Working Paper - Common Sense Adjudication

This paper is a draft, please do not cite or circulate.

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The Literal Rule, Legal Formalism and Common Sense Adjudication -

Applying Lonergan Studies to Legal Interpretation*

Man observes, understands, and judges, but he fancies that what he knows in

judgment is not known in judgment and does not suppose an exercise in

understanding but is simply attained by taking a good look at the “real” that is

“already out there now”.1

Question: “What is a roof?” 2

Answer: “A roof is a roof.” 3

This exchange would not be out of place in a Monty Python sketch. The combination of question

and answer are so simplistic that reflecting on the issue borders on the absurd. Thinking about

the meaning of the word “roof” would complicate an uncomplicated issue. Yet this question -

posed by Mr Justice Peter Charleton on a consultative case stated to the High Court in HSE v

Brookshore Ltd - resolved the interpretation of one of the exceptions to s.47 of the Public Health

(Tobacco) Act 2002, the rule regulating “smoking areas”. That the issue before the Court

prompted such candour might affirm the notion that a judge can, in certain circumstances,

formally apply the literal meaning of the law since it is clear that the word “roof” does not require

much in the way of deliberation.4 With this in mind, this paper will consider the judgment of

Charleton J in HSE v Brookshore Ltd and the particular approach to adjudication therein. The aim

of the paper will be to ask whether decisions such as that in Brookshore are best explained by

theories which look to the formal application of the law, or whether such cases are determined

on the basis of common sense. First, illustrating literal interpretation as perceived in theory, I will

combine a brief analysis of the literal rule with a discussion of Charleton J’s decision. Second, as a

means of finding whether legal texts are capable of formal application, I will consider formalism in

general and Ernest Weinrib’s theory on the immanent intelligibility of law. From here the paper

will engage with Bernard Lonergan’s critical realism to show that decisions characterised as

straightforward applications of literal legal meaning are better explained by an appeal to

“common sense” in decision making. In outlining Lonergan’s theory I will claim that decisions

requiring minimal judicial intervention are more attributable to insight and common sense, rather

than illustrations of the literal rule in action. Trying to clarify how judges construct literal legal

meaning might be an exercise in explaining the inexplicable, but this paper will argue that

* I would like to acknowledge Prof Garrett Barden for pointing me in the direction of Lonergan’s ideas on common sense and how they might be applied to adjudication. 1 Bernard J.F. Lonergan, Insight: A Study of Human Understanding, (Longmans, London, 1957) 2 HSE v Brookshore Ltd [2010] IEHC 165, at para 1 3 Ibid, at para 15 4 This case might be labelled an “easy” case on Hart’s understanding; the idea being that the situation at hand can be determined solely by reference to the words of the rule in question. See chapter 7 of HLA Hart, The Concept of Law, (Clarendon, 2nd Ed, 1994)


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Lonergan’s writing on insight and common sense tells us more about understanding and

immediate decision-making than formalistic theories of adjudication, for example.

Section 1(a): The Literal Rule in Theory

Before analysing the decision in Brookshore it will be useful to chart the main features of literal

interpretation in law. Oliver Wendell Holmes Jr. is said to have formulated “the plain meaning

rule” when describing literal meaning in the following terms: “We ask not what this man meant,

but what those words would mean in the mouth of a normal speaker of English, using them in the

circumstances in which they were used.”5 In the Irish context, an analogous criterion to that of

the normal speaker of English, “the man in the street” was adopted by the Supreme Court in Re

Irish Employers Mutual Insurance Association Ltd6. Understood in these terms, “literal meaning”

assumes that the interpreter gives effect to the most obvious or naturally occurring meaning7 at

the time of interacting with the text. This notion of immediate literal meaning is reflected in

statutory theory, which holds that the judge’s first point of departure in decision making is to

have regard to the particulars of the legal text8 as to do otherwise would usurp the legislative

prerogative.9 This finds expression in classic features of the rule of law ideal, the separation of

powers and theories of democracy10, best articulated by the quote attributed to John Adams that

it is better to have “a government of laws and not of men”. In terms of the interpretation of legal

texts, this assumes that in a conscious effort to avoid arbitrary rule, the judge must base his

decision on the literal meaning of the legal text and avoid giving effect to his own biases.11

Applied in practice, the rule focuses primarily on the relationship between the literal implications

of the legal text and the intentions of the lawmaker(s) who enacted it,12 insofar as the literal

meaning of the text and the intentions behind it are assumed to be one and the same.13 So,

where the judge does not have to infer an intention, for example in situations where the language

of the statute is clear, or where the literal implications of the statutory text do not produce

ambiguity or absurdities14, he is taken to apply the ordinary meaning of the statute.15 Following

