gaining recognition as an important aspect of languageand cognition.244 Traditional analysis has put metaphor on theperiphery, or as deviant to the proper usage of language. Metaphorin traditional linguistics is viewed as an essentially literary orpoetic device used as imagination. Others see metaphor as "noise",a device to draw attendance upon itself.mThere is a growing sense that metaphors are much more than merenoise. Levi-Straus points out that language contains the ability toexpress the unknown, the unsignified. How do we then express thisunknown as unknown? If we are limited by language in which meaningwithin which the being exists. "There is no place for us to dwell,to think outside the house of language". Language must speak beforehuman beings can speak their natural languages in creative response(Edwards at 118). Here Heidegger refutes the humanist naturalism ofNietzsche's will to power. The overman is self-measurer andself-grantor who could not be such if there is the primacy oflanguage. "behind all self-conscious is language, and that behindlanguage there is that which cannot be brought to light as such inlanguage." (at 121).243 Wallace Stevens, as expressed to me by my friend AlexanderCamera.244 Eilleen Cornell Way, Knowledge Representation and MetaphorKluwer Publishers, Dordrecht, Holland, 1991245 Rorty, "Unfamiliar Noises". Here Rorty draws heavily uponDonald Davidson's approach to language as the literal.113already exists, then we are limited to the purely literal. Lacanwrites that "Metaphor is located precisely at the point where mean-ing is produced out of non-meaning.,' 246 This is accomplished byremoving the signifier from its conventional use and thereby intro-ducing new meaning.One of the first modern writers to draw our attention to metaphoris Nietzsche.247 A fundament to Nietzsche's philosophy is thetheme of play which is expressed metaphorically both in thestylistic sense and as an exegesis of "truth". 248 Nietzscherecognizes the metaphor as the origin of language and truth.249 Wespeak of origin because metaphor enters discourse only to perish.Its fate is to become "literal", to become the transparent andunstriking description of a phenomenon as we forget its246 Ecrits (Seiul, 1966) at 508; Ecrits: A Selection trans. A.Sheridan (London, Tavistock, 1977) as in Descombes, supra note 31at 96.NJ I will rely on Nehamas and Schrift's (supra note 237)discussions of Nietzsche's work. Sarah Kofman (as translated inRickels anthology) provides an examination of metaphor inNietzsche's writings in her paper "Metaphoric Architectures". SeeSchrift at 86ff. Nietzsche's own exposition on metaphor is to befound in "On Truth and Lies in a Nonmoral Sense" (Ueber Warheit undLiige im aussenmoralischen Sinne), 1873. We will cover this paperfurther in chapter four of this paper.24E1 It is in this sense that, on Jerry Gill's reading on the workof Merleau-Ponty, that we can see the parallel between Nietzscheand Merleau-Ponty in the strong use of this technique. Oncemetaphor is fully understood as connecting form with substance, wecan understand the attraction metaphor offers as a full cognitivedevice. Gill, Merleau-Ponty and Metaphor (1990].249 Schrift, supra note 237 at 86.114metaphorical nature.25° The literal is mortified or congealed.Over time, the inadequate literal description is to be replaced bya description in theoretical categories, that is, a more adequatemetaphor. 3/Concepts are the "residue of a metaphor", words which becomeabstracted and generalized by ignoring its individual features;"The omitting of what is individual provides us with the concept,and with this our knowledge begins: in categorizing [Rubriziren],in the establishment of classes. But the essence of things does notcorrespond to this •••"32The western analytic tradition is grounded upon the primacy of theliteral meaning, the belief that words connect us to reality. With30 Ibid at 86. Kofman relates Nietzsche's brilliant use ofarchitectural metaphor to relate this tradition. She relates meta-phors such as the beehive, pyramid, the Roman columbarium. Sheculminates the transformation of western thinking with the spider'sweb. This sequence represents the birth, life and eventual death ofmeaning. This posits the inhibiting consequences of theconstruction of a web of beliefs held to describe the play ofbecoming, and has the poisonous result of inhibiting the free playof creative activity to those who entangle themselves within itsstructure. This idea is echoed by Wittgenstein as we become"captured by the picture" of language's reflection of reality. ForNietzsche, "if God is the architect of the world, it is only in hisbeing the supreme spider." in Looking after Nietzsche [1986],Rickels at 98.31 See Hesse, supra note 8 at xvii.252 Schrift, supra note 237 at 127.115this belief, to know a word is to know what it stands for.33 Theappeal of the "picture" metaphor for language is persuasive. Theuse of figurative language does create a picture. The confusionbegins when we fail to see that the image is just an image.254 Themetaphor enables us to "picture" an experience which is strange andmystical and make it familiar.Metaphor reveals reality by creating new cultural meanings withina particular context. This is possible only because a metaphor candescribe something different from what it really is.255 A metaphorm An example of this thinking is the basis of Wittgenstein'searly work. In the Tractatus, Wittgenstein uses metaphor to giveinsight into this conception of the world. Reality is a mosaic ofindependent items called atomic facts. Each of these creates therelation between objects in logical space, the network of logicalpossibilities. The simplest 'elementary' propositions are picturesof atomic facts, which are themselves facts. All non-elementarypropositions are composed of, and truth-functions of, theelementary propositions. Language is the logical network reflectingthe fixed form of the world.34 It is a question of understanding. To say to someone "pick outa yellow marble" does not depend upon on her being able to imagineor picture a yellow marble; it is a simple a case of them seeing ayellow marble and picking it up. Wittgenstein, Blue Books [1946] at12. See Hacker, Meaning and Understanding [1984] at 607.35 Lakoff has noted "the essence of metaphor is understanding andexperiencing one kind of thing in terms of another.": Metaphors weLive by [1980], at 5. We will relate this to the human conceptualsystem by which being comprehends the world. Lakoff goes on toargue that thought processes are largely metaphorical. Lakoff'sconceptual scheme is to structure "concepts" (which we will call"components" in Part II of this paper) consisting of primitives(for our vocabulary these are essentially "key words"). For exam-ple, the concept "hurry up" can be composed of primitives such as"You are wasting my time", "Time is Money" .Lakoff argues against objectivism and subjectivism for (throughappropriately enough, another metaphor) what he calls "experient-ialism". " metaphor can ever be comprehended or even adequate-116can only function behind a network of language, in a certain "formof life."256 It is the shift in culture that gives meaning to thepractice of discourses. We recognize that words get their meaningfrom their use within the social practice and therefore, wordsexpress what it is we experience.37For Wittgenstein, the origin of concepts and meaning is in exper-ience, to engage in an activity within a "language game". For theexperience to constitute an action within the legal domain, it mustbe set out as intelligible. This intelligibility arises throughacceptable conventional descriptions of the event. Thesedescriptions set out to make real the experiences of the agent.This reality is constituted by our experiences and by our purposes.An action then, is understood as action only in so far as it fallswithin language. Such an action must necessarily have a publiccriteria or it fails to be intelligible within the language-game. 258ly represented independently of its experiential basis." at 19.This is very much echoing Merleau-Ponty's notion of the embodied-self. We find ourselves in situations-the bodily experiences-whichis our focus of the world. Our presence and how we experience theworld are inseparable and entwined.36 Wittgenstein, Philosophical Investigations (1951).37 For example S72 in Wittgenstein, Philosophical investigations.38 Wittgenstein argues that words get both their sense and theirreference through their public use. This is his refutation to theso-called "private-language" argument. Understanding words involvesunderstanding the context within which a word is used. At S242 ofthe Investigations Wittgenstein states that words are agreements indefinitions and judgements. If pain is observable only to theindividual, then we could not attach a word to a particular117Hesse sets out the explanatory function of metaphor and similewhich shows us the relation of language to theory.259 Thissensation which would be meaningful in the public sense. Malcolm,for example, argues that knowledge of pain (that is to say theoriginary form of the concept) is logically prior to the knowledgeof the location. By this we can know someone is in pain. We thenask; "where does it hurt?" The knowledge or "ownership" of the painis therefore not fixed by its location.Wittgenstein wishes to show that we cannot look outside of languageto show what governs it. Language is a cultural artifact, and thereis no necessary logical connection between language and externalreality. He wishes to show, if we accept language is a humanartifact, then the individual cannot decide for herself what is thecorrect use of a word. This is a refutation of the Cartesian"priority of the first-person case". In the Investigations at S269if, Wittgenstein relates the confusion which arises if we limit aword to a private expression. I name a sensation 'S'. Severalmonths later I experience a sensation which I also name IS'. Inorder that the word has a fixed meaning even to me, it must be usedconsistently, i.e. it must be used to describe the same sensation.Yet how am I to determine I have used the term 'S' correctly onboth occasions? If I cannot establish the connection of thesensation to some particular phenomenon, the use of the word willbe indeterminate, and therefore meaningless. I have no objectivenotion of what counts as the same. This solipsism, arguesWittgenstein, is the consequence of accepting the priority of thefirst-person perspective; that sensations can only be known by theindividual. Yet we appear to be able to give meaning to sensationsthrough the very publicity of their expression. Such publicitydenies the relativist their position against objective criteria.It is in this that our form-of-life, which is perhaps thought ofhere as the western philosophical tradition, that we are drawn toexplain and give reasons.The point that lies here is that Descartes doubt makes no sense ina social world. Rather than doubt the world, we must ask in whatsense is there a human being without the world. In what sense do Iexist independent of my world? How do I construct myself withoutthe form-of-life to which I am irrevocably and inextricably tied?259 Hesse and Arbib, supra note 27, Chapter 4. She incorporates MaxBlack's "Interaction theory" of the metaphor as being comprisedwithin a "Network model". Black has argued that through thisnetwork, metaphor constitutes the whole of language.There are of course alternative views about Metaphor. In an articleby Richard Rorty, Unfamiliar Noises, Rorty argues against the118relationship between theoretical concepts and observationallanguage, in the sense of being interactive, can be interpreted asmetaphoric re-description of the domain of the explanandum. We usemetaphor to redescribe or put forward new ways of interpretingreality.Language explains the social phenomena of agent action. We describeactions in the attempt to attach a sense within the legal discourseto social reality. When a new use of language, a metaphor, intro-duces meaning which is accepted into the legal practice, they be-come "literal". That is, they become dead-metaphors; institutionalsocial constructions with a "certain" legal meaning. NWThe objective of an information system should be to provide thelawyer with a representation of the social and legal world in aform which they can use in arguing a set of events. We cannot atHesse/Black position. He relies on Davidson's semantic argument formetaphor-that metaphor is restricted to literal use. Only literalsentences express knowledge and all that can be said can be saidliterally. Metaphor therefore is a non-cognitive speech-act to beunderstood as noise. Its function is to draw attention to literalsimilarities and language change. Metaphors introduce new literalmeanings "causally", not semantically. Once literal, they are nolonger metaphors at all. Natural language thereby becomes discrete.Metaphor in this light reduces the subject-matter of semantics toan idealized form of literal language. This is far removed from thenatural form of language speech. A semantic explanation of languagehas as its content the surface regularities of speech. Davidsonrecognizes the linguistic network of language-but of a literallanguage Smith, J.C. supra note 75 at 75. See also Richard Rorty andMary Hesse, Unfamiliar noises, Proceedings of Aristotelian Society,1987 Supplement 1, p.297 ff119present develop a computerized system which is capable of duplicat-ing the intellectual process of a human legal expert. We cannotduplicate the intellectual process because law is victimized by itsown metaphor. Law requires that we express experience throughanalogy. We can't recreate this reality using computer logicbecause such descriptions are an illusion.Hesse outlines how we introduce new language to explain the worldin a new way. 261 She suggests two `levels' of language. Theprimary is that of the observation language, the secondary is thesystem from which the model is taken, an observation language orfamiliar theory. We may wish, using simile, to suggest "man is likea wolf." Each of the primary and secondary systems have associatedideas and beliefs which come to mind when the system is referredto-derived through training in a language. There is a principle ofassimilation between the two systems which rests on analogy. Wecannot use metaphor a priori. Metaphors, according to Black, arenot comparisons. It is not a comparison because we do not know howfar the extension of the term lies.Recognizing the cognitive function of analogy, we emphasis featuresof the primary through the use of the secondary system. If weaccept that terms in the primary system (literal terms) are under-stood in relation to an associated experience, then the use of theNA See here Hesse, supra note 8, Chapter Four, "The ExplanatoryFunction of Metaphor".120metaphor, by providing further associations (emphasis), expands therange of uses that a word can enjoy. This applies to the metaphoritself as it becomes associated with the primary system. Wolvesbecome more human. It is this key point which refers to "inter-active view" of metaphor rather than "comparison" .262While a term to be a metaphor must be absurd or false if takenliterally, a metaphor is understood. This seems to imply acognitive aspect to metaphor which means there is a pre-understand-ing which sets the use of metaphor as appropriate, true or false.What this shows is that in language literal terms do not followdeterministic linguistic rules. There is a cognitive aspect in thatliteral meanings shift in association with metaphoric use. What isof interest are the various mechanisms of meaning shifting, and therecognition of a relative distinction between literal and metaphor-262 On a slight side note, Susan Sontag's On Photography [1977]reveals what we believe to be the effect of this process. We takeevents such as war, poverty, beauty, and capture them in images.This voyeur fetish keeps things distant, but at the same time, itmakes them familiar. Familiarity brings a comprehensibility andtherein is ultimately nihilistic. War, after the initial shock,ceases to be "the horror" because it is sanitized and explicit. Webecome attuned to this way of experiencing the world in that theimage is what becomes the real; it becomes for us, "literal". Anexcellent thought on this is Baudrillard's Simulacrum and Barthe'sMythologies. Photographs possess something of a magical quality; alevelling of its subject, an instrumental power to create andcontrol reality. Sontag notes that Platonic thinking sought to moveus away from image-ful thinking to image-free thinking to apprehendthe real. With photographs, "realities understood in the form ofimages was now being given to realities understood to be images,illusions." (at 153). We can imagine the sense of what it was likefor those who managed the first name. A sense of presentment to thebeing of spirits of wind, the beast and fertility.121ic entities in particular contexts. We can, through metaphor use,agree with Gadamer's observation supra that when we observe a phen-omena from different perspectives what we see are two aspects ofthe same element.263The Wittgensteinian view of language acquisition implies rejectionof a literalist view of language; a static system imbued with fixed263 Hesse, supra note 8. The view of metaphor held by Hesse andBlack would appear to get around the theoretical problem posed byRorty in Unfamiliar Noises. If truth in language is relative to aparticular linguistic framework or conceptual scheme, how can truthvalues be transmitted between languages and between theories?Davidson looks to the surface regularities of language. Truthvalues are assumed as a given because languages are aboutexpressing intentions and beliefs. Without this assumption,Davidson holds that such utterances are not language at all.Language is for Davidson a network of interrelated sentences whichcarry our knowledge and beliefs of the world. Truth is a functionof the successful (correct) public use of language. There are nohidden 'metaphysical' meanings hidden in that usage, only apredictable surface regularity of utterance (at 300). Without anystructuralism, then, we are to see that natural language is indirect touch with reality.This is a pragmatic view of language. By placing meaning withinlanguage as a network, it has moved away from atomic empiricist toa holistic model of language-ie that truth is measured by languageas a whole rather than by specific atomic observations. Within thisnetwork, there is an inferential relationship between the languageand the sentence. This is an internal network that represents theworld as a whole. The problem with this approach however is thatthe justification of a comparison of networks rests on the initialtruth values of the discrete observation sentences. They must becapable of cross translation. This gets us back to the problem ofrelativism between languages and meaning which means we cannotlimit ourselves to discrete literal meaning.In other words, all language is incomplete and all observationsabout the world are similarly incomplete. We can however speakabout the same kinds of experience about things in the world byvirtue of being involved with the matter, by our practicalembodiment (cognition) within situations. This is arguing for aWittgenstein "family-resemblance" which depends on perceptions ofsimilarities for all form of language.122meaning dependent upon fixed syntactic and semantic rules. We cansee a difference between the universal (of Plato) where the correctuse of the term is correlated to its attachment to the reality ofthe universal concept, and Wittgenstein's "family resemblance"which is tied to use without assuming any particular universa1264.The concept of metaphor drops to those who don't understand the useof a word.3.3 Perceptions of Reality: The Transparent WorldModern cognitive science is attempting to provide a more adequatedescription of how human beings see their world.m It is clearthat concepts like law, religion and mind are not to be found innature. What we encounter through the Platonic notion of language264 I can speak of the point of a joke, like the point of a needle.It communicates to the hearer the sense of purpose of the object,the "point" of the joke, and the "point" of the needle are the"sense" of the object. If we can accept this use of language, thenwe can see how the mind is cognizant of what is the referent, andhow language is used. We should recognize that no two objects shareprecisely the same properties. With this, language contains generalterms which are used to approximate meaning. This enables readycommunication without overbearing the speaker with every specific.