Thinking about Law: The Importance of How We Attend and of Context

Middle Temple, London

Chief Justice Allsop AO18 July 2022

My remarks tonight are taken from an address I gave last year to the Australian Academy of Law, entitled: ‘Thinking about law: the importance of how we attend and of context’. It is an edited reprise of that address. Before I gave the address, the organiser of the evening rang me and asked for clarification. He was troubled by the word "attend": What did I mean? I explained to him that I was using the word "attend" in a sense used by neuroscientists.[1] I did so because I wished to discuss (as I will this evening) a remarkable book written by a British neuroscientist, psychiatrist, polymath, former Oxford English literature don, and thrice-elected fellow of All Souls College: an important contemporary thinker - Dr Iain McGilchrist. The book is entitled The Master and his Emissary: The Divided Brain and the Making of the Western World.[2] I wish to discuss its relevance to how we think about law and approach legal problems.

Leaving to one side any spiritual question, no one book has the key to all things. McGilchrist is not the hedgehog (who knows one big thing) in contradistinction to the fox (who knows many things).[3] But the fundamental working of the brain should be of interest to lawyers if it assists them in understanding the execution of their task.

The work was published in 2009 after having been 20 years in the making. It contains a discussion of the brain, of the centrality of the physical division of it into left and right hemispheres, of the asymmetry of the two hemispheres, and of the influence of how the two hemispheres work – upon human life and culture, including such aspects as language, music, dance, poetry, philosophy, art; indeed, upon all aspects of life. The second half of the book is a history of western civilisation and culture drawn from insight and conclusions about life, thought and creativity by reference to the ways of attending and ways of constructing the world by the left and right hemispheres. Its thesis is the growing dominance of left hemisphere abstracted thinking and some of the consequences of that for society. For this evening, it is the essential thematic ideas dealt with in the first half of the book that are of importance.

There is not one word in the book about the law. Nevertheless, as I read it for the first time in 2015 and 2016, I saw illumination about aspects of legal thinking that had been present to me since law school. It explained much to me about my thinking and the thinking and approach of others.

I am ill-equipped to debate any points of contention of neuroscience, but the relevance of the discussion to legal thinking of a practical everyday nature is within my remit of competence, and I think worthy of discussion.

Rather than begin with McGilchrist, let me start with some general observations about law.

Law can be seen as a system of rules and principles by which human society controls and mediates behaviour of the whole, of the part, and of the individual.[4] Law is also situated within human society and human experience: within, to paraphrase Isaiah Berlin, the cacophony and chaos of colliding liberties, colliding rights and duties, colliding understandings of fairness, of desert, of right and of wrong.[5] Within this cacophony, law mediates and controls, through rule and principle, relationships and exercises of power.

Law is, to a significant degree, built on abstractions, but it is necessarily human in character.

The expression of law is through language: the work of Parliament in statutes; regulations promulgated by the executive; and the articulation of legal rules and principles in judgments. Careful and disciplined textual analysis is a critical aspect of legal method in our legal system.

But our law is more than texts, and rules. Words are not immutable forms or material elements; they are symbols within which is found, indeed sometimes buried, meaning, anchored in a particular context.

As Cardozo described most clearly in the third book of his great trilogy,[6] The Paradoxes of Legal Science, we (as lawyers) daily meet and adjust, synthesise and compromise opposites, antinomies, antitheses and apparent irreconcilables, that appear in the practical daily world of human engagement. Such is the stuff of daily legal and judicial work, situated within the cacophony of human experience: especially those incommensurable concepts of certainty and uncertainty; rule, principle and exception with which we must grapple and reconcile; the endemic impossibility of definition, despite the essentiality of the requisite degree of definition, of taxonomical structure, and of the expression of abstract concepts, all in the face of implicit wholeness of human relational ideas drawn from thought, feeling and emotion; and, importantly, notwithstanding the importance of words and text, the limits of explicit expression. These unending, always present, reconciliations make up much of our task as judges and lawyers to express and apply the law for individuals who come before us in court and in offices. As Cardozo posited: The enduring conflict is between stability and progress, mediated by a philosophy of change informed or supplied by a principle of growth.[7]

Let me turn to McGilchrist.

McGilchrist begins with realities and modes of experience: Humans have two fundamentally opposed realities, two different modes of experience, two ways of attending.[8] Each is important in its separate operation and both are important in their integration. Their differences are rooted in the bi-hemispheric physical structure of the brain.[9] The co-operation of the two hemispheres is vital; but conflict between them or the dominance of one over the other can explain aspects of life and culture, contemporary or past – for us tonight, law and legal thinking.