5 Oliver Wendell Holmes, “The Theory of Legal Interpretation, (1899) 12 Harvard Law Review, at 417-418 6 [1955] IR 176 7 Dodd, Statutory Interpretation in Ireland, at 118-120 8 See the judgment of Murray J in Sinnott v Minister for Education [2001] 2 IR 545, at 679; “It is axiomatic that the point of departure in the interpretation of a legal instrument, be it a constitution or otherwise, is the text of that instrument, albeit having regard to the nature of the instrument and in the context of the instrument as a whole. 9 See David Gwynn Morgan, ‘Judicial-O-Centric Separation of Powers on the Wane?’ (2004) 39 The Irish Jurist, 142, noting the “curious… vigour” attached to the separation of powers principle in the Irish context. 10 Michael Freeman, ‘Positivism and Statutory Construction’, in Guest, Stephen, (ed.), Positivism Today, (Dartmouth Publishing Company, 1996) 11 See Bell and Engle, Cross on Statutory Interpretation, 3rd ed, Butterworths, (1995) at 32. 12 See See David Dodd, Statutory Interpretation in Ireland, (2008) Tottel Publishing, Dublin, at 31 and Gerard Hogan, “Constitutional Interpretation”, in Litton (ed.), The Constitution of Ireland 1937-1987 (Dublin, 1988), at 174. 13 Francis Bennion, Bennion on Statutory Interpretation, (London, Butterworths, 5th Edition, 2008), at 469 and David Dodd, Statutory Interpretation in Ireland, at 25 14 See s.5 Interpretation Act 2005 15 See the judgment of Blayney J in Howard v Commissioner of Public Works [1994] IR 101 at 151. This case is regarded by Justice Hugh Geoghegan as one of the most significant in the Irish context of statutory interpretation; see Statutory


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the common law rule that the courts are not to injure the statutory text,16 this mode of

interpretation clearly envisages a non-activist judicial role. This approach is founded on the

assumption that the legislature is familiar with and can predict the interpretative habits of the

court and enacts legislation with this in mind.17 Implicit in this is the suggestion that the rules of

language are an essential feature of legislative drafting and statutory interpretation.18

While the reasons behind the use of literal interpretation are quite straightforward, its status as

the default position in statutory interpretation is complicated by the fact that there is no unified

understanding of what constitutes “literal” interpretation. Writing in the Canadian context - but in

terms that fit with the Irish approach - Ruth Sullivan has noted that the difficulty in using the

literal rule is that the rule itself does not specify a unitary notion of meaning:

One of the most frustrating aspects of the… rule is trying to understand what sort of

meaning interpreters have in mind when they label a meaning plain. There is a rich and

shifting set of terms associated with plain meaning - ordinary meaning, literal meaning,

common sense meaning, ordinary and grammatical sense, natural sense, and the like.

These terms have no fixed or precise reference. Sometimes they are used as synonyms for

"plain meaning" but it is also clear that different judges mean different things by them.19

This might seem an insignificant semantic issue but will be touched upon briefly here. In the Irish

context Byrne and McCutcheon point to a distinction between the traditional common law literal

“rule” and its contemporary manifestation, the literal “approach”.20 They hold that the “rule”

derives from the principle that courts cannot add to or subtract words from the statutory text,

and that they should be interpreted strictly in the “ordinary, commonplace, or grammatical sense

in which the words are normally used.”21 The “approach” on the other hand requires the courts to

take into account the context in which words appear and are to be applied.22

However, David Dodd, for example, treats the subject differently, stating that there are two

“principal rules”. The first rule concerns the use of ordinary language, which asserts that words

Interpretation in the Context of the Irish Constitution, available at http://www.statutelawsociety.org/data/assets/pdf_file/0003/84702/Statutory_Interpretation_in_the_context of_the_Irish_Constitution._Mr_Justice_Hugh_Geoghegan.pdf at 5. Last accessed 10/3/2015 16 See Ruth Sullivan, “The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation”, available at http://aix1.uottawa.ca/~resulliv/legdr/pmr.html, accessed 26/03/15 17 See Anthony D'Amato, “Can Legislatures Constrain Judicial Interpretation of Statutes?” 75 Va. L. Rev. 561-603 (1989). See also, Aileen Kavanagh, ‘The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998’, (2006) 26 Oxford Journal of Legal Studies, 179, at 183 18 See Dodd, Statutory Interpretation in Ireland, at 115 19 Ruth Sullivan, Statutory Interpretation in the Supreme Court of Canada, (1998–99) 30 Ottawa L Rev 1–45. cited in, Dodd, Statutory Interpretation in Ireland, at 116. Summers and Marshall, for example, highlight the minute differences between ordinary and plain meaning in The Argument from Ordinary Meaning in Statutory Interpretation, (1992) 43 Northern Ireland Legal Quarterly 213, 20 Byrne and McCutcheon, Byrne and McCutcheon on the Irish Legal System, at 562, 567 21 Ibid, at 562 22 Ibid.

