Law and Creativity

Abstract:     
This chapter probes how philosophy may help us understand how legal creativity occurs. The inquiry is basically descriptive, but there is an underlying normative element also to the extent that the inquiry opens a space alternative to rule formalism and the recourse only to the past, both of which can often be stultifying for both the law and the legal profession.

The chapter relies principally on approaches in continental philosophy, particularly hermeneutics and the work of Paul Ricoeur on metaphor and imagination. It also adverts to recent work in cognitive theory that helps deepen the philosophical insights. While legal scholarship has debated the nature of legal creativity in the context of analogy, the claim is that the resources of hermeneutics allow a more precise, sophisticated, and illuminating rendering of this subject.

The potential reinterpretation of meaning required at the moment of application is a basic theme of hermeneutics. The relationship between meaning and application is not one of subsumption; meaning is not determined once and for all at the moment of origin but must be reassessed as the meaning is applied to new circumstances. Meaning can change as it is applied; the determination of meaning requires creative judgment.

Our understanding of the interrelation between meaning and application can be enriched by describing the interrelation as metaphoric. The ground for metaphoric predication arises when customary meaning is challenged. In metaphor, writes Ricoeur, “the similar is perceived despite difference.” Metaphoric predication is a creative act that can expand a category. In the interrelation of meaning and application, we may see resemblance where we had not before.

Analysis is extended a step further by considering how the interrelation of meaning and application in legal judgment is not simply metaphoric but imaginative. The creation of metaphoric resemblance is an act of imagination. The relationship between meaning and application is not one of deduction of the particular from the general principle but rather of a transfer of meaning. Making the transfer requires imagination. Philosophic analysis of metaphor and imagination allows us to ascertain how significant is the role of creative judgment in law.

Keywords: creativity, hermeneutics, legal hermeneutics, Paul Ricoeur, imagination, legal imagination

Accepted Paper Series