The Legal Imagination in Historical Perspective

Abstract

After considering the different meanings that commentators have assigned to "the legal imagination," this chapter asks what is specifically legal about these imaginative uses: what distinctively imaginative traits do we find in law, by contrast with other intellectual domains? In the law, the imagination operates under constraint, whereas in many fields, imaginative activity is associated with free play. Exploring this idea with respect to the introduction of "the reasonable man" in 19th-century law, the chapter takes up an overlooked episode in the history of figure: its unsuccessful use in the law of negotiable instruments, in the 1820s and 30s. By asking what accounts for the move to adopt this figure and to reject it ten years later, and then to find it taken up shortly afterwards in the law of torts, I seek to demonstrate how lawyers' and judges' lateral-looking, analogy-seeking efforts exhibit the legal imagination, operating under constraint, and how the example of an unsuccessful effort can help to reveal the limits that govern this enterprise.