Abstract
The previous three chapters aimed at a plausible and elementary presentation of Lonergan’s view of discovery, insight, evaluation. To grasp that view and to bring it to bear on issues in legal theory is a major challenge that goes well beyond the bounds of an elementary introduction. Further, to get more than a glimpse of how the pressure of that view in the legal community would mediate a new clarity of discussion and decision is a still more remote task. However, some indications of the power of the new context are a necessary conclusion to the present effort. First, then, I will return to the topics of the first four chapters of this work and locate the pointers, achievements, directions of discovery indicated there in the larger context developed by Chapters Five to Seven. The present chapter aims at creatively and critically reviewing the issues and debates raised in those early chapters. Secondly, I will have something to say on the problem of expression — external formulation — of legal views, judgments, decisions. Finally, I will indicate a fuller context of legal studies and practice that Lonergan’s work has articulated.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
B. Lonergan, Method in Theology, (London: Darton, Longman & Todd, 1971 ), 9.
ibid., 9.
ibid., 15.
ibid., 14–15.
The results of such an introspective inquiry are illustrated by the analysis of decision-making in Chapters Five to Seven.
In the present context it would be beside the point to contrast Lonergan’s position with that of Scotus, Descartes, Kant, and Hegel. However, such analyses can be found in B. Lonergan, Insight and Verbum.
The diagram is in Chapter Five.
Sensibility, the receptive function of sense, is active. For instance, the hearing of a musician would be patterned to the extent that an attentive musician hears notes, chords, phrases, whereas a tone deaf person would not hear the patterning of the music.
A more elaborate treatment of feelings would enter into such topics as the detachment of the scientist and the relation of feeling to judgment and the relation of feelings to evaluation. See: Insight, 185–186 on the intellectual pattern of experience and Method in Theology, 30–34, 65 on feelings.
For more on this topic see Verbum, particularly Lonergan’s summary of the Thomist description of the disposition of the phantasm on 25–33.
Lonergan discusses this topic in Insight, 191–203.
Lonergan distinguishes between the neglected subject and the truncated subject in The Subject,A Second Collection, (Darton, Longman & Todd, ?), 73. “The neglected subject does not know himself. The truncated subject no only does not know himself but also is unaware of his ignorance and so, in one way or another, concludes that what he does not know does not exist. Commonly enough the palpable facts of sensation and speech are admitted. Commonly also there is recognized the difference between sleeping and waking.”
I conclude this section by suggesting that the issues and debates associated with the distinction between discovery and justification in Chapters One and Two should be considered in a new light.
This diagram was invented by Philip McShane.
Expression of a judgment is often complex because there is a contextual aspect of judgment. We have seen how judgment is related to an Is-question, but judgments are also related to each other. Lonergan identifies three ways in which this contextual aspect of judgment appears. First, a present judgment is related to past insights and judgments in that past insights and judgments stand ready to elucidate the judgment just made. Secondly, judgments can be related to other judgments in that the present judgments may conflict thereby releasing the discovery process. Or present judgments may be complementary and the person may strive to organize coherently these judgments. Thirdly, judgments are related to the future in the sense that the process of discovery is an incremental process. Although we can only make one judgment at a time “… all we know lurks behind the scenes and reveals itself only in the exactitude of each minor increment.” Insight, 277.
Our relational structure also suggests that law differs from other fields inasmuch as the contents of presentations, insights, plans, decisions in the legal context differ from the contents of mental activities in other fields.
By differentiating between mental activities and expression I am not denying that there is an interpenetration of mental activity and expression. My aim only has been to stress the distinction, a distinction that does not seem to be sufficiently developed by legal theorists and cognitive psychologists.
A good teacher is able to add identification to his or her insight. Then the teacher “... is able to select and arrange and indicate to others the combination of sensible elements that will give rise to the same insight in them. One is able to vary the elements in different circumstances. One is able to ask questions that reveal the pupil’s blind-spots and proceed to prior insights required to understand the lesson.” Insight, 559.
The difficulty of achieving adequate formulation can best be appreciated by noticing the failure of Euclid to achieve such a formulation. So, for instance, in Euclid there is no definition of a straight line. On this topic see: B. Lonergan, A Note on Geometric Possibility, Collection, (London: Darton, Longman & Todd, 1967 ), 98–101.