(see Hesse and Arbib at 151) Wittgenstein uses the metaphor of"games" to explain language. We can see that there is no literalmeaning of the word "games"-for example chess, darts, football,swimming can all be put under the rubric of games. We just knowwhat we mean when we see it.265 An area for further consideration, beyond the scope of thispaper, is the "symbolic system". This is the language of legends,myths and fables which contain the trace of cultural identity. Thisspeaks to thinkers such as Freud and Joseph Campbell. They areabout the classification of languages and the social orientation-they have no meaning in themselves (Daniel Sperber 1975 RethinkingSymbolism), they are not a "language" with some correspondingliteral meaning.123is a world of experience reduced to identities.Sartre, in a famous encounter with Raymond Aron, discovers that wecan look at a beer glass philosophically. Hegel coined the termErlebnis to express the immediacy of the revealing of objects toconsciousness, the immediacy with which something real is grasped.It is always experienced for oneself. The glass in this sense is anact of imagination. Wittgenstein describes such an encountering as"noticing an aspect. 11266 It is a moment in which we express ourexperience of the world with a new comprehension.267*266 "I contemplate a face, and then suddenly notice its likeness toanother. I see that it has not changed; and yet I see itdifferently." PI at 193c.*267 The early Sartre held, as in the case of the beer-mug, thatobjects are constituted by the intentional act and so embarked ona brilliant but futile odyssey in Being and Nothingness. In Visible& the Invisible [1968] at 63-69, Merleau-Ponty attacks thisinteriorization of knowledge-If I am Being, how do I transcend myown isolation, if I am nothing, how do I ever constitute knowledge?This encounter is described in Annie Cohen-Solal's biography;Sartre: A Life at 91. Aron briefly relates Husserl'sPhenomenological approach, which constructs a pure consciousapprehension of an object bracketed from its surroundings.Phenomenology seeks to provide a pure description of thefundamental or original structure of transcendental consciousnessin which a world can be constituted as given to consciousness. Thisis known as the phenomenological reduction. The reduction, free ofcontextualization, opens the possibility of reflection of the senseof an object of its orginary self. (See Staten, Chapter one andthree, and Dreyfus, Husserl). For Derrida, this is the moment ofsignification, the disappearance of the empirical subject. Whatboth Derrida and Wittgenstein question is whether this moment canbe said to be 'idealized'-whether it is possible for us all toexperience this as a selfsameness, a true consensus of experience,or whether because language is independent of us who experience(and therefore beyond us to make language mean what we forourselves intend as the Husselian phenomenologist have it), we arein some sense destined to differences of our situation. Merleau-Ponty tells us that the reduction teaches us the impossibility of124Sartre's comprehension is an attempt to explicate the pure essenceof an object-something which lies beyond language. Kant had realiz-ed that we never see this object in itself. Sartre holds a glasswhich is "ready-to-hand"; an object which is seen as what it ispotentially used for-holding beer used in drink. When we do not usesuch an object, it drifts into the background, it is "standing-reserve"; waiting to be used later (Heidegger puts it that equip-ment is, in our mode of thinking, always for our use).Sartre puts this moment of a new awareness of the glass as a glassas the constitution of a transcendental knowledge; that the beingforms and constitutes the world. Merleau-Ponty argues that everytranscendental reduction is eidetic. We cannot scrutinize theobject of perception without ceasing to be identified with the actof positing the world.m We have by virtue of our perspective, nopossibility of a transcendental knowledge.To illustrate the consequences of this difficult point we will lookat Wittgenstein's Duck (figure 1, which he borrowed from Jastrow)in which we can see the "Rabbit" aspect. This experience I havealluded to as the "deepest intimacy", the Obersicht. It is themoment of the gesture by which understanding is apprehended betweenthe intimacy of a word and an experience-the "grasping the rule".a complete reduction (PP).268 Merleau-Ponty, The Phenomenology of Perception [1962] at xiv,also see there in footnote 1 on page 376 his direct reference toHusserl.It is "seeing" the world as it is forUS.The descriptions we give our percept-ions are not a description of theexperience of perception; that isexpressions are not experiences.2"When I say "Her eyes burned into me thedeep blue of august", or "I see she has125Fig.1 Wittgenstein's Duckblue eyes" it is not the actuality itself I can describe (that hereyes are blue, or that I see) but rather it is that I have asensory experience of the world. I speak the sense of what myexperience is.Hacker's student, Stephen Mulhall, has explored fully the conceptof "aspect-dawning" and its relation to "meaning-dawning" inlanguage.m He explores Wittgenstein's point that we continuouslysee the object-that it doesn't change before our eyes. What changesis our descriptions of what we see. Mulhall's point is that we havea perceptual experience which we give expression to. "I see aDuck"; "Now I see a Rabbit". These expressions are tied as much tolanguage as to what we look at.269 Hacker wrote Appearance and Reality [1987] to make this point.270 Stephen Mulhall, On Being in the World [1990]. Other reports ofthis illustration are to be found in the works of Malcolm Budd,Philip Dwyer and Roger Scruton [1974] listed in the appendix. Ihave read all these other works and no doubt their good ideas havefiltered in to shape my own thinking126We cannot go beyond the recognition of the duck or the rabbit inour descriptions of this experience. We cannot transform adescription of an object of sensible experience into a descriptionof sensible experience.m This is not a "mental" experience butrather is tied to the attitude we have towards particular imagesand words.m We similarly cannot take the fact we see somethingto be the objective real.23What we say we see is its meaning. 274 When we look at a portrait271 Hacker, supra note 269 at 222.272 For example, we tend to take the photograph as the real,whereas a caricature is recognized as an image. Marshall McLughin,in his text The Gutenburg Galaxy gives an interesting account ofshowing a film of approximately 15 minutes to an audience in adeveloping nation on how to sterilize water. When later asked whatthe film was about, the response was that all they saw was achicken. Aghast, the film was reviewed and found that in severalframes of film, a chicken ran across in the corner of the shot. Theconclusion was that the chickens were the only thing in the filmthat the audience was familiar with, and so they saw it even thoughthe chickens were virtually impossible to notice. A similarobservation was made about reading. In order to read, we must focusseveral millimetres above the page. This is something we learn todo. Focusing directly on the letters themselves makes readingextremely difficult.273 Merleau-Ponty, supra note 268 takes note in "Things and theNatural World" at 303 that Kant presupposes this to be the case. M-P tells us Kant's position is that if we see the object, thenconsciousness embraces and constitutes the object. This is becauseobjects must otherwise be constituted by experience which we wouldnever acquire. When I am far away from an object and when I amclose the permanence of the size of the object is given. However M-P argues that it is the case that we have a lived-experience ofobjects. It is an existential. A car is a different thing if I amviewing it from atop a skyscraper than when I am on the street.• Wittgenstein, Remarks on the Philosophy of Psychology I §869.Mulhall re-emphasises the point that "seeing something assomething" is not a matter of interpretation. We cannot doubt whatwe see if we see it. What we see may be unclear or turn out to be127we see it as a human being always.m We can see this image is animage but we do not try and see that it is a human being. Aspect-dawning reveals that the "meaning" of words do not "absorb orassimilate the technique of their use."m Aspect-dawning inlanguage-use arises when we encounter a word which is usedunfamiliarly (metaphorically). We are drawn through the literal toa the sense of how the word is used. Mulhall sets out that how welook at images (and words) reflects an attitude towards the use ofthe word. Having mastered a technique, we usually experiencelanguage as "transparent"-there is no gap between its use andunderstanding. It is because such expressions of experience are sooften conventional that mastery of language dulls the technique andsense of experience words express.277 Taking a context as seriousor metaphorical changes the way we experience meaning. This issomething other than we thought-but this is not doubt which invitesan interpretation. This places no logical constraint on ourexperiences and associated expressions. What we require, as wediscussed in rule-following, is that an intelligible explanation ofwhat we mean be available. Without that we establish no meaningwithin the situation. In looking at an aspect of an object, Icannot say I see this as a without being able to show a a (Mulhall,supra note 270 at 136ff).275 Mulhall, Ibid at 205nes Ibid at 46, using PI, p.218g277 Ibid, From (PI) at §92. It is in this that Strasser notes thatphilosophers should no longer ask "What is..." questions, as Platoand Socrates were prone to do, because meaning depends entirelyupon the situation. I explained this point to friends over dinnerby using gestures of my fingers. I showed one gesture that had aclear meaning and another which was nonsensical, a gyration of myfinger. They nodded with understanding. The very next day thisexact gyration was used by the librarian to solicit my librarycard. Perhaps I have put new meaning in the world?128because meaning is the experience we have of the context.Where a word is used in a different situation, we show its use asbeing "by this I mean...". It is "seeing-as" this concept. Withthis realization that the world is as it is for us, we begin tograsp how we convey meaning in use. We say in use because we haveunderstood the rabbit because we already understand rabbits. A wordhas a shape or sense which we "see-as" in our horizon. We do notalways understand how to use a word-how to express an experience.Sometimes there is a break-down between an experience and ourability to express that experience. This involves showing or doing,painting a picture of something familiar to point us to somethingthat is unfamiliar. All things are open to be used in anotherfamiliar light. "The inclination is there" to use these words.mWords may be said to have a secondary significance but this is onlybecause for me the word has a primary significanceY9The comprehension of the beer glass as a glass (as with thecomprehension of law in our social actions) lies in the relation278 Ibid at 216.279 PI at 216e, Wittgenstein gives an example of "fat" Wednesdayand "lean" Tuesday. Wittgenstein says we use such terms becausethey are the ones which come to mind-they express the experience wewish to relate. Our ability to use such terms reflects ourfamiliarity with the sense we have of their use-it reflects thelevel of our mastery of a language-the physiognomy of the word. Ifwe cannot branch into secondary significance, we will find a limitto revealing our experiences. The right word comes to us like areaction. We use words "in certain situations and they aresurrounded by behaviour of a special kind, and also by somecharacteristic experiences" (at 219e).129between what it is and how we experience it. What we comprehend istied to the internal-relations of the glass for us. This is not aproperty of the glass itself but an ability to associate it with acontext. VW In recognizing the phenomenon of context, Lakoff andothers have argued that imaginative hierarchies-"frame" or"schema"-are necessary for the definition of concept. 281 Lexicalitems are defined only with respect to the frame itself as towhether it comprises an intelligible element within the frame. Thusan "ideal um is established and the element is examined as towhether it accords with the model.How are the lexical elements appropriated? Hesse and Arbib relatethat it is through a process of learning and training that wecomprehend the world.283 They draw on Pierce's notion of habitwhich describes the connection between the individual and thesocia1.284 Pierce used the term to cover the hereditary action280 Wittgenstein, PI at p.212281 George Lakoff, Cognitive Science and the Law, "Legal TheoryWorkshop series", Faculty of Law, University of Toronto, 1989. Seeother works by Lakoff including Metaphors we Live By, and Women,Fire and Dangerous Things. The concept of frames has also been usedMarvin Minsky and Roger Schank. For a discussion of experientialismand Lakoff's work in legal theory, see Steven Winter,"Transcendental Nonsense, Metaphoric Reasoning, and the CognitiveStakes for Law", University of Pennsylvania Law Review, No.4, Vol137, (1989) at 1105m by which we mean a "family resemblance", an association of worduse which language is cognitively recognized.283 Hesse and Arbib, supra note 27. See also along these linesHolland and Quinn, Cultural Models in Language and Thought284 Ibid at 44.130patterns of individuals of the species; learned habits ofindividuals; and the concepts, rules, methods and procedures ofsocial institutions which form the set of operative rules embodiedin a system. Such a structure provides both stability and adapt-ability; stability in that the individual operates within a struct-ure of existing and practical knowledge, adaptable in that itsevolutionary mode allows for change over time.285To illustrate this point consider the phrase "non-pecuniarydamages" (as in the quantum lexicon in the appendix). In aparticular domain we could include terms such as "pain and suffer-ing", "general damages", while excluding terms such as "totallosses". Over time, as Levi has shown us in Chapter Two, this listwill change to incorporate a new lexical significance.Human cognitive development is also a process of accommodation andassimilation.286 Assimilation is the process whereby experience isincorporated within the individual's currently existingschemas.2" This is an active process leading to action within a285 Ibid at 44.vm Ibid at 46. Arbib has based his thinking on the work ofpsychologist Jean Piaget.287 This term of art was set out by Piaget to help structureexperience. His observations of the development of his childsuggested to him that the evolution of human intelligence tookplace within a structure of action (an underlying form of repeatedactivity pattern) which can transcend the particular physicalobjects it acts on and become capable of generalization to othercontents (that is, of substitutions). See Rotman, Jean Piaget:Psychologist of the Real [1977] at 38.131structure of anticipations or techniques. Where these anticipationsdo not materialize, then accommodation occurs whereby theindividual's representation or schema evolves or transforms tobetter reflect experience, a paradigm shift when experience isincompatible with the representation of the world. We learn newways to do things. We must note the pragmatic criterion thisprocess invokes. Pragmatic behaviour occurs as a result of findingourselves in situations which call on us to act.Arbib, echoing Piaget, speaks of reflective abstraction-the processof encountering the world of experience and, in so doing, acquiringa conceptual understanding of that experience. For example, objectpermanence is something which comes to the child through sufficientexamples. Once the concept of object is established, then theunderstanding of its subset is thereby enriched. "Cat" is under-stood as an object or entity within the world of objects. It isclear that it is some form of reflective abstraction which enablesthe child to uncover "object" as universal through the specific.This reflection, the formation and internalization of represent-ations, must be viewed as a process. It is this Idecenterization'in realizing that they are one object among many that constitutesa child's first "Coperernican revolution" which enables arudimentary idea of causality in a world of distinct objects.288288 Ibid at 40.132A child does not learn how to speak only by the ostensive act.mInstead it observes the use of language-how complex sets of state-ments are used, each made up of readily recognizable elements, andby causal relations of sounds to actions. It would seem then thatthe child most of all learns how we combine words with experiences.An interesting problem is that of perspective as the mother speaksto the child. At some point the child must recognize subject andobject and reoriented its own manner of utterance.mThe verification of the self in society is this process of assimi-lation and accommodation; the orientation of language, actions andgoals. In learning a language, children recognize that certainutterance produce certain results.m From this to understand aass, The beginning of the Philosophical Investigations addressesAugustine's ostensive naming in the Confessions. From ourdiscussion on rule-following we surmise that the gap between whatis necessary to effect understanding and what are sufficientconditions collapses. What effects understanding is the pre-understanding we each bring with us to a situation. It is throughthis that we can derive the sense of meaning. We cannot tell inadvance what this pre-understanding consists. As Dwyer emphasisesin Sense and Subjectivity [1989] (at 182ff), there are not twocategories of understanding (i.e theoretical and practical); allunderstanding is a practical matter. Language is a matter of sense-what it is the subject perceives. The application of the rule isthe intentional phenomena. There is no understanding which willtranscend how things actually occur for us. The world is, for us,a practical My friend's one year old son, Peter, was given a regime ofmedicine. He began to refer to the tonic as "medicine Peter" whichflows from the mother constantly saying "Here's your medicine,Peter". This re-orientation apparently occurs once a child isapproximately three years old.m Piaget suggests that the whole process of schema formation isnot complete until the child is approximately 11 years old, andtakes place within poles of cognitive activity; the figurative133sentence, Wittgenstein tells us, is to understand a language.Learning goes towards the creation and refinement of an internalattitude about the world, and towards orientating behaviour andactions in response to the contingencies of social life.mLakoff and Johnson have gone in depth to show a structural basis ofmetaphorical categorization.m They have shown how basis exper-iences such as up/down, in/out, hot/cold orientate our recognitionin language. These basic (and dare we say universal) experienceslead to a proliferation of language use to convey a sense orwhich bears on static reality and observable configurations, whichis predominant in the activities of perception, imitation andmental imagery (which leads to language); and the operative whichdeals with the active structuring of reality-transformations of onestate into another. Cognition involves both figurative andoperative aspects but, for Piaget, the operative aspect istheoretically predominant. By this he means that the initiallypredominant figurative thinking merges into an operational thought.See Rotman, at 41m Perhaps to impress this point further; it struck me that tounderstand a set of traffic lights is to understand an action. Tocomprehend that "Green", set off by the green light, means "go"rather than whether any other traffic is coming, is to comprehendthe relation between a sign and what it is we do. To comprehendthis is to comprehend that the world is ordered by rationalitypremised on the use of sign rather than the actual events in theworld. That is to comprehend sign is to comprehend the order in theworld. It is a comprehension that one submits to others. Once thisorder is made one's own-that is when one forgets what the event inthe world that originally created the sign-then one has embracedthis order and rationality becomes "transparent".m See Lakoff and Johnson, Metaphors We Live By [1980], which isa joint work, and also the more recent Women, Fire and DangerousThings [1987] by Lakoff. These works have been incorporated intoWinter's work "Transcendental Nonsense" which is undertaken for thelegal audience. Lakoff has also given a seminar "Cognitive Scienceand Law" which discusses very briefly the ideas contained in theabove work.134meaning in a new way. For example we can say that "litigation iswar". We have from our unfortunate experiences derived a culturalconventional sense of what war entails. This then is recognized aswe speak into the use of the word "litigation". It either strikesa chord with the listener or it does not.What is