Both hemispheres deal with almost everything we do. The important difference is not what each does (that is the type of subject) but how, the manner in which, each does what it does.[10]

Even at this introductory point, the importance for law and legal thinking can be glimpsed. The manner in which we approach legal problems and their solution will be critical in determining the outcome and the expression of principle. Consider Lord Stowell’s reflection on the different approach of common law to equity in The Juliana (an Admiralty case):

"A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case".

Of equal illumination on this point of the importance of the manner of legal approach is the judgment of a great Australian equity lawyer in the High Court Sir Frank Kitto in Livingston’s Case[11] in dealing with the proper characterisation of the rights of a residuary legatee in an unadministered estate for probate duty purposes.[12] His penetrating analysis begins with the rejection, as a helpful starting point, of any a priori definition (for all purposes) of the nature of rights in equity as in personam or in rem and arbitrary abstracted defined categorisation such analysis produces. Yet, a debate built on that very foundation had been carried on in the late 19th and early 20th centuries by some of the finest scholars in the Anglo-American legal world: Pound, Scott, Hohfeld, Maitland, Ames, Langdell, Pomeroy, Austin and others.[13] Justice Kitto’s point was that it is misconceived and deeply misleading to search for universal definition in equity.

McGilchrist identifies a central and durable generalisation about the two hemispheres: The left hemisphere has a tendency to deal with pieces of information in isolation breaking ideas and conceptions down, organising, re-organising and taxonomising; whereas the right hemisphere has a tendency to deal with the whole of the subject, its full shape, relationships and context.[14] McGilchrist says that the importance of the distinction cannot be over-stated, because the difference in approach goes to the core of how we understand the world and ourselves.

For lawyers, this observation is worthy of deep contemplation. Are we not familiar with, indeed do we not daily experience, and express ourselves using, deconstructed taxonomically-arranged, abstracted and defined parts of a whole (generally a relational) idea or concept? Do we not constantly seek to define reality with words? Do we not see words used to arrange abstracted parts into the expression (or re-creation) of a whole idea, often in the grasping or reaching for certainty, and thereby often seeking to define exhaustively, rather than to describe the context illustratively; all in order, hopefully, to simplify ideas for future use? Indeed this can be seen as the hugely important work in the law of the left hemisphere.

McGilchrist emphasises that things (that is, ideas, emotions, objects, subjects) change according to the stance we take or adopt towards them: to the type of attention we give to them and to the world.[15] A feature of the human condition is the ability to stand back and rise up from immediate experience – to plan, and to think inventively.[16] This power of abstraction comes from the frontal lobes. But such detached abstraction must combine with the experience from which it derives.[17] To live only in experience is to be a mere creature or animal. To stand back and distance oneself entirely and constantly is not to live or experience at all, but to become abstracted or divorced from human reality. McGilchrist sees an optimal degree of separation: the necessary distance for the frontal lobes to perceive the world and other people in experience, to turn us into social beings, and to provide, through conceptualising and feeling, a sense of the spiritual.[18] This is the human necessity of experience, and of removal and distance from experience, working together.

For law and lawyers this relationship between experiential reality and abstracted conceptualisation derived from distance is at the heart of our way of thinking. It is, or should be, the essence of what we do. The abstract is essential to form, definition and taxonomical structure, but experience is at the heart of the human whole in what is ultimately a social science – the regulation of human life and society. Experience, context and the implicit are fundamental to our conceptions of, and our ability to perceive and attain, meaning and justice.

McGilchrist sees the asymmetry of the hemispheres (that is, their bi-hemispheric and opposed natures) as fundamental to the essence of humans and animals alike.[19] As explained by the need in life to focus wilfully on the immediate with precision and narrowness, upon the task being undertaken and upon self, and at the same time, upon the whole context around one and one’s place therein.[20] The bird focusing on obtaining food on the ground must also observe the world around so as not to become prey itself. For humans, the needs of self must be understood, but so too must the place of self in relation to others. These are two quite different types of attention to be kept distinct and separate from each other if each is to be effective, but both to operate at the same time. A division of the brain is a result of the need to bring to bear two incompatible types of attention to the world at the same time. The success of the creature comes from the effective lateralisation of both ways of attending. Likewise, the success of the lawyer comes from the two incompatible types of attention to bear at the same time: to be the master of the deconstructed, taxonomised detail; but to appreciate and use the approprtiate focal distance to see the whole, to understand what is going on.

The above appreciation is important for law and legal thinking. If the whole is, as it almost always will be, a human relational conception, at least to some degree, how we view it (as a whole) yet analyse it, abstract, particularise, (re-)organise and (re-)present it will depend on the work of the two hemispheres, working together.

