Lucy on Law's Abstract Judgement

Lucy tells us that ‘law's judgement’ is ‘abstract’. By this he means that it purports to judge ‘all its addressees’ in the same way (p 4). He develops this point by identifying law's abstract judgement as having three components. First, law ‘usually sees its addressees not in all their particularity but, rather, as identical abstract beings’ (p 4). For this reason, LAJ contains a ‘presumptive identity’ component (p 14). Secondly, ‘general and objective standards’ usually have applicability to all the law's addressees. LAJ thus contains a ‘uniformity component’ (pp 4 and 188). Thirdly, LAJ contains what Lucy calls an ‘avoidability component’ (pp 4–5). This element of LAJ limits the applicability of its uniformity component by making it possible for addressees of the law to make ‘exculpatory claims’ in some circumstances (p 5). As well as itemising LAJ's components, Lucy identifies it as being ‘to the forefront of contemporary law's self-understanding’ (p 21). By this he means that it captures a sense of what Charles Taylor has called ‘aboutness’ or ‘intentionality’ at work in particular practices and institutions.Footnote ⁵ Lucy brings just such a sense of aboutness or intentionality into focus when he directs his readers’ attention to the context in which his analysis proceeds. This is a ‘liberal’ or ‘bourgeois’ context that, at once, shapes and owes some of its distinct normative character to LAJ. It is a context in which an egalitarian philosophy of government has exerted an increasingly powerful influence on law's operations. According to this philosophy, all addressees of the law have equal moral worth. This is a point Lucy develops by reference to, inter alios, Samuel Scheffler on ‘the social and political ideal of equality’ and Ronald Dworkin on ‘the right to equal concern and respect’ (pp 184–200). The egalitarianism Lucy finds in the legal systems he surveys leads him to draw a contrast between them and the feudal settings from which they emerged. This contrast brings into focus the moral attractions of the contexts on which Lucy fastens his attention. While Lucy places emphasis on these attractions, he tells us that LAJ operates on a basis very different from moral judgement as we regularly encounter it in our personal lives. For when we interact with ‘our nearest and dearest’, we expect them to judge us ‘in all our particularity’ (p 4). By contrast, LAJ fastens on a limited range of considerations (eg ‘basic capacity’ or a ‘relatively undemanding’ conception of agency) (p 64). This leads Lucy to argue that we find in LAJ a commitment to ‘opacity’ that shields law's addressees from modes of judgement that could tend in the direction of an intrusive ‘life-course audit’ (pp 162, 187 and 240).

Lucy's efforts to isolate LAJ's features, to distinguish it from other modes of assessment, and to situate it in the context where it has force, make apparent his commitment to analytic rigour and context-sensitivity. But to these features of his exposition, we must add the aim of ‘redress[ing] the argumentative balance’ in LAJ's favour (p 249). Law's Judgement is thus a normative (as well as an analytic-cum-excavatory) project. It seeks to recommend the feature of liberal law to which it devotes attention. While Lucy takes on this task, he recognises that it is ‘daunting’ (p 25). For the ‘charge-sheet’ against LAJ is lengthy (p 25). On some analyses, it is an ‘anachronism’: the residue of a bourgeois era that saw the ‘birth of capitalism’ and that has passed out of existence (p 22). Just as Lucy is alive to critics of LAJ who argue along these lines, he draws on others who bemoan the way in which it ‘suppresses particularity’ and (in this way) impedes the pursuit of justice (p 23). He notes that, on their respective accounts, justice requires us to be attentive to individuals and the contexts in which they act.

Alongside these criticisms, Lucy sets the complaint that ‘although law is often a means of treating people equally, it is simultaneously … often a means of treating them unequally’ (p 24). This, he adds, can generate problems of unfairness. Lucy illustrates this point by reference to, inter alios, ‘short-comers’: eg people who cannot (due to mental or physical impairment) meet negligence law's reasonable person standard (p 25). He also flags up the fact that a set of countervailing normative pressures throw light on judicial reluctance to depart from LAJ's uniformity component. Here, he points to an inclusionary impulse at work in the law that derives force from, among other things, the value of ‘humanity’ and ‘dignity’ (which, on his nuanced analysis, is both a ‘value’ and a ‘status’) (p 147). Moreover, he draws on Thomas E Hill's account of Immanuel Kant's moral philosophy. Hill finds in Kant ‘something like a precautionary principle’ that enjoins us to treat others, wherever possible, on the basis of equality (p 133). Lucy adds that what Hill has to say on this principle has relevance to case law on negligence law's reasonable person standard that also (as we noted earlier) attracts well-founded criticism running on the theme of unfairness. By alerting us to these two ways of responding to this body of law, he gives us a vivid example of the cross-pressured circumstances in which judges have, on occasion, to make decisions.