visualized as a basis for legal expert systems is a schemato incorporate an aspect of agent action. We can use the languageof a specific activity to verify the occurrence of that activity.For example, our schema for Pure Economic Loss visualizes a causeof action in which actual communication has occurred between thelitigants which we recognize as having a causal or operativerelation to the economic loss.294Wittgenstein recognized that in our linguistic practices, weassociate expressions within a notion of "family resemblances".295These relations are contingent upon perceived similarities anddifferences. Metaphor is a particularly pervasive mechanism in thisfunction.m Through this association of experience with express-294 Such expression reflects our experience as we might learn asthe child trained to ask her mother permission to play (the figur-ative thinking of the child) which evolves into an operative thou-ght once the mother agrees. The child has recognized that playinvolves this transformation from doing to asking. It instils asense of how we come to the law.295 His most famous family is the family of "games." What isinteresting is that games typically have no resemblance -i.e.,football and chess, and yet we know them as games.296 Hesse, supra note 8, Chapter 8135ion, we can better see how we are capable of using figurativelanguage to give a "sense" or meaning to our descriptions of theworld. We can better understand how meaning shifts. What counts assignificantly similar is a conventional cultural decision.297 Forcommunication to be able to take place, it is presupposed thatwithin the particular discourse, these associated meanings aregrasped by the users. The creative or imaginative aspects oflanguage-use flow from the presuppositions which rest in the legalmind as to how the world is.We can see this if we recognize the illusion of objective knowl-edge. There is an essential interaction between the knowing subjectand the world which involves both the categories used to describeit, as well as the activity of social life itself which are cognit-ively constituted within language.mi In this we recognize thatthe metaphorical and imaginative use of language reflects not theobjective reality of a situation but rather the way that humanbeings come to experience a situation. The use of language reflectsa culture, and without being in a culture, we can express nothing.Words are not neutral terms but are based on a pragmatic criterionof imparting a sense of what is (in a legal world) within a frame-work of normative values.297 Ibid298 Ibid299 We can take for example (here we illustrate for automobilenegligence) "The car proceeded through a green traffic light."Perhaps a simple enough statement, but it encloses within it the136The expert has grasped the meaning; they understand what is said inlanguage about an experience of the world. In this the expert isable to see through to the known-the system of values within theculture expresses an experience of how the world is. The expert'scomprehension of language-use reflects an understanding that goesbeyond the literal representations of law. Metaphoric explanationsare the attempt to transcend the limits of the institutionallanguage within language. The expert can see through the literal tothe lived experience. Metaphor brings forward and clears the way tothe already known fact.entire legal order. The car is already there, it is qualified, itis essential for there to be a vehicle for this kind of action. Thecar is engaged in an act-it moves. It is this act which draws ourattention for it states a legal condition; we cannot move or actoutside of the law, every act is a point to be validated. The orderof the (legal) world begins with the realization that there is anorder in the world, this order is set out by the sign which pro-claims laws presence in the world. Here the traffic light definesthe how we are to be, it sets up a right. This is a relationalstatement, a rational state of affairs. It is relevant and truewithin the legal situation we are in.137Chapter Four^Intentionality: Perceptions of Being4.1 Things We Can't Do With WordsYou see things and you say "Why?".; But I dream thingsthat never were and say "Why Not?"°°we have suggested in the previous chapter that the role of theLawyer is to convey meaning within the rationality of the dis-course. The meaning of a action is the explanation we give for itsoccurrence. Lawyers are to construct the act of the agent as anevent intelligible within the legal world by establishing a meaningwhich preserves the coherence of the legal order. The lawyer is tosee that the agent in this act constitutes a rational being andthat the event is within the pragmatics of social order. The resultis to confirm the what and the why of an event within the naturalorder of the world.To recreate the actuality of the agent, the lawyer acts with arhetorical imagination. We suggest, with Piaget, that the lawyerfits events into basic categories or schemas which we recognize andmo The Snake in the Garden of Eden-George Bernard Shaw, Back toMethuselah138which make sense. It is a process of reality "reconstruction" .301The legal world is reconstructed metaphorically in every case so asto invoke a world as we believe as being the world as it is; para-phrasing Merleau-Ponty, "bringing truth into being" .3°2 In this wemake sense of an action which fits in with our perception of oursocial world.We recognize that rational models are inherently limited. To putforward a rational theory, as we learn from the Greeks, is topresuppose a natural order in the world. Such an order is capturedby the mind that thinks it. This mind can do this because thecategories of the mind reflect the order of the world. Theorypresents us with the paradox of the thought that thinks it canthink the thought that thinks itself. That a priori categories areunable to account for errors which occur outside of the a priorinecessitates rationalism's reliance on arguments that are alwaystranscendental; projecting an interpretive structure on our sensat-ions to create a unity of experience.m301 The reader may note a twist on "Deconstructionism" here. To adegree this is valid. We consider with Wittgenstein, schopenhauerand Nietzsche, there must be a will to be. The world is there forus. This will would appear bound to a certain "attitude" we hold tothe world, and which is constituted through that world. If wedeconstruct language and the social world, we simply show thatthere is nothing upon which it rests. Yet language works in that itconveys some sense of experience.302 Merleau-Ponty, supra note 268 at xx.303 Gill, supra note 248 at 7.139The paradoxical nature of rationality infers that no system ofbelief which demands statements be criterially verified can bejustified empirically within its own logic.304 Causal explanationand the existence of general laws does not entail One explanation for this, as Kuhn and Merleau-Ponty shows us, lies in the root of theory underdetermination; noset of information is Actions, we argue, arejustified through their internal-relations. If we accept this, thenwe need not look beyond the practice itself. Law, in as far as itspeaks through the agent, is constituted by the rationality ofagency.Wittgenstein came to recognize that language is not primarily about304 Putnam, supra note •26 at 111. We see this applies to bothformal and non-formal systems. See footnote 312, supra. Nietzschefurther enlightens us: "When someone hides something behind a bushand looks for it again in the same place and finds it there aswell, there is not so much to praise in such seeking and finding.Yet this is how matters stand regarding seeking and finding "truth"within the realm of reason." at 892 (Rhetoric tradition). Dwyer,supra note 231 has noted the presupposition fallacy that, inexplaining the phenomena, we presuppose the phenomena to beexplained. For example, in explaining a theory of subatomicparticles we establish the "quark" which explains the action ofsubatomic particles. "Quarks" may or may not exist. We presuppose"law" to explain the actions of legal institutions. In cognitivescience we speak of "mind", "thinking" and "intentionality" toexplain the appearance, our representations, of causal componentsof actions.305 Determinism is the characteristic of a theory by which througha complete description of the present and past states of a system,all future states can be precisely and uniquely calculated. Hesse,supra note 8 at 48.306 Ibid140naming but rather it embraces a whole range of humanactivities.307 Wittgenstein's profound insight is the limit oflanguage. There is no correspondence between a proposition andreality. More words do not get us closer.m Understanding isabout the activities in which language occurs. This recognitionthat language is part of a form of life means that we cannot lookoutside of the language-game itself to justify a statement's truthor falsity; rather we look to the social practices in which thestatement is made.309 Truth is attached to our social world. It isin this, as Putnam rightly notes,m° that the representativepicture of language is fundamentally misguided. The intentionalobject of consciousness is an expression of thought. Understandingw Wittgenstein, Blue and Brown Books [1946], at 17. We recognizehere Kant's insight of the transcendental unity of apperceptionwhich sets out the world as constituted as an object of conscious-ness. See supra notes 17 & 95, supra. Gier, Wittgenstein andPhenomenology [1981] at 34 notes that "Kant taught us that realityconforms to forms of thought; and Heidegger and Wittgenstein showus that forms of thought are ultimately dependent upon forms oflanguage and life.".308 With such an observation we are tempted to cease writing. Inthe Tractatus Wittgenstein held the limit of the world to be thelimit of the expression of thought; we cannot speak about languageitself unless we are in some way "outside" of what we speak. (TLPat 3) Wittgenstein ironically suggests in the conclusion thathaving written the Tractatus that with this realization we must"Kick away the ladder". In the Philosophical Investigations asimilar dilemma ensues in that Language is an artifact. Therelation between words and reality is such that we can only showwhat language is by its use. A famous quote from the introductionto the Tractatus reads:What can be said at all can be said clearly; and what wecannot talk about we must pass over in silence."? Wittgenstein, Blue and Brown Books [ 1946] at 17.310 Hilary Putnam, supra note 26 at 20.141.miis not an occurrence rather it is an abilityWords act as a signpost to an experience. They do not correspond tothe experience itself rather their use guides us to a sense. We seefor example in the different aspects of Jastrow's drawing that wecan uncover different experiences with the same image. Words aretied to a practice and therefore the possibility of an exactness,conceptual transparency or logical unambiguity is untenable.312"The essence is hidden from us"; we are limited to the language-game for our definitions.313Objects fall into a background of meaning. We have a sense ofobjects (and the categories within which we constitute objects)311 Ibid312 Strasser, Understanding and Explanation [1985], at 11. Perhapsto further emphasis this point is the work of the mathematician,&Mel. His incompleteness theorem sets out that:"Any adequate consistent mathematical logic is incomplete: ifthe logic is adequate to express a full range of arithmeticalstatements and consistent in that it does not allow thededuction of any contradictions, then it is incomplete in thatthere are true statements about arithmetic that can neither beproved nor disproved using the rules and axioms of thatlogic." (See Hesse and Arbib supra note 27 at 31-32)This theorem, which requires a more adequate mathematical mind thanmine to set out more plainly, sets out a proof that refutes a basictenet of positivism-that of logical consistency. Malcolm [1989] at14 notes an exert from Wittgenstein's Lectures on the Foundationsof Mathematics. If we have very large calculations which at somepoint cannot be verified-that the results all become indeterminateand there is no way of preventing this deviation-then it is notmerely a deviation but rather it ceases to be a calculation.313 Wittgenstein, PI at S92142because we have a sense of our world through our presence andinvolvement in the world. It has been suggested that meaningbecomes bound to "frames" of pre-understanding derived from ourexistential and physical apprehensions. In this perception itselfbecomes something directed, something already bound up in ateleology of our situation in the world. 314 We cannot look formeaning in objects and events isolated from this situation. It isalso apparent that we cannot avoid perceiving; our sensualfaculties always connect us to the world in such a way as to forcemeaning upon us. 315314 Piaget, in his Biology and Knowledge, goes so far as to implythat we think with our bodies.Cognitive processes seem to be, at one and the same time, theoutcome of organic self-regulation, reflecting its essentialmechanisms, and the most highly differentiated organs of thisregulation at the core of interactions with the environment,so much so that, in the case of man, these processes are beingextended to the universe itself. (from Rotman, supra note 287at 37)We tend to agree that the role of the body in thought itself hasnot been properly recognized. We must also recognize that humanbeings are more than just a body, that there is a highly attunedawareness of the self as a body. This hypothesis of thought asbody, as a self-regulating mechanism appears to find its way intothe theoretical foundations of the "autopoietic" law theory ofNicholas Luehmann and Gunter Tuebner.315 Lakoff has gone to great length's to show that language-use iscross-culturally identical for much of our essential condition. Hotis hot, up is up, water is wet, etc. It is this similarity ofexperience, a kind of universality, which led Chomsky to create hisrather dubious supposition that language itself is innate.It is apparent from our position that interpretation appears todemand a cultural reference point. This point is taken to be thebody, our point zero on the numerical graph. To be able to makesomething intelligible means that it ties in with one's ownexperience, one's own way of seeing the world. This experience isof the world one is in, which is the limit of our thought. We143There can be no knowledge of experience which does not presupposereference to a public world. "I" know my own experience but onlythrough the concepts which are given "sense" through publicusage.316 The publicity of my language guarantees its objectivityof reference. This reference is presupposed in the existence ofexperience. Language is the sense of experience connected to humanactions. Mulhall tells us that with words we "experience theirmeaning."317 It is that we master language and its use. By this,as we master a word, we master how to convey a sense of anexperience through its use. The word, as we come to understand inits use, has a sense which is bound up with an experience.cannot think outside of what we can conceive of. We recognize, asdoes Merleau-Ponty, that conscious can never be transparent to itself. There is present the apprehension of a subjectivity.Merleau-Ponty has pointed out that meaning does not exist exceptfor the being that thinks it. Within this is his realization thatI am a body in a world, I encounter the world whether I choose toor not and so I am bound to deal with that world in a way which isnot personal; "In so far as I have hands, feet, a body, I sustainaround me intentions which are not dependent on my decisions andwhich affect my surroundings in a way I do not choose." From thiswe must recognize that human beings cannot, by virtue of beingbodily in the world, totally diverge from some sense of common formof anonymity or "humanness". (See Strasser, supra note 312 at 136-7for this quote).316 Scruton, From Descartes to Wittgenstein [1981] at 279 ff.317 Mulhall, On Being in the World [1990] at 197. We may recallfrom Chapter Three (supra note 221) Hirsch's intentional object.For Hirsch, using the treatise of Husserl, the word preserve'smeaning because I intend it so. Meaning is private object and sointerpretation must secure the meaning of the author. A difficultywith this, as we have argued, is that language gets its sense onlyin a public world. Because language is public it can transmitmeaning, and this is independent of the author.144We have spoken much of "sense" of meaning. Sense is tied to a situ-ation. It is an encountering. A presupposition of sense is an atti-tude, a way of directing oneself towards a situation. We are alwayspossessed of an attitude because we are always in a situation. Weare always conscious of being or conscious in acting. This con-sciousness, for us, is always more than an "I am". It is "Ican".318 From this we say that attitude is our sense of what isopen for us. This is what constitutes our intentional being andthis is what circumscribes our freedom to be. Our attitudes arerevealed through our actions. What is open for us is set out withinthe background of our lives.It is this background which sets out what is for us certain. Cert-ainty is what we go on. The law is about reinforcing the certaintyin which actions have sense. It is against this certainty that weset out to construct our expert systems. Dreyfus and Winograd,modern critics of AI,319 have suggested that we cannot build318 Dwyer, supra note 231 defines this as "basic intentionality".319 "Strong Al" is the name for those who advocate that we canconstruct intelligent machines which "think". Chief proponents ofthis school are the Churchlands; Matter and Consciousness [1988],and John Haugeland; Artificial Intelligence [1985]. It advocatesthat machine logic can essentially duplicate the workings of the"mind" and thereby create a conscious. Both Hubert Dreyfus; WhatComputers Can't Do, and Terry Winograd; Understanding Computers andCognition, take strong Heideggerian positions which advocate anontological position that thought embraces action and is situatedwithin a background of activities. We will recall from our initialdiscussion in Chapter One that this is what Dreyfus corresponds toMinsky's "Husserlian" project; the construction of "common-sense".As we mentioned earlier, Ann Gardner has suggested that we cannotbuild expert systems which deal with "hard cases". We argue againstthis position.145expert systems which can simulate human reasoning because suchreasoning presupposes a background or way of being which we cannotcapture. Work at the FLAIR institute shows that we can createprograms that duplicate the efforts of legal research. Whether thisconstitutes "reasoning" is a question of semantics. We will coverthe actual construction of expert systems in the next chapter.To construct the social world there must be conditions which enablesocial relations. By this we do not mean that social relations arecaused by any presupposition, only that they exist. Relations existin our world as human beings experience the sense of things in theworld. As I accumulate this mass of experiences, and the sensethat goes with these experiences, I assume a stance towards theworld. This stance is how I have experienced the world itself,through my own body, in a world. What I have experienced in thatway is, for me, certain. I experience a way of encountering therealities which constitute my form-of-life. I find myself in afamily, a school, a job, a hospital. This encountering instilswithin me a sense of the situation. This Sense becomes the real. Iam that experience. This experience flows throughout and from oursocial world.This background is Heidegger's articulation of our being-in-the-world. It is our mode of being. 32° In order for there to bemo "My" reflections here on the early Heidegger are from a readingof Dreyfus [1990], an earlier reading of Gleven's commentary, andfrom Heidegger's Basic Writings [1976]. My reading is no doubt146subjects/objects, idea/things there must be some way of being thatthese aspects are revealed for me. What is revealed lies in thesense we have of our world. It is that we encounter the world andre-encounter its sense and the possibilities it presents to us.321We always interpret the world in a situation through the exper-iences which constitute our attitude towards the world.When we say we are certain of things, Wittgenstein wants to say "itis not that on some points men know the truth with perfectcertainty. No: perfect certainty is only a matter of theirattitude."322 We have an attitude about the world because we arein it. I cannot doubt my name because everything else goes with it.But this is a stand I take. It is the framework within which myactions and thoughts make sense.Wittgenstein sets out the difference between subjective and object-ive certainty.323 At the heart of objective certainty lies thetainted by my understanding of Wittgenstein's thought's, many ofwhich are echoed in Heidegger's thinking.321 This is Heidegger's hermeneutical phenomenology. We experienceand re-experience the world. It is never the same. Dasein is neveridentical with itself.Wittgenstein, On Certainty, §404. For a discussion onWittgenstein last writings, see Norman Malcolm's Nothing is Hidden1986], "Certainty".See Ray Monk's biography Wittgenstein [1991] at 563. As well asproviding an interesting account of Wittgenstein's life, Monk alsodiscuss quite well many of Wittgenstein's philosophical points.Wittgenstein covers certainty so as to show that it exists as anaspect of our form-of-life. What makes sense is what we are trainedto see as sense. Within this training things become unshakable. At147realization that doubt has no sense. I cannot think of itsnegation. 