The role of definition and the search for exhaustive textual certainty may, depending upon the nature of the whole subject, be apt to create a misleading self-referential default version of "reality". This may be so (depending on the subject) if the right hemisphere’s feelings of empathy, emotional understanding, intuition and relational context are disregarded and discarded in, and by a reliance only upon, abstracted deconstruction into parts and reconstruction into a taxonomically arranged default "whole", which lacks a human reality. Let me illustrate.

First, take sentencing for criminal offending. Rules of literal application and abstracted reasoning in sentencing for crime can only take one so far. There is always present the essentially human response to the often conflicting circumstances before the court. The experiential, the implicit and the importance of feeling to the human circumstance allows the court, as an institution with its experience and knowledge, to express its response, as the manifestation of just state power, to the inherently human, infinitely varied, often tragic and violent situations before it. One cannot reason out the imposition of sentences in logical form.[21] Rather, the task involves the articulation of conclusions drawn from, or evoked, by human feeling, shaped by legal rules and statutory factors. The process is one heavily influenced by the whole human reality, rather than the deconstructed parts of any taxonomical structure, unless one is to use a depersonalised grid-like approach.[22] Such rigid grid sentencing has been rejected in Australia, in a demand for the focus to be on the individual: that the individual and his or her place in society be attended to.

McGilchrist sees the nature of attention – the different ways of attending – as fundamentally important. The type of attention we give (left hemisphere dominance for local narrowly focused attention and right hemisphere dominance for broad, global and flexible attention) is vital to our perception and processing of experience.[23] We have to experience the world, but to come to know it we need to process the experience. So we come to re-cognize the experience.[24] This enables recognition and categorisation of experience through abstracted thoughts.

The relevance of this to law has become increasingly apparent to me, though, in a sense, is perfectly clear. Human experience is abstracted, deconstructed into particular parts, and categorised and so re-presented for use in the setting of rules and principles to help regulate and control social behaviour. So much is, in a sense, straightforward, and perhaps obvious. But it is necessary to recall that re-presented categories are only a re-constructed reality, and may not accord with experience itself, in particular in human application as the law.

McGilchrist’s work provides valuable insight for the manner of setting rules and principles and the manner of thinking about them: in seeing the whole or the part, in seeing integration or division, in contextualising or abstracting, in individualising or in categorising, in personalising or in impersonalising, in reason or in rationality, in the express or in the implicit, in recognising the importance, but the limits, of express words and the importance and the place, of the implicit, the ambiguous and the uncertain in appreciating the whole.[25]

All these antinomies are vital for the search (as a lawyer) for the unachievable and the indefinable. The unachievable (but vital) is certainty. The indefinable comprises the moral values that infuse our rules and underpin and inform our sense of justice.

If certainty is vital, what is it? It cannot mean the static condition. The only ever-present static condition of life is change. The certainty for which we search must be the requisite degree of certainty for the context and the question at hand. The left hemisphere, with its abstracted categorisation, is essential to this search. The urge to categorise and the search for certainty are human instincts. But the limits and the dangers of the search should be appreciated. In relation to categorisation, the pioneering British psychiatrist Henry Maudsley saw the danger in 1867 when he said the following of "ideational insanity":

…a sufficiently strong propensity not only to make divisions in knowledge where there are none in nature, and then to impose the divisions on nature, making the reality conformable to the idea, but to go further, and to convert the generalisations made from observation into positive entities, permitting for the future these artificial creations to tyrannise over the understanding.[26]

The subject of Maudsley’s criticism was the mode of thought of which Justice Kitto was critical in Livingston’s Case and which Oliver Wendell Homes called the "delusive exactness" as a "source of fallacy throughout the law".[27]

Certainty, or the requisite degree of certainty, requires not only the abstraction and textual precision of the left, but the contextual understanding of the place of the implicit, the unknown and the uncertain that the right hemisphere appreciates. The left hemisphere employs man-made abstractions to fix ideas in a certain place with express language by denotation.[28] The right hemisphere understands or appreciates ambiguity born of context and the notion of connotation.[29] The balance and integration of the two is of singular significance and importance for legal thinking.

The rule or principle or maxim must be expressed in words, but may contain a moral value, which cannot be logically or rationally worked out by the left hemisphere. Moral values are, McGilchrist posits,[30] irreducible aspects of the phenomenal world: a form of individual and shared social experience appreciated by the right hemisphere. So, a sense of justice is underpinned by the right hemisphere. The limits and difficulty of expression in text seeking to define conclusively (as opposed to articulate or describe) such values by the abstraction of the left hemisphere are then readily appreciated. Yet, the use of express text is critical to law in a society built on the written word, as ours is.

