Bruce Anderson,‘Discovery’ in Legal Decision-Making, Dordrecht: Kluwer,
1996, x + 170 pp, hb £68.00.
In studying adjudication, legal theorists have traditionally been concerned with
reasoning and justification in decision-making. American legal realism was
something of an exception to this tendency in so far as certain of its representatives
addressed not the question of how judges justify their decisions, but of how they
actually make decisions in the first place. Bruce Anderson endeavours to build
upon this particular realist initiative. Processes of discovery within decision-
making, he urges, are as much in need of study as processes of reasoning and
justification. The greater part of his book constitutes an assessment of the efforts of
others, realists included, to demonstrate the importance of discovery within the
decision-making process. Besides considering the writings of certain legal
theorists, Anderson also draws upon literature dealing with scientific discovery
and upon Bernard Lonergan’s work on insight. He also examines the process of
discovery at work in specific instances of arbitration and judicial decision-making.
Why is it that, when studying adjudication, legal theorists have tended to focus
primarily on reasoning and justification, and to accord relatively little attention to
discovery? One possible answer is that reasoning and justification are more
transparent forms of activity. Whereas, for example, the reasoning which lies
behind particular decisions is likely to be discernible from case reports or other
documentation, the hunches, intuitions, instincts, insights or whatever which
inspired such reasoning will probably prove more difficult to pin down. As
Anderson himself notes: ‘it is difficult to identify all the mental activities that
comprise theoretical and practical problem-solving in legal decision-making . . .
Some insights are spontaneous and relations among sense-experience can be
discovered instantly and not be noticed. Insights may be combined with other
insights so that new insights may include and mask previous insights’ (p 141).
Anderson’s book is valuable because it emphasises that the phenomenon of
discovery in decision-making, for all that it may prove elusive, deserves the
attention of legal philosophers.
Roberto Mangabeira Unger,What Should Legal Analysis Become?, London and
New York: Verso, 1996, ix + 198 pp, hb £35.00, pb £12.00.
Part of this book previously appeared in the MLR as the printed version of Unger’s
1995 Chorley Lecture. The full version which we have here is a solipsistic tour de
force. Unger writes with energy, verve, presumed erudition and, perhaps above all,
with passion — passion for rebuilding our world, reconstructing our democratic
institutions, and for the pivotal role which he considers law or lawyers should and
can play in these tasks. As the blurb puts it, a major concern of the book is how ‘legal
thought can inform the public conversation in a democracy,’ and it claims that
The Modern Law Review Limited 1997 (MLR 60:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 445
*Faculty of Law, University of Manchester.