1 + 1 = 2 or else, for me, it means nothing at all. Ofcourse we can then say, but I meant binary notation, so the answeris 10. But this is a misunderstanding about the question not theanswer. In that lies the subjective uncertainty. What are the rulesof this language-game? Certainty then is not an existential, but istied to grammatical presuppositions. To speak of certainty is toshow how this manifests itself in human action.124What counts as a doubt is also set out for us. If I point, withHart and Fuller, at a chevy-sedan and say "there's no vehiclethere"; this is not a mistake but a mental disturbance. What countsas a "vehicle?" If we have to say something then it depends whogives the explanation. The judge can't look elsewhere because thereis nowhere else to look.15the same time, some things become unthinkable. I cannot think of aphysical object that is not solid. All this leads us to see that itis not the point that we can say things are or are not, only thatthey are so only according to the sense of our lives. Certainty isthe kind of language game. This does not preclude that there mightwell be universal and absolute truth, only that it really makes nosense to think that what we can know something as certain outsideof our language-game.324 Wittgenstein, PI at 225.15 Of course, who and how an explanation is given is also set outin the practice. This we have tried to show in Chapter One andChapter Three. When we come before the court we already have anexpectation, a way of proceeding on. In On Colour (1968] Wittgen-stein puts it that a definition presupposes the knowledge whichfits that definition. What counts in ordinary language as adefinition is set out in "quiet agreement". In law the definitionis an institutional affair. We accept the definition not because itis "correct" but because we submit to the force of law. This forcesets out for us that everything has a legal element. Can we think1484.2 The Intentional Being: Pulling Up the LadderWe come to what, for law, is a crucial juncture. It is about how weact in the world, how we project our attitudes. In this the lawlooks to the intentional acts of agents as the causation of events.This question of intentionality sits with us since the scepticismof Hume.We speak of matters of fact. That this gun fired this bullet whichstruck this person. This is empirical truth. But for us what ismost relevant is the relation between such empirical facts. That iswe are interested in the a priori where the effect is not logicallyimplicit in the cause.326 We may say for example that my drivingat a high speed does not necessarily entail that it is the cause ofan accident. Such a relation is contingent.It is in language that agency is constituted. We have seen inChapter One that we use an observational language-a set of domainpredicates-to accomplish this task. Such language constitutes thelimit of what we attribute to the person as agent and to the eventof something not in law? Only if law says so. Through this thelogic of the law makes sense. Explanations must, at some point,come to an end. If we reject the authority of law, then nothing lawspeaks to makes sense.325 For a discussion on this scepticism of Hume, and an interestingread on the utility of explanation, see Stephan Strasser, Under-standing and Explanation [1985], here at Chapter Three.149as an action. We noted that such agency was accomplished throughthe application of an adverb modifying an event. "I accidentallyran into the back of the car". In this modification we attribute acertain quality to the experience which gives it a sense for us.Wittgenstein sets out in the Tractatus the self which is limited tolanguage, and the ego which is in a privileged perspective. We arealerted to the confusions in our language which arises as a resultof this duality; not the cartesian duality of mind and body but theduality of reference, of how we speak of things which are theperspective of the ego and of things which are the perspective ofall.Ricoeur points out that the semantics of analytic philosophy ofaction move to avoid the issue of "who" in the attribution ofagency.327 Events have been set out here as the state of theworld. An action is that which makes things happen. Between theevent and the action is the cause.328 In this we return again tothe notion of agents and rules. To say what an action is, is tostate the relation between cause and effect; to be able toattribute reasons for the effects. This ties what an action is toIR Paul Ricoeur, Oneself as Another [1992]. Ricoeur's project isan examination of personal identity within the context of auniversal subject, or transcendental ego, required by ethics. Inhis discussions of agency we are to realize the existence of a selfwhich is not solely personal but rather, as we have shown throughWittgenstein and Merleau-Ponty, exists within a public world.328 Ibid at 70150why the agent acts.329For Wittgenstein this is a grammatical proposition, it is to speakof a concept. We can speak of intention only because we speak of achanged state of the world, not any "mental" event. In this theconceptual analysis of action theory does not concern itself withthe Husserlian notion of intentionality of consciousness.33° Werecognize then that mental events are established through publicacts. This is not possible in the case of "intending-to" proposi-tions.331Intentionality is an attributed quality derived from observationallanguage. Ricoeur puts it that "The virtue of practical reasoning,in fact, is to make a future state of affairs appear as a subsequ-ent stage of a process in which the action considered is the earl-ier stage."332 He adds that between explanation and description"the order introduced between two a series of reasons for acting bypractical reasoning rebounds onto the very description of the329 IbidIbid at 67331 Ibid at 67. Here he is considering the works of G.E.M. Anscombeand Donald Davidson. We can think of the Criminal Code offense ofConspiracy which is one of the few offenses which do not requirethe completion of the operative event. Even here however the prooflies in rigorous public acts. This approach is also reflected inthe work by Coval in Agency in Action [1992]. The criteria forpossession is set out implicitly in terms of a practicalrationality.332 Ibid at 71151action."333 The question of intentionality then becomes one ofveracity rather than truth.The teleological explanation, in which law is set out as a system,avoids the question of intention-to altogether. Here a rationalityof necessary events for an action to obtain is prescribed. In show-ing that the effect is obtained, we prove the antecedent events.Describing and explaining coincide.134An alternative to the action-event dichotomy is causation-motiva-tion.I5 Whether something is an intention is a derivative of itsadverbial use, as opposed to adverbial modification. This necessit-ates the problematic of a direct reference back to the ego in theagent of the action. We have already considered in Chapter Two how-ever, that without any observable criteria, it becomes questionablethat we can attribute, within an ontology of events, intentions toagents.The justification for rational attribution of responsibility isthat the ethics are at once universal and particular. The agentacts, and so we attribute moral responsibility because the agent333 Ibid334 Ibid at 78.155 Ibid152possesses the freedom to act.3256 To attribute moral judgment is toadd a further attribute to responsibility-the attribute of "good"or "bad". This takes the form of constitutive rules found withinthe rationality of law itself. These rules, following the logic ofpractical reasoning we outline in Chapter One, are those which"swallow" (to use G.E.M. Anscombe's phrase) the chain ofevents.3257 We place blame through closure of series of events.The process of placing blame is the culmination of legal reasoning.We have seen that the Rule of Law is that like situations be treat-ed similarly and that all are "equal" before the law. This notionof justice has a sense of logic and order to it. It appeals to anadherence to a natural order in the world. Analytic thinking bringshome the value of abstraction in we see that things are the same.3256 Kant's statement on the thesis of the causality of freedom isset out as: "Causality in accordance with the laws of nature is notthe only causality from which the appearance of the world can oneand all be derived. To explain these appearances it is necessary toassume that there is also another causality, that of freedom". Fromthis Arthur Danto defines the basic action as: these actions whichrequire no other intermediary action one would have had to performin order to do this or that. This represents the basic particularof the theory of actions; this represents a practical knowledge.see Ricoeur at 102ff. (see also footnote 111, supra).w Nietzsche's On the Genealogy of Morals [1987] moves to rebutteleology by seeking origins. In looking backwards we deny thepurposiveness of morality and see its archaeology-to abolish theaim and its alleged rationality: "To breed an animal with the rightto make promises-is this not the paradoxical task that nature hasset itself in the case of man? Is this not the real problemregarding man?" (GM at 57). "Good" and "bad" is set out in Human-All too Human at section 45 "Whoever has the power to repay goodwith good, evil with evil, and also actually repays, thus beinggrateful and vengeful, is called good; whoever is powerless andunable to repay is considered bad.".153Holland and Webb give us an insight into the process of this way oflegal thinking.338 We can speak of inductive and deductive logic.Inductive logic is set out, in giving Persig's example339, that Irealize my bike backfires only when I hit a bump in the road; sobackfiring is caused by bumps. Deductive logic is that I haveKnowledge which enables me to trace a cause; my headlight doesn'twork because the battery is dead.Logic is sometimes a difficult thing to comprehend. Holland andWebb give the simple illustration.340 A statute says that to takesomeone's property with the intention of keeping it is an offense.X takes my bike and sells it. "Our starting point is a generalrule, laid down by a statute, which we are then applying to aspecific instance."341 And so this is deductive logic. We can setthis out as a syllogism. This is true; but is it not the startingpoint that someone took my bike?The modern age provides us with the "world picture."342 To see338 Holland and Webb, Learning Legal Rules [1991], Chapter Nine"Exploiting Legal Reasoning".mw Purzig, Zen and the Art of Motorcycle Maintenance [1976]Holland and Webb, supra note 340 at 195340 Ibid3412 Heidegger, The Question Concerning Technology [1977]; "The Ageof the World Picture". In this collection of Essays Heideggerconfronts what it means to be in the modern age. The modern age isthe age of technology which springs (so the early Heideggerinsisted) from the productionist metaphysics of Greek thought. TheLater Heidegger moved to see techne as the being the saving grace154the facts of this world they must be made clear. Explanation withinthis investigation falls, as Levi-Straus has already told us, to anaccount of what is unknown by what is known. This is the principleof stare decidendi. In revealing the unknown we affirm what alreadyis.343 It is belief in the known, what is already certain, thatholds us to its logic. The logic of law is that the same is thesame. This point Haverkamp has already made for us. We can est-ablish this sameness by verification of what is with the compar-able and objective what was.3" In this the law is made self-evident.Our statutes and our case law lead us to the already known fact. Wecan show that what is as the same as what was because we can neversee the entirety of experience.345 Despite this, It is becauseof art in the work. For Heidegger, there are several senses to themeaning of "world." Dreyfus [1990] points these out at 89. There isare two worlds of inclusion which are based on either the objectsor the forms of categories - such as the physical world. There aretwo worlds of involvement. This can be either categorical involve-ment such as "business world" or what is the worldliness of theworld-that sense of the incomprehensibility of everyday life, orperhaps the life of the lion.343 This is Heidegger's description of the scientific method. SeeIbid, "The Age of the World Picture" at 121.3" Ibid at 123. "Through the constant comparing of everything witheverything, what is intelligible is found by calculation and iscertified and established as the grand plan of history." Themysterious is reduced to explanation within this grand scheme.Progress is revealed by methodology.345 This is the point Heidegger wish to leave with us; contraHusserl. This is also the emphatic point of Phenomenology ofPerception (Merleau-Ponty). We can only see what is before us. Thispoint also lies in the seeing-as an aspect example we have held tobe so important to this paper. Consciousness cannot simultaneously155the law is able to render the right decision that law sustainsitself. It sustains itself by the power of the institution. Itverifies itself with the presupposition of its own truth. Thelawyer then must come to a reason which recognizes the primacy ofthis institutional legitimacy. This is law's pragmaticism.What then is the nature of legal thinking? The affirmation of legalthought is the affirmation of this social world. Language can onlybe language if the intelligibility of its meaning can be coherentlymaintained.346 In this the lawyer is bound by the language oftheir world. The speaking of the legal language is the voice of thelegal world and its metaphors are case law and statutes. Legalthinking is directed towards the possibilities which exist forclients in the language of law.The thinking of law is Rhetoric. To speak the language of law is tobe the master of the technique of legal analogy. "Only in this wayis he capable of acting effectively, and only thus, after the man-ner of his age, is he real."w To act effectively the Rhetoricianhold two points of view.346 Zimmerman, Heidegger's Confrontation with Modernity [1990] at144 puts it that for something to be said to have a meaning, thenits intelligibility must maintain itself-it must be that we areable to transcend the immediacy of its occurrence. This isHeidegger's thoughts which lie with the temporality of Being347 Heidegger, supra note 342 at 125. This is Heidegger's observ-ation for the thinker. The modern thinker is confined to the logicof the discourse which is ever increasingly institutionalized.Thinking is institutionalized because it is seen as an "on-going"process which requires continued research and modification. Thought156is not required to comprehend how the agent sees the world, but topresent an aspect which accords with that world. The image of thisworld is all that is required. The truth is to be defined in therepresentations used to explain the rule followed. To do this wemust be "in the language" of the law, to see the world as law.348We have seen already, by Foucault, that the law takes control of,and gives order to, the social world. It is the institution whichis the engine of social progress. The institution gives voice andrepresents the necessary teleology to reform a reticent world. Itcan do this because it is the institution which constructs therea1.349 The institution appropriates progress for itself and soprogress is associated with the reform of the institution.Derrida and Smith have suggested that the law imposes its own just-ification to effect closure. Without this imposition, law wouldcease to be binding. The imposition of law ensures certainty and inthat, a veracity. We should admit that the question of indetermin-acy drops out of the picture once we recognize that the concept ofdeterminacy exists nowhere except within the rationality of dis-can only be maintained within a singleness of purpose.348 The "world picture" is the image of the world-like theduck/rabbit is an image of duck or rabbit. The point is that theyare both parts of a line. We see into the image the reality of whatis represented-we see the lines as real. We grasp the real as animage. See Ibid at 129 for this point made within the context ofHeidegger's work.349 Ibid, at xxix; That the "natural" world is the world ofscience.157course.35° The law is just what we do.What justifies law, for us, is that language is public. When "I"point and shoot a gun, we know what this means. When "I" drive mycar through the park, we know what this means. We know these thingsbecause we are too much the same about things such as cars andguns. We are inauthentic beings in the public world. It is in thatthat law has its strength. At some point the law makes sensebecause we make sense.3513" Wittgenstein leaves us (PI at 224) with the notion that what iscertain is what we cannot doubt-that for example my experiencetells me when I see a persons face scrunched up so, that they arein pain. We might respond "but this is subjective". Yet is thisless certain than 2 X 2 = 4? Is that not also subjective because itis something I have learnt? "The kind of certainty is the kind oflanguage-game." What passes as "true" depends on where we speak.This as Dreyfus points out [1991] is that we can only point out thebackground to those who already have an understanding of thatbackground, who already dwell there. We cannot doubt everythingbecause to do so does away with everything. We cannot doubt becausein our mode of being it is the background, our beliefs, upon whichwe conduct our lives. Heidegger and Wittgenstein both point out intheir own way that because of this we cannot completely reveal thebackground, that is to make it serious. Instead we must perhapsfocus more on the individual capacity for self-reflection, theability to, in some sense, see one's own situation. Psychoanalysisis one such tool.351 But this of course is not the truth. In Saskatchewan wherenative women are less than ten percent of the population, they areninety percent of the women prisoners. This is justice but it isnot the truth.1584.3 Out of the Mouth of the LionThe modern age is an age accentuated by science and technology. InThe Question Concerning Technology Heidegger moves to examine thepresuppositions which give rise to the modern mode of thinking. Themode, which we touched upon in Chapter One, is instrumental think-ing; thinking which is directed to our purposes.152 Heideggerplaces the origin of this mode to Greek productionist metaphysicsand the development of the eidos or idea.353 The objectificationof the world-the appropriation of the world for the subject-culminates in the modern artifacts of control and domination. Theessence of technology is that it is a means to an end and, that itis a human activity. 