The fallacy with which McGilchrist engages (and which Holmes described) is the stubborn view that certainty is or can be achieved only through the abstracted taxonomically organised text arranged by the left hemisphere. McGilchrist was not concerned with law. But we are. Certainty, McGilchrist says, is not to be drawn from, or to be equated with, express text alone.[31] So to equate the two (that is, to equate certainty with express words) is to ignore the primacy of context and of the implicit and the fact that the roots of explicitness lie in the implicit. The metaphor or conception drawn from the right hemisphere comes before the denotation of the text drawn from the left. The idea always comes from the right hemisphere; its expression, and so its textual construction, from the left. Thus, explicitness ties one to what is already known; so explicitness is rooted in the conception of the whole (new) idea and thus cannot be untied from the implicit and the contextual.

Once again the value of this to legal thinking is immense. Depending upon the subject matter, the nature of the problem and context, the search for certainty or clarity can be disrupted, not enhanced, by an over-emphasis on words to define precisely the parts. Whereas sometimes the search for certainty or clarity (to the requisite degree) can be enhanced by limiting textual expression to seemingly less precise words drawn from sensing or appreciating the appropriate degree of focus: the appropriate focal distance to perceive, contemplate and theorise upon the experiential reality in order to create a workable rule or principle.[32]

Certainty is often more easily obtained by a rule or principle based on identifying or describing a legal space by reference to a well-understood and familiar whole human concept, than by drawing a line by defining a theoretical abstraction that tends to artificiality and arbitrariness.

The thesis of McGilchrist of the complementarity of the left and right hemispheres, of the importance, but limits, of abstraction and of the appropriate distance to raise us above the mere experiential, of the necessity of the experiential to be the roots of and context for the abstract, of the need to reintegrate the analysed abstraction back into the whole,[33] of the significance of the implicit and the ambiguous in this process of reintegration and of the creation of meaning, and of the requisite degree of certainty, are all critical for legal thinking.

As both Holmes and Cardozo recognised, law, like life, is replete with messiness, ambiguity and contradictions. Hence the force of Holmes’ epigram as to the life of the law being not logic but experience.

Cardozo’s great trilogy, The Nature of the Judicial Process (1921), The Growth of the Law (1924), and The Paradoxes of Legal Science (1928) embodies a legal theory built on the law as both a human and social reality, structured by rules and principles, built on clarity of expression, but never being disengaged from the human and social relations it protects and serves. The antinomies and antitheses expressed by Cardozo could have been written by McGilchrist. Cardozo understood that certainty was a basal feature of a mature and civilised legal system, but he also understood that certainty is not reached by words and rules alone. For Cardozo, certainty was to be reached having regard to recognisable concepts (McGilchrist would say, appreciated by the right hemisphere) such as trust, honesty, reasonableness, common sense and good faith built around strong and clearly expressed reason, rules and principles. These concepts are not fully definable, but are experientially recognised as familiar in their appearance, or in their absence, by all people.

The appreciation of the potential for co-operation and conflict between the two hemispheres of the brain in how we think about the law helps us to recognise and give weight to aspects of law’s content and demands and how to think of, and about it, at least as follows:

  • The search for certainty, whilst fundamental, has its limits. Such limits are derived from the nature of the question, from the human reality of the whole subject with which we may be dealing, and from the limits of expressed text.
  • It is the requisite degree of certainty that is properly the subject of search, ascertained by the appropriate degree of focus or distance at which to abstract and perceive the subject or problem at hand.
  • Context and the implicit are fundamental in this search for meaning and certainty, as they influence and help regulate the appropriate focal distance to abstract and perceive the subject or problem at hand.
  • Definition and taxonomical structure are important, indeed vital, in the search for meaning and certainty, but there are limits to their utility and danger in their over-use. They derive from abstractions of reality, and must be placed back in the context of the whole in a process of reintegration of the particular into the whole. Sometimes articulation of the contextual whole by description creates greater certainty and understanding of the rule than abstracted definition.
  • The need to appreciate the place of metaphor as the source of right hemisphere inspiration, but to appreciate the danger of concretising metaphor into a thing or intellectual commodity, as a substitute for both context and any further necessary analysis or reasoning.
  • The importance of context, of the whole, and of understanding why the question is being asked.

