This is an introduction to the Special Issue on ‘Contextual Legal Pedagogy’. It introduces the themes of the Special Issue and offers summaries of the papers in the collection. The introduction considers whether, and how, contextual legal pedagogy can still be radical, and how addressing pedagogical issues also necessarily involves addressing vital theoretical issues.

This paper argues that feeling compassion (and other relational emotions) makes an important, beneficial difference in adjudication, as it improves the exercise of the perspectival imagination – that is, it helps a judge to better understand, and to better describe, a situation as another person experienced it. Even where a judge has a highly developed capacity for empathy and sympathy (these being cognitive and evaluative processes that are distinguishable from emotions), there is something to be gained by a judge actually feeling compassion. However, given the potential for the distortion of understanding as a consequence of feeling compassion, any such feeling has to be accompanied by the robust exercise of the perspectival imagination – that is, by imagining multiple perspectives (including sometimes constructing imaginary ones), so as to avoid privileging any one perspective over others. It is further argued that this ‘imagining by feeling’, as I call it in this paper, is not a threat to impartiality or the rule of law, but in fact a condition of it. It is part of the rule of law that people have a right to be heard, especially those whom we may otherwise find it difficult to understand. Imagining by feeling helps judges to better ‘hear’ a greater diversity of those who come before them, and thus helps the judiciary to improve the quality of the rule of law.

This paper offers a definition of legal fictions and an evaluation of the role of legal fictions in legal practice, especially insofar as they enable legal change. The first part of the paper defines legal fictions as any suspension of one or more of the required operative facts leading to the imposition of an associated normative consequence, whether this suspension is introduced because of (1) the absence of proof of some previously required fact; or (2) the presence of proof to the contrary. The second part argues that legal fictions have an unjustifiably bad reputation as enablers of legal change. This paper makes a plea for seeing legal fictions as forms of tentative cognition that enable courts to communicate with each other, exploring whether a certain change in the law (i.e. precisely a suspension of a required operative fact in the imposition of a certain normative consequence) ought to be introduced at a more explicit level. Under the guise of this relational reading of legal reasoning, legal fictions become an instrument of careful experimentation – a way of testing the extent to which the potential introduction of a rule will be beneficial. Seen in this light, legal fictions are by no means signs of the immaturity of the system; they are, instead, dynamic resources that allow courts, over time, to balance flexibility and responsiveness with stability and predictability.

This paper offers a theory through which, we argue, we can more appropriately evaluate and potentially improve the moral quality of work. There are three components to such a theory. The first two components, which we argue need to be integrated, are normative resources that appeal to two different behavioural capacities: first, the articulation of rules, appealing to the capacity of agents to deliberate about what they ought to do; second, the introduction of forms of institutional design, appealing to the capacity of agents to acquire habits and dispositions in certain social environments. The third and most important component is that of the infinity of suffering and vulnerability. This component has both a negative and a positive aspect. On the negative side, the component is designed to assist us in recognising the inevitable limitations of either normative resource or indeed any one integrated totality of normative resources (i.e., both rules and forms of institutional design). Those limitations consist in the narrowing of the domain of objects of value towards which workers are guided or oriented by either or both normative resources. On the positive side, the component encourages us to construct alternative normative resources on the basis of alternative forms of representation of suffering and vulnerability. In that respect, the specific policy proposal of this paper is that of the establishment of Community Forums, which are designed to offer a framework thanks to which some of the particularities of suffering and vulnerability within a specific community can be recognised and communicated in a multiplicity of ways, thereafter forming a resource for the development of policy with respect to the challenges facing that specific community. The second part of the paper applies this theory to consider the value and limitations of second-generation reforms in international economic institutions. The third part of the paper further considers the values and limitations of reforms for access to public goods and services in Nigeria.

This paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence – coherence at the level of abstract terms and phrases. It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about ‘the law itself’ and towards an engagement with the responsiveness of legal work performed in international legal institutions.