354 The development of Technology comes fromscience and the recognition of the connection between the productof science and what we do. This is the recognition that instrumentscan be utilized in a technique (techne) of production.355352 As well as Heidegger's text, an excellent analysis of bothHeidegger's controversial life and his thoughts on productionistmetaphysics, see Zimmerman, supra note 346.353 Ibid at Chapter 10.35;4 Heidegger, supra note 342 at 4.355 Franklin, The Real World of Technology [1989] illustrates theemergence of the ceremonial urn. Human reason and creativity areapplied to the problems of production. Techniques are developed todo work proficiently and, through this, instruments and methods oforganization evolve over time to make these techniques moreefficient. The holistic production of the craft clay pot, which asingle individual would create, evolves into the prescriptivetechnology of the industrialized product. In the creation of theurn a whole series of related activities are undertaken - the159The world of things, for Heidegger, are either ready-to-hand(available for my use) or present-at-hand (that which occurs in myexperience); we view the world as the possibilities for itsuse.356 These things assume for us the aspect of being equipment.Our attention is directed by our purpose towards things and themeans of effecting and increasing their use. It is this seeking touse things more effectively which leads inevitably to employtechnology.Things are in the world because they reveal themselves to us asthings. This revealing (poiesis) is the presentation of theexistent actuality (physis) as a way of being.357 Techne is alsoseen as a way of bringing things forward but what is brought for-ward is not an itself but an art.358 The product of a technique isnot a thing but an artifact. Technique is the method or familiaritysomeone who is proficient possess over a process. It is a way ofdoing something. We call someone an expert who is master of agathering of minerals, the creation of raw metal, the moulding andfiring of the pot, the decoration, all become specialized. Thiscomplexity reveals a requirement of organization. Later Heideggermoves to argue that techne itself was a form of art-a craft-whichbecomes appropriated through instrumentalism.356 Ibid. Zimmerman, supra note 346 at 150 shows us that the forestreveals itself ready-to-hand as a timber resource, that thefarmland reveals itself as a mining quarry. In the modern age wemove to see that the number of people in a household making ydollars is a number corporations can use. This is calledinformation. Information is an element of data which, when placewithin a logical structure, serves a use.357 Heidegger, supra note 342 at 10.358 Ibid at 7-10.160technique.Modern technology, which is most explicit in the methodologies ofFrederick Taylor and Henry Ford, seeks to expropriate the manner inwhich a technique is performed. Science seeks to reduce a craft toa blueprint. This is achieved by prescriptive methodologies-break-ing down a process to its atomic elements and then reconstructingthese elements in mechanical form.359 The scientific method thenis tied to revealing and representing the being of how a thing is.This revealing or unconcealment, is the truth of what happens(aletheia) .360Once the means of bringing things to be is mastered, then they arepresent for us. By this we mean that once it is possible to convertwhat is present physis into what is our purpose, then what ispresent is standing-reserve (Bestand) for our use.151 The mannerthings which are Bestand are familiar and ordered is calledenframing (Gestell). Gestell sets out a sense of the relationbetween human beings and things Bestand. It is the sense we have ofmodern production in that organization evolves around the endssought by the means to bring about that end.362 Our world consistsof these things which are, for us, the possibilities which can be.359 Franklin, supra note Heidegger, supra note 342 at 13ml Ibid at 17362 Ibid at 19-20.161For Heidegger, the danger is that human beings themselves becomeBestand as our purposes become removed from the techne to thetechnology.363It is that as technology moves from mere instrument to causalitythat we forget the being. In this, human beings are themselvesbecome objectified within the world of purpose.364 From Sein undZeit it is apparent that Heidegger holds the view that if somethingcan be, it will be. We see this in our everyday mode of being.365Heidegger points us to the direction we are taking. We buildtechnology into our law. This is not merely that we can, but thatwe will. There has been much wasted intellectual energy arguingwhether we can build "expert" systems, or whether such systems are"intelligent." That we speak of expert systems means that the being363 Ibid at 30-32RA Modern production seeks to eliminate the human being from itsparticipation. The human being is alienated to be the agent ofconsumption rather than production. This is most evident in therecent "restructuring" of the global economy. The danger lies nowthat the purpose no longer corresponds to its initial means; thehuman being no longer participates in production. Heidegger givesus the difficult proposition, from Holderlin's poetry (QCT at 34),that the danger is also the saving power (see also Zimmerman at219). I can only assume by this he means that human beings willtranscend productionist metaphysics; i.e. the logic of capitalism,and cease to be agents of production-to move on to a life without"purpose." We can do this presumably because the a priori ofcapitalism is an illusion.365 We see this in every aspect of production from atomic weaponsto genetic engineering to glass skyscrapers. Once the human beingis "of a mind" of something, it seems impossible to prevent itsdeployment. We do because we can. The world then appears not to bea matter of the human will.162of techne is revealing itself (Heidegger) •366 That we ask whethera machine is intelligent means that language finds a new use (Witt-genstein).367 We move on.What lies as the technique of law? In law we seek to master thetechnique of rhetoric-the means to our advocacy. What is Bestand-our case law and statutes-are not merely objects but potentiality.They are ready for our use. To effect this potentiality is Gestell.We recognize ways of going on in advocacy that effect the purposesof our clients. As lawyers we look to our clients purposes as ourends. We do this within the institution which is our setting.What calls for thinking?368 What is it we call thinking? Thinkingcan never arise in abstraction from experience.369 In law ourclients speak the events of the world. They bring forward what itis we must show in the legal world. We must speak this. We showthis in a language which is already there for our use. We do notconcern ourselves with the meaning of events-we do not concernourselves with our attitudes-but with what is. We find ourselvesalready in a situation, in a form-of-life. It is the worldexpressing itself that the intelligibility of what we experience is366 For example, see Dreyfus, What Computers Can't Do [1986]367 For example, "The Chinese Room" debate between Searle andChurchlands. This point is raised by Neumeir.3611 The title of a Heidegger Essay; see Basic Writings at 345.369 Heidegger, supra note 342 at xiv163revealed.3704.4 Revealing the Legal Fact: Shock of RecognitionTo discover a new truth is to discover a new metaphor. Nietzscheinstructs us that "The drive toward the formation of metaphors isthe fundamental human drive, which one cannot for a single instantdispense with in thought, for one would thereby dispense with manhimself."I" We have said that knowledge (as definition) islimited by language to what is said.m When we recognizelanguage's limit to our world, we see the paradox which unfoldsfrom the world as a representation of itself. We create newmetaphors to remove the consequences of this paradox because newmetaphors recreate the world.m The human being escapes theYM IbidYIN Nietzsche, From "on Truth and Lies in a nonmoral sense" in aversion printed in The Rhetorical Tradition, Patricia Bizzell andBruce Herzberg (eds) (1990] at 894372 The lasting element in thinking is that which makes experienceexperience-the non-verbal being-the way of seeing one's own world,which cannot be translated because its presence is outside oflanguage.Wittgenstein emphasised to Russell (who had missed the point of theTractatus) that the ethical (that which cannot be said) is the mostsignificant. "The main point is the theory of what can be expressed(gesast) by propositions-i.e. by language...and what can not beexpressed by propositions, but only shown (geseigt); which Ibelieve, is the cardinal problem of philosophy.", from Bell, Essaysin Kierkegaard and Wittgenstein [1978], at 12.373 Nietzsche, supra note 371 at 893 on the philosopher:"His method is to treat man as the measure of all things, butin doing so he again proceeds in the error of believing that164paradox of rationality metaphorically.374"What then is truth? A movable host of metaphors, metonymies,and anthropomorphisms: in short, a sum of human relationswhich have been poetically and rhetorically intensified,transferred, and embellished, and which after long usage, seemto a people to be fixed, canonical, and binding. Truths areillusions which we have forgotten are illusions; they aremetaphors that have become worn out and have been drained ofsensuous force, coins which have lost their embrossing and arenow considered as metal and no longer coins."375In the Seeing-as aspect drawing we come across the enigma of theimage as the real. It is a duck, it is a rabbit. It is also lineand form; a thing itself. As we look at it, that is the hardestthing of all to see. We come to the image with an expectation ofhe has these things [which he intends to measure] immediatelybefore him as objects. He forgets that the original perceptualmetaphors are metaphors and takes them to be the things them-selves."374 We have seen previously in this paper, for example, that inscience a new theory removes instrumental anomaly; in law, a newterm of art redefines intention, in philosophy, we encounter a newway of explaining the inexplicable. It follows from this thatphilosophy itself must turn for a ground outside of language. Thislimit of language has been recognized in Wittgenstein's Form-of-life, and Heidegger's "Being of beings". Merleau-Ponty, supra note268 at 18 puts the problem this way;"But the question is precisely to know is whether there issuch a thing as logically coherent thought or thought in thepure state One of Kant's discoveries, whose consequenceswe have not yet fully grasped, is that all our experience ofthe world is throughout a tissue of concepts which lead toirreducible contradictions if we attempt to take them in anabsolute sense or transfer them into pure being, and that theynevertheless found the structure of all our phenomena, ofeverything which is for us."375 Nietzsche, supra note 371 at 891. This short essay capturesentirely the futility and limit of rational thought, thought whichto be rational must correspond not with how the world is, but howwe see it.165meaning. We are irresistibly drawn through the image to therea1.376 It is, to use Aristotle's phrase, a "shock of recogni-tion" of the existent in the physical experience of our world.317Gadamer suggests that understanding of the work of art is the modelfor all understanding378, that such experience provides the normfor the whole process of human understanding and experience. Wemust try to see what it is before our eyes. There is no meta-language by which meaning can transcend discourse.1NAnalytic philosophy sees unconcealment as an act of agency-theeffective cause. This is the cause which shows the face of anevent. It is the aspect (eidos) by which the thing is known as a376 Of course, the danger with modern image is a belief that it isreal. I have just watched a woman shot on television. She was hitby a sniper in Sarejavo. We have seen many such images. I lookthrough these images with the natural sense of shock. But It seemsthat the one thing I do not feel, which is what the picture speaks,is fear.3i7 This is taken from Aristotle's phrase on the effect ofmetaphor. It is that we encounter a similarity which is strikinglyout of place and yet we can see that it makes sense (MM at 109).Im Gadamer, Truth and Method [1966] particularly the sectionentitled "The Subjectivization of Aesthetics through the KantianCritique" at 42ff. At p.53 Gadamer suggests that "...theirrationality of genius brings out one element in the creativeproduction of rules evident both in creator and recipient, namelythat there is no other way of grasping the content of a work of artthan through the unique form of the work and in the mystery of itsimpression, which can never be fully expressed by any language.Hence the concept of genius corresponds to what Kant sees as thecrucial thing about aesthetic taste, namely that it facilitates theplay of one's mental powers...and thus the originality that createsnew models." For Gadamer then, it is the 'play' which is most true.379 This is, of course, in contrast to Habermas's communicativeaction theory which is similarly hermeneutical in orientation butrelies on the notion of a transcendental 'ideal speech' discourse.It is through striving for an ideal form of communication-based ona consensus-that we come to understand across discourses.166thing. The revealing which Heidegger seeks is the truth of thebeing by which things come to be.m) It is this search for whatbrings about the question of the fact of the legal fact.How does the fact become an entity? The eidos is the object-ification which identifies the thing as an entity. It is thisentity with which productionist metaphysics is concerned. Before wecan speak of the cause of the entity however we must be able tospeak of the entity itself. It must be present to us as anactuality (physis). This bring-forward or revealing is Poiesis.Poiesis is always something which is effected, which comes aboutbecause of an involvement.m We have already noted techne as oneway of producing to bring about something skilfully. Techne is amode of knowing which does not signify the action of making .382Disclosing, as in art, is another way that we can speak of thingscoming to be. Art is always something created.383As creation, art speaks to the revealing of truth. The truth of thework of art (Aletheia) is its unconcealment. Its play is within thejuncture of what is coming to be. Looking at the image sees usthrough to its actuality. We can speak of the art neither as an380 Heidegger, supra note 342 at 6.381 Heidegger, supra note 342 "On the Origin of the Work of Art",at 189382 Ibid383 Ibid at 178167image for we see the real, nor as the thing itself because it liesbeyond the image. Mulhall puts the image as irreducible andinexhaustible.384 Art is not the thought of Being, but theexpression of the being of Being.385 We understand the image to bewhat it is we perceive, not what we interpret. It is the merging ofcolour and perception into a unified whole that speaks the truth ofthe world.Art stands out from the world by its utter purposeless.386 This isthe great truth of art. Rilke gives us an insight into the unhappylife of the later Cezanne. His work is ridiculed, he cannot getyoung models to pose, and he works to exhaustion without joy everyday.387 His art is created because it forces itself to be created.It must be. He is inconsequential to the work itself.388 Whatmakes him a great artist is that he is moved to present the world384 Mulhall, supra note 270 at 1623115 Ibid. The usual Heideggerian phrase speaks of "man", I havereplaced that here with "Being."386 Zimmerman, supra note 346 at 234 puts it that it is utilitythat separates art from commodities. Once a piece of art becomes acommodity, it cannot be what it is. In this way we can suppose that"high" art ceases to be true art because it is used as a signpost;it is used to show what we mean by art. In "What is Thinking"Heidegger puts it that art is not the thought of man but theexpression of the being of man.387 Rilke, Letters on Cftanne [1985]. See for example at 34. AlsoMerleau-ponty write's similar remarks in "Cêzanne's Doubt" in Senseand Nonsense.388 Heidegger, supra note 342 "On the Origin of the Work of Art",Basic Writings [1976] at 167.168as it is without care for beauty.389 His work reveals the livedexperience.Heidegger, following Nietzsche, holds that there is no reason whyanything should be at all.m This is of course the point Wittgen-stein has drilled deep into us. The meaning of a word is its usebecause there is no other meaning. The world, and the way we are init, presents itself to us as an experience. The world just is afact. It is a lived-experience which we encounter through ourpresence in a particular situation.The modern world, denied the respite superstition, myth, religionand science have provided us as explanation for being, finds no-where to turn but to the purposes of our lives. These are ground inthe telos. Heidegger tells us that there is nothing to be found389 Merleau-Ponty, Sense and Nonsense [1964] at 16; The object isto capture what is seen rather than what is thought (interpreted)."If I capture all the little blues and all the little maroons, Icapture and convey his glance." The personality is captured by theglance, yet the glance itself can be perceived of colours only. InPhenomenology of Perception [1962] (at 326), M-P puts it that "Mygaze 'knows' the significance of a certain patch of light in acertain context; it understands the logic of lighting." It is inthe perception, how things appear for us, that a meaning emerges.M-P puts it that if we conceptualize the expression first, we missthe mystery. Cdzanne sought to paint so that one could smell theflowers. Rilke puts it (at xv) that what is sought by the artist isan "objective telling" preserving the "balance between the realityof nature and the reality of the image."390 Ibid at 235169here either in these humanist attempts to ground being.mThe meaning of our experiences lies with our presence in asituation.m In a remarkable point Merleau-Ponty relatesCázanne's expression on the artist and his art: that "The landscapethinks itself in me and I am its consciousness."m The worldspeaks itself through the artist. The authentic lawyer then, if itcould be so, is the one who would speak the aspect which we are391 See for example Heidegger, supra note 342 at 135-136. Thispoint is particularly emphasized in his rebutle of Sartre'shumanism; see Basic Writings "Letters on Humanism". There he seeksto show that Dasein is the way of revealing the possibilities ofthe world, but it does not discover or create those possibilities.Heidegger held Nietzsche, to whom he owes much of his thought, tobe the last metaphysics philosopher precisely because Nietzschecontinued to place value in the world even though it was his own.392 Merleau-Ponty, Primacy of Perception [1964] at 25-27"If we admit that our life is inherent to the perceived world andthe human world, even while it re-creates it and contributes to itsmaking, then morality cannot consist in the private adherence to asystem of values. Principles are mystifications unless they are putinto practice; it is necessary that they animate our relations withothers....Just as I grasp time through my present and by beingpresent, I perceive others through my individual life, in thetension of an experience which transcends itself."393 Merleau-Ponty, Sense and NonSense [1964] at 17. In a similarlyremarkable point Dwyer relates Merleau-Ponty's analysis of a brain-damaged man by the name of Schneider. I have not pursued this point(perhaps its veracity is of no consequence) but in my imagination,Dwyer has placed Schneider as a "literal" man. He can only see theimage as image. He is one who appears unable to experience theworld in any other way than literally. When the sky is blue, it isblue and cannot be imagined as something else. There is no suchthing as a joke for this man. He doesn't see sadness. We can referback to our discussion here on "noticing an aspect". The aspect-blind; those who can't see the alternate or secondary aspect, arethose who cannot see the representation as the reality it depicts.Mulhall, supra note 270 at 146 puts it that for the aspect-blind"the linguistic technique stands between him and the world."170otherwise blind to. This is not the fact of the institution but thefact of the world. Gill provides us with this in the core ofMerleau-Ponty's imagery:The visible can thus fill me only because I who see it do notsee it from the depths of nothingness, but from the midst ofitself; I the seer am also visible. What makes the weight, thethickness, the flesh of each colour, of each sound, of eachtextile texture, of the present and of the world is the factthat he who grasps them feels himself emerge from them by asort of coiling up or redoubling, fundamentally homogenouswith them; he feels that he is the sensible itself coming toitself and that in return the sensible is in his eyes as itwere his double or an extension of his own flesh.394It is the experience of our situation which forms the basis of whattruly makes sense. They merge into a rationality; "To say thereexists rationality is to say that perspectives blend, perspectivesconfirm each other, a meaning emerges."395We should recall at this point from chapter two the "hard case";the sad plight of the character of Sartre's L'existentialism. Wesee that the very question facing the young resistance fighterarises only as an event. It is this event that imposes the identityof a self upon the self. We see that situations arise which callfor decision. Heidegger has put it that "Every decision, however,bases itself on something not mastered, something concealed,confusing; else it never would be a decision."m It calls forGill, Merleau-Ponty on Metaphor [1990] at 62 from Merleau-Ponty's Visible and the Invisible [1968] at 114395 Merleau-Ponty, supra note 268 at xix.396 as per Dreyfus, Being-in-the-World [1991] at 4. See Heidegger,"Origin of the Work of Art" at 177.171authentic thinking; an act where the world does not speak its ownpreference. Merleau-Ponty puts it that:... the experience of perception is our presence at the momentwhen things, truths, values