http://www.statutelawsociety.org/data/assets/pdf_file/0003/84702/Statutory_Interpretation_in_the_context%20of_the_Irish_Constitution._Mr_Justice_Hugh_Geoghegan.pdf

http://www.statutelawsociety.org/data/assets/pdf_file/0003/84702/Statutory_Interpretation_in_the_context%20of_the_Irish_Constitution._Mr_Justice_Hugh_Geoghegan.pdf

http://aix1.uottawa.ca/~resulliv/legdr/pmr.html


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must be given their “ordinary and natural meaning”23, not dissimilar to the treatment of the literal

“approach” by Byrne and McCutcheon above. The second principal rule relates to the concept of

“plain meaning”; that is, where the language of a statute allows for an “entirely plain and

unambiguous” meaning, then there is no need to interpret any further, as the interpreter’s task is

complete.24 Implicit in these descriptions is a point at which both tests intersect. That is, Byrne

and McCutcheon’s reading of the literal “rule” encapsulates aspects of both Dodd’s “ordinary and

natural meaning” rule – the notion of a contextual reading – and the second “plain meaning” rule,

the notion that the words of the statute be construed and strictly applied.25

It appears from the Irish authorities that Sullivan’s misgivings are accurate. With this in mind - and

in an attempt to avoid confusion - I will elect to use the label “literal interpretation”, intimating

both contextual and formal aspects above. Whether Sullivan proposes that literal interpretation

establishes a particular interpretative attitude26 - as opposed to requiring the formal realisation of

language27 - is something that will be considered in the examination of Lonergan’s ideas on

common sense below.

Section 1(b): Applying “Literal” Meaning in Practice

As outlined, the construction of literal legal meaning and its subsequent application is assumed to

be a matter of form. Generally, the natural implications of the statutory text apply to the case at

hand where it is clear that the literal meaning of the text identifies or captures the intention

behind that text.

In HSE v Brookshore Ltd28 the High Court considered whether a retractable canvas awning in the

outdoor “smoking area” of a pub constituted a roof for the purposes of section 47(7) of the Public

Health (Tobacco) Act 2002.29 Section 47(7) of the 2002 Act prohibits smoking in licensed premises

or places of work considered to be indoors. The case concerned the smoking area in Grace’s

Public House in Naas Co. Kildare, which was in a laneway adjoining the bar. The issue hinged on

the nature of the smoking area and the wording of subsections (c) and (d) of s.47(7) of the 2002

Act, which provide that outdoor sections covered by a fixed or movable roof are exempt, provided

not more than 50% of the perimeter is surrounded by one or more walls or similar structures. The

laneway in question was “completely enclosed” by the retractable canvas awning, appearing for

all intents and purposes to be “indoors”.

23 Dodd, Statutory Interpretation in Ireland, at 118-120 24 Ibid 25 Hogan and White state that the general approach of the courts to statutory interpretation, in a constitutional context, is to consider the “ordinary practical effect” of the words under scrutiny. Hogan and Whyte, JM Kelly: The Irish Constitution, at 870-871 26 Bell and Engle, Cross on Statutory Interpretation, (Butterworths, 3rd Ed, 1995,) at 42 27 For a consideration of the theory that legal texts are capable of direct application or “formal realisation”, absent of judicial interaction, see Margaret Jane Radin, ‘Reconsidering the Rule of Law’, (1989) 69 Boston University Law Review, 781 28 [2010] IEHC 165. 29 As amended by s. 3 of the Public Health (Tobacco) (Amendment) Act, 2004.


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The HSE claimed that the smoking area was indoors as it was completely covered and offered

many of the amenities normally found inside public houses. They charged the respondents with

breaching section 47(7) of the 2002 Act, as customers were found to be smoking in this section of

the premises. The respondents submitted that, technically, the smoking area could not be

considered indoors as the awning was retractable. In the District Court Coughlan J dismissed the

prosecution, finding that the awning in question did not constitute a roof for the purposes of

s.47(7) of the 2002 Act, as it was made of soft canvas material, and that the laneway was an

“outdoor area”. However, he referred questions of fact concerning the nature of the roof to the

High Court.

