Abstract

This article was written to explore the assertion that contemporary jurisprudence focuses on the processes by which the legal system functions at the cost of understanding the law as an imposed system. This neglect has led to explanatory gaps and conceptual problems grounding the study of the legal system. The practical implications of this have been presented as evident when questions of potential developments in the practice and institution of law are posed. This assertion has been developed through the example of R v Clegg (1995). It is frequently returned to to solidify the connection between the abstract concepts of this article and the practical reality of the law. An attempt to answer why such questions do not obviously present themselves in the study of jurisprudence framed this exploration, informing the need to turn from pure abstract theory to other modes. Relevance realisation was introduced to demonstrate a multidiscipline problem and, hence, the inappropriateness of approaching jurisprudence as a wholly isolated domain. The analogy of the brain served as an alternative model for the conceptualisation of the legal system to resolve the problem of relevance realisation within jurisprudence. This introduced the need for a counterpart to the system elucidated. Symbolic and abstract, this counterpart was termed the religious perspective as analogised by reference to the right hemisphere of the brain. The validity of this conceptualisation has been considered by reference to ancient myths and the discoveries of the alchemists. Finally, these perspectives were brought together through the example of St. Thomas Aquinas as an embodiment of the practical compromise between theory and practice necessary for a functional institution and as a starting point for grounding future jurisprudential study.

R v Clegg: what are the problems this case shines a light on?

I intend to set out details of the case of R v Clegg[1] in order to illuminate questions which permeate the legal system with the intention of discovering what lies underneath and to propose a process by which they may be solved. The case concerns a British soldier attempting to rely on self defence, consequent on a killing during an altercation at a checkpoint. A key question addressed during the trial was whether all shots constituted a proportionate use of force. The altercation, for Private Clegg, consisted of three shots fired toward a vehicle as it approached and one shot fired after it. The result ‘with regard to the fourth shot … found that Private Clegg could not have been firing in defence of himself or Private Aindow, since, once the car had passed, they were no longer in any danger’.[2] Thus, it was held that the actions of Private Clegg constituted murder and that there was no defence available.

 It might well be asked how the court came to decide that the circumstance which led to the killing was divisible beyond being a single event since, for example, the car was in constant motion. Further, one could ask why the judge, in citing ‘[i]t may be that a strong case can be made for an alteration of the law to enable a verdict of manslaughter to be returned where the use of some force was justifiable’,[3] did not so change the law. This is because it was seen as, and is asserted by Lord Lloyd of Berwick as being, a solution to the problem of administering justice according to a single set of rules without due regard for context. That is, the judges are both addressing, although not solving, the issue of differentiating the use of excessive force in a situation in which some level of force is the default, compared to the use of excessive force where there is no baseline requirement. Moreover why, when asking the question of Clegg, the judge states, ‘[t]he reduction of what would otherwise be murder to manslaughter in a particular class of case seems to me essentially a matter for decision by the legislature, and not by this House’.[4] The answer provided is that ‘the point in issue is, in truth, part of the wider issue whether the mandatory life sentence for murder should still be maintained’.[5] However, this fails to address why this must be the case. Why does this larger issue need to be addressed before the court can change the law on the issue at hand, and why by the legislature?

The purpose of such questions is to get to understand on what basis is it decided that such considerations are relevant. The inverse and more interestingly unasked question is, on what basis is every other consideration excluded? Why do judges not need to consult the entire history of law before deciding a case? Alternatively, why is case law relevant at all; why should each case not be decided only by that which is presented during proceedings?

Such questions are likely answerable; however, the availability of answers is a separate matter. This is important because, without appropriate answers, the modelling of the law is inadequate. It is indicative of an absence of awareness and knowledge. Thus, a thorough exploration is needed to remedy the situation. Herbert Lionel Adolphus Hart offers the concept of primary and secondary rules, with secondary rules constituting the formation of a legal system. These secondary rules ‘specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated and varied and the fact of their violation conclusively determined’.[6] However, this idea merely delays the question of how materials are determined to either be irrelevant or relevant without offering a solution. Thus, when Hart states that one such secondary rule, the rule of recognition, ‘will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts’,[7] he asserts that upon presentation of a rule, it can be determined to either possess or lack some feature(s) and this presence or absence delineates mere rules from laws.

Hart speaks of such features as including ‘the fact of their having been enacted by a specific body, or their long customary practice, or their relation to judicial decisions. Moreover, where more than one of such general characteristics are treated as identifying criteria, provision may be made for their possible conflict by their arrangement in an order of superiority’.[8] Hart’s assertion, however, that rules of recognition begin with authoritative writing fails to answer the question of where such authority originates: there must be agreement as to the legitimacy of the authority of a body for its eventual codifying of rules into law to constitute a rule of recognition. The account provided, therefore, contains no reason why there is unity either in terms of the coherence of the body of law or with regard to a given society having only one hierarchy of (legal) authority. This point is advanced by Roger Cotterrell, who claims that ‘[n]othing in Hart’s books seems to indicate that ‘officials’ for this purpose must be state officials ... group or association could thus have a kind of law of its own according to its members’ concept of law’.[9] Despite disagreement with Cotterrell regarding what this problem means, it is clear that there remains an open question in the theory. That question being how any single hierarchy of law can emerge from the myriad possibilities.

Further, Hart’s rules of change are ‘that which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group, or of some class within it, and to eliminate old rules’.[10] This also describes an abstracted fact of the legal system; however, understanding that this pattern is or seems necessary is not comparable to explaining why it is. The purpose of emphasising questions of origination is rooted in a problem discovered within cognitive psychology, that of relevance realisation.

Relevance realisation; what is it and why is it a problem for theory of law?

The discovery of the problem of relevance realisation begins with modelling cognition in tasks such as problem solving. A reason for the importance of creating such models is that problem solving is necessarily undertaken all the time. The models for general problem solving (GPS) entailed the solving of what are termed well defined problems. This means problems with finite paths to resolution. In consequence, all cognitive modelling ‘relied on the assumption that problems form a well defined class and that most problems could easily be turned into well defined or formal problems’.[11] Thus, presented a chessboard and asked to make the winning move for a given side, the individual would have to appraise the positions of the pieces and ascertain which piece, if appropriately moved, would attain victory. This describes movement from an initial to a goal state. The pieces and their positions are considered in the pursuit of a solution for relevance, as are the constraints of those pieces. The position of the other side’s king is of particular importance for the goal of attaining victory. All pieces which could not move so as to put the king in checkmate are, therefore, deemed irrelevant because they cannot bring the desired goal state into being. This process of categorisation is the model for GPS, delineating relevant from irrelevant given a particular goal. However, everyday decision making is not as simple as the model, nor is it obvious how one would turn an everyday, ill-defined goal into a well defined one. Perhaps it could be argued that across a game of chess, one is merely making a series of the same type of decision described since the end goal remains the same. Notwithstanding, such a model presupposes the voluntary acceptance of many things for which there is no explicit justification.

As with Hart’s model of secondary rules, the problem is not that the rules of chess exist or that the following of them, or not, constitutes the difference between playing chess or not. The delineation of what rules describe or bound participation in an activity, though important for that activity, does nothing with regard to understanding how that activity came to be as it is, rather than any other way. Failing to address such foundational elements of a given endeavour is important because it suggests that the fundamentals of a discipline are so apparently self evident in action that they can be safely assumed. Yet, what is being assumed?