are constituted for us, that per-ception is a nascent logos; that it teaches us outside of alldogmatism, the true conditions of objectivity itself; that itsummons us to the task of knowledge and action.wThus, as Dreyfus tells us, it is that what is most meaningful inour lives cannot be accessible to critical reflection. Criticalreflection presupposes something that cannot be fully Merleau-Ponty, supra note 392 at 25.398 Dreyfus, supra note 22 at 4. Heidegger's early view of languagepresupposes that the background cannot be explained but only shown.This is with Wittgenstein. Heidegger however thinks that thebackground can be pointed out by the existential analytic. This isin keeping with the Husserl phenomenological reduction. UnlikeHusserl however this cannot be context-free. Meaning is a describedas the odd project of hermeneutical phenomenology-the thing itselfthrough an interpretation. In On the Way to Language at 133,Heidegger takes the more nostalgic view:There is no such thing as a natural language that would be thelanguage of a human nature occurring of itself, without adestiny. All language is historical, even where man does notknow the history in the modern European sense. Even languageas information is not language per se, but historical in thesense and the limits of the present era, an era that beginsnothing new but only carries the old, already outlined aspectsof the modern age to their extreme.Language is already speaking to which we reply in learned response(from Poetry, Language and Thought).172The DeedChapter Five^Constructing Computerized Legal Knowledge5.1 Introduction: The Domain of a Practical ActionWithin every action lies a form-of-life. For us to speak of anaction there must be a recognized pattern of communication,behaviour and practice that counts for an action. It is in therecognition of the domain as an activity that we look to the eventsof the situation for understanding. As we shall point out, this isnot a detached observation requiring a "theory" but rather is basedupon practical reasoning about actions.If we rely on legal text we see, as pointed out by Garfinkel, thatwe are talking about legal "talk."399 That is to say this isanalyzing how judges speak, not what they speak about. Tounderstand their speaking we have to understand how to use legallanguage. This means we must understand the action which is in thesituation we speak. To understand this is to understand the grammar359 Harold Garfinkel, "Remarks on Ethnomethodology", in Directionsin Sociolinguistics: The Ethnography of Communication [1986],Gumperz and Hymes, eds. I will use Suchman's analysis here as itfits well with the overall intent of this section. See Suchman,Plans and Situated Actions [1987] at 46.173of the agents themselves.The job of the system analyst then is to design an effective modelwhich captures the "what" of the complex process, while creatinga modularity which enables the construction and emulation of thedynamic of that process. In examining a legal situation "what" isit we are talking about?This presents to us the problem in building expert systems. It isnot that we don't know how a word is used in a social practice; wecan usually show an example. What the problem is is that we don'tknow how it is going to be used. How it is going to be used is sub-ject to the grammar of the situation. Each new situation possesseswithin it the possibilities of new meaning. Suchman coins this thesituated action.400 This underscores that "every course of actiondepends in essential ways upon its material and social circum-stances."401 The situation is the crucial point in an action. ByMM We come back to Heidegger here and the notion of "transparent"actions (as we showed in Chapter Three using traffic lights asillustration, supra note 292). When the world is as it should be-when we are moving unreflexively in our everyday activities-then weexperience no sense of actively directing our thoughts. [of course,if our everyday activities are selling cocaine, etc, we wouldlikely be in a state of dread; a sense of apprehension]. Theobjects and activities of our use drift into the background("ready-to-hand"). It is when things "break-down" (a disentwiningby which the chiasm appears between the being and the world) thatwe become aware of intentional activity, activities that can insome sense be said to be intentional. It is in this notion oftransparency that the thematization of purposive activity loses itsgrip on us. Suchman covers these points in her text. For a reviewof the situated action see Suchman at 50.401 Ibid174establishing the relevant aspects of a situation, the more we givethat situation a context within to a specific legal domain.In law we speak of an action because we speak of a changed state ofthe world, something which we make sense of post hoc. What comesout of this talk of situations and interactions is that what countsas rational is a product of how agents act in the world. 402 whatwe speak of as rationality is a phenomena. It is the phenomenon ofexperience reified into a social world. In this an ungrounded wayof being is made certain. We construct the goals, beliefs andintentions of human beings and then tie these to the description ofthe changed state of the world.Suchman gives an important insight into the nature of background or"tacit" knowledge.lm When we act, for example when we walk acrossthe floor, there is no mental content as to what the state of theground is under ones foot. It is only if there should appear to bea hole, some reason that we can't go on, that we "act." This isHeidegger's articulation of break-down. It brings forth conscious-ness and practical reasoning. It is in this that our situationspeaks us.What is argued here, adopting the ethonomethodological approach, isthat we need not concern ourselves with general "tacit" knowledgeIbid at 58403 Ibid at 47175because it does not form part of the content of the action.i"Tacit knowledge is the internal-relations of the situation only inthe case of a break-down. We concern ourselves with apprehendingthat situational element. It is this element of the backgroundwhich reveals the necessary aspect of the agent's action. Such anaspect is recognized as the instance of the legal fact.That every action is determined by its internal-relations meansthat we cannot say anything is certain. No field in Law is staticbecause no field of human activity is static. Understanding mustexist before expert systems can be built. We must know thepractical activity of agents before we can emulate it; theperceived legal domain. Suchman proposes that we must look to theintelligibility of an action, in situ.405 In law we created an04 Garfinkel points us to this conclusion in his studies onpractical actions. In a study on "cocktail" conversations (Suchmanrelates this at 46) students are asked to write down the "tacit"knowledge which accompanies ordinary conversation. They find thistask overwhelming and finally impossible. This raises the questionwhether such assumptions are part of the agents mental state priorto acting. The tacit knowledge arises as we account for what it iswe are doing. It becomes a way of explaining our actions.This concept, a pseudo-problem arising out of our understanding ofbeing-in-the-world, consumed Husserl. He argued that thephenomenological reduction would lead us to understand thisbackground. Wittgenstein had argued in the Tractatus that realitywas composed of "atomic" elements to account for this vagueness ofsense. He was never able to show an example. Heidegger appears tohold that the existential analytic can apprehend the world (seeDreyfus supra note 22; Introduction). Later Wittgenstein holds thebackground to be incommensurable. Merleau-Ponty, as we notedearlier, argues that the phenomenological reduction shows us itsimpossibility.405 Ibid176intelligibility by creating a domain of a language-game. The domainacts as the reference point to both the structuring of our database, and to the structuring of the user-interface which links thesituation of the user to the necessary case law. If the logicalstructure is too rigid the system will be unable to deal withslight modifications in factual situations. If it is too flexible,then the system will be unable to provide specifically relevantinformation for the lawyer.It is stated in the thesis that to construct an expert system inlaw we must believe in an underlying structure of rationality.There is no consensus about what law is, nor about the true natureof legal reasoning, but it is nevertheless needed if legal ration-ality is to be self-conscious.406 To deal with this problem ofaction representation the approach has been to develop systemswhich are conceptually "closed domains" .4°7 A closed domain is theself-contained representation of a legal doctrine. It is an area ofthe Law which is substantially "settled". We can equate "settled"with the concept of "literal" as set out in Chapter Three. Theclosed domain has the structural advantage that the algorithm forlegal concept is relatively easy to design. It also enables a moremanageable data base.406 Smith and Deedman, supra note 6; see also Susskind, Expertsystems in Law [1987].407 For a good review on this subject see Kowalski, "Case-BasedReasoning and the Deep Structure Approach to KnowledgeRepresentation".177The schema or frame of an action which we touched upon in ChapterThree sets out a rational construction of an action. Such a char-acterization of a situation enables us to perceive a sense of anexperience, a simulacra of the phenomena. Through the closed domainwe eliminate the problem of "plan recognition" in our selection ofschemas. MM This approach has been attempted by Schank and Abelson[1977] in their "restaurant" script. In that approach we recognizesomething of an external approach to an action. It is an attempt toconstruct "common sense", the background of our lives. In buildingframes for law, we look to the purposiveness of human actions. Weemphasize the teleology of practical action. We observe a practiceand try to describe it.Indexicality is Charles Pierce's description that the significanceof an expression is the occasion of its use.409 The use oflanguage is tied to making sense in a situation. There areconventional expressions which impose their use precisely becausethey are conventional. I cannot point at a car and say it is a"baseball" without giving an explanation that is its meaning. I cansay it is a "lemon" without need of further explanation becausethat is a metaphor which has a conventional (literal) meaning whichis embedded in that use. From this example we recognize that wordsare fundamentally situationally communicative rather thanmm Suchman, supra note 399 at 36-39.409 For a discussion of indexicality see Michael Lynch, supra note182 at 233ff. Suchman also covers indexicality in her text.178possessing any identity of "core meaning." Words are not isomorphicto their sense. When we analyze a word we are forced to look to thesituation for its use.4"We have seen the paradox of language use. In looking at the seeing-as aspects of the duck-rabbit illustration, we recognize that lang-uage use directs our thoughts to what can be perceived even as itis constituted by that perception. We experience this phenomenabecause we already have a pre-understanding of the situation whichis presented to us and in which we are present. This is our form-of-life.The limits which exist in law are not to be confused with theindeterminacy of law as articulated earlier by Gardner. We areconfronted with the shift in social situations which create newmetaphors and consequentially new objectivity. The limit on theexpert system is the ability of the system to adapt and incorporatethis shift within its representation of the legal domain. It isprecisely for this reason that legal experts are involved in theconstruction of expert systems. They are most able to conceptualizeand incorporate legal metaphors in a dynamic Professor Smith, in one of his illuminating lectures on theNeurotic Foundations of Social Order [1990], related an experimentwhere subjects were brought in to administer an electric shock topatients in an institutional setting. The patients were actors whofeigned varying degrees of pain as the subject "turned up" thedial. The subject received instructions from a "doctor." The testwas to see how far they would turn the dial as the patientsexhibited increasing signs of excruciating pain. Naturally most ofthe subjects obeyed the orders to maximum levels.1795.2 Building Expert an System: Pure Economic LoselWe now consider how to implement the goal-hierarchy into a struct-ured computer algorithm. We will show how the deep-structure pres-ents the most practical methodology in the design of the logic-flow. By applying this technique, the resulting computer programwill be more stable and coherent, and better reflect jurisprud-ential reality.The application of a deep structured programming technique reflectsthat computer systems are tools. The expert system is a tool whichwe use to solve problems by machine rather than by human effort. Atthe present time we are restricted in developing such tools by ourlimited capacity to deal with natural language's situational dynam-ic. Accordingly any application we develop must be one which dealsprimarily with a well accepted practice.How do we put the grammar of the agent into a computational form?In the design of any computational model we attempt to break downwhat appears to be a complex processes in order to facilitate411 The author and Alexander Camera undertook to create anoperational expert system in Tort Law. The area chosen was "PureEconomic Loss". This area was selected because it is a relativelystable area of law, which straddled the boundaries of tort andcontract law. As such it presents the opportunity to study certain"hard" cases. "Algorithm" is method of describing the structure oflogic which is incorporated into the computer program.180practical design. This can be termed structural modularity .M2Modularity is the prescriptive process of de-constructing complexfunctions into simpler components which can be better emulated. Byeffective modularization, we not only appear more capable ofdealing with complex relations, but also incorporate a methodologywhich is inherently flexible and expandable. This is becausechanges in or to the composition of the model can be localized.In building a research tool we are to consider both the way inwhich the Law functions conceptually, and in terms of how thelawyer may utilize the body of case law to perform within thejudicial system. We will break down the utilization of case lawinto two approaches. The first will be Rule Based Reasoning (RBR).The second will be the Case Based Reasoner (CBR).The rule-based approach (RBR) incorporates the knowledge of theexpert directly into the program shell. This system derives itsconclusions from modus ponens logic structures that capture domainexpertise. In a rule based system, the conclusion is not derivedthrough the cases themselves. The system may justify its conclus-ions by referring the user to relevantly similar cases in anassociated database, but it does not "consult" the cases beforereaching an outcome.413412 As for example in Terry Winograd, Language as a CognitiveProcess [1983].413 Smith, Gelbart and Graham, Building Expert Systems in Case-Based Law at 2.181Legal research, the geist of legal life, is about retrieving relev-ant decided cases and statutes. The cases and statutes provide botha perception of what the law is with which to advise clients, aswell as a means to able to conduct legal argument. An effectiveinformation retrieval methodology will unequivocally improve thequality and effectiveness of the lawyer's practice.The most effective form of legal case based reasoner is one whichasks the user only factual questions, but utilizes an extensivecase database to formulate a legal conclusion. 04 The task of theknowledge engineer is to ensure that the right category of facts isestablished to serve as match parameters with the database. Theprogram should incorporate weighting calculations which willapproximate some degree of similarity, and therefore how "on point"the case is based upon the facts provided. This will be doneagainst an entire data base of case law. From this the systemshould be able to provide some measure of predictability andprovide a list of relevant cases to the user.The Case Base Reasoner is utilized through the construction of caseprofiles. The technique, which also uses modus ponens logic, is toestablish from the expert the set of facts which are relevant in agiven area of the Law. These facts are then used as the matchingcriteria to derive or determine the conclusion for the user against04 Gelbart and Smith, Toward a Comprehensive Legal InformationRetrieval System [1992].182the data base Case profiles. A CBR is the most valid form ofreasoning because it connects the situation to the legal domaindirectly. Cases are justifications judges use to choose betweenalternatives in the real world.CBR are the most difficult form of data base construction. Itnecessitates constructing a relation between an event in the worldand a fact in a legal text. This differs from the purely modus-ponens hypothesis of RBR where legal theory plays the guiding hand.CBR must establish from the legal text the situation judges areactually concerned with. That is we must reconstruct reality fromdoctrinal language rather than construct doctrinal language fromreality. It is in this that Smith guides us to what counts assignificant in the domain.The shell of the system conceptualizes the legal reality throughthe responses the user provides. The questions must create animpression of the factual reality which we are to consider in legalterms. The quality of the questions is essential to this process ofclarification. Because of this process of recognition from anexternal perspective to a meaning within the legal discourse, it isimperative that the questions be constructed by those skilled inthe process of conceptualization by analogy. Lawyers must beinvolved in designing questions for expert systems.This point may seem trivial but it is the key to the validity of183the system. We construct questions using natural language ratherthan language using legal terms. This impresses upon the user asense of the situation. When we ask whether communication tookplace between the parties, the response sets up a possibility whichcan be proved at trial. To answer the question, the user mustrelate the fact which underlies the legal concept. It is throughordinary language that we establish the legal "obligation." It isin this that the intelligence of the system is imparted by the userthrough what Michie calls the "human window"415. The point hereis, as Suchman discovered, 416 that the user does not know therelevance of any specific fact of the domain. They can only respondin terms of how the questions are set up. The questions musttherefor capture the essence of the legal fact; that which givesthe fact its legal relevance.To accomplish this the question-flow is structured using aninference-engine. This process can be characterized as passingthrough a set of logic gates until sufficient facts are interpretedto correspond to one of the recognized node-categories of thedomain we are analyzing.The facts which are relevant to a given action are set out for us415 Michie , D., and Johnston, R. (1985) The Creative Computer:Machine Intelligence and Human Knowledge, Hammondsworth (the "humanWindow") 69ff.416 Suchman, supra note 399 at 92184in two senses. In one sense we derive through the expert therelevance of facts to a specific legal domain. In establishing thetelos of the domain, the analyst draws upon the factual and socialelements of reality which constitute a situation. By this we saythat what counts as a relevant fact is set up for us being relevantto the legal decision. The number or type of facts which are trulysignificant to the domain prove to be of a manageable number. Thematching case law become the appropriate cases incorporated intothe database. How we view a case, the characteristic aspects whichwe have alluded to in Chapter Three, are pointed out for us by theanalyst in accordance with their perception of the domain.In the second sense we use the facts as attributes which determinehow we are to conclude the outcome in accordance with the matrixvalues set out by the analyst. These attributes are set up by thelogic of the system as we gather the user's responses. Once weconstruct the "picture" of reality of the user's situation, thelogic of the system is then to compare these attributes to thefact-patterns within specific cases of our database. It is in thisthat the situation speaks its resolution.We have attempted to apply a weight criteria which fits with anotion of preference to certain sources of authority. The level andJurisdiction of the Court is one such factor. A higher Court orlocal jurisdiction fits in with how