Why Judges and Lawyers Need Imagination as Much as Rationality

Del Mar identifies four modes: (1) Supposing—pretending something is the case through legal fictions, as when courts treated Minorca as a London suburb or material risk as causation; (2) Relating—creating metaphors and narratives like constitutions as living trees or customs crystallizing into law; (3) Image-making—constructing hypothetical scenarios like houseboats without motors or houses on beltways to test intuitions; and (4) Perspective-taking—imagining viewpoints such as the officious bystander in contract negotiations or the reasonable person standard. Each mode serves distinct epistemic functions: fictions signal fragility and create evolutionary space, metaphors open multiple possibilities, hypotheticals enable experimental reasoning, and perspective-taking provides distance from judicial biases.

The case demonstrates how narrative devices and religious metaphors create legal principles. When May Donoghue found a dead snail in her ginger beer and sued for negligence, the court had to define the scope of manufacturers’ duty of care. Lord Atkin drew on the biblical parable of the Good Samaritan to establish the “neighbour principle”: manufacturers must take reasonable care to avoid acts they can reasonably foresee would injure their neighbour. This imaginative connection—linking Jesus’s parable to commercial liability—solved the problem of delimiting duty scope. It shows how relating disparate concepts (religious teaching and tort law) through narrative generates workable principles that balance unlimited liability concerns with basic safety obligations, creating the foundation of modern negligence law.

The officious bystander is an imagined nosy busybody who interrupts contract negotiations to ask what parties would do in some future scenario. Courts imagine that if this bystander suggested adding a particular term, both parties would “testily suppress him with a common: ‘Oh, of course!'” This test determines whether terms should be implied into contracts. It exemplifies perspective-taking imagination because judges project themselves into the minds of contracting parties at negotiation time, constructing a dialogue to discern unstated intentions. The fictional character creates distance from judges’ own views, forcing them to consider what reasonable contracting parties would have agreed upon, balancing actual intentions with commercial efficacy requirements. This imaginative device enables flexible case-by-case evaluation impossible through rigid statutory requirements.

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This article is classified as Advanced level. It requires understanding sophisticated legal theory concepts, following extended case examples with technical terminology (ratio decidendi, obiter dictum, fictio civitatis), and grasping meta-level arguments about epistemology and reasoning. Readers must track four distinct modes of imagination through historical examples spanning from ancient Rome to contemporary cases, understand both the mechanics of common law precedent and philosophical debates about legal language, and appreciate how metaphors function cognitively. The vocabulary includes specialized legal terms and literary concepts (metonymy, synecdoche, subjunctive mood). Advanced readers should be comfortable with abstract argumentation about how professional communities construct knowledge and comfortable synthesizing insights across multiple detailed case studies.

While acknowledging imagination “might encourage bias, or signal a departure from common sense,” Del Mar argues it should be “celebrated” because legal reasoning would be “impossible without it.” Imagination enables judges to explore what’s at stake under uncertainty, provides resources for future decision-makers, communicates doubt appropriately, and enables thriving interactive inquiry communities. Crucially, imaginative devices are “inherently tentative and experimental”—they open possibilities rather than forcing conclusions. Unlike explicit algorithmic criteria, imagination allows balancing local circumstances with general expectations, testing intuitions across scenarios, and creating distance from judicial limitations. Del Mar positions imagination as “our best bet against the dangers of thoughtlessness” because it slows reasoning, invites others into conversation, and guards against premature closure—making it essential for public reasoning in contexts requiring judgment under disagreement.

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