In considering the meaning of the word “roof” for the purposes of s.47(7) of the 2002 Act in the

High Court, Charleton J noted that the wording of the provision required “very little in the way of

statutory interpretation”,30 intimating either that the literal implications of the statutory text

applied of themselves, or that this was a case that could be disposed of entirely on the basis of

common sense:

…ordinary common sense must prevail. Ireland has a markedly high level of rainfall and it

seems to have increased in recent years, especially during the summer months. It is

unpleasant to sit or stand outdoors smoking a cigarette and drinking a pint of porter while

the rain tumbles down. People want respite from the elements. They do not want their

drink to be watered down. Comfort and shelter are clearly the purposes of this awning. It is

there to keep off the elements. It also impedes the dispersal of tobacco fumes. It is

therefore a roof. It makes no difference if it is made of steel or slates, of canvas, of plastic

or of glass. It is irrelevant if it leaks or it provides little in the way of insulation. What

matters is that a roof is overhead and that, effectively, or less than effectively, it assists in

keeping off precipitation and keeping in smoke...31

The tremendous convenience of the reference to “common sense” aside, it is not clear whether

this decision is compelled by the letter or the spirit of the law; that is, whether Charleton J’s

decision is based on the meaning of the term roof or a straightforward determination of the

intention of the legislature. The purpose of the statute was to prohibit smoking in covered areas

which hindered the dispersal of smoke. The question this paper poses is whether the decision was

prompted by applying the literal meaning of the statutory text or simply by appealing to common

sense. While Charleton J appeared to be considering the practical application of the meaning of

the word “roof” for the purposes of the statute, it very difficult to separate such a reading of the

statutory text from a common sense consideration of the intentions of the legislature in enacting

the smoking ban. However, if we deem that the decision was made with regard to such intentions

or purposes, it cannot have been required by the rule itself, on the understanding that a formalist

30 [2010] IEHC 165, at para 11 31 Ibid, at para 12


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method strictly applies rules in the absence of external considerations.32 Bell and Engle explain

the nature of this quandary in Cross on Statutory Interpretation:

...assumptions [as to literalism] relate, in part, to the purpose of the speaker or the

writer… We still refer to this as an interpretation by reference to ‘ordinary meaning’

because the reader is able to rely on an immediate understanding of the purpose behind

the use of the words without engaging in any further research.33

Bell and Engle’s point here identifies the crux of Hart and Fuller’s debate on the interpretation of

law; whether words in clear cases self-apply, or whether the judge unconsciously considers the

purpose of the rule in applying it to the clear case. With this in mind, in the next section I will

focus on Ernest Weinrib’s theory on the immanent intelligibility of law to find whether statutory

meaning is capable of formal application in such straightforward instances.

Section 2: Formalism and Weinrib’s theory on the Immanent Intelligibility of Law

Formalism is a dirty word in the province of legal theory. As a theory of law formalism embodies

the notion that judges decide cases solely on the basis of legal rules, in abstraction from notions

about social utility and the common good. As Unger put it, “the mere invocation of rules and the

deduction of conclusions from them is believed sufficient for every legal choice.”34 This assumes

that as a matter of logic a legal rule will determine a particular outcome,35 as such insulating the

adjudicator from wider concerns and ultimately contributing to the separation of law from

politics.36 Outlining the following two-step definition of the legal formalist method, Leiter rejects

the notion that, in practice, legal formalism involves a form of “mechanical deduction”:

(1) the law is “rationally” determinate, that is, the class of legitimate legal reasons for a

judge to offer in support of his or her decision justifies one and only one outcome either

in all cases or in some significant and contested range of cases…; and

(2) adjudication is thus “autonomous” from other kinds of reasoning, that is, the judge

can reach the required decision without recourse to non-legal normative considerations

of morality or political philosophy.37

This understanding of formalism indicates a theory of adjudication which insulates the judge from

external or non-legal considerations during the decision-making process. However, the sense in

32 Dennis Patterson, Law & Truth, (Oxford University Press, 1996) at 27 33 Bell and Engle, Cross on Statutory Interpretation, at 32. 34 Roberto M Unger, Law in Modern Society, Towards a Criticism of Social Theory, (The Free Press, 1976) at 194 35 See Richard A. Posner, “Legal Formalism, Legal Realism and the Interpretation of Statutes”, (1986-1987) 37 Case W. Res. L. Rev. 179, at 181 36 See Dennis Patterson, “The Metaphysics of Legal Formalism”(1991-1992) 77 Iowa L. Rev. 741-771, at 743 37 See Brian Leiter, “Legal Formalism and Legal Realism: What is the Issue?”, (2010) 16 Legal Theory, 111-133, at 111. Leiter describes the deductive model as “vulgar formalism”, noting that it is not a view worth subscribing to. However, he includes Dworkin within the expansive definition of legal formalism above, given the weight attributed to the right answer thesis in Dworkin’s jurisprudence.