Clarity, certainty, definition and precise analysis are protected, not undermined, by an appreciation of the implicit, the uncertain, the ambiguous and the limits of text when those matters cannot be avoided. Not to appreciate and recognise these matters in thought and expression when they cannot be avoided only creates a false and arbitrary so-called-certainty which gives a felt sense of artificiality in textual expression that crumbles against reality. Indeed an appreciation of this reveals or uncovers the reality that uncertainty is a part of certainty. Scientists have come to terms with this since the end of self-referential Newtonian physics and the appreciation of the embedded uncertainties of quantum physics.

Almost all important legal concepts are not fully and precisely definable, and have only real meaning in context. All are to be more fully understood by being built around by expression in explicit text, but all are, to a significant degree, experiential, rooted in human emotion or feeling and understood and judged by an appreciation of the implicit, and in their context.[34] The binding foundational conceptions of honesty, loyalty, fairness, mercy, common sense, practicality, human decency, the dignity of the individual and the protection of society that inform legal principle are indefinable exhaustively, and are fundamentally contextual.

Let me now illustrate the above by reflecting upon some different legal problems.

Let me begin with statute: where words are the tools of Parliament – to express law.

The fundamental method of judicial ascription of meaning in the process of statutory construction can now be seen in Australia as settled: the task begins and ends with the words of the statute in their context.[35] That people disagree about meaning does not necessarily mean that they have used different methods to reach their views (one method being right, and the other wrong). It may be that the differences come from different views of the whole, how the words sit in their context, which may not be apt for exhaustive explanation, because it depends on the perception of context, including the implicit. The meaning of words in their context as a whole may strike people differently. Too often rivers of almost meaningless debate follow differences of view as to meaning, when the differences may be explained by different perceptions of the words in their whole context, which perceptions are both open and difficult to explain in words. Such differences will be no less likely (indeed probably more likely) when different people read the same words without, and taken out of, their context.

The balance of the left and right hemispheres can be seen in the gloriously concisely precise, but contextually rich, 19th century statutes of Sir Mackenzie Chalmers: the Marine Insurance Act, the Sale of Goods Act and the Bills of Exchange Act may be compared to the more textual, indeed sometimes verbose, modern day statutes.

The technique of equity is built not on inflexible defined rules, but on principles drawn from conscience, adapting itself to complement the common law and statute where context and circumstance require it. In that sense, Equity is inherently contextual and its spirit is drawn from a sense of right and of conscionability – right hemisphere conceptions drawn from society and context.

The doctrine of penalties (always a mixture of statute, common law and equity) discloses a struggle over the centuries between definition by abstractly formed rules on the one hand, and characterisation by reference to an underlying human relational concept based on experience, on the other. This debate has often failed to recognise the crucial difference between construction (ascription of meaning and definition) and characterisation (a conclusion as to substance by reference to the principles and values in play rooted in the reality of human experience or existence).[36] The doctrine has, at its heart, a refusal by courts to countenance oppression, private punishment or unconscientious arrangements. This was legal policy built on human experience in life and commerce. The history of the doctrine from the penal bond with conditional defeasance, through the development of the law of contract and damages saw attempts made to identify tests and rules, most notably the four tests of Lord Dunedin in Dunlop,[37] and the dichotomy of the genuine pre-estimate of damage or penalty. The modern doctrine, as expressed by the High Court of Australia in Paciocco[38] and by the United Kingdom Supreme Court in Cavendish and ParkingEye[39] reflects a rejection of a rule or definition-based approach founded on the (doubtful) dichotomy of genuine pre-estimate of damage or penalty and the structure of the rules in Lord Dunedin’s speech, and the adoption of a more evaluative approach, involving the legitimacy of the parties’ commercial and other interests and their protection, inspired by Lord Atkinson’s speech in Dunlop[40] and that of the Earl of Halsbury LC in Clydebank.[41] The notion of proportionality of the contractual provision to the protection of the legitimate interests of the party taking the benefit of the clause was central to the judgments in the two courts.[42] This movement away from Lord Dunedin’s four tests and the binary reflex of genuine pre-estimate of damage or penalty has been rejected by the Singapore Court of Appeal,[43] where a rules-based approach has been said to favour certainty. With respect, I have my doubts, at least if the certainty is not to be arbitrary.