This analysis has relevance to a more general but closely associated feature of Lucy's exposition. This is his account of ‘law's person’ (p 65 (drawing on Naffine)).Footnote ⁶ By ‘law's person’ he means the conception (or conceptions) of a person that find expression in a legal system. Here, Lucy draws out of the legal systems he surveys a view of the person as an agent who sits on a plane of equality with others. On Lucy's account, this ‘agential’ person can respond to reasons for action that make him or her an apt addressee of the law (p 56). Moreover, he argues that this conception of the person and LAJ support the claim that an ‘inclusionary’ or ‘fraternal’ idea is at work in the law (p 230). However, he also notes that ‘oddity’ is a feature of some accounts of law's person (p 47). On this topic he makes reference to the Court of Appeal's decision in Mansfield v Weetabix.Footnote ⁷ In Mansfield, the defendant inflicted harm on the claimant while driving in a state of mental impairment (due to hypoglycaemia). Consequently, he was unable to meet the usual requirements of negligence law's reasonable person standard. The Appeal Court responded to this situation by identifying the defendant's condition as a circumstance that developed gradually (with the result that he was unable to grasp the threat he posed to others).Footnote ⁸ The Court also concluded that it would be unjust to resolve the claim against the defendant since this would involve the imposition of strict liability on a short-comer.Footnote ⁹ We might describe the ‘oddity’ Lucy finds in Mansfield v Weetabix (and cases like it) more accurately as ambiguity. This is because we can, as Lucy recognises, also interpret Mansfield as a case in which the Court of Appeal calibrated its assessment of reasonableness to the ‘circumstances’ in which the defendant inflicted harm.Footnote ¹⁰ This is an interpretation that lends support to his account of the ‘inclusionary’ idea he finds in the law.

In Mansfield v Weetabix and cases like it, we see judges struggling to make clear responses to disputes that raise complex questions about agency. Consider Dunnage v Randall.Footnote ¹¹ In Dunnage, the claimant suffered severe burns when he tried to stop a visitor to his home (who was suffering from paranoid schizophrenia) setting fire to himself with petrol. The Court of Appeal applied the reasonable person standard (in an unmodified form) to the visitor's conduct (notwithstanding his mental condition) and, having done so, decided in favour of the claimant. This was an inevitably controversial response to an unprepossessing choice. The Court could leave the claimant (whom Rafferty LJ described as a ‘rescuer’) uncompensated.Footnote ¹² Alternatively, it could apply the inapposite label ‘faulty’ to the conduct that grounded the claim. While the Court recognised that the visitor had not inflicted harm on the claimant wilfully, it determined that (in the absence of some ‘unheralded’ and ‘incapacitating attack’) he had been ‘acting at [the] relevant times’.Footnote ¹³ In staking out this position, the Court invites sharp moral and doctrinal criticism (the application of a fault-based standard to a short-comer and inconsistency with the decision in Mansfield). Criticism along these lines leaves the law looking morally compromised and doctrinally ramshackle.Footnote ¹⁴Dunnage is thus a case that raises awkward questions about a tendency in the law towards idealisation (most obviously, the presumption of uniformity within LAJ). To explain the decision in Dunnage by reference to the concept of fault is to treat the man responsible for the claimant's injuries as an ‘agential’ person. But the Court of Appeal recognised the implausibility of doing this even as it rendered its decision (by describing him as being in a ‘floridly psychotic and highly paranoid’ condition).Footnote ¹⁵ Here, it is tempting to fall back on talk of ‘oddity’. While this is the case, it may, for two reasons, be more accurate to talk of institutional ambiguity. First, Dunnage provides an instance of pragmatic decision-making. The Court worked along the lines it did so as to give the claimant access to compensation through the visitor's (‘householder’) insurance policy (which provided cover for accidental but not wilful injury).Footnote ¹⁶ Secondly, the Appeal Court reached its decision in a context where the impulse to be pragmatic competes with strong tendencies towards idealisation.