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which I am invoking formalism in this paper relates to the manner in which judges apply rules in

“easy cases”, in the Hartian sense.38 So, I will discuss formalism as it relates to the clear

application of legal rules to cases within the core of meaning39 and will not consider other aspects

of formalist theory regarded by many as objectionable.40

Much of the discussion of legal formalism centres on how the theory is ill suited to describe the

crucial moment of choice in “hard cases”. Hart’s rejection of the charge of mechanical

jurisprudence was correct, insofar as he stated that the use of logic has nothing to do with

interpretation, as it offers no guidance in penumbral cases.41 However, the argument that easy

cases are settled by applying the standard meaning of the rule is contingent on the assumption

that words are capable of formal application in such instances. This assumes that the judge is able

to apply the “standard instance” of a particular term in situations where there are no doubts as to

the correct application of that word or term.42 This has been denounced as a “pointer theory of

meaning”43, the notion that it is possible to interpret and apply language in abstraction from

considerations of use and purpose.44 I am inclined to take Fuller’s stance on this issue; the

artificial separation of purposes from the interpretation of rules does not make sense because it is

counterintuitive to interpret a statute without first considering its aim.45 Simply put, the notion of

a formalistic decision does not explain how judges construct legal meaning in so-called easy cases.

At the heart of this impasse stands a choice of how we characterise the method of the judge; he

either applies literal meaning of itself or considers the purpose of or intentions behind the rule.

At its most basic, Weinrib’s theory on the immanent intelligibility of law claims that law can be

explained entirely on the basis of the internal perspective, such that a judge can make sense of a

case before him by reflecting on his experience of the law alone.46 Marmor describes this as a

theory of adjudication under which “law’s critical evaluation is independent of any of its moral or

political dimensions.”47 The immanent intelligibility of law is thus contingent on the ability of the

judge to decide cases by reference to rules alone, in abstraction from notions of purpose and

38 Alberstein describes this as the application of legal norms “when the core meaning of the norm is involved.” It is in this sense that I use the term “formalism”. See Michal Alberstein, “Measuring Legal Formalism: Reading Hard Cases With Soft Frames”, (2012) 57 Studies in Law, Politics and Society, 161-199, at 168 39 For hart’s observations on the application of rules in easy cases and the problem of the penumbra see HLA Hart, ‘Positivism and the Separation of Law and Morals’, (1957) 71 Harvard Law Review, No. 4, 593. 40 For a discussion of such objections to formalist theory see Roberto M Unger, The Critical Legal Studies Movement, (Harvard University Press, 1986) in particular chapter 1, Frederick Schauer, Thinking Like A Lawyer, A New Introduction to Legal Reasoning, (Harvard University Press, 2012) at 29-35, and Cass R. Sunstein, “Formalism and Statutory Interpretation: Must Formalism Be Defended Empirically?” 66 U. Chi. L. Rev. 636 41 HLA Hart, ‘Positivism and the Separation of Law and Morals’, (1957) 71 Harvard Law Review, No. 4, 593, at 610 42 Ibid, at 607 43 See Law and Morality, Readings in Legal Philosophy, David Dyzenhaus and Arthur Ripstein eds, (University of Toronto Press, 2001, 3rd Ed.) at 102, see note 40. 44 See Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging, (Princeton University Press, 2009), at 171 45 See Lon L Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart”, (1957) 71 Harvard Law Review, No. 4, 630, at 664 46 See Dennis Patterson, Law & Truth, (Oxford University Press, 1996) at 24-45 47 Andrei Marmor, Interpretation and Legal Theory, (Hart Publishing, 2005) at 75.


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ideological or political subtext.48 In a sense, the form of the law fulfils and determines its content,

with the judge capable of deciding cases solely on the basis of the legal text and applicable rules

of interpretation.49 In this way formalism assumes that the process of adjudication “can somehow

sustain itself from within.”50

Weinrib uses the example of a table to illustrate how the theory of form distinguishes internal and

external decision-making. 51 There are particular characteristics which determine whether

something is a table or not; whether it is flat, has legs, and is used to put other items on top of.

However, our prescription of uses applicable to something like a table is prompted by external

notions of purpose because, innately, the observer of the table presupposes functions or uses to

which it might be put. These thought processes are external to the table itself.52 By contrast, the

formalist method assumes that the content of law can be figured out internally because the there

is “an integration of the activity of understanding with the matter to be understood.”53 That is, in

order to understand and apply the rule, one must think about it. It is an internal process. For

Weinrib, the rule under consideration is inseparable from the decision-makers conceptualisation

of it54 because the law is “constituted by thought”.55 As such, the law exists in the lawyer’s mind

only. Weinrib claims that external issues have no place in this method because the thought

processes of the decision maker are concerned with the law alone. Thus, in the easy case it is the

language of the rule that determines the law.