Time does not permit full discussion of it this evening, but a consideration of the different paths of development of the principles of restitution in England and Australia in the last 30 years can be seen as a case study in the importance of manner of approach of the left and right hemispheres to legal problems. Much of the doctrine in England was built on the taxonomy and structure conceived by Professor Birks[44] that developed into a cause of action removed from equitable values, in a relentless search for textually-expressed rule-based certainty. Australian law has consistently rejected any adoption of unjust enrichment as a cause of action and any abstracted rule-based taxonomy of the subject. In Australia, unjust enrichment has consistently been described as a unifying concept[45] operating at a higher level of abstraction,[46] and restitution having equitable influences as its basis.[47] Understood in this way, unjust enrichment is a concept relevant to understanding restitutionary claims based on the presence of accepted vitiating factors, drawn from experience and relationships, and to considering the determination of novel cases.[48]

The research and advances in neuroscience discussed by McGilchrist provide a perspective for thinking about the law: That one should not rely on analytical, abstracted and de-contextualised methods of thought as the totality of any analysis, critical and important as such approaches always will be. The crucial task is divining the appropriate focal length for perception, and for the necessary level of abstraction: the point past which further expression of abstraction or further definition is counter-productive, in order to facilitate the reintegration of the abstracted proposition or taxonomical structure into the relevant perceived experiential context: to contextualize the abstracted into experience. Law is about people and human existence, their relationships with each other, and the perception and recognition of societal bonds. Law is also about power (public and private) and its control. In its application, law is often non-linear by virtue of the fact that it is necessarily both relational and experiential. Neuroscience tells us that there is the need to balance, and integrate, the explicit and the implicit, the part and the whole. This is how the human brain has evolved.

Very often, the point of tension between our left and right hemisphere ways of thinking as lawyers is in the search for certainty. There is often an assumption that certainty can only be achieved by defined rules, and that use of any value-imbued concepts or principles is a detraction from the clarity of defined rule. That assumption is driven by an attending to the world only through the left hemisphere. It is the left hemisphere arrogating certainty as its own creation and exclusive possession, as something that can only be found in, and expressed by, words, and words alone. It is a false and misleading assumption, at least in aid of a proposition of general validity. It fails to appreciate that the most important task for any subject or problem for consideration, especially one of meaning or social organisation (such as law), is the ascertainment of the appropriate focal distance at which to perceive and then abstract and generalise about the circumstances of the subject or problem: to contextualise the abstraction into experience. It is the appreciation of that focal distance and the contextualisation which will enable such certainty as is possible to be perceived and expressed with the requisite degree of certainty, crafted in words. That task will always depend on an appreciation of the nature of the subject or problem, of its context, of the implicit or unknown surrounding it or within which it sits, of the limits of text, and especially, for the expression of a rule, of the need to place the words that are chosen into the operation of the real world. The deep wisdom of Lord Mansfield’s expression: "Rules easily learned and easily remembered" epitomises this.

Law is not all about taxonomy, systems, rules and definition. It is not all about short answers to simple questions. If it were, we would not have Moses v Macferlan,[49] or an insistence on individualised justice in sentencing, or an insistence on fairness in the exercise of public power, or mercy, or the residual discretion in sentencing, or the law of penalties, or unconscionability as the thematic force of Equity, or the insistence on human decency in relational behavior, or the countless other manifestations of values in the law.

A colleague has a piece of art in his chambers that says in forbidding terms "The world is ruled by language." I suggested to him that the artist had omitted the important qualification: "But understood by context".

[1] And also in the sense used by philosophers and psychologists. See, in this regard, the illuminating explanation expounded by William James in 1890 in The Principles of Psychology (Dover, 1950) Chapter XI, especially 402–404:

My experience is what I agree to attend to. Only those items which I notice shape my mind – without selective interest, experience is an utter chaos. Interest alone gives accent and emphasis, light and shade, background and foreground – intelligible perspective, in a word. …

Every one knows what attention is. It is the taking of possession by the mind, in clear and vivid form, of one out of what seem several simultaneously possible objects or trains of thought. Focalization, concentration, of consciousness are of its essence. It implies withdrawal from some things in order to deal effectively with others, and is a condition which has a real opposite in the confused, dazed, scatter-brained state which in French is called distraction, and Zerstreutheit in German.

See Iain McGilchrist, The Master and his Emissary: The Divided Brain and the Making of the Western World (Yale University Press, 2009) 43–58 (‘ME’); and Iain McGilchrist Ways of Attending: How Our Divided Brain Constructs the World (Routledge 2019); and also see: Neville Moray, Attention: Selective Processes in Vision and Hearing (Routledge, 2017) 1–9, especially 6, 28–38; Raymond M Klein and Michael A Lawrence, ‘On the Modes and Domains of Attention’ in Michael I Posner (ed), Cognitive Neuroscience of Attention (Guilford Publications, 2nd ed, 2011) 11–24. On divided attention, see Harold Pashler, The Psychology of Attention (Massachusetts Institute of Technology, 1998) 101–166.