GPS presupposes knowledge of initial states, the goal state, the operators available for getting from the initial to the goal state and path constraints. However, asked how one might best tend to a garden, beautify a house, or resolve a legal dispute, the latter two parameters become less simple to state. The moves that can be made in a game of chess are limited by the rules of the game. Such rules are imposed; they are not facts, and they are followed because if one does not, then they are not playing chess. However, what rules govern proper garden maintenance? Is the list of obstacles exhaustive? This problem is unbearably broad. This is combinatorial explosion.

If the model of problem solving is complete, then all such questions must be exhaustively answerable, and this must be possible within the time it would take a person to make such a decision in their life. This can be done with simple problems, yet this model is not applicable to real life. Because of this, the model has no merit beyond well defined problems[12]. This means there is no practical model for determination of relevance. This is the problem of relevance realisation. If, before an action can be undertaken, we must parametrise what constitutes movement toward a goal, and there are no set rules to the activity, then on what basis are any actions discounted? Without rules governing garden maintenance, why not burn it, since a burnt garden cannot be unruly? Why not seal it in resin or ask a passer-by? These questions, generally, do not need to be asked, to the point that they do not occur as questions. This is, in part, because people do not require the answers. Yet, if the answers and questions are unnecessary, such things must have been deemed irrelevant. GPS model states, for this to be true, it must have been asked. Since this is not the case there is a mystery; how can a person deem something irrelevant without having to do so explicitly?

This problem needs to be addressed because a model unable to account for aspects of the process modelled is, definitionally, incomplete. The example of chess cannot account for the fact that the individual solving the problem has already discounted many possible actions because that is what the game of chess entails. A player asked to perform the task but with no apprehension of chess cannot approach it from a position of knowing the rules. Asked to win, therefore, they might remove pieces from the board, or kidnap the opponent’s king for a monetary ransom. Why we follow the rules of a given endeavour is not asked, and knowing why the rules of chess are as they are will not benefit one playing. However, this self-same approach evidently does not work when modelling ill-defined, real life problems. Yet people overcome such problems all the time. This is relevant to jurisprudence because these same questions remain unanswered. Further, the mistakes of cognitive psychology suggest that our models, generally, begin after the implicit questions have been deemed irrelevant. Doing so only because the appropriate depth of question is not asked, means only the generation of an incomplete model without awareness as to how it is incomplete.

To reintroduce Clegg, the cases in the judgment are few compared to all of English case law. Even the limiting of the potential pool of case law to England is difficult to meaningfully justify, even though it is reasonable. On what basis were some cases considered and others not? The judgment gives consideration to the cases referenced for their similarities as well as distinguishing features. However, the courts do not have to give an account of all irrelevant cases along with reasons for the determination that such cases are irrelevant. A person who had to do so would be paralysed by combinatorial explosion, the volume of irrelevant material, as would the justice system. This means that relevance realisation affects jurisprudence as much as cognitive psychology. The answers provided by Hart, that primary rules function because of secondary rules, begins to address the matter of hierarchy and meta-rules. However, Hart is also providing a post hoc description of a rule in action. This observation, though important ought to be the beginning of an exploration as to the reason for the presence and functionality of that rule. Hart acknowledges its integrity yet does not broach the matter of why it works, compared to every other conceivable basis by which a legal system might function.

When Lord Lloyd is considering changing the law he makes reference to the place of the courts and demonstrates deference to the legislature, as Hart’s model suggests is part of the hierarchy of a legal system. This, like the rules of chess, is accepted simply as being the way the legal system functions. This is not a problem coming from the courts as, like a player of a game, it does not advance an endeavour to question the value of the rules. It is, however, the place of jurisprudence to question. It remains pertinent to ask, if the hierarchy of the courts and legislature works, then why does that structure succeed? How was the successful structure discovered? If such foundational aspects are not understood, then how could the system be improved? How can any changes be justified if the presuppositions are left implicit?

The intent, therefore, of this article is to explore such questions within law. Additionally, to understand the processes which might explain why delving so deep into a system is unintuitive, and to explore possible answers based upon the asking of these questions in other disciplines. First, the matter of the division of brain hemispheres will be explored to attempt to ground relevance realisation and explain its presence in cognitive models. This, in turn, will be applied to the law by way of the analogous pattern of the processes. The convergence will hopefully convince the reader of the validity of both the model and the analogy to the legal system and its study. This achieved, a different perspective will be explored, as will the questions that emerge from what will be termed the world according to the right hemisphere. This means of attending to the world and to jurisprudence will be summarised with reference to a number of theorists, including Carl Jung, Matthieu Pageau and Mircea Eleade and via analogy to alchemy. The exploration of alchemy will advance the idea that exploration of matters which are ‘dark’ to people, meaning they are being approached without prior exploration or awareness of foundational questions such as those advanced in this article, are necessarily embodied before they can be made explicit. The parallels to the state of understanding of jurisprudence, such as from Hart and Hans Kelsen, will be explored to formulate principles by which ancient wisdom can be reintegrated into contemporary jurisprudence to make sense of why the structure of the law is as it is. The result will be the propagation of a reimagined religious framework, incorporating all of the elements explored, to the end of describing a single hierarchy in which the law exists as only a part.

How can this problem be resolved?

Exploration begins by reference to Lord Lloyd in Clegg and of Viscount Dilhorne in AG for Northern Ireland[13]. Namely, the subject of a possible justification for changing the law, a recommendation the legislature broach doing so whilst not doing so themselves. The question is not one of whether this is a rule of the law, or whether it must be followed for the outcome to be legitimately considered a change to the law. Instead, we will consider why this hierarchy is in place. Why is it functional compared to all other imaginable systems, themselves not necessarily hierarchical? The observation of Hart that the actions of the judges, as in the cases named, describe a hierarchy fails to account for why any given participant within the hierarchy respects that structure. In lieu of explicit reasons for the presence of the hierarchical structure here, and throughout the legal system (the structure of higher and lower courts, the doctrine of direct/indirect effect which constrains the interpretation of domestic law to align with international law, etc) an approach to the resolution of this mystery will be posited according to a pre-existing body of research. This will serve as an analogy for what is going on within the legal system to attempt to uncover the reason for its structure and predict how this structure acts.

The divided brain

Clegg depicts a system in which the judiciary will not undertake changes in the law it deems the proper domain of the legislature. This means it is unwilling to use its high resolution understanding, acquired as a consequence of applying the law to specific instances, to alter the law – even where it encounters a problem that could not have reasonably been foreseen when legislation in question was being debated and passed – to affect legal precedent outside of exceptional circumstances. As stated by Lord Lloyd, ‘reduction of what would otherwise be murder to manslaughter in a particular class of case seems to me essentially a matter for decision by the legislature, and not by this House in its judicial capacity. For the point in issue is, in truth, part of the wider issue whether the mandatory life sentence for murder should still be maintained. That wider issue can only be decided by Parliament’.[14] Thus, deference is demonstrated toward the legislature, which is more general in approach than the judiciary, having broader concerns. Given the specificity of which the judiciary is capable and its placement, one might imagine it perfectly positioned to be the primary progenitor of present and future laws. Why, then, would the hierarchy of law making have, at its pinnacle, an entity whose sole concern is not justice, as in the courts?

To answer this, we must first discuss the structure and function of the brain. This endeavour serves two functions. Firstly, because, as has been argued thus far, the law is not an a priori fact of nature, discoverable in a manner similar to the life cycle of frogs. It is, rather, a social system implemented by people. Therefore, the more unconsciously it has been established, the more it is likely to depict the internal processes of its creators, that is, be an embodiment of it. Secondly, the process by which the legal system functions is analogous to that of the brain according to the model of left and right hemispheric differences.