While there may be some credence to the notion that the judge can isolate himself from non-

legal matters in making a decision, the relationship between the notion of a formal decision

making process and interpretation is a complex issue. Again, the formalist approach is that the

rule is to be interpreted on its own merits, without regard to external indicators of meaning.

Weinrib’s theory holds that the determination of legal meaning on the basis of form is a

completely separate issue to legal interpretation from an external perspective. As such, Weinrib’s

argument - that law is determinative of itself - implies that decision making is non-interpretative,

as the judge can rely on manifold implications specific to law, rather than relying on non-legal

sources:

The reference to non-legal interpretive enterprises… merely distances us from the task at

hand… the appeal to the general phenomenon of interpretation is merely a restatement 48 Alberstein, “Measuring Legal Formalism: Reading Hard Cases With Soft Frames”, (2012) 57 Studies in Law, Politics and Society, 161-199, at 170 49 Sunstein has noted that, generally, formalist theory rejects the notion that judges rely on contextual interpretative rules because these are non-textual. See Cass R. Sunstein, “Formalism and Statutory Interpretation: Must Formalism Be Defended Empirically?” 66 U. Chi. L. Rev. 636, at 640. 50 See Ernest Weinrib, “Legal Formalism: On the Immanent Rationality of Law”, (1988) 97 Yale L.J. 949, as cited in Dennis Patterson, Law & Truth, (Oxford University Press, 1996) at 22 51 See Ernest Weinrib, “Legal Formalism: On the Immanent Rationality of Law”, (1988) 97 Yale L.J. 949, at 961, as cited in Dennis Patterson, Law & Truth, (Oxford University Press, 1996) at 27 52 Ernest Weinrib, “Legal Formalism: On the Immanent Rationality of Law”, (1988) 97 Yale L.J. 949, at 961 53 Ibid, at 962 54 Ibid 55 Ibid


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of the problem that profitlessly enlarges its scope. For it implies that interpretation in

literature is a more lucid exercise than interpretation in law, so that the former can cast

light on the latter. This ignores the possibility - prominent in hermeneutic writing - that

law is itself exemplary for the understanding of interpretation and that therefore one

must grasp the nature of legal interpretation before one can grasp the nature of

interpretation more generally.56

Weinrib’s argument is that it is useless to consider theories of interpretation in discussing the

nature of legal decision making because legal interpretation is paradigmatic of the phenomenon

of interpretation itself. That is, the necessity of final resolution - a decision based on one

determinative interpretation - makes all other inquiries as to the nature of interpretation beside

the point. In the passage quoted from the judgment of Charleton J above he opined that the case

before him did not “require much in the way of statutory interpretation”. From a formalist

perspective, the crucial point in determining whether the decision is internal or not lies in

whether he considered non-textual issues such as statutory purpose in deciding that the ordinary

sense of the word “roof”. The issue at hand here is whether the meaning of the law is settled by

reference to notions of form or standard instance meaning. The formalist - and indeed Hart -

would argue that the word “roof” carries a core of meaning, thus the case requires a simple

application of the rule.

Yet if we look at what Charleton J says, broader ideas about purpose and use are central to his

decision making process. In order to answer the question and determine the awning’s quality as a

roof, he discussed the purposes to which a roof might be put. Considering Weinrib’s ideas on

form and the requirement of an internal process, this does not satisfy the idea of immanent

intelligibility as it speaks to an external point of view; “an intelligibility introduced from the

outside", whereas formalistic decisions should be "illuminated from within."57 This forces us to

consider whether judges are capable of deciding cases solely in terms of the standard instance

meaning of words. If the literal meaning of the word “roof” applies in Brookshore the decision is

formal as the judge is deciding purely on the basis of the core meaning of the rule. The problem

with the formalist account of adjudication is that it does not offer any explanation of the thought

processes whereby the judge is satisfied that the case before him exists within the core of

meaning. Literal meaning is said to merely apply in these instances. In a sense this assumption

bypasses the idea of adjudication altogether, because on this rationale the easy case is almost

self-determining. While a pragmatist such as Posner, for example, accepts that certain texts are

clear and in limited circumstances capable of straightforward application58, he is critical of the

isolationist account of legal interpretation favoured by formalists:

What we do when we interpret a text is not policy analysis and is not a logical operation;

it is not possible, I think, to talk sensibly of deduction from a text. The initial stage, which

56 Ibid, at 1014 57 Dennis Patterson, Law & Truth, (Oxford University Press, 1996) at 27 58 Using the example of the provision of the US Constitution requiring the President to be at least 35 years of age.


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is interpretation, is a mental process that is distinct from either weighing up pros and

cons as in policy analysis or manipulating the rules of logic.59

The crucial issue here is addressing the idea of the “mental process”. With this in mind, it will be

instructive at this point to consider Bernard Lonergan’s theory on the use of insight and common

sense in decision making, to find if there is another way to explain the thought process behind

straightforward decisions and thus an alternative to the formalist description of adjudication.