[2] (Yale University Press, 2009).

[3] See Isaiah Berlin in The Hedgehog and the Fox: An Essay on Tolstoy’s View of History (Phoenix paperback, 1992) who made famous the reference by the Greek poet Archilochus to the two animals: ‘The fox knows many things, but the hedgehog knows one big thing’. Berlin said (at 3): "…taken figuratively, the words can be made to yield a sense in which they mark one of the deepest differences which divide writers and thinkers, and, it may be, human beings in general." Berlin, then, appreciates the distinction between attending to the detail, that is to immediate experience, and to the abstract whole. Berlin goes on to address Tolstoy’s genius, remarking (at 41):

Tolstoy perceived reality in its multiplicity, as a collection of separate entities round and into which he saw with a clarity and penetration scarcely ever equalled, but he believed only in one vast, unitary whole. No author who has ever lived has shown such powers of insight into the variety of life – the differences, the contrasts, the collisions of persons and things and situations, each apprehended in its absolute uniqueness and conveyed with a degree of directness and a precision of concrete imagery to be found in no other writer.

[4] See, for such perspective, HLA Hart, The Concept of Law (Oxford University Press, 3rd ed, 2012) 79–99. See further Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of a Legal System (Oxford University Press, 1980) 122–165, 168–171; and Joseph Raz, Practical Reason and Norms (Oxford University Press, 1999) 150–177.

[5] Isaiah Berlin, ‘Two Concepts of Liberty’ in Isaiah Berlin, Liberty (Oxford University Press, 2002) 192 at 207–215.

[6] The Nature of the Judicial Process (Yale University Press, 1921), The Growth of the Law (Yale University Press, 1924) and The Paradoxes of Legal Science (Columbia University Press, 1928).

[7] Cardozo, The Growth of the Law (n 12) at 1.

[8] ME Ch 4, especially 133–141.

[9] ME Ch 2, 32–93.

[10] ME 33.

[11] [1960] HCA 94; 107 CLR 411 at 448–454.

[12] Notably, the following remarks of his Honour:

At 448: I venture to think that for the purpose of solving a concrete legal problem with respect to such a set of rights, more hindrance than help is likely to come from an attempt to classify them according to Austinian terminology as rights in personam or rights in rem.

At 450: If a question arises as to whether a particular asset "belongs" to the residuary legatee within the meaning of some statute or other instrument, the answer cannot be reached without consideration of the precise rights of which the residuary interest consists. Similarly, if the question is where should the interest be considered in law as locally situate, the rights which it comprehends must be clearly understood before an answer can be given.

[13] See Roscoe Pound, ‘Common Law and Legislation’ (1908) 21(6) Harvard Law Review 383; AW Scott, ‘The Nature of the Rights of the "Cestui Que Trust"’ (1917) 17(4) Columbia Law Review 269; Wesley Newcomb Hohfeld, ‘The Relations Between Equity and Law’ (1913) 11 Michigan Law Review 537; Wesley Newcomb Hohfeld, ‘The Conflict of Equity and Law’ (1917) 26 Yale Law Journal 767; AH Chaytor and WJ Whittaker, Equity: A Course of Lectures (Cambridge University Press, 2011); JB Ames ‘The History of Assumpsit- Implied Assumpsit’ (1888) 2 Harvard Law Review 53; CC Langdell, ‘A Brief Survey of Equity Jurisdiction’ (1887) 1 Harvard Law Review 55; John Norton Pomeroy and John C Mann, A Treatise on the Specific Performance of Contracts (Banks & Co, 2nd ed, 1926); John Austin, Lectures on Jurisprudence (John Murray, 5th ed, 1885).

[14] ME 25–28, 191.

[15] ME 28. On this point, see further the philosophy of Iris Murdoch, notably ‘The Idea of Perfection’ in The Sovereignty of Good (Routledge, 2014) 1–44; William James, The Principles of Psychology (Dover, 1918) Vol 1 ch XI; and William James, Pragmatism (Longmans, 1911) Lecture 1.

[16] ME 21. See also, for example: Yuval Noah Harari, Sapiens: A Brief History of Humankind (Random House, 2014) especially Part 1 Ch 1.

[17] ME 49–51.

[18] ME 22.

[19] ME 26.

[20] ME 22.

[21] Attempts to do so have, however, been made: see for example, State v Loomis 881 N.W.2d 749 (Wis. 2016) concerning the use of algorithmic assessments of recidivism risk used to determine sentences in the United States.