Lucy gives us tools with which to analyse the tendency towards idealisation apparent in the law when he engages in a process of excavation or renovation. By ‘excavation’, he means the effort to identify values within the institutions of which LAJ is a part that will make their and its practical appeal more apparent (p 26). He identifies, inter alia, ‘impartiality’, ‘dignity’, and ‘equality’ as being among these values (p 26). So too is a notion of ‘community’ that he associates with ‘fraternity’. Lucy argues that LAJ serves the end of impartiality by requiring those who apply the law to focus on a ‘limited’ range of considerations (rather than adopting the ‘unseeing’ standpoint we associate with ‘justitia’) (p 243). When he turns to ‘dignity’, he argues that LAJ underwrites this value-cum-status by assuming that all people have the qualities we sum up in the word ‘humanity’ (eg agency) (at least in an undemanding form) (p 244). This point brings him close to ‘equality’. On this topic, he places emphasis on the way in which LAJ assumes the equal standing of those to whom it applies (p 203). From here, it is but a short step to ‘community’. On Lucy's account, ‘community’ has to do with the pursuit of ‘principle’ (by which he means acting on practical postulates – most obviously, legal norms – that all relevant people can endorse) (p 244). In his effort to knit LAJ together with a group of considerations that provide it with ‘normative props’, Lucy adopts a method that (as he notes) exhibits similarities to that employed by Ronald Dworkin in, for example, Justice for Hedgehogs (pp 166 and 197).Footnote ¹⁷ This approach is perhaps unsurprising in one who admits to ‘a penchant for neatness’ (p 201).

Lucy tells us that his aim, in pointing up the relationship between LAJ and ‘impartiality’, ‘dignity’, ‘equality’, and ‘community’ is to offer an analysis that we can label ‘holistic’ (p 247). This is a point he drives home in a number of other ways. He forges links between LAJ, the larger politico-legal whole of which it is a part, and the community it plays a significant part in instantiating and sustaining. This leads him to describe LAJ as a ‘social-institutional form’ that has its life in what Alan Norrie describes as a wider ‘constellation’ (p 245). Consequently, Lucy is able to throw light on the ‘liberal’ context in which he roots his analysis. This is a context in which LAJ bulks large as a reference point for reflection on law's applicability to particular sets of circumstances. Lucy makes this clear when he states that those who engage in such reflection typically affirm LAJ's ‘components’ even when they apply the law in ways that ‘do a poor job of instantiating them’ (p 11). Here, he identifies LAJ's components as authoritative guides to action around which judges and other legal officials feel an obligation to ‘navigate’ (p 11). Thus they are ‘fixed agitation points’ that anchor the law's response to practical problems (p 11).

We will examine this point in greater detail below. But before we turn to it, some points Lucy makes concerning legal philosophy merit consideration since they have relevance to the language-focused response that this review makes to his account of LAJ. Lucy describes his approach to LAJ as ‘broadly jurisprudential’ (p 31). Moreover, he distinguishes his jurisprudential position from two approaches to legal philosophy that have attracted criticism on the ground that they are ‘boring’ (p 31). The first of these approaches is that of ‘the self-consciously “analytical” wing of … jurisprudence’ (which has, among other things, attended, in fine-grained detail, to ‘the existence conditions of law in general’) (p 31). Lucy finds in legal philosophy on this model a tendency towards abstraction that impedes ‘engagement’ with law as it exists (p 31). He also takes philosophers who work along these lines to task on the ground that they breach a ‘duty … to get clear about the nature of our … social condition’ (p 242). The second body of thought from which he distances himself is ‘an older tradition of jurisprudence’ that finds expression in ‘a … study of legal concepts’ that is ‘dreary’ and (so it would seem) directionless (p 32).Footnote ¹⁸ Lucy also describes these two bodies of thought as ‘the Scylla and Charybdis’ between which he seeks to ‘sail’ (p 32).

