Abstract

If it is true that ‘lawyers, like artists, tend to become prisoners of their own creations’ ,we are well-advised to investigate ‘the legal frame of mind’ producing these creations. How and why is it that specific, indeed reductive, biases, presuppositions, arguments and approaches take effect in legal training as well as in practice, often at the cost of socio-political accessibility and acceptability? What strategy enables us to detect their disguises and by what method can we develop alternatives? This paper,which is part of a much larger argument to be presented in a monograph, first analyses three cases of liability for personal injury in Dutch law. It explains the silent choices in the Hoge Raad’s judicial reasoning by pointing to some politicolegal concerns. In one case, it experiments with an alternative reasoning acknowledging these concerns, to find that it leads to a different decision. Secondly, I adopt the wider perspective of liability law in general . Here, again, the received doctrines of relativity, causality and negligence, or the equally dominant principles of autonomy, reliance and reasonable expectations, are so many disguises of the moral values, the socio-psychological data, and the out of court consequences which a particular society is willing to accept or not. The sheer fact that cases present themselves to the judiciary in a certain, utterly contingent, temporal order, makes their scope very much a matter of choice. Thirdly, I discuss four reasons why legal argumentation is so evasive and reductive, and why it hangs on to statutes, precedents, doctrines, principles and contractual obligations in order to retrieve something called their legal meaning: the rule character of the civil law generally; the paradigm of codification as the apex of legal certainty; the alleged continuity of the system over time; the claim to infinite expansibility, adaptability and universalisability