Maksymilian Del Mar

This paper argues that not only does history matter to legal epistemology, but also that understanding legal epistemology can yield a certain understanding of the past. The paper focuses on the common law practice of precedent and argues that there is no set of rules, principles, reasons or material facts that constitute the fixed or foundational content of past decisions, but rather that what is taken by a judge resolving a particular dispute to be the content of past decisions depends on the active and creative construal of relevance engaged in by that judge. Precedents are better thought of as `thick resources with dynamic content'. Such content is constrained by a variety of stabilising practices, but never so constrained as to determine how it can be construed to be relevant. This image of law's past may offer a general view of the past as something with which we can actively and creatively relate in the course of coping with the present

This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure. These cases have revealed fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning

This essay argues that the practical reason approach to the study of social conventions (and social normativity more generally) fails to adequately account for the fluency of social action in environments that we experience as familiar. The practical reason approach, articulated most recently in Andrei Marmor’s Social Conventions: From Language to Law (2009) does help us, though not wholly adequately, to understand how we tend to react to, and experience, unfamiliar situations or unfamiliar behaviors, that is, those situations in which a certain practice becomes problematic or is problematized, or where we are obliged to, or moved to, justify or deliberate. The reason why the practical reason approach is not wholly adequate when it comes to understanding unfamiliar situations or unfamiliar behaviors is that it tends to subsume the unfamiliar under the familiar, that is, it tends to negatively evaluate anything that is deemed to be not in accordance with the rules and reasons already familiar to the observer. This excludes the possibility of the observer having to transform himself or herself, and thus change what is familiar to him or her