This model, as proffered by Iain McGilchrist, disputes the claim that ‘what the brain is for - is to put us in touch with whatever exists apart from ourselves’.[15] This may appear unintuitive, with regard to the brain and as an allegory for the legal system. Since there are things apart from ourselves, and people are in some contact with them, it seems logical that the purpose of the brain is to bridge that gap. This might be considered equivalent to what Hart is doing when he describes secondary rules as the presence of characteristics differentiating mere rules from laws. This bridges the gap in knowledge; however, only does so given a set of unjustifiable implicit assumptions. These could be questioned, yet they are not. The legal system, too, it might be contended, is aimed at realising the singular end of justice. But justice for whom? Justice for the individual might come at the expense of the state, and if that iterates enough times, then the state will become unable to support individuals, and then the system that realises justice will no longer be.

So, what is the structure of the brain? We will begin with the assertion that characterisation of the left hemisphere can be simply construed ‘by reference to one governing principle … that of division. Manipulation and use require clarity and fixity, and clarity and fixity require separation and division … a process, becomes static and separate’.[16] This is reminiscent of the question of the courts asked earlier, how and why can the courts divide the occurrence in Clegg into more than one event? How can such events have differing characteristics? The answer may come, that it is the role of the courts to act in this way, that is, to pick apart a narrative by reference to specific facts and apply the law so as to bring about justice given the findings. This neglects, however, to provide reasoned justification for this methodology. Why not treat each fact as the basis for a distinct case, or remove the idea that narrative, rather than fact alone, is appropriate for consideration? Yet, the functionality of the left hemisphere illuminates why.

We see from McGilchrist that if the left hemisphere ‘became the end point or final staging post on the ‘processing’ of experience, the world would change … it would be relatively mechanical, an assemblage of more or less disconnected ‘parts’; it would be given to explicitness’.[17] A picture emerges of a structure requiring external input so that it may undertake its specialised function. Further evidence of this need comes from study of those with right hemisphere (RH) damage; asked to draw a bicycle, house, elephant, etc., participants could draw only disembodied parts (part of a trunk, a gear, triangular roof, etc.) and could not assemble a model from parts.[18] The left hemisphere does not see a garden. Instead, it sees grass, bushes, a path and deduces the presence of a garden. It is for this reason that paradoxes expose the confined thinking of the left hemisphere. Of the sorites paradox,[19] no addition of a grain constitutes a heap, and yet people have no difficulty recognising a heap when seen. The paradox arises from ‘believing that the whole is the sum of the parts, and can be reached by a sequential process of incrementation … [i]t also presupposes that there must either be a heap or not be a heap … ‘either/or’ are your only alternatives’.[20] Thus, can be seen that the left hemisphere makes sense of the world by deconstructing it into recognisable parts and making inferences from that data.

The advantage of this is having a system that specialises in the extraction of specific, usable information relating to things and mechanisms which can be made explicit. Despite this, the trade offs cannot be remedied from within this system. Nevertheless, the parallels make this left hemisphere functionality a useful model for understanding the courts within the justice system. The primary characteristic of each can be posited, essentially, as being division. Thus, the question of the court extracting, from the story of Clegg, a multitude of distinguishable events begins to fit into a wider framework. This framework, like the work by Hart, is based in part on observation as to the function of a system, with the addition of retaining explanatory space for the weaknesses inherent to that system. The courts break apart what are, at one level, single events into parts which can be understood in relation to the law. The courts, therefore, do not apprehend entire cases just as the left hemisphere cannot perceive the whole. Instead, each separates what is presented into known parts. Hence, usable parts. It is this element which makes the articulation of what is found possible, of individuals and the courts. The court must be able to articulate how and why an aspect of the law applies to a given case, and so must find those parts which pertain to particular elements of the law. It would be insufficient to state that a statute simply applies or does not. What remains to be explored, however, is the counterpart to this system.

It has been observed that opponent processors constitute a base principle of sensorimotor control; it refines it.[21] Of the brain, this implies it ‘contains mutually opposed elements whose contrary influence make possible finely calibrated responses to complex situations’.[22] For this to be true of the brain, as well as the legal system, therefore, evidence would have to indicate the presence of a process opposed to that already explored. This system would have to answer those questions raised in response to the first, for example, where does the information to be divided come from?

Of the right hemisphere, it is important to understand that ‘the right hemisphere is responsible for every type of attention except focussed attention’.[23] Moreover, the right hemisphere ‘is actively watching for discrepancies’.[24] This means that anything which presents itself to the left hemisphere can only do so as a consequence of the right. The left, broadly speaking, is the hemisphere of the known, processing on the basis of pre-existing categories and breaking anomalous information down into those categories. Consequently, the left is dependent on the right for input. The right hemisphere attends globally; directs attention toward the unknown, thus leading the left hemisphere to a place from which it can undertake its specialised function.

This can be likened to the role of the non-judicial branches of the justice system. The legislature is responsible for the making of the law. It does, therefore, direct the judiciary in what it is to pay attention to, in terms of the categories in effect and the types of input it can consider. This is a necessary constraint for the judiciary; otherwise, its role would be to realise justice, unbounded. This is non-iterable and, therefore, would be non-functional. This aligns with the idea that the ‘world that [the left hemisphere] would be choosing from is, in any case, provided by the broader attention of the right hemisphere, and often what engages the focus of our attention comes to us pre-consciousnly’.[25] Thus, the judiciary, like the left hemisphere, is reliant on input from without. It is the legislature/RH which explains the ability of both systems to function despite this need.

Consequent on the right hemisphere’s monopoly on attention, there is a pronounced ‘link between the right hemisphere and holistic or Gestalt perception [as] one of the most reliable and durable of the generalisations about hemisphere differences’.[26] This difference has been demonstrated by the presentation to participants of a syllogism containing a false premise:

Major premise: all monkeys climb trees;

Minor premise: the porcupine is a monkey;

Implied conclusion: the porcupine climbs trees.

Participants were subject to hemisphere inactivation, so partook in all conditions. The researchers discovered that right hemisphere inactivation led subjects to affirm the conclusion as true on the basis that it is written that way. This remained true even if the participant correctly affirmed a porcupine is not a monkey. With left hemisphere inactivation participants answered the conclusion was incorrect because a porcupine is not a monkey.[27] This demonstrates the right hemisphere attends to the whole picture, it established the boundaries from which the left hemisphere can operate and serves ‘an ultimately integrating role’.[28] This means it grounds the outcome of the abstract, left hemisphere process.

This structure is pertinent to the structure of the legal system insofar as it answers questions raised within Clegg. The hierarchy of attention by which the intact brain perceives the world is tantamount to the justice system, at a different level. As with the right hemisphere, the legislature is broad. It must be open to a plethora of interconnected interests when considering legislation and must work to balance these (privacy vs safety, corporation vs consumer, etc.). Additionally, legislating sets the boundaries of operation within which the judiciary functions, and is responsible for the reintegration of knowledge gleaned from the judiciary toward the improvement of the justice system. Now the hesitation to change the law, especially by reference to ‘the wider issue [of] whether the mandatory life sentence for murder should still be maintained’,[29] has greater justification than merely following rules. Rather, deference to the legislature occurs because, although the court encounters specific circumstances resulting in particular insight, it is also not in a position to appraise the ramifications of such a decision across domains.