we perceive a decision to beinfluenced. Weighting factors are also set out by the telos of the185system. Aspects of an event will be deemed more highly relevant tothe domain. The weight criteria we use for the captured factsdepends on the responses given by the user in the situation. Theseweights combine to give us degree of predictability.We must emphasize Wittgenstein's point on rule-following that therule does not determine the result. We can match the case and givea reasonable interpretation, but the outcome at trial is determinedby how the judge applies the rule. That is connected to theinternal-relations of the rule. These internal-relations are tiedto how the judge sees the aspects of the case. Of course, in atruly "hard" case, either decision is "correct."Let us set out an example. Our task here is to construct a systemto evaluate a case of purely economic loss. The expectations wewill have of this system depend in part on the objective we holdfor the expert system. We can develop the tool as a means ofevaluating argument. That is to say we can use the Case BasedReasoner to examine doctrinal level arguments and create a scale ofrelevance to our existing fact situation. We do this byunderstanding the approach a good lawyer takes to evaluating theprospects of success, and then incorporating this in the Case BasedReasoner by adopting a numerical case evaluation scale.We consider pure economic loss to be a concept independent ofcontract, negligence or Trust. In contract risk is allocated186between the parties according to their preferences and intentionswhich are recognized within the language-game of contracts. When wespeak of damages in contract they are to be considered in purelyeconomic terms. We do not include these in the concept of PureEconomic Loss because the agents have already agreed how any breachis to be arbitrated. In negligence we are concerned with therestoration from injuries inflicted as a result of injury to prop-erty or person. We therefore attach liability to the injury itself.The law on Trusts has prescribed remedies based through the estab-lishment of fiduciary obligations.Pure Economic Loss is the loss of money which arises as a result ofa legal breach from causes other than breach of contract or actualphysical injury. In considering the validity of a claim for losseswhich are purely economic, we are concerned with questions ofremoteness to physical injury, and of accepted extension of liab-ility by the Court.We believe the core of pure economic loss in non-legal terms can bedescribed as the "relationship" between knowledge, the communi-cation media, and the goals of the agent. This can also be consid-ered as "justifiable" reliance by one agent on another. By media werefer to the body through which the goals of the agent are to beachieved. It is breach of obligation by the media in communicationto the agent which results in a failure by the agent to fulfil itsgoals.187In the development of the Pure Economic Loss Advisor we haveattempted to incorporate what we consider to be the a structuredflow of the relevant case law with the necessity of building a toolwhich will access the relevant case law necessary for the practis-ing lawyer.We have determined from a review of relevant cases in the area ofpure economic loss that case law is broken first into the area ofremoteness; where the loss arises out of risk of physical injuryand, second the area of extension; where the Court considers theloss to fall within a recognizable head of liability. In reviewingthe area of extension we see an underlying logic which focuses onthe concept of communication between the tort feasor and theplaintiff. This aspect reveals to us the underlying structurewithin the action theory.In the area of pure economic loss, we must, like the lawyer,consider the inherent contradictions which exists within case lawat the doctrinal level. Of particular concern is the opposingconclusions between Anns v. Merton London Bourough Council [1978]A.C. 728 (adopted in Canada in Kamloops v. Nielsen (1984) 2 S.C.R.2) and the case of Murphy v. Brentwood District Council (1990) 3W.L.R. 414.Anns sets out economic loss as a prima facie duty of care wherethere is a foreseeable risk of harm. Murphy rejects this doctrine188and restores the distinction between pure economic loss andphysical damage, as set out in Rivtow Marine Ltd. v. WashingtonIron Works [1974] S.C.R. 1189.We start with the premise that Agents are autonomous beings who arefree to fulfil their goals. The agent has free-will. From this wedigress to incorporate a prima facie duty of care not to inflictphysical harm on their fellow agents. The contradiction then ariseswhere the free will of the agent conflicts with the effect ofeconomic loss by another agent. In reviewing the matrix of goal-ordering, we see that free-will is valued higher than the sufferingof economic loss. Accordingly we assign no prima facie duty of careto avoid pure economic loss. Money is merely an abstraction in anabstract world.5.3 The Construction of a Database5.3.1 The purpose of SLATE TechnologyThe late Guy Vandenberghe proposed the idea of a legal "workbench"and in this he relates four layers in which information technologycan be applied in legal practice.4171. Administrative applications: word and data processing;2. Legal documentation systems: data bases with text oflegislation and case law;3. Knowledge bases with legal information not found inlegislation or case law, including document generationsystems;4. Expert systems capable of solving legal problems.07 G.P.V. Vandenberghe, "Object and Scope" in Advanced Topics ofLaw and Information Technology [1990] at 7.189Such information systems comprise the tools of the legal profess-ion. These include statutes, regulations, case law reporters, lawjournals and legal forms. What makes these systems more vital isthe introduction of technologies and methodologies promise to dram-atically alter the way law is practised.Manual research techniques, including reporters, gazettes andjournals, permit lawyers to query using a wide range of searchparameters. The researcher will bring knowledge with them thatlimits the investigation to what is relevant. This includes usingparticular search phrases, legal concepts and fact-matchingparameters. Using automated boolean search tools, such as thecommercial computer-assisted services, lawyers can do legalresearch without leaving their desk.Applications are being developed with the idea of providing querycapabilities which go beyond boolean techniques. These method-ologies attempt to create an environment more closely resemblingthe traditional manual search techniques. FLEXICON418 is anintelligent legal information retrieval system being developed bythe FLAIR"' project group at the University of British Columbia,Canada. FLEXICON provides different quadrant search parameterswhich can be used singularly or in conjunction to derive relevant08 FLEXICON: (c) Copyright 1989, Daphne Gelbart and J.C. Smith.(Fast Legal Expert Information Consultant)419 Faculty of Law Artificial Intelligence Research190cases. A search of relevant case law can be conducted using asparameters fact situations, statute, legal concepts or case name.Intelligent search procedures are designed to be more "user-friendly" in that they narrow the search to the most relevant caselaw. This eliminates the objection to boolean search methodologiesfound in the current generation of text retrieval systems. Thecurrent systems require perhaps too much proficiency in the use ofcommand syntax. The greatest attribute of FLEXICON technology intext retrieval is perhaps that it is a familiar approach to thelawyer in the way they do legal research. Lawyers do approach caselaw with both facts and legal concepts in mind. Both are importantin using a case to characterize legal reality.FLEXICON complies with Bing's [1987] definition of an effectiveretrieval system: a search function in the form of a non-booleaneffective retrieval mechanism; a relevance function in the form ofcomputer-generated profiles, case summaries and HYPERTEXT links torapidly determine the relevance of retrieved cases and; a sourcefunction in the form of electronic and hardcopy full text andsummaries of cases. CM FLEXICON is designed incorporating expertlegal knowledge. This legal understanding forms the basis ofinference rules and search techniques to automatically analyzecases and other legal documents to produce intelligent casecm Gelbart and Smith, "Flexicon: Towards combining Automated TextRetrieval and Case-Based Expert Legal Advice".191representations, and as well, to retrieve best-match cases relevantto the user input parameters.One of the major problems with constructing a database represent-ation of a legal domain is the development and maintenance of datafields. Data fields are the factual elements which are necessarilyrelevant to the domain found within specific legal text. Case basereasoners (Legal Expert Systems) and legal databases must be builtand maintained through the addition of information in current caselaw. Typically such maintenance requires large investments in timeand money to extract this information manually.The SLATE project (Specialized Legal Automated Term Extraction) isa research project intended to develop tools which will automati-cally determine the values of key attributes of a case, and toextract and incorporate these values into the domain database. Indoings so we would be able to construct the necessary facts of thedomain upon which FLEXICON text analysis and case base reasoningmay be executed.5.3.2 SLATE Template MethodologyThe problem of language acquisition is, as Winograd points out, oneof the central problems of linguistics which has not been dealtwith in a comprehensive way in the computational paradigm.421 TheSlate methodology incorporates a parser to search for words which421 Note 412, supra at 19192have relevant significance. The recognition of significance comesthrough the process of training in the legal language. We attempthere to capture the style and terms of the institutional languagewhich is used to express specific legal facts. This language isposited into a dictionary or lexicon of terms which we use in ouranalysis of case law to extract legal meaning. Legal knowledge isimplicit in the lexicon of terms we create to drive the text anal-ysis process.Natural language enables a seemingly infinite combinations ofmeaningful expressions. It is possible in natural language toexpress a combination of words and phrases which have never beenuttered before, and that such utterances are capable of beingperfectly understood. The only apparent constraint on combinationsis grammar. Yet we realize that any sound or gesture can beintelligible if both speaker and hearer have the necessarycommunicative background to understand what is meant. In thedisposition of a judgment we see that language is tied to theformality of the institution.In constructing parsing techniques we can take advantage of theinstitutional style of speaking which a judge uses to impart thefinality of the situation. It is this style which sets out therationality of the discourse. A characteristic of legal decisionsis the formality of the speech. Legal text tends to be relatively193error-free and syntactically correct. 422 By focusing on specificfactual elements we take advantage of this formalism to create asimple parsing technique. This avoids the need for a generalsemantic approach to text understanding. 423 The pragmaticconvenience of this approach is of course countered by thespecificity of the particular lexicon. We hope that the flexibilityof this methodology will however show to be a strength rather thana weakness.Our purpose is to create a recognition procedure for the quantum ofdamages in whiplash cases. What we do is seek out given sentenceswhich speak to the specific function of a judgment; an award, anoutcome, etc. To capture the facts we use a method of linguisticpattern matching. Grammatical structures consist of a formalismwhich include such categories as nouns, adjectives, adverbs, verbsand prepositions which we use to give the sense of meaning. Indescribing the structure of a given sentence in legal judgments wenotice that we can structure the search using a lexicon with theseelements:term:key word:component:template:the piece of text data such as quantum;term phrases in each lexicon component;the groups of synonymous key words;the "formula" or pattern of components that composethe sentence by which the term is captured.The approach taken in the development of a term parser is to422^Deedman, Gelbart and Coleman, SLATE: Specialized LegalAutomated Term Extraction at 2.423 Ibid194establish weighting factors for key words, components andtemplates:1. each key word has a weight factor (i.e. indicating thelikelihood that it alone would satisfy the component);2. In each sperate template construct, a specific component whichis used in different templates may have a different degree ofrelevance, A specific component will therefore have its weightcharacterized by the template in which it is utilized;3.^each template has a weight factor (i.e. the likelihood thatits components represent the right term and sentence).We can take a template "ABC" which is made up of components "A","B" and "C" (See Quantum of Damages Lexicon in Appendix forweight = .95weight = .70weight = .90weight = .60EXAMPLE:{In conclusion}, {I assess} {$10,000} for {non-pecuniary}damages.This template is {D}{A}{C}{B}. We have assessed this template to behighly determinate of the award and so give it a weighting factorof .95. Each component element in this sentence is most represent-ative of the concept we are attempting to establish in the templateso all have maximum weight. Additional components, such as "S"component contain concepts which reduce the likelihood that thetemplate match will yield a satisfactory result.detailed description):if A B C is found :with S :ifABZCfound :with S :Words are described in the dictionary in whole, as modifiable or incombination/alternative form. Words which are modifiable for195example would include "recur*." The asterisk may be found in thetext to be "ed", "ing" or "s". The derivation of this lettercombination will be recognized as meaning something which isrepetitive. In Whiplash case law, this phrase appears veryfrequently in relation to pain. We are able to verify this by theuse of templates which act as context generators. This verification(implicit in the use of order-dependent templates) is necessarybecause such words can have many forms (i.e. many morphemes strungtogether) which do not correspond to the usual use of a word in agiven context.We utilize an component order-independent template which character-izes the value of a statement by the content of component elements.This simplification comes at the cost of concept recognition inthat there is no detailed examination for meaning. We have foundthat the formality of legal judgments ensures a regularity of formand content.The structure of the dictionary/template resolves two components oftext analysis. First it establishes what we have analyzed to be thewords which have a "family-resemblance"-words which the courts havecome to use to establish specific knowledge elements (ie legalfacts), and in so doing, to show what words make sense for aparticular class of objects or element we wish to establish. Thesecond thing this does is to simplify syntax analysis. We do notattempt to formalize the specific grammatical constitution of a196phrase because it is already implicit in the composition of thedictionary and its component terms.The template represents the association of concepts. The judge willsay in a judgment synomously "I conclude" which signals to thereader that after weighing all the factors she must state whatfollows. What follows will be a state of affairs which now is thecase. This will be a specific fact, an award or an outcome. Otherconcepts include "general damages". Such a term refers to a parti-cular legal notion that embraces non-pecuniary losses. These twoconcepts are in our lexicon as components. These components incorp-orate the variety of expressions which give the sense of theseconcepts. We combine the concepts into recognizable forms whichgive the sense of a judgment.Templates will be incorporated within the existing lexicon file foreach element or fact we wish to establish. These templates repres-ent the combination of components which give rise to a sentencehaving a particular significance to a judgment. Within the lexicon,the template will be assigned a weight which reflects a (experts)reliability factor of certainty held to exist by the usual use ofthat particular template.Within the text there may be more than one occurrence of a certaintemplate, or there may be a matching of different combination temp-lates. we will evaluate according to the highest weight. In the197result of matching templates, a further calculus criteria oftemplate placement within the judgment will be generated. Thisassumes that template matches at the end of the judgment representthe formality of final pronouncement. This factor will represent aslightly increased certainty. We have the belief that the highestrating is the best result.We emphasize the match-performance of this technique in a self-referential, element-specific function is very impressive. Theoverriding benefit is that Slate methodology provides a extremelyflexible methodology for expanding to many elements of legal-knowledge extraction which exists as a closed domain. We can expandthis approach to derive other domain knowledge such as deciding onoutcome of cases. CM5.3.3 Programming ConsiderationsThe purpose of this research is to establish the feasibility of amethodology to extract specific terms. The task was to extract aquantum of damages. The programming objectives where not to estab-424 The methodology used here for quantum of damages in whiplashcases was modified slightly to extract the "outcome" of the trial.This modification took only a couple of working days and provedsuccessful at the trial level. Another project is on-going todevelop a means to establish outcome of trials at the appeal level.This is more difficult because of the need to match "plaintiff"with "appellant" or "respondent". If done correctly this otherproject should establish a methodology which will enable us to use"tokens" as attributes. This significance of this will be apparentas we review the results of the Quantum extractor. Where there aremultiple accidents or plaintiffs in a single trial, there isgreater difficulty in assigning what to whom.198lish a definitive technology for obtaining quantum but rather todevelop a methodology.This methodology works on the pragmatic criteria that we search forsomething we already know. This is what lawyers typically do inskimming through a case. We look for a specific piece of inform-ation in a case which we want to use in the Court.The methodology is a "generic" computer code which can be readilyadapted for the extraction of different elements. Each element willhave coding requirements which are specifically problematic andaccordingly require specific programming modifications. This tech-nique will provide a fast and effective method for extracting spec-ific elements of legal knowledge. Accordingly the emphasis is tocreate self-contained lexicon/templates tied to a domain which canbe reproduced and adapted for new elements of legal knowledge.The veracity of the extract depends on the ability of the componentand template structures to extract legal information. If the comp-osition of templates (the various component combinations) do notcapture consistently the searched term over a variety of cases,then the utility of a lexicon driver is minimal. If we are success-ful, then we will be able to develop term extraction using lexiconmodification rather than programming modification. This avoids theproblem of requiring technical expertise in developing "hard" codedprograms to extract knowledge.199The advantage of this technique is that as well as inviting rapidmodification for new terms, it enables the focus of the work toshift to the lexicon itself. By shifting our efforts to the lexiconwe enable the non-technical legal profession to be involved in thedevelopment of data base design and construction.In order for the system to work we first load into the computers'memory the lexicon. The lexicon will contain the templates and thecomponents. The program will then process the entire legal text.The texts are decisions of the British Columbia Supreme Court inelectronic form. A text is read line by line and processed againstthe entire list of components.When any component is matched, we store the value in a componenttable. After scanning the entire line and matching all components,we then match the resulting component list against the templatetable. If a match is found, we store the template result for end oftext processing. The program utilizes a extract table