The historical and epistemological obstacles 161 gous, directly or indirectly, to water, the object that escaped in the original precedent itself. And even if the thing is analogous to water, the notion of “anything likely to do mischief if it escapes” has now to be considered in the context of the real world of political, economic and social considerations. Similarly in the tort of negligence it is a matter of an “incremental approach by way of analogy”.Such an approach may well limit, perhaps unreasonably, the scope of both strict and fault liability in English law; but it does illustrate just how the complexity of legal knowledge is by no means reducible to a dogmatic set of symbolic propositions. No rule or proposition can adequately represent the variety of categories of factual situation that go to make up the English law of civil liability. The inability of legal language to represent complexity is of course ognised by the civil lawyer. Problems giving rise to bona fides or abuse of rights cannot adequately be captured by propositions as such and knowledge thus becomes a matter of assimilating the jurisprudence and the art of judging. Nevertheless the great historical weight of a positivistic rule-model must never be underestimated since the notion of a code is founded upon this epistemological and ideological thesis. Every time, then, that a court resolves a litigation problem using an article of the code it is subscribing to this epistemological and ideological model which in turn reinforces the model itself. All the same, this reinforcement is perhaps nowbeing brought into question by some of the judges themselves. Theodore Ivanier in France for example argues that the ars judicandi is not in truth a matter of propositional knowledge founded on a logical application of the code.-^*^ It is a matter of interpretation of the facts. The approach, he claims, is still hermeneutical in method in that one is teasing out lesfaits inconnus from les fails connus^'^. But the point he emphasises is that the ars judicandi is to be found in the movement from structuring the facts to choosing and inventing the normative principle, a process which involves the use of les concepts flous. These concepts - for example fault, damage, interests, good faith- act not only as the bridge between the facts and the text but also as the means by which the judges can inject into the act of interpretation their system, or systems, of values. “Si le signal (flou) se trouve dans la loi”, writes Ivanier, “Tévaluation du contexte sera recherchée dans le systeme de valeurs choisipar lejuge”. And so “alors que Vinformation legale est lointaine et rigide, la loi ne tonchant jamais terrepuisqic'elle ne vise que des catégories, lepropre de Vaxiologie est de se deployer in concreto en pénétrant la séquence de vie dans ses replis les plus secrets. fully recLord Brown-Wilkinson in White vJones [1995] 2 AC207 at 270. T. Ivainer, L’interpretation des fails en droit (LGDJ, 1988). Ibid., pp. 84-86. « Ibid., p. 337.
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