The analogy is inevitably imperfect; however, conceptualising the legal system in this manner illuminates the fact that the procedures being followed do not emerge ex nihilo, additionally providing a reasoned basis for understanding branch specialisation.

How does this inform the problem of relevance realisation

It is appropriate to reintroduce the presuppositions of GPS here: initial and goal states, available operators and constraints. Applied to the justice system, all of these are sufficiently present so that the courts can administer justice (goal state) according to the law and by established procedures. Yet, how these procedures arose, and according to what rules of operation laws come into being, rests on little more than observation and assertion.

Both Hart and Kelsen, in their respective theories, place the emphasis on what is, regarding the judicial system. Both infer the necessity of explanation of this state of being, rather than not being. Nonetheless, Hart’s solution, asserting the primacy of primary and secondary rules, presupposes such categories and therefore relies on their irreducibility. Kelsen’s proposition of the fundamental grundnorm goes so far as to recognise that norms depend on something beyond themselves if they are to form a coherent, hierarchical, system. He states ‘the reason for the validity of a norm is always a norm, not a fact’,[30] which leads to the logical conclusion that a ‘norm the validity of which cannot be derived from a superior norm we call a "basic" norm. All norms whose validity may be traced back to one and the same basic norm form a system of norms’.[31] Since this explanation remains abstract, insofar as an actual fundamental norm is not proposed, only inferred, it does not answer the question of where norms originate, only that they must originate.

This is, therefore, the same problem encountered in GPS modelling. Since there is no confinement as to what can be a law, except that it must be discernible from an already existing norm, there is no answer as to why certain norms constitute laws whilst others do not. Thus, the problem of relevance realisation emerges. Of Hart, because there is no explanation as to why the sources of authority the legal system recognises are more so the appropriate authority than any other who would claim it. Further, of Kelsen, it is neither clear why norms, rather than facts ought to be considered the factor of greatest importance to law, nor why a single grundnorm, rather than a collection, should be inferred.

In contrast, the understanding derived from the analogy to hemispheric differences informs us that such problems only exists with regard to one hemisphere. This means that the problem of relevance realisation is only a problem if the model ignores the contribution of the right hemisphere. In terms of GPS this means the right, pre-consciously, attends to the unknown in the environment. The left then applies its significantly narrow focus on aspects within that. This is then reintegrated into a more detailed image of the whole. Failure to understand this as a single system results in relevance realisation because one cannot account for the discovery of or focus on specific aspects out of the larger pool of all possible aspects. Of the law, this might present as asking why certain procedures are followed, or specific elements of statute applied. Further, the legislature creates law based upon problems seen from its more holistic perspective. That input from the world presents itself as salient, undergoes a similarly left hemispheric process of debate, establishing possibilities for implementation, conflicts, necessary constraints, etc. and is then returned the whole - being formed into a statute among all other statutes.

The idea that the court can function as it does because of the direction, and therefore constraint, from the legislature is not vulnerable to the same problems previously discussed. The function of each part of the structure is acted out; this process is on display in Clegg as Lord Lloyd will not overstep the jurisdiction (according to him) of the judiciary. The reason why, relative to the entirety of the structure of the legal system, is left implicit. Yet, a single system constituted of multiple parts, each attending to the world in a different manner, faces no problem of relevance realisation. This is because why use only this selection of case law/statute or why adhere to this aspect of procedure in a given circumstance does not need to be explicitly answered for the courts to act coherently. These answers come from outside the process being undertaken so that, like the chess player selecting their next move, the process of decision making is not interfered with by the need to explain or account for both the move and the rules which make that move playable. The latter is a prerequisite, kept implicit to enable the specialist process to be carried out. This model does not suggest the answers have no relevance, only that it is inappropriate to address at this level of the system, meaning the left hemisphere or the courts. The judge in Clegg, therefore, does not need to understand why it was inappropriate for the court to change the law, only that it would have been. The answer as to why is to be found at the level of the legislature and the breadth of understanding required.

The Other Side

Both Hart and Kelsen’s theories present a legal system that is simply the sum of its parts rather than looking at in what way its different aspects function. This is a problem of jurisprudential models, as discussed, and is consequent on an undue preference for left hemispheric processing. In practical terms, therefore, the outcome looks like that of a world of only left hemispheric processes. It is important to look at what the inverse produces. This will serve the dual function of suggesting what gaps might exist within current models, specifically relating to jurisprudence, and how these opposing views might marry together.

The perspective to be explored is deeply entrenched in symbolism and metaphor. Thus, these modalities are necessary to produce an alternative approach to those currently generating models of the legal system. The question of how Clegg might be understood according to this perspective will guide, and therefore operate as the frame for, the exploration of this religious perspective. This perspective is important because it possesses the element of the transcendent lacking from the rationalistic left hemisphere. The structure of religion as such is, therefore, intrinsic to the right hemisphere and its modalities, encapsulated by McGilchrist, who states, ‘[w]hatever else the divine may be, it is different in kind from everyday objects of experience, even if it may be seen as manifesting in those objects. It is not clear, known and familiar in the same sense that, say, a table is. It is intrinsically “Other,”’.[32] Therefore, this particular means of attending to the world will be explored to address changes to the law and how this has been understood, with particular emphasis on the narrative and symbolic structure of this understanding.

Religious framework and the making of law

To begin to understand how the law is constituted according to the religious framework, we shall turn to the story of Exodus. This story narratively encapsulates a pathway to generating law which cannot be justified using the methods of Hart or Kelsen, and yet yields invaluable answers to some of the questions raised by Clegg. Particularly, why the court refused to change the law itself. This, in turn, raises questions as to why the hierarchy evident from the actions of the court is as it is and how – in reference to Hart’s theory specifically – there can be a single or unified source of authority in law.

The story of law in Exodus neither begins nor ends with the commandments. As such, the whole tale is necessary. Explored from the position, not that literally true events have been transcribed, but that narrative truths are being symbolically represented. Beginning in Exodus 18:16, Moses is spending his days in judgement of the disputes of the people of Israel to ‘make them know the statutes of God, and his laws’.[33] Jethro, objects at Ex 18:20-22, offering that Moses ought to teach these laws to others to ‘provide out of all the people able men, such as fear God, men of truth, hating covetousness; and place such over them, to be rulers of thousands, and rulers of hundreds, rulers of fifties, and rulers of tens … every great matter they shall bring unto thee, but every small matter they shall judge’.[34] This story contains two elements of primary import. Firstly, Moses is judging matters prior to receiving the ten commandments. Secondly, it is necessary for matters to be dealt with at the most appropriately local level.

This first point is helpful as it begins to elucidate a pattern that will be explored in significant detail. That is, the specification of a rule formed by the bringing together many iterations of the relevant pattern of action. In turn, these disparate rules are given structure by determination of that which is true across all rules. This latter element is the solidification of abstract principles so that such principles may function as the top of the hierarchy of a given set of rules. A repetition of this process implies an ultimate hierarchy with a final, highest thing at its top. This highest thing is God, not as a being but the transcendent end of all values. This is important to understanding the holistic perspective of the religious viewpoint because such patterns are understood to be valid insofar as they repeat across layers of reality. This differs importantly from Kelsen’s grundnorm because Kelsen argues norms beget norms and the presence of a first norm avoids infinite regression. Contrarily, the religious perspective is concerned with actions and the good (acting well). This is born of the ability to differentiate good from bad action in a low resolution way. The structure of law, from this perspective, arises as an attempt to discover the best pattern of action and avoid all else. The difference between good and best posits an upward trajectory and because the limit to this is unknown, ‘God’ stands for that which is always beyond the horizon of current understanding. The second point describes the establishment of a hierarchy, those who sit in judgment over matters of law. It asserts that the proper structure of a legal system is stratification so that matters are dealt with using the minimum degree of intervention for the best outcome, relatively speaking.