This diagram ws provided by Philip McShane.
For Lonergan’s discussion of views that equate mental activity with expression see Insight, 557.
Insight, 544.
Insight, 573–577.
ibid., 560.
Of course, logical systems can be understood by readers. To do so they engage in a discovery process - selecting data, discovering the relations among the data, and grasping the sufficiency of the evidence for the prospective judgment that the reader correctly understands the relations among the data.
Verbum: Word and Idea in Aquinas, 11–16.
P McShane, Wealth of Self and Wealth of Nations, 69–70.
ibid., 70.
The Form of Inference,6.
On the relation between insight and syllogism see The Form of Inference,3–16 and P. McShane, In Tune with Timely Meaning,unpublished manuscript.
This complementarity in expression corresponds to a complementarity between induction and logic. The human mind works inductively and then orders insights to fmd what is missing. Inductive reasoning pursues discovery, but at some time a point is reached and the person wants to organize his or her insights, judgments, decisions. Such a job is the task of logic.
For example, C. Gilligan, In a Different Voice (London: Harvard University Press, 1982 ) and S. Harding, Whose Science? Whose Knowledge? ( Ithaca: Cornell University Press, 1991 ).
See Verbum: Word and Idea in Aquinas, 25, footnote 101
Strictly speaking this is not correct. The realists did write that once a decision is reached it is then expressed in the time-honored fashion.
C. Lamson, The Gound Fisheries,ed. P. Mushkat, H. MacPherson, F. Crickard, Canada’s Ocean Strategies Project—The Atlantic 375–6. I am grateful to P. Mushkat, PWM Consulting, Halifax, Nova Scotia for bringing this paper to my attention.
ibid., 391.
For a discussion of the ordering of other areas of inquiry see: On theology see B Lonergan, Method in Theology. On musicology see P. McShane, The Shaping of The Foundations (New York: University Press of America, 1977), Chapter Two. On literature see P. McShane, Lonergan’s Challenge to the University and the Economy. On economics see P. McShane, Systematics, Communications and Actual Contexts,Lonergan’s Challenge to the University and the Economy (New York: University Press of America, 1980); Economics for Everyone: Das Jus Kapital unpublished manuscript, Chapter Five; Process: Introducing Themselves to Young (Christian) Minders unpublished manuscript, Chapter Four.
This diagram is adapted from P. McShane, Process: Introducing Themselves to Young (Christian) Minden unpublished manuscript, Chapter Two, 57.
Earlier in this section, I described the orientation of the activities of this specialty as a concern with identifying and settling Conflicts.
P.McShane, Economics For Everyone: Das Jus Kapital, Chapter Five.
Economics for Everyone: Das Jus Kapital, (unpublished manuscript) Chapter Five, 16.
Method in Theology, 249–250.
A fundamental reason for investigating decision-making can be offered. In legal practice, the object of analysis is the adequacy or legitimacy of judgments and decisions. In criminal cases, judges assess whether or not accessed persons made conscious decisions in order to judge whether or not actions are voluntary. The decision process of accused persons is traced from the action back to how the decision was made. Judges assess whether or not accused persons intended to perform their actions and whether or not they were aware of the risks of an action when they carried out their actions. In torts cases, judges assess whether or not a defendant owes a duty of care by assessing the foresight and reasonableness of defendants decisions to act. In contract law, judges say that they interpret the intentions of the parties to a contract. In cases involving judicial review, the adequacy and legitimacy of a decision process itself is scrutinised. And, of course, the most obvious example where the adequacy and legitimacy of the decision process operates is when a judge reaches a decision in a case. The decision process is, in fact, a central topic in legal practice. Yet the decision process itself is left unscrutinised. Judges make assessments and evaluations about the decision-making processes of defendants, plaintiffs, and other judges, but no one understands the nature of the decision-making process itself. My point is that to ignore how decisions are “actually” reached is to neglect what is the key activity in the legal context.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1996 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Anderson, B. (1996). Legal Reasoning in A New Context. In: “Discovery” in Legal Decision-Making. Law and Philosophy Library, vol 24. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0554-7_8
Download citation
DOI: https://doi.org/10.1007/978-94-017-0554-7_8
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-481-4685-7
Online ISBN: 978-94-017-0554-7
eBook Packages: Springer Book Archive