This is an aspiration that has affinities with that on display in Iris Murdoch's essay ‘Against Dryness’. Murdoch criticises analytic philosophy on account of its ‘dryness’. According to Murdoch, ‘dryness’ manifests itself when philosophers cease to ‘grapple[ ] with reality’ as a result of striving to make ‘clear’ responses to ‘small’, ‘self-contained’ problems.Footnote ¹⁹ But while critical of ‘dryness’, Murdoch was also unimpressed by investigations that, in their determination to record facts, turn a particular context into a ‘large, shapeless quasi-documentary object’.Footnote ²⁰ On her analysis, investigation on this model often shows too little interest in analysis and the insights it can yield. Murdoch's critique of ‘dryness’ has obvious relevance to the analytical wing of jurisprudence Lucy describes (and her determination to grapple with reality calls to mind the ‘duty’ he identifies philosophers as being under). Likewise, her critical response to fact-focused contextual investigation has relevance to the ‘older tradition of jurisprudence’ Lucy finds wanting. In each case, a strong tendency to become bogged down in detail is apparent. Thus we find in Lucy, as in Murdoch, a call for philosophical analysis that is, at once, alive to but able to resist the tendency to become enmeshed in and perhaps even blinded by context. But while this is the case, there are reasons for thinking that Lucy could and (given his aims) should have pushed his analysis further in the direction indicated by Murdoch. This is a point to which we will return, having looked more closely at law and language.

Law, language, and ‘the house of being’

As we have noted, Lucy identifies his analysis as applicable to (post-feudal) liberal legal orders. His concerns (as he recognises) thus intersect with those of HLA Hart in The Concept of Law (pp 100–101). While Hart understood himself to be making a contribution to general jurisprudence, he focused on modern municipal (or, more particularly, liberal or Western) legal systems. He identifies these systems as normative spaces that radiate down and out from a highest-order norm (the ‘rule of recognition’) by reference to which it is possible to determine the ‘validity’ of lower-order law.Footnote ²¹ In his analysis, Hart gave pride of place to rules. Here, we see him taking a close interest in the contents of the normative space he describes. It is an interest he shares with Lucy. For Lucy, as we have noted, identifies LAJ and the values with which he associates it as prominent features of (or, at least, relevant to the operations of) just the sort of normative spaces Hart describes. Likewise, Hart and Lucy each show an interest in core and more marginal concerns within the spaces they examine. This is apparent in The Concept of Law when Hart draws a distinction between the core of certainty that legal rules exhibit and the penumbra of doubt that marks their outer limits.Footnote ²² LAJ is the core concern on which Lucy focuses. But its components (as we noted earlier) constitute ‘agitation points’ that (like Hart's penumbra) invite critical reflection and disagreement. In Hart, disagreement has to do with the question as to whether those who apply the law should encompass a penumbral set of circumstances within an existing rule. As with the disagreements on which Hart dwells, Lucy focuses on what we might call scope questions and the ‘reflective critical attitude’ exhibited by those who respond to them (p 101).Footnote ²³ Should we, for example, treat a defendant who is a ‘short-comer’ as an apt addressee of negligence law's reasonable person test? Or should we treat his or her cognitive or other limitations as a basis on which to depart from LAJ's presumptive identity component? Those who answer these and other such questions exercise (or, at least, seek to influence the exercise of) what Lucy calls ‘stipulative sovereignty over [legal] language’ (p 54).

Lucy tells us that, as we reflect on and work up answers to questions of this sort, we adopt the ‘participants’ point of view’ (p 29). Hart makes the same point vis-à-vis legal language when he tells us that we acquire a sense of how to apply it when we take up the point of view ‘internal’ to a legal system.Footnote ²⁴ Here, we see both Lucy and Hart talking in terms that have to do with ‘reflection’ of the sort that Charles Taylor describes in The Language Animal. Taylor takes his cues on reflection from the eighteenth-century philosopher, Gottfried Herder, and argues that language is at once an expression of and constituent of the context in which people use it. On this view, language does not simply pick out the objects to which it applies (eg a person). Rather, it gives expression to a particular understanding of such objects. Taylor develops this point by drawing on another philosopher, Martin Heidegger. Heidegger (who had a taste for making grand statements of position) described language as ‘the house of being’.Footnote ²⁵ Heidegger used this phrase to convey a sense of the way in which those who use a particular language have at their disposal a normatively charged resource that delivers a distinct intersubjective experience. Taylor presses this point further when he talks of ‘an environment’ in which ‘action and design’ determine how things are understood and ‘arranged’.Footnote ²⁶ Two points afford a basis on which to explain how Taylor's account of language relates to Lucy's exposition. First, Taylor (channelling Herder and Heidegger) lends support to the view that we should see LAJ as a constituent of a distinct (post-feudal) ‘constellation’ or ‘environment’. It is a constellation in which those who participate in law's operations do so in ways that sustain and shape the life of a liberal (‘fraternal’) community. They do this by using and reflecting on the range of circumstances in which it is apt to apply the language in which LAJ finds expression. They thus exhibit a strong commitment to ‘elucidation’ and ‘dialogue’ (pp 228 and 250). Lucy makes the practical significance of these points apparent when, for example, he identifies ‘dignity’ (understood as both a ‘value’ and a ‘status’) as informing the law in a wide range of areas (p 147). These areas include prohibitions on torture, demeaning punishment, and hate speech, ‘rights understood as protected spheres of choice’, the award of aggravated damages, and guarantees against penury and destitution (pp 153–154 and 156). Secondly, the context in which Lucy roots his analysis provides an example of ‘the house of being’ (as Heidegger understands it). For LAJ and the values with which Lucy associates it (impartiality, dignity, equality, and community) are building blocks in a distinctly liberal edifice.