This pattern entails the dissection of a single ‘justice system’ in the form of Moses. He directly receives law from its source – conception of the highest form of action - and propagates it. He also addresses disputes consequent on these laws and is responsible for reintegrating the outcome of these disputes as a means of clarifying what the laws do and do not mean. This is then, narratively, bisected into its dual aspects of the higher (commandments from God) and lower (establishments of courts). This process can be summarised as the ‘polarity completely encompass[ing] reality, which makes it the secondary cause of all manifestation … everything in this universe was made from a combination of ‘heavenly’ and ‘earthly’ components’.[35] Pageau observes this pattern as significant to biblical cosmology. That is, all things have their heavenly and earthly aspects, and only the bringing together of these opposed parts constitutes the whole. Thus, although the justice system in Exodus is presented as being a single whole through the image of Moses, to be good – which in part means to be comprehensible to people – it must be understood in terms of its dual aspects.

What results is a representation comparable to the analogy of left and right hemispheric difference, at the level of law. Consequently, the reason, from this perspective, that the courts will not alter the law in the case of Clegg is that the courts, being the earthly element of the justice system, do not have final authority to alter the heavenly aspect. This can be seen in the judgment of Clegg, Lord Lloyd stating the ‘defence of duress was the creation of the common law. So also, of course, were the defences of self defence and the use of force in the prevention of crime. The difference is that in the latter case Parliament has already taken a hand by enacting section 3 of the Act of 1967. Parliament did not, in doing so, see fit to create a qualified defence in cases where the defendant uses excessive force in preventing crime’.[36] Thus, something which belongs to the heavenly cannot be altered by the earthly element of the justice system.

Division of the whole into its parts: Archetype

The idea of the whole being divided into its parts permeates the religious worldview, however, is also central to the understanding of the psychoanalysts. It differs, significantly, from the opposed proposition that the parts constitute the whole. This latter point suffers from the weakness inherent to the either/or thinking of the left hemisphere, and limited investigative utility as a framework. Breaking the whole into its parts entails asking what processes are at work, so the model built is more accurate, though lacking in detail. Contrarily, attempting to build a model from parts presupposes that one is in possession of all parts, so, although containing more detail, is significantly less likely to be accurate. Simultaneously, this disintegration entails more than mere descriptive understanding; once the parts are understood to the fullest extent, more unknowns emerge. Reintegrating this into the pre-existing, now too low resolution model means renewal of that model. Thus, the understanding obtained is not merely detached and mechanical, instead, it is generative, overcoming the insufficiency of that which came before. This is because the system in question is not an a priori fact of the world but a human endeavour implemented to govern behaviour within a society. Thus, it is posited that jurisprudence ought to be aimed at more than the mere understanding of the legal system as it is. Rather, it should be aimed at ever increasing comprehension of the system so that shortcomings within it can be resolved, and this process can indefinitely renew understanding. This concept of the legal system as a meta-structure will be examined in relation to mythological structures identified by the psychoanalysts, which exemplify such an endeavour, namely, the myth of the hero.

The story of Osiris, and all ancient mythological accounts of transformation[37] are relevant to the discussion of law because it depicts the story of rejuvenating potential. It describes the desolation of too rigid order by the unknown and the emergence of the hero from it. The purpose of this section, therefore, is to answer the question from Clegg of why Lord Lloyd would not change the law, by reference to ancient patterns of representation. Neumann writes of development from the ‘supremacy of the community to that of the individual’[38] and where the ‘god-king as the “Great Individual” who, with his heroic consciousness breaks down the power of the Great Mother’.[39] These narrative elements were ceremonially acted out such as in ‘performance of the battle between Pe and Dep’.[40] This is important because it demonstrates totemism whereby ‘the totem or ancestor is reincarnated in the initiate, finding in him a new dwelling place and at the same time constituting his higher self’.[41] This process of symbolically breaking the whole, to revivify what is, repeats to reveal more of what underlies the process being undertaken; makes explicit what we can only embody. This is how the legal system works since it does not arise from, but precedes, specific knowledge regarding its function.

Thus, acting out aspects of the justice system in the present day, without complete enlightenment as to how and why it works, does not negate use of that system unless it is assumed that such knowledge is a prerequisite for function. This is the assertion of any who claim the self evidence of a posited foundation of the legal system within a purely analytical framework. This is because the law has not been assembled from disparate modes of upholding justice, but has been derived from the totality of the concept of justice. This is evidenced by virtue of the legal system being an iteration of the Osiris myth, as well as the lack of a unified analytical theory. Therefore, asking why the courts can change the law in some circumstances, and yet did not in Clegg, first requires grounding. Since the legal system is a human construct, it adheres to the pattern of the hero myth. Basis is, thus, found from which the questions can be addressed. What is discovered is not unbounded, free to be anything remotely explanatory such as was addressed when discussing theories of gravitational pull. Thus, it is not sufficient to merely describe a problem and posit a solution; that solution must be commensurate with all else that is known. That is the function of the ancient pattern symbolically represented by Osiris. It posits a hierarchy, the top of which is a transcendent value, a perfection at which the human endeavour aims, such as justice. This makes sense of how people can act things out without understanding precisely what it is they are doing and why systems such as this succeed in spite of that fact. It also makes sense of how a system can continue aiming at the same thing despite a revolutionary shift in practices. Consequently, the problem within jurisprudence is not that there is no answer to the questions raised; it is that there is no conceptual system within which they can be addressed. This means, conceptually, that there is no intrinsic hierarchy, only one which is imposed, to determine what is of greatest importance. Thus, law is without organic means of identifying any aspect as more central to its aims than any other. Contrarily, positing a transcendent end elucidates a hierarchy inherently, by becoming judge of all actions aimed at realising it. Therefore, a single system cannot be understood except by reference to parts which are understood, and thus it is, that secularised jurisprudence cannot make sense of the generation or development of law.

Building a theory of law which aligns with the functioning institution of law in practice

The example of the alchemists – pursuit of knowledge

The legal system is an unknown. This is so because our attempts to understand it have resulted in non-commensurate theories of law, comprehending elements but not the totality of the practices enacted. The strength of the analogy to alchemy lies in its presupposition that opposites must be united to understand the whole; for the alchemists, this meant matter and spirit, and in law this may mean theory and practice. The alchemical work was, most fundamentally, a mythological endeavour aimed at the ‘discovery and embodiment of the meaning of life itself’[42] via the acting out, or embodiment, of the archetypal myth of the hero. This was the gold to be obtained, even though this was not explicitly formulated by the alchemists, only being made sense of after the fact that an embodied metaphor was being enacted. It was rejection by the alchemists, of the proposition emanating from the church that Christ’s crucifixion had forever redeemed man, that led to the exploration of matter. This was because of matter’s unexplored state at the time; it represented the unknown in addition to the material, which placed it in opposition to both the spiritual and the known. The current state of jurisprudence, as has been argued, stands in an inverse relationship to that which first presented to the alchemists. Undue prominence is given to the worldview of the left hemisphere and, in consequence, our models are built from parts. Such models, however, cannot help but be incomplete, much the same as a model built from the opposing (right hemisphere) perspective alone is incomplete. Hence, asked why the court in Clegg would not introduce a new category of self defence the response, by reference to secondary rules, is simply that it does not happen, and because it does not happen, it is a rule governing the system of law that it does not or cannot happen.