to storeterms and values. As you can perhaps see, this is extremely genericmethodology.At the end of text analysis, the term is determined from theresults found in the extract table. The result is determined bychecking all matches according to the weighting formula outlinedabove. The template with the highest weight is assumed to have thedesired term extract.200While this is extremely flexible, it is not entirely unproblematic.In extracting dollars for example, it was necessary for me to "hardcode" a routine to convert alpha numeric terms into numeric num-bers. Such coding will always be contingent to the circumstances ofthe term. This can be time consuming and sometimes difficult. Thepoint of this research is to establish a methodology which reducesthat kind of effort. SLATE does this. It is interesting that intranslating numeric literals, I was able to incorporate the quantumlexicon itself in the solution.From a random sample of 85 whiplash cases we have obtained a 95%success ratio in extracting a suitable result as a quantum ofdamages (see results in the Appendix). This is an extremelypositive first step towards developing this methodology. Theseresults must be explained to put them in proper perspective.The development of the lexicon itself is an intensive and special-ized procedure requiring a good understanding of the way judgespresent their decisions. In developing a lexicon we are able torapidly modify terms and phrases to get an "accepted" response.The sampling draws our attention to the multiplicity of actionswhich can arise within a single decision. Awards are made tomultiple plaintiffs for a single accident. Multiple awards to onevictim in the case of multiple vehicle accidents can also occur ina single decision. The consequence of this is that in extracting a201term, the result may be one of many. This is perhaps the singlesignificant criticism of the results obtained. It can only be saidthat this is the first stage of developing a flexible technology.There appears no reason why lexicon-driven methodologies cannot bedeveloped further to break down the content of the decision andhandle multiple claims.5.4 The Future Directions for Law and InterpretationTen years ago the american pioneer in artificial intelligence,Roger Schank, proclaimed that computers in the near future would beable to have natural language capability. Time has proved this tobe wrong. Natural language is not concerned with machines thinkinglike people but with thinking about applying interpretation oflanguage computationally-not the other way round.Modern Al no longer tries to 'think' like a human-a lawyer-becausethinking like a lawyer no longer gets us to the underlying ration-ality of what law is-it is a separate discourse which is outsidethe teleology of the law. We believe that emphasising the processof how lawyer's think in solving jurisprudential questions would beanalogous to studying how physicists think for us to understandabout quantum mechanics. What we are concerned with is giving thelawyer the capacity to make intelligent predictions of what the Lawis based on the current legal doctrine.202A recent approach in the sciences tries to challenge the tradition-al Aristotelian/Cartesian mathematical logic. Fuzzy Logic is anattempt to create a harmony between logic and human reasoning or"common sense". It is the science of imprecision which correspondsto how we use and understand language in the world.Professor Zadeh425 has made the claim that we are closer tonatural language capability. By recognizing that words quantify anelement of truth about the world, rather than attempting to definethe world in a pure objective system. Fuzzy Logic:"..Provides a computational framework for representationalframework for representing the meaning of propositions in anatural language which contain fuzzy quantifiers most proposi-tions in a natural language do. This capability of fuzzy logicplays a particularly important role in the representation andinference from imprecise facts and rules in knowledge-basedsystems. ,,426Zadeh has provided a body of computational-orientated concepts andtechniques for dealing with linguistic variables.427 The basicidea is that precision and hence specificity carry a cost in termsof methodology and technology and should not be used unnecessarily.Fuzzy logic comes much closer to serving as a descriptive model ofhuman reasoning than traditional logic systems. The guiding princi-425 "The Birth and Evolution of Fuzzy Logic", A Quarter Century ofFuzzy Systems, International Journal of General Systems,  Vol 17,(1990) at 95-105.Ibid, at 101427 A variable whose values are words or sentences in a natural orsynthetic language. For example if the word height is treated as alinguistic variable, its values may be expressed as tall, not tall,more or less tall etc.203pie is do not be more specific than is necessary.It is apparent that Law is a process of rationalizing linguisticvariables. The problem for both the lawyer and the system program-mer is applying the language to the real world experience. It istherefore apparent that any methodology which is premised on thereality of imprecision must be a more appropriate technique indealing with natural language.It is clear that the legal doctrine itself cannot overcome theambiguity of its representation. What we can do however is to"defuzzify" the concepts for the purpose of the lawyer by usingfacts to describe the legal reality because the elements whichcreate facts are themselves are "crisp". Zadeh is concerned in histhinking with creating a greater sense of certainty while recogniz-ing that language itself is imprecise. The point to be taken isthat we can achieve certainty within context, which in law wouldtranslate to the social practice of agents. We can take legalconcepts and determine certainty because their meaning is derivedfrom their use.204ConclusionIn this paper we have challenged the tenets of positivism. We seekto move towards an ontology of law based on the situation whichgives rise to the legal question. What gives rise to legal disputeis a matter of perceived failure in conventional practice. Thelegal right flows from this conventional practice.The legal fact is a construction of the legal institution. It isthe necessary form which meaning is expressed within the legaldiscourse. Necessary because for the fact to have meaning withinthe legal institution, it must be spoken in the legal language.This language is used as the formal justification for theintervention of the force of the state.It has been suggested here that understanding this fact is tied toan ability to "see it as" what is meant within the institution.This ability is tied to experience. Those who have the necessaryexperience do not interpret such expressions rather they recognizetheir use in constructing the legal world. There is nothing queerabout this. All language-use is tied to an ability to see theimage, the sound, in relation to some purpose or existent. Languageconveys the sense of an experience. This is a matter of what hasmeaning for us. What is queer is trying to see legal language as205the social world. The expressions of the legal institution cannotexpress the social experience. To understand the social dimensionof law we must look to the grammar of the social world.We have considered the social construction of reality. What isrational is what is reasonable to believe. This reason is estab-lished by the relations which make up our world. What is a fact isthat which contains a relatedness and a relevance to our actions.What follows from this is that values constitute the rational.428Values, we have said earlier, are the sense we have of the worldthrough being-in-the-world. What is truly rational is the sense weeach have of the world.As Holmer has noted, the criteria for self-knowledge are not laiddown philosophically or in any meta-language.4 We speak ourworld. We use the language which is already there; the familiar. Itis through these words that we show what it is we experience. Wepick words which possess a sense of our meanings. They show Putnam, supra note 26 at 208429 Holmer, supra note 78 at 26.oo Joseph Conrad set out the task as well as any:A man who is born falls into a dream like a man who falls intothe sea. If he tries to climb out into the air as inexperienc-ed people endeavour to do, he drowns-nicht wahr?...No! I tellyou! The way is to the destructive element submit yourself,and with the exertions of your hands and feet in the watermake the deep, deep sea keep you up.Lord Jim206They can do this because meaning is revealed before it is articul-ated. Understanding lies in that we can already see what it is wemean. Merleau-Ponty rejects the starting point of knowledge asbeing that of abstract reflection.4251 We cannot capture reality inthought. Reminiscent of early Heidegger's Dasein, Merleau-Pontyargues that understanding is derived within the event becausemeaning and knowledge are actualities.4252The question concerning the legal fact is the question of origins.It comes about in response to the question "Why?" For there to bea legal fact there must already be an issue. It is understandingwhat is an issue and how we express this issue that is the mark ofan "expert." This is the necessary criteria for building expertsystems in law.The factuality of the world is given to us. We are thrown into theworld and we must deal with that. There is the existent; thingsexist such as cars and roads. Our interest however is ourinvolvement with the things of the world. These things becomerevealed to us for what they are as we use them. We are concernedwith the possibilities of the world.These possibilities become part of how we look at the world. We seethat in our involvement with cars, that their use breaks down for431 Gill, supra note 248 at 56432 Ibid207us when we collide with other cars. Our understanding then is notso much with the fact of the car but its (mis)use. We have notedthat our involvement with things, such as traffic lights, is trans-parent until this moment of break-down. It is at this moment thatwe begin to speak of intentionality and cause and effect. We becomeconcerned with the Agent.The agent is not a necessity of the world but rather a legal andphilosophical presupposition. We can speak sensibly about the worldbecause we speak of a human action. When we speak for example ofcompensation for injuries, we see that society as a whole pays.There is no particular need to concern ourselves with the defendantor the plaintiff. What is at issue is the injury. This is an issuebecause we measure pain and suffering with money.Legal actions bring to attention the transparency of human involve-ment with the world. We become aware of what it is we do. It isonly then that our involvement is an issue. This is the "shock ofrecognition" of our world when meaning is revealed. It enables usto move towards the Kantian concepts of intentionality and freedomwhich presuppose the existence of our involvement in the world.The role the legal institution sets itself is to restore a "natur-al" order after a perceived break down. In this it gives the illus-ion that this transparent world of being involved is a matter ofthe human will. This is what Sartre attempts to show us. We quickly208see, through Wittgenstein and Heidegger, that the world is much toomuch for that.It is this break down which brings us to decision. The expert knowsthe meaning of a legal question through experience. An expert isthe master of a technique. In the ontological-existentiellunderstanding of a domain, the expert is able to see how we "goon." In knowing what is and what is not in keeping with what wemean by the concept of the domain, they are able to speak directlyto the issue. It is in this that when we build expert systems, welook to what is the understanding of the expert.The point of an expert system is to avoid constructing logic forwhat is not an issue. What is an issue for a given domain is bestset out for us by the expert. We build logic and data bases whichemphasis this point. In pure economic loss we look to facts such ascommunication. A communication is fundamental to creating thepossibility of economic loss. What counts as a fact in the world ofthe user and the legal discourse is a matter of analogy. We use theambiguity of ordinary language to impart this both in the userinterface and in the court-room.It is the metaphorical quality of language by which we see thingsas things. It is our cultural being bound within the expressions ofour experiences which gives us a sense of the world. In construct-ing legal expert systems we must never lose sight of this. The209system cannot be expected to represent the world. Instead it mustinteract with the user to lead to an understanding of what is anissue. It is through this that the user, the lawyer, can bring tobear their purpose for the law.In law much decision-making is already set out. The judgment is themoment of truth. It is a literal application of legal text. Legaltext is applied because it is presupposed as the truth, a reflect-ion of the real world. It is the myth of social order which weaccept and with that what it says counts. It is in this that it canimpose this truth and brings it to the real world. This is thehermeneutics of the discourse.There are moments of true decision. Experience always contains thepossibility of new formations of meaning. It is in this that thejudge speaks the world. But it is a prejudiced understanding. Itspeaks within the horizon of an institutional setting. The verynotion of justice is an institutionalized notion. There is no formof justice which can transcend all forms of life.When we wish to speak about what we do, it appears that we cannotavoid representations and conceptualization. Heidegger puts it that"Speaking about language turns language into an object-and then itsreality vanishes."433 Even here in these investigations we cannotco Heidegger, On the Way to Language [1982] at 50. Wittgensteinput it in the TLP that we cannot speak about language for to do sowould require us to be able to be on both sides of the fence.210avoid slipping into conceptualizations and generalizations. How, asMerleau-Ponty has questioned Husserl, do we speak about what we"do?" We not only explain what we know of ourselves, followingKant, we can explain what we do not. We speak of this through areason which we presuppose transcends our own limited experience.The modern age, argues Heidegger, has given way to calculatingthinking and so is devoid of thought.434 Calculating thinking isthat thinking which emerges from the delectations of technology. Inan argument reminiscent of Marx's "technological determinism" hehas claimed that technology does not come from man and thereforecannot be halted by man. This thinking is not limited to technologybut rather embraces the whole objectification of our thinkingbeing. The world of things and people is reduced to objects whichare for our use.Instrumental thinking is about setting out the order of the world.The problem which besets the legal positivist is the assumptionthat human beings, as society, possess such order and that suchorder is to be found in legal language. Through representationsfound in legal doctrine, the positivist aims to explain thisconnection as between legal norms and the justification for agentThings of which we cannot speak we should be silent. It is in thisthat he says, in his Tractatus (which intends to set the limit tothought), that we must kick away the ladder as we realize thisnonsense.434 McGill, supra note 25 at 178-9. See also Heidegger supra, note342.211responsibility. We have spent much time in this paper in critiqueof representational thinking. Scholarship must address the urgentneed to go beyond traditional analytic thinking to a deeperontological understanding of the nature of social practice. Thesocial world is never as it is represented. As issues such aseuthanasia, abortion, gender-equality, sexual-orientation arerevealed, Law is being challenged by the most fundamental questionsto which it at present is unable to address.But let us end with an act of imagination.The first question is by no means whether we are content withourselves, but whether we are content with anything at all. Ifwe affirm one single moment, we thus affirm mot only ourselvesbut all existence. For nothing is self-sufficient, neither inus ourselves nor in things; and if our soul has trembled withhappiness just once, all eternity was needed to produce thisone event-and in this single moment of affirmation all etern-ity was called good, redeemed, justified, and affirmed.435In What is Literature, Sartre asks the question "for whom does onewrite?" Sartre ponders upon a presupposition that every literarytext is built upon a sense of its potential audience, an image ofthe "for whom" the work is written. 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The particularprogram uses the quantum of damages lexicon in the scanning of thelegal text.ref. template amount rating Actual $10008 DABCS $12000 %60^$120000025 ABC $135000 %81^$1350000029 ABC $25000 %81^$250000036 ABC $4500 %93^$45000096 DABCS $12000 %57^$120000112 DABC $15000 %85^$150000132 DACS $81382 %47^$???0156 DABCS $33000 %90^$330000176 ABCS $41328 %51^$???0179 ABCS $22000 %63^$220000183 ABC $30000 %81^$300000187 ABCSZ $17000 %55^$170000188 ABCS $10000 %63^$100000196 ABC $13000 %93^$130000198 ABCZ $25000 %86^$250000234 ABC $3500 %68^$35000242 ABC $20000 %93^$200000307 ABC $16000 %93^$160000324 ABC $12000 %93^$120000332 ABCS $23236 %63^$200000372 ABC $9500 %93^$95000380 ABCS $20000 %63^$200000398 ABC $38000 %93^$380000413 ABCZ $20000 %78^$200000506 ABC $119 %Si^$150000508 ABC $25000 %90^$250000523 ABCZ $20000 %86^$200000532 ABCZ $15000 %73^$150000538 ABCZ $20000 %86^$200000563 DABC $35000 %85^$350000612 ABC $2500 %63^$25000672 ABCZ $50000 %78^$500000742 ABCS $25000 %63^$25000STEPHAN V. KUTIANDERSON v. JAMESPATERSON v. MOULTWALTERS v. JENSEN *4PERRY v. REIDBUTERFIELD V. BOUMANBOE v. POWER "WILLSON v. TIWANAPESONEN v. MELNYK *2DAY v. ISHERWOOD *4BUSHBY v. RAMOS *3LICHTENWALD v. SYMONSLEVASSEUR v. RUSSELLWAYLAND V. ICBCCRONHOLM V. HURCOMB *4SEKHON V. GILL *4VANDECASTEYEN V. BARBEAUBLACKBURN v. PEMBROKEGOOD V. KLASSENTULLY V. HASSELLMCLEOD v. TEGART *4KIRBY V. KEINLEITNERBENTO v. MARTELLSTEVENS V. CURRYFORTIN v. FETECHANDYOON V. OSLICKMARKEY v. YANG *3BRIGHT V. ARKAALBANESE V. KELLFRIESEN v. WOODLILAND v. OISHI "*4KANGLES v. HARDINGEDOSSA v. STOCKMAGER "11 A global award2 Judgment amount which was total award3 Multiple plaintiffs, award for one victim4 Multiple accidents; the award is for one accident2250744 AC $27000 %80 $27000 MOLESCHI v. HOOD0747 DABC $14500 %77 $14500 BUSHBY v. STORRY0761 ABC $25000 %93 $25000 QUICK v. NICHOLLS0821 ABC $5500 %90 $5500 PINETTE v. WIEBE *30844 ABC $3000 %81 $3000 MCDOW V. BURNETT *40849 ABC $20000 %72 $20000 GIRODAY v. FONG HGO0862 ABC $20000 %93 $20000 COMBS v. BUEKERT0894 ABC $1000 %93 $1000 ONBIRBAK v. ENMAN *3*40897 ABC $60000 %81 $60000 SHANAZARIAN v. ROGERS0927 ABCZ $12000 %81 $12000 LEGGE v. BLANCHETTE0952 ABCS $7500 %63 $8000 GURAM V. MCLEOD0953 ABC $15000 %93 $15000 PEARE v. OSACHUK0968 ABCZ $23000 %86 $23000 MAHOVALICH v. JONES1003 ABCZ $20000 %88 $20000 FARNSWORTH v. ICBC1037 ABCZ $60000 %86 $60000 VIDALIS v. FAIRFIELD1083 ABC $30000 %81 $30000 KINNERSLEY v. KOWALCHUK1118 ABC $30000 %81 $30000 FEHR v. SMITH1127 DABC $10000 %82 $10000 PERRY v. LOI1166 AC $12000 %63 $12000 EDGAR v. THEISSEN1175 ABC $12500 %93 $12500 PRESSLER V. LAZAllERA1182 ABCZ $20000 %86 $20000 BRACCHI V. ROBERTS1184 DABCS $7000 %68 $7000 SHIRATTI v. KEI LOI *41194 DAC $20000 %80 $20000 QUIRICO V. HAGEN1199 DAC $15000 %61 $15000 BIRCH v. SUTTON1203 DABC $1800 %81 $1800 GILBERT V. HUGHES1209 ABC $12000 %95 $12000 KAPITZA v. CALVERT1218 DAC $1485 9668 $35000 RYPICEMA V. ICBC1219 DABCZ $15000 %78 $15000 FRANKS v. SLAMBOR1235 ABC $18000 %81 $18000 PEDLEY v. MUSSELL1267 ABC $20000 %93 $20000 GARBER v. EIDEM1314 DABC $10500 %74 $10500 SANGHA v. KAPILA1317 ABC $20000 %81 $20000 RETHMEIER v. WEBSTER1318 ABCZ $25000 %78 $25000 IANNONE V. HOOGENRAAD1319 ABC $25000 %81 $25000 SHELLEY v. TAT WONG1344 ABC $9000 %90 $9000 DAIGLE v. UNGER1346 DABCZ $30000 %78 $30000 WHEATLEY^V. VALLEE1351 ABC $10000 %93 $10000 GODEAU v. HOGARTH1353 ABC $7500 %83 $7500 CHOW V. ROYALL *31354 ABC $32500 %81 $32500 PILLOUD V. SMITH1376 DABC $24000 %86 $24000 LUPUL V. FULLER1388 ABC $9000 %93 $9000 COLLINS V. MAN YEE MA1399 ABC $13000 %81 $13000 MAILEY v. TOLONICS1423 ACS $15000 %52 $15000 HAMILTON V. MARTZ1433 ABC $10000 %93 $10000 CHEE LEE V. BADOWSKI1442 ABC $14000 %63 $14000 VIVIC V. MING HO1448 ABCS $20000 %65 $20000 NEWCOMBE v. REEDER *41454 ABCS $8000 %57 $8000 ANDERSON v. WALTERS1471 ABCZ $40000 %78 $40000 EVANS v. VAN. PORT1479 ABC $20000 %90 $20000 LOWY v. SPENCER1511 DABC $38000 %93 $38000 MARCYNIUK V. WIEBE1533 ABC $42000 %63 $42000 RATCLIFFE V. ELEC. ENG *41539 ABC $35000 %81 $35000 JACOBSEN V. PERREAULT 41


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