Section 3: Lonergan’s Generalised Empirical Method and Common Sense

Lonergan believed that certain texts did not necessarily require exegesis, that is, the application

of principles of interpretation to that text.60 At the level of common sense the decision maker

confines his interest to “the immediate and the practical”61; the interpreter knows from

experience and pre-understanding that something in particular is meant by a text and applies this

meaning. While this interpretative approach sounds a lot like what is proposed by the notion of

core meaning or rule-bound legal formalism, there is a crucial difference. The formalistic account

appears content to prescribe the notion that clear legal rules simply apply; however, Lonergan

devised a three-step guide to explain how this immediate process of understanding works, which

he called “Generalised Empirical Method” (GEM).

The three elements of GEM are experience, insight and judgment.62 The first level, experience, is

the basis from which all understanding arises and is comprised of the five senses, feeling,

remembering and imagining.63 Essentially, the notion is that “experience” forms our pre-

understanding; we can only draw on our experience to make immediate sense of raw data, such

as these words you are now reading. If we could not draw upon our experience we would not

understand anything. There is nowhere else to go to form an opinion.64 The second element of

GEM is insight. While our experience provides us with a level of pre-understanding, it is through

insight that we form opinions or arrive at a place where we have choices as to meaning.65 That is,

ask questions of ourselves and refine our impressions, “catching on”66 as it were. Lonergan

describes insight as follows:

(1) It comes as a release to the tension of inquiry; (2) it comes suddenly and

unexpectedly; (3) it is a function not of outer circumstances but of inner conditions; (4) it

59 Richard A. Posner, “Jurisprudential Responses to Legal Realism”, (1988) 73 Cornell L. Rev. 326, at 328 60 M.A. Mohamed Salih, Bas de Gaay Fortman, Kurt Martens, Hermeneutics, Scriptural Politics, and Human Rights: Between Text and Context, (Palgrave MacMillan, 2010) at 62 61 William R. Moriarty, “Precedent and Lonergan’s Common Sense”, (1981-1982) 27 Cath. Law. 326, at 329 62 Robert Hanson, “Objective Decision Making in Lonergan and Dworkin”, (2003) 44 B.C.L. Rev. 825, at 830-831 63 Ibid, at 830 64 Ibid 65 Ibid, at 830 66 Bernard Lonergan, Insight: A Study in Human Understanding, (Longmans, London, 1957) at 170


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pivots between the concrete and the abstract; (5) it passes into the habitual texture of

one’s mind.67

Lonergan gives the perfect example of this phenomenon in practice: a delirious, drenched, naked

man running down the street exclaiming “I’ve got it, I’ve got it!!”.68 Archimedes’ eureka moment

illustrates that insights just happen, but it is not until the third phase of GEM, judgment, that

knowledge can be reached.69 Judgments consists of “reflecting on prior insights”70 and are

prompted by the individual asking questions of himself,71 for example; “is my experience and my

interpretation of that experience (insight) correct?” The difference between GEM and the notion

of the formal application of core or literal meaning is that the latter does not appear to be an

intentional act of meaning.72 The formalist approach does not explain how judges construct

meaning or whether there is a deliberative process in applying it. In line with the quote that

opened this paper, there is a mistaken assumption that meaning is “already out there now”,

simply waiting to be applied. On the contrary - and in line with Bell and Engle’s view above - this

literal or core meaning is constructed in line with the judge’s prior experience of the word. The

benefit of Lonergan’s theory is that it furnishes a deliberative account of understanding which

illustrates the judge asking simple questions of himself, such as “what is a roof”, allowing his

practical experience of that word determine the case. Thus, the asking of questions always

prefaces the choice and application of a particular meaning, or the knowledge that the meaning

the judge has intuited is the correct one to apply in the case at hand.

At this point it will also be instructive to consider Lonergan’s ideas on common sense. Lonergan

has defined common sense as “that vague name given to the unknown source of a large and

floating population of elementary judgments which everyone makes, everyone relies on, and

almost everyone regards as obvious and indisputable."'73 The use of common sense is intertwined

within the process of GEM because common sense questions furnish the insights upon which our

judgments are based. Thus, the effectiveness of GEM is based on the notion that, through the

process of judgment, the individual asks questions of himself as a means of refining his insight(s).