First shall be addressed the sterility of the known, as found in the Osiris myth. This is encapsulated in the archetype of the King of order, where the ‘figure of the sterile king may perhaps come from the “Arisleus Vision" where the King of the Sea rules over an unfruitful country’.[43] Thus, that which is known is no longer a sufficient guide for life. This signifies the nigredo (blackening), or first stage of the alchemical process. This begins when it is confessed that what is known currently is not complete/has not led to comprehension of everything that could be known. The implication of this is great, because ‘[a]dmission of personal ignorance presents a challenge to the cultural canon … and sets the stage for moral transformation, which manifests itself in symbolic form’.[44] This means that the extent to which an institution becomes authoritarian, meaning purporting its knowledge as complete and final, signifies the extent to which it requires individuals to undertake exploration of the unknown in order to rejuvenate that institution.

Thus, of jurisprudence, and this is true of natural law (Finnis’ seven self evident truths)[45] as much as of positivism (Hart’s ‘minimum content of natural law’, Primary and secondary rules, as well as Kelsen’s grundnorm), there is a problem wherein the horizon of logical explanation is taken to be the final end of knowledge. This is a problem for two reasons; firstly, because many theories of law are non-commensurate and so cannot simultaneously and finally be correct. Secondly, every such theory/school of law is founded on presupposed assumptions about the structure of law which lead to the conclusions reached. These disparate, self contained, legal theories constitute the sterile king, as this article has been documenting by reference to the case of Clegg and the plethora of questions it stimulates, and which remain unanswered by legal theory.

The proffering of a grundnorm or of secondary rules is, therefore, a tacit acknowledgement of insufficient knowledge. They reside as a placeholder for something which must exist by inference. Yet, since they cannot be investigated, it cannot be determined that they are, in fact, the most fundamental point of legal theory. Thus, these theoretical foundations serve ‘a tyrannical function, which ha[s] to be eliminated, prior to the creation of new knowledge’,[46] to put the problems in terms of the alchemical process. This constitutes the ‘aspect of the prima materia, which was first in need of redemption’.[47] It is for this reason that symbolic ‘“disintegration of the king” found its analogical material equivalent in the chemical process of dissolution’.[48] Hence, although the alchemists were, to all appearances, performing something like ill-informed chemical experiments, the pattern found across alchemists was the embodiment of the hero myth. It was Jung’s hypothesis that this pattern represented the interactions of consciousness and the unconscious, where the known is that which is conscious, and the unknown is everything that could be known but is not. It is for this reason that when the same pattern of meeting the unknown occurred in the world with regard to final redemption and salvation, the alchemists had to act out symbolic exploration via archetype and implicit metaphor, unbeknownst to them.

Therefore, within jurisprudence, there are a set of theories which have explanatory value and yet from which stem questions as to possible deeper patterns/mechanisms. The king, therefore, is sterile, no longer generating answers but instead questions. These questions represent the unknown or the queen of chaos, the end of the sufficiency of current knowledge and the need for more. This is ‘imaginatively represented in the alchemical process by symbols characteristic of the matriarchal system … intrapsychic representative of the queen, the Great and Terrible Mother’.[49] In practice, this was the other aspect of the prima materia. It was the solvent used to dissolve, or return to the earth, the kingly element of the prima by the alchemists. This bringing together was an iteration of the ultimate pattern of bringing together all opposites (‘the conjunction’).[50] This union of the king and queen, of base material and solvent, was then heated (‘symbolic equivalent of passion, emotion or sensuality – aspects of the intrapsychic world’)[51] by the alchemist. The intention was to bring gold into being, but the greater goal was to manifest, embody, the process by which gold can be created.

This means more than merely resolving a conflict or expanding a domain of knowledge because it is a pattern which exists across multiple levels of reality. This is because to ‘transform [something] into an ideal’[52] is universal, technically, as any creative process has, at its pinnacle, an ideal. Thus, alchemy is the symbolic representation of the process that realises an ideal and can, therefore, strive toward it. Thus, applied to jurisprudence, what is lacking is a genuine unity or ideal. This is, at least in part, because steps have not been undertaken to discover the opposite of current theories, even though this opposite is implicitly contained by the questions arising from these theories, including those posed within this article. Thus, the guidance of the alchemical method is to strive to discover and then bring together the dual elements of the prima materia. This is the case with regard to law because abstract knowledge is not sufficient; such a failure is an indication that a process is being acted out rather than fully conceptualised in articulated form. In order to grasp the twin elements of the prima, therefore, what needs to be understood is what is being acted out and not what system can be built from the parts already known. Delving into knowledge of the specific follows this, however, it cannot be undertaken without first establishing what the whole in question is. This is because, for it to be split into its twin aspects, it must first be known what the twin aspects contribute in order to being about the result yielded by the whole.

Contemporary secular legal theory does not understand how the legal system functions, only that it does. A model derived only from available parts; leaving no room for advancements in knowledge to occur because it is premised in the left hemisphere mode of thinking. Thus, when it is asked of Clegg why the courts did not see fit to change the law, Hart’s concept of secondary laws provides that such change could not have been permitted. From Kelsen’s theory, that there was no established norm which would have allowed it in that instance. The approach undertaken to get to such theories is necessary and the parallel is with the left hemisphere. Abstract, analytical methods are necessary to produce in-depth knowledge within a specific domain. However, these methods are inappropriate to the delineation of a domain, in the same way that the scientific method can produce valuable results. Despite this, it remains incapable of producing the hypothesis to be tested using the methodology of scientific theory. Such attention, in science as in the brain as in jurisprudence, must be directed by something without. This is why, in order for legal theory to be meaningfully developed, it requires first the confession that what is known is not/no longer enough. The legal system must then be approached as if it is a single system that brings about justice by embodying a process which could be understood. It is then proper for this single system to be broken apart into its dual aspects and these delved into. What is discovered must then be returned to this concept of the legal system as a single entity. Thus, it is discovered that what is modelled, although it is very good at describing what is, does not adequately model why that is the case.

Hence, although secondary rules state the justice in Clegg owed deference to the legislature, it cannot explain why it did in this instance whilst it does not at other times. However, conceptualising the judiciary as embodying a specific role which is, in some way, oppositional to the role of the legislature and that both are necessary to the legal system, bounds exploration of each element. It presupposes an end, meaning that at which the legal system aims, observes that which is already achieved by the legal system (which necessarily falls short of the ultimate goal) and strives to redeem this discrepancy. This entails plumbing the depths of the two aspects being acted out – in the manner employed by contemporary jurisprudence – to discover how each serves the given end. This prevents abstraction from becoming detached from reality by emphasising that processes in action are means to achieving sought after ends, which rules out propositions that any means within a successful, cohesive structure originated via purely arbitrary means. It simultaneously prevents the mere assertion that a given pattern exists, and so does not need to be understood. This, as acted out by the alchemists, is the attempt to reveal the gold, in the form of the ultimate end served by the legal system (the top of the legal hierarchy properly construed), because this discovery means the proper conceptualisation of the aspects which comprise it. Furthermore, doing so simultaneously reveals the means of producing gold, that is, proper orientation in the study of law so that this revolutionary process may be undertaken whenever knowledge in the present ceases to be sufficient. 