While we can use Taylor to bring these points out, we should also note a significant difference between his concerns and those of Lucy. Taylor focuses on cultural contexts in which reflective processes (that language shapes in particular ways) unfold. While context and language have prominence in Lucy's exposition, his attention is very much on institutional settings that exhibit a strong commitment to systematicity. Consequently, he devotes close attention to a set of normative outputs (most obviously, the components of LAJ) common to the legal systems he surveys. But while an effort to bring these outputs into focus features in his exposition, it is most certainly not all that it has to offer. Lucy is alive to reflection on the model that features in Taylor's analysis. This is plain to see when he talks of the ‘agitation points’ constituted by LAJ's components. These agitation points invite processes of reflection that are as much a part of the institutional contexts he examines as are the norms that occupy a place in them. Moreover, he conveys a sense of the way in which the atmosphere can change in these particular houses of being. For he notes that controversies that have to do with dignity (and the other considerations that feature in his analysis) may, in the context of ‘quotidian … legal controversies’, generate ‘resonances and dissonances’ (p 152).

These are points we can develop by reference to the concept of community and what we can call a placeholder theory of language. An understanding of ‘community’, in a sense that Lucy does not mention, affords a basis on which to offer an account of language (and likewise institutions) as placeholders. The understanding in question is that of an interpretive community (in the sense Stanley Fish has elaborated). Fish tells us that such a community exists in circumstances where a group is composed of individuals who apprehend the objects to which they devote attention in the same way. Fish employs this concept of community to support the conclusion that, on matters of interpretation, our focus should be neither on the words of a text nor on the intentions of its author(s).Footnote ²⁷ Rather, it should be on the ‘base of agreement’ that exists between groups whose members ascribe significance to particular objects (eg judges who treat the reasonable person standard as an authoritative but malleable reference point when deciding negligence claims).Footnote ²⁸ Fish tells us that this base of agreement reflects ‘concerns’ that the members of an interpretive community have in common.Footnote ²⁹ While Fish talks of common concerns that reflect a base of agreement, he does not mean that the members of such a community are as one on all points at all times. He recognises that interpretive disagreements are a feature of life in such contexts. However, the base of agreement he describes works to anchor interpretive disputes. This is because the current consensus on meaning presents those who seek to move away from it with a starting point to which they must be attentive. Moreover, they must stake out positions that are sufficiently persuasive to elicit a positive response from other group members who treat the starting point from which they begin as authoritative.

Fish's account of interpretive communities reveals language to be a placeholder for understandings that are amenable to alteration in the light of argument that is, at once, rooted in context and persuasive. Lucy offers a similar analysis. This is apparent when he describes the components of LAJ as ‘agitation points’ around which addressees of the law may seek to ‘navigate’. A further affinity between his analysis and that of Fish becomes apparent when we recall the emphasis he places on ‘dialogue’ and ‘elucidation’. The dialogue he has in mind relates, inter alia, to LAJ's components and associated matters of institutional design. Moreover, the more general ideas that feature in Lucy's analysis (impartiality, dignity, equality, etc) inflect participants’ thinking even in circumstances where they do not make explicit appeal to them. Here, we can see shared ‘concerns’ of the sort that feature in Fish's account of interpretive communities. These concerns become, as it were, a hub around which the life of a fraternal community moves. Such movement is a practical necessity. For we are (as Hart recognised in his account of penumbral problems) beset by contingencies that raise awkward questions about the positions (linguistic and, more particularly, legal) that we have staked out.Footnote ³⁰ In light of these points, we can draw the conclusion that our understandings and the institutions in which they find expression (eg LAJ) create opportunities to engage in reflection on the model Taylor describes. While this is the case, we should not assume that reflection will yield particularly satisfactory results. The cases Lucy considers on short-comers illustrate this point. These cases present us with complexities of a sort with which philosophy on the dry model Murdoch criticises is reluctant to engage (eg contexts that, in all their particularity, take on a messy aspect). However (and for reasons we will explore below), it does not follow from this point that the contextual approach on display in Law's Judgement is unable to deliver non-local truths.