[22] See, for example, David Hodgson, Rationality + Consciousness = Free Will (Oxford University Press, 2012) Chapters 5 and 6.

[23] ME 28–29.

[24] ME 206.

[25] ME 43–58.

[26] Psychology and Pathology of the Mind, (Appleton, 1867) 323–324, referred to at ME 53.

[27] Truax v Corrigan 257 US 312 at 342; see JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butterworths, 5th ed, 2015) 107 [4-010].

[28] ME 174–175.

[29] ME 178. See further John Stuart Mill, A System of Logic, Ratiocinative and Inductive (Longmans, Green & Co, 1898) Chapter 2, especially §5, and Chapter 3.

[30] ME 86.

[31] As Holmes said: "A word is not a crystal, transparent and unchanged, it is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it was used": Towne v Eisner 245 US 418 at 425 (1918).

[32] On this concept of focal length, the writing of Frederick Schauer may be noted. Schauer rejects an understanding of the law as a collection of rules, reduced into writing in a master rulebook, and rather finds that the most fitting analogy for the common law is the camera: the multiple, sometimes seemingly minute movements to-and-fro necessary to obtain the appropriate focus. This, for Schauer, was an instantiation of Lord Mansfield’s dictum that the common law works itself pure: however, it is also an apt analogy for the judicial task and method. If the judiciary strives to achieve the correct focal length at first instance, perhaps there would be less need for the common law to work itself pure: Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Harvard University Press, 2009) 112; Omychund v Barker (1744) 26 ER 15 at 23.

[33] ME 206–210.

[34] See, for example, Iris Murdoch, The Sovereignty of Good (Routledge, 2014) 31–32:

"Learning takes place when words are used … in the context of particular acts of attention. …Words have both spatio-temporal and conceptual contexts. We learn through attending to contexts, vocabulary develops through close attention to objects, and we can only understand others if we can to some extent share their contexts. (Often we cannot). …

This dependence of language upon contexts of attention has consequences. … Human beings are obscure to each other, in certain respects which are particularly relevant to morality, unless they are mutual objects of attention …"

[35] R v A2 [2019] HCA 35; 277 A Crim R 539 at 522 [33]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at 519 [39]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at 671–672 [22]-[23].

[36] See, eg. James Allsop, ‘Characterisation: Its place in Contractual Analysis and Related Enquiries’ Contracts in Commercial Law Conference, Sydney, 18–19 December 2015. As to characterisation see Attorney-General (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209 at 227–228 (Dixon and Evatt JJ) discussed in 1999 by Gummow J in Change and Continuity: Statute , Equity and Federalism (OUP 1999) at 18–19.

[37] Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 at 86–88 (‘Dunlop’).

[38] Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28; 258 CLR 525.

[39] Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67; [2016] AC 1172.

[40] Dunlop [1915] AC 97 at 90–98.

[41] Clydebank Engineering & Shipbuilding Co Ltd v Don Jose Ramos Yzquierdoy Castarado [1905] AC 6 at 9–15.

[42] Paciocco (2016) 258 CLR 525 at 547 [29] (Kiefel J, with whom French CJ agreed), 580 [164] (Gageler J), 607 [256] (Keane J); Cavendish [2016] AC 1172 at 1204 [32] Lord Neuberger and Lord Sumption, 1247 [152] (Lord Mance; with whom Lord Toulson agreed) and 1278 [255] (Lord Hodge; with whom Lord Toulson agreed).

[43] Denka Advantech Pte Ltd & another v Seaya Energy Pte Ltd & another [2020] SGCA 119.

[44] I leave aside the deeply sophisticated and nuanced writings of (the later Lord) Goff and Professor Jones in their earlier authored work on restitution: Lord Goff of Chieveley and Gareth Jones, Goff & Jones’ The Law of Restitution (Sweet & Maxwell, 7th ed, 2009).

[45] See Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; 164 CLR 662 at 673; David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353; Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516 at 543–545 [70]-[74]; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 156 [151]; Lumbers v W Cook Builders [2008] HCA 27; 232 CLR 635 at 665 [85]; Equuscorp Pty Ltd v Haxton [2012] HCA 7; 246 CLR 498 at 515–517 [29]-[30]; cf Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; 253 CLR 560 at 596 [78].

[46] Equuscorp (2012) 246 CLR 498 at 517 [30].

[47] Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516, 539–555 especially [76]-[89] (Gummow J).

[48] K Mason, JW Carter and GJ Tolhurst, Mason & Carter’s Restitution Law in Australia (LexisNexis Butterworths, 3rd ed, 2016) 40–44 [135]-[136].

[49] (1760) 2 Burr 1005.

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