Consequently, relative to Clegg, there is a legal system which delivers justice. Asked how it does so, it can be pointed out that a legislature delivers the law in the form of statute, and the judiciary interprets and applies it to specific instances. The former is broad and abstract, referring to general situations. The latter, however, applies that, to determine if and how those broader ideas might relate to this specific set of circumstances. Asked in what way each attends to the matter of justice, however, and what is being probed is no longer a single system but rather its two parts. The legislature has determined, in the Criminal Law Act 1967 s.3, that only reasonable force may be used in the prevention of crime, and s.3(2) determines that this is to replace the common law standard. This, however, can not be applied to individual situations because it is too abstract.

What, then, is reasonable force. This is a pertinent question to the matter of Clegg, although so is the question of what it means to be acting in the prevention of crime. Broadly, intuitively, it can be understood that discharging a shot at a person exiting a shop with an item of confectionary they have not paid for is not reasonable. However, this is insufficient. What is needed is a system which can determine reasonable, from unreasonable, force. Thus, given the aim of realising justice within the bounds set by the legislature the judiciary undertakes its process.[53] Determines that Clegg is guilty of murder via that process and alludes to the possibility of the law as it stands being further subdivided in order that the possibility of future injustice can be avoided. Implementation of this, however, is said to be ‘not [for] this House in its judicial capacity’.[54] What are on display, therefore, are parameters of action inadequately understood. Thus, what is needed is in depth analysis of the features, within the framework outlined in order to discover practicably actionable information pertaining to the legal system.

Aquinas as early example of a practical compromise

St. Thomas Aquinas is an exemplar of this practical endeavour. A pupil of alchemy, the language of his theorising does not align with modern usage in the manner explored in the previous section.  This does not, however, mean that what was written by him is unhelpful, merely that it is a posited concept of the whole which is in need of division and exploration of its aspects to discover the details which complete the structure. Thus, when he states ‘on neither side is it possible to go to infinity since if there were no last end, nothing would be desired, nor would any action have its term … while if there is no first thing among those that are ordained to the end, none would begin to work at anything’[55] Aquinas articulates that the intention which gives rise to the law also describes the end pursued by it. He, like the ancient mythological structures before him, posits a hierarchy with the transcendent, highest positioned at the top.

A given hierarchy, therefore, is necessarily formed by the discovery of an ideal and the desire to realise that ideal. Further, because all such hierarchies belong to an ultimate hierarchy, there are truths common to all hierarchies. People do not, therefore, need to comprehend the end of a hierarchy in which they are participating, hence, ‘a thing, moving itself to the end, as man … a thing moved by another to the end, as an arrow tends to a determinate end through being moved by the archer who directs his action to the end’.[56] Thus, if a person is to bring about an end they must know it and be moved by it; however, for one to contribute to the realisation of a higher order end, one need only act in accordance with the mandates put forth by others. Hart, in fact, chides the vanity of searching for ‘any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of such conduct’.[57] Nevertheless, this remains an acknowledgement that the law originates as a means to some end, even if he will not delve into exploration of that end. He describes a hierarchy of the kind proposed by Aquinas and yet prematurely denies that this could have any relevance to the law.

This is useful, because it suggests, despite lacking clarity in resolution, that people are capable of implicitly advancing an end they do not fully understand. This runs entirely counter to the rationalistic proposition that promulgation is requires knowledge as a starting point. Aquinas goes further, writing that a ‘thing can of itself be divided in respect of something contained in the notion of that thing … a soul either rational or irrational is contained in the notion of animal: and therefore animal is divided properly and of itself in respect of its being rational or irrational; but not in the point of its being white or black, which are entirely beside the notion of animal … [i]n this respect positive law is divided into the law of nations and civil law, according to the two ways in which something may be derived from the law of nature’.[58] What can be seen here, in addition to the idea that the legal system is properly construed as a hierarchy, is the idea that parts of this hierarchy can be divided into their twin aspects for the purpose of attaining greater understanding.

The example of the alchemists and Aquinas offers a counter to the proposition of Catherine Zuckert, that ‘Working out a conception of a just society require[s] a theory of justice, with principles of justice as its centrepiece ... what principles of justice would regulate a just society and what its institutions would be like is necessary for showing that a just society is possible, it is not sufficient’.[59] This statement suggests that specific knowledge of an end is required to pursue it, yet as has been argued throughout this article, it is not. John Rawls, too, claimed that ‘we can believe that a realm of ends is possible in the world only if the order of nature and social necessities are not unfriendly to that ideal’,[60] which has been construed to mean the realisation of final ends in the world is a prerequisite of the ability to pursue them. Consequently, justice can only top the hierarchy of the legal system if it is actually attainable. Else the outcome of justice can only be proportionate to what is attainable. This final concept of justice, however, must first be known, which is knowledge Rawls does not have. Such a system, as seen from the example of alchemy, is not necessary because a process which is aimed at the transcendent can be enacted without reference to the practical manifestation of that end. To win a game, one does not need to know what the winning move will be. Focus on such ancillary details is indicative of exclusively left hemispheric processing. This further aligns with Aquinas’ sentiment that ‘[t]he object of the will is the end and the good in universal’,[61] whereby people act so as to bring about and be good. This occurs despite people’s ignorance of specific good for the same reason the alchemists succeeded. From this perspective, the assertion of Zuckert, though purporting to be practical, is the opposite, because it assumes that to aim at anything one requires a theory of it. This would require all hierarchies to be static and perfect at the point of formation. The advantage of Aquinas’ theory, therefore, is that although it lacks specificity, it is not subject to the same paralysis, to combinatorial explosion, as modern, more abstract jurisprudential theory does.

Conclusion

Consequently, the case of Clegg[62] brings to light problems with the current conceptualisation of the structure of the legal system, for the purposes of understanding it as functional and generative. The exploration that ensued has approached this in a multidisciplinary manner so that the basis for the claim that a religious framework is a vital tool of conceptualisation can be properly contextualised and understood. The point is not that the questions raised be answered, but that, within prevailing frameworks, they cannot be. This demonstrates relevance realisation within jurisprudence, a problem which is resolved by a conceptual shift. Ancient wisdom, and the processes by which it gained understanding, are analogous to the biological structure of the brain. Consequently, this conceptualisation, which resolves relevance realisation in GPS, ought to be reintroduced to jurisprudence. The case of Clegg exposes the limitations of purely analytical jurisprudence, characterised by the left hemisphere, and the need for the introduction of a right hemisphere element. This is evidenced by the correspondence of the flaws of each hemisphere to those of the aspects of the legal system. Further, since both are necessary to perceive the world both ought to be treated as necessary for the system of law. These ancient models provide the constraint needed to undertake meaningful analytic exploration, Aquinas is a prime example of such a structure, acting as a start and end point within which more detailed understanding can be extracted and integrated. Thus, an entirely secularised theory of law cannot account for the generation of law because it is only capable of describing what is from what is known. This is insufficient and artificially restrictive in the myriad ways explored. Therefore, the introduction of the religious worldview, that of the right hemisphere, is necessary. It posits a transcendent end which acts as organising principle and judge, providing the framework from which questions may be derived and answers reintegrated without disruption to the function of the social system in question. The fact such systems can be understood as singular, united and participated in without extensive legal training demonstrates that some aspect or aim intrinsic to law also resonates with individuals’ aims. This suggests participation in a hierarchy of ends which overlaps with that of the law. At the top of all such hierarchies is ‘God’, a representation of that which is highest and therefore organises the lower. This transcendent element is necessary for coherence and cooperation, making sense of pursuing improvement and generation of the previously unknown. It is for this reason that ancient wisdom is required to rejuvenate the study of law.