Contextual analysis and general jurisprudence

Lucy (like Murdoch) cleaves to the idea that philosophy can, and should, seek to pursue truths that are alive to context. To this end, he has sought to throw light on a prominent institutional feature of the ‘liberal’ legal context he surveys. To work along these lines is fraught with difficulty. The most straightforward part of the job would seem to be rigorous analysis. We see Lucy doing this when he brings into focus the components of LAJ and the institutional (and wider ‘political, social and cultural’) context of which it is a part (p 152). Matters take on a trickier appearance when he offers an analysis of the ‘participants’ point of view’. Those who seek to ‘see’ law (and other institutions) from the inside court the danger of embracing, rather than coolly appraising, the contexts and projects on which they focus their attention.Footnote ³¹ But to draw a sharp distinction between enumerating the features of an institution or practice and the attitudes of those who participate in its operations is surely mistaken. For we cannot, as we noted earlier, unscramble the two. Taylor's account of reflection shows this to be the case.Footnote ³²

When we view Lucy's exposition from the standpoint of analytic philosophy, it invites the criticism that context-sensitivity compromises it as a contribution to general jurisprudence. For the general jurisprude seeks to deliver universal (or ‘non-local’) truth-claims. Moreover, a proponent of jurisprudence on this model might find in Lucy a degree of immersion in context that reduces his contribution to anthropology and/or history (a meditation on the way in which the denizens of a particular context ‘do things around here’).Footnote ³³ This is a way of responding to contextual analysis to which Lucy is alive. He makes this clear when he notes that critics of such an approach may write it off as ‘mere reportage’ (p 138). However, there are reasons for thinking that criticism running on this theme would be wide of the mark. The links we have forged between Lucy's exposition and Taylor on language and Fish on interpretive communities afford a basis on which to explain why this is the case. Lucy, Taylor, and Fish (in their respective and complementary ways) make it possible for us to see LAJ as a linguistic placeholder. When we view it in this way, we can see it as a token of a universal type: a linguistic artefact that sustains ‘the house of being’ in a particular form. If this point is correct, it becomes difficult (or perhaps even impossible) for a critic pursuing the theme we considered earlier to draw the conclusion that Lucy's analysis fails to pass muster as a contribution to general jurisprudence.

More generally, the use we have made of Murdoch, Taylor, Fish, and Heidegger in this review makes it possible to point up some affinities between the method on display in Law's Judgement and Continental philosophy (on the model instantiated by Heidegger). These affinities become apparent when we think of Lucy's efforts to forge ‘connections’ between institutional considerations (LAJ's ‘components’) and the ‘constellation’ of which it is a part. These efforts involve him in the pursuit of a holistic project. This project calls to mind Heidegger's description of philosophy as an activity that has to do with ‘going-to-the-roots’ so as to ‘inquir[e] into the whole’.Footnote ³⁴ More particularly (and again to draw on Heidegger), we find Lucy seeking to bring a component in a mode of existence (LAJ) into illuminating relations with a group of ideas that help us to understand it. Hence, we might see Lucy (along with Heidegger, Taylor, Murdoch, and Fish) as throwing light on a house of being-based interdisciplinary theory (HOBBIT). In Lucy's case, we are led, with great assurance, through a dwelling in which there is an enduring commitment to treat the law's addressees in ways that underwrite their status as equals. But there is also a commitment to critical reflection on the difficulties involved in doing this (and some awkwardness in the responses that judges and lawyers make to them: eg the Appeal Court's decision in Mansfield v Weetabix). Here we see what Taylor has called a ‘gathering of attention’ in circumstances where our existing descriptions may ‘give out’.Footnote ³⁵ But while this is the case, we find ourselves ‘situated in a [particular] context of words’ that fosters in us a ‘refined sense of human meanings’.Footnote ³⁶ It is this ‘sense of human meanings’ that guides judgement in the particular constellation or house of being we have been considering. Judgement in this context is, as Lucy notes, concerned with a distinct (egalitarian) ‘mode of belonging’ (p 242).Footnote ³⁷