67 Bernard Lonergan, Insight: A Study in Human Understanding, (Longmans, London, 1957) at 3-4, as cited in Anthony J. Fejfar, “Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence”, (1986) 27 B.C.L. Rev. 681, at 683 68 Bernard Lonergan, Insight: A Study in Human Understanding, (Longmans, London, 1957) at 4, as cited in Anthony J. Fejfar, “Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence”, (1986) 27 B.C.L. Rev. 681, at 686 69 Patrick McKinley Brennan, “Asking the Right Questions: Harnessing the Insights of Bernard Lonergan for the Rule of Law”, (2005/2006) 27 Journal of Law and Religion, 1-38, at 8 70 Robert Hanson, “Objective Decision Making in Lonergan and Dworkin”, (2003) 44 B.C.L. Rev. 825, at 831 71 Patrick McKinley Brennan, “Asking the Right Questions: Harnessing the Insights of Bernard Lonergan for the Rule of Law”, (2005/2006) 27 Journal of Law and Religion, 1-38, at 8 Ibid 72 Gregory A. Kalscheur, “Law School as a Culture of Conversation: Re-imagining Legal Education as a Process of Conversion to the Demands of Authentic Conversation", (1996) 28 Loyola University of Chicago Law Journal, 333-371, at 343. 73 Anthony J. Fejfar, “Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence”, (1986) 27 B.C.L. Rev. 681, at 688


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If the individual asks a question but is not happy that the answer to this question will solve the

issue before him, he asks another question. This process of refining knowledge through question

and answer has been explained in the following terms.

…every human being is an asker of questions. As the questions arise spontaneously,

prompted by a pure, unrestricted desire to know, so too, their answers arise

spontaneously. But if these answers, called insights, are incomplete, they give rise to

further questions. This cycle of question-answer is a self-correcting process of learning.74

So, for example, if on immediate reading of a statute a judge is not sure whether a canvas awning

constitutes a “roof”, he asks himself the obvious question: “what is a roof?” From here he might

ask himself whether this particular type of roof is envisaged under the rule, or what the purpose

of the rule is, in order to further refine his initial insight. In this way, Lonergan’s coupling of GEM

with an explanation of how decision makers use common sense provides a practical account of

the unknown internal processes that are absent from the formalistic account of adjudication.75

In terms of the overall purpose of this paper, Lonergan’s theory marks a critical distinction

between the use of common sense and logical deduction. It is clear that the use of either

common sense or logic is usually based on some form of generalisation, a premise from which the

individual works onward in looking for answers.76 However, Lonergan claims that deduction has

nothing to do with using common sense. That is, the generalisations from which we garner

common sense insights are not the same kind of premises upon which logical deductions proceed,

they are merely things that we “keep in mind”.77 Thus, while it is clear that there lies a tension

between the use of logic and the role of interpretation within legal formalist theories of

adjudication, applied in this context Lonergan’s account of how decision makers use common

sense sets aside the role of logical deduction altogether. Applying Lonergan’s theory suggests that

in these easy cases judges are making practical decisions based on common sense as it applies in

the world in which we live. Such generalisations or insights informed by language do not occur in

a vacuum.78 As such, a working theory of adjudication cannot ignore these initial insights.

74 William R. Moriarty, “Precedent and Lonergan’s Common Sense”, (1981-1982) 27 Cath. Law. 326, at 330 75 I would go further and add that this also applies to something like Fuller’s purpose based approach to adjudication – the process by which the judge arrives at this purpose is also unaccounted for. 76 Anthony J. Fejfar, “Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence”, (1986) 27 B.C.L. Rev. 681, at 688 77 Bernard Lonergan, Insight: A Study in Human Understanding, (Longmans, London, 1957) at 176, as cited in Anthony J. Fejfar, “Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence”, (1986) 27 B.C.L. Rev. 681, at 688 78 Anthony J. Fejfar, “Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence”, (1986) 27 B.C.L. Rev. 681, at 690


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Conclusion

This short paper has attempted to ask one question. If straightforward decisions such as that in

Brookshore are settled on the basis of common sense and insight, we must ask whether it would

not be better to replace notions about legal formality with Lonergan’s ideas as applicable to

adjudication. There are other, more obvious, problems with legal formalism. The use of logic tells

us little or nothing about the nature of interpretation or the nature of interpretative choice. Logic

only dictates that certain conclusions will follow certain interpretations.79 This does not explain

the processes which inform the construction of meaning. Combining an explanation of how we

use common sense with GEM is a far more satisfactory way of thinking about judicial method in

the easy case. As suggested by the quote from Lonergan above, in a straightforward case such as

Brookshore, these insights are “obvious and indisputable”, yet there is an element of the

unknown in how we arrive at such insights. The problem with the notion of the core of meaning

or the literal rule is the assumption that this meaning applies in an unthinking, mind-independent

fashion.

79 Law and Morality, Readings in Legal Philosophy, David Dyzenhaus and Arthur Ripstein eds, (University of Toronto Press, 2001, 2nd Ed.) at 53

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Working Paper - Common Sense Adjudication