Bibliography

Cases

Attorney-General for Northern Ireland’s Reference (No. 1 of 1975) (1977) AC 105

Revill v Newbery (1996) 1 All ER 291

R v Clegg (1995) 1 AC 482

R v O’Grady (1987) QB 995

R v Shaw (2001) 1 WLR 1519

Legislation

Criminal Law Act 1967

Secondary Sources                 

Aquinas T, Summa Theologica, Part I-II Pars Prima Secundae (tr PG, Complete American Edition 2006)

Cotterrell R, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (London, Ashgate Publishing 2006)

Deglin VL, Kinsbourne M, ‘Divergent thinking styles of the hemispheres: how syllogisms are solved during transitory hemisphere suppression’ (1996) BC 285

Eliade M, The Sacred and the Profane: the Nature of Religion (Harvest 1959)

Finnis J, Natural Law and Natural Rights (2nd edn, OUP 2011)

Hart HLA, The Concept of Law (3rd edn, OUP 2015)

Hécaen H and Ajuriaguerra J, ‘Méconnaissances et hallucinations corporelles: intégration et désintégration de la somatognoise’ (MC 1952) 229

Hyde, D Raffman D, Sorites Paradox The Stanford Encyclopedia of Philosophy (edn 2018)

Jung CG, Collected Works of C. G. Jung, Volume 14: Mysterium Coniunctionis (PUP 1970)

Kelsen H, General theory of law and state (Taylor & Francis Group 2005)

McGilchrist I, The Master and His Emissary: The Divided Brain and the Making of the Western World (YUP 2019)

- - ‘Cerebral lateralization and religion: a phenomenological approach’ (2019) RBB 319

Neumann E, The Origins and History of Consciousness (Hull tr, PUP 2014)

Pageau M, The Language of Creation: Cosmic Symbolism in Genesis: A Commentary (2018)

Peterson JB, Maps of Meaning (Routledge 1999)

Ramachandran V, ‘Phantom limbs, neglect syndromes, repressed memories and Freudian psychology’ (1994) IRN 291

Rawls J, Lectures on the History of Moral Philosophy (HUP 2000)

Schauer F, 'Do Cases Make Bad Law' (2006) UCLR 73, 883

Sherrington C, The Integrative action of the nervous system (YUP 1906)

The Bible (2008 translation Authorised King James Version OUP)

Vervaeke J, Lillicrap T and Richards B, ‘Relevance Realization and the Emerging Framework in Cognitive Science’ (2012) JLC 79

Zuckert C, Political Philosophy in the Twentieth Century: Authors and Arguments (CUP 2011)

Foonotes

[1] (1995) 1 AC 482.

[2] Ibid 490 (Lord Lloyd of Berwick).

[3] Attorney-General for Northern Ireland1’s Reference (No. 1 of 1975) (1977) AC 105, 148 (Viscount Dilhorne).

[4] Clegg (n 1) 500.

[5] Ibid.

[6] HLA Hart, The Concept of Law (3rd edn, OUP 2015) from 91.

[7] Ibid.

[8] Ibid.

[9] Roger Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (London, Ashgate Publishing 2006) 37.

[10] Ibid.

[11] John Vervaeke, Timothy Lillicrap and Blake Richards, ‘Relevance Realization and the Emerging Framework in Cognitive Science’ (2012) JLC 79, 81.

[12] Comparable to the problems presented by the “hard case” such as discussed in Frederick Schauer, 'Do Cases Make Bad Law' (2006) 73 UCLR 883.

[13] A-G for Northern Ireland (n 3).

[14] Clegg (n 1) 500.

[15] Iain McGilchrist, The Master and His Emissary: The Divided Brain and the Making of the Western World (YUP 2019).

[16] Ibid 137.

[17] Ibid 209.

[18] Henry Hécaen, Julián de Ajuriaguerra, Méconnaissances et hallucinations corporelles: intégration et désintégration de la somatognoise (MC 1952) 229-37.

[19] From the Greek soros, meaning a heap in Dominic Hyde, Diana Raffman, Sorites Paradox The Stanford Encyclopedia of Philosophy (edn 2018).

[20] McGilchrist (n 13) 138-9.

[21] Charles Sherrington, The Integrative action of the nervous system (YUP 1906).

[22] McGilchrist (n 13) 9.

[23] McGilchrist (n 13) 39.

[24] Vilayanur Ramachandran, ‘Phantom limbs, neglect syndromes, repressed memories and Freudian psychology’ (1994) IRN 37, 291.

[25] McGilchrist (n 13) 162.

[26] McGilchrist (n 13) 46.

[27] Vadim L'vovich Deglin, Marcel Kinsbourne, ‘Divergent thinking styles of the hemispheres: how syllogisms are solved during transitory hemisphere suppression’ (1996) BC 31, 285.

[28] McGilchrist (n 13) 46.

[29] Clegg (n 1) 500.

[30] Hans Kelsen, General theory of law and state (Taylor & Francis Group 2005) 110.

[31] Ibid 111.

[32] Iain McGilchrist, ‘Cerebral lateralization and religion: a phenomenological approach’ (2019) RBB 9, 319, 324.

[33] The Bible (2008 translation Authorised King James Version OUP).

[34] Ibid.

[35]   Matthieu Pageau, The Language of Creation: Cosmic Symbolism in Genesis: A Commentary (2018) 3.

[36] Clegg (n 1) 500.

[37] This includes the story of Marduk, the Hittites and at Ras Shamra in Mircea Eliade, The Sacred and the Profane: The Nature of Religion (Harvest 1959) 77.

[38] Erich Neumann, The Origins and History of Consciousness (Hull tr, PUP 2014) 245.

[39] Ibid.

[40] Ibid 246.

[41] Ibid 247.

[42] Jordan Peterson, Maps of Meaning: The Architecture of Belief (Routledge 1999) 445.

[43] Carl Jung, Collected Works of C. G. Jung, Volume 14: Mysterium Coniunctionis (PUP 1970) 465.

[44] Peterson (n 39) 428.

[45] John Finnis, Natural Law and Natural Rights (2nd edn, OUP 2011).

[46] Peterson (n 39) 428.

[47] Ibid.

[48] Ibid 429.

[49] Ibid 229-30.

[50] Ibid 432.

[51] Ibid 430.

[52] Ibid 443.

[53] R v Shaw (2001) 1 WLR 1519 introduced the element of circumstances as the defendant believed them to be, R v O’Grady (1987) QB 995 further clarifies this does not apply when the defendant is intoxicated, Revill v Newbery (1996) 1 All ER 291 elucidated reasonable force may be used to defend one’s property.

[54] Clegg (n 1) 500.

[55] St Thomas Aquinas, Summa Theologica, Part I-II Pars Prima Secundae (tr PG, Complete American Edition 2006) Q1 Art4.

[56] Ibid Q1 Art2.

[57] Hart (n 6) Postscript.

[58] Aquinas (n 51) Q95 Art4

[59] Catherine Zuckert, Political Philosophy in the Twentieth Century: Authors and Arguments (CUP 2011) 189.

[60] John Rawls, Lectures on the History of Moral Philosophy (HUP 2000) 319.

[61] Aquinas (n 51) Q1 Art2.

[62] Clegg (n 1).