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.

Within these fields, there is no need to catalogue the range of phenomena that might be treated as instances of authorityfrom international institutions to transnational private norm-setting regimes and every shade of public/private regulator in between. The remaining questions surround the way in which such phenomena should be explained by theorists in the range of disciplines that share an interest in them; and the range of tests that might be used to evaluate them either independently, or in relation to more established forms of authority.Arguably, only the latter of these two questions should be of major concern. Though there is merit in conceptual and analytic precision, the reason authority has troubled theorists in moral, political and legal theory for so long is that it has considerable bearing on our practical lives, which must be explained and evaluated. This does not change when the target of evaluation is not authority but authorities. The problem of authoritieswhether plural, dispersed, fragmented or integratedis a problem of justifying their operation against the freedom of their subjects (individual and institutional) and justifying their relationships with other authorities with which they overlap. These normative questions arising from plurality of authorities are among the most pressing problems for theorists of transnational or global governance.To get to those questions, however, we need clarity about the sort of thing we are talking about.Developments across transnational legal and political institutions threaten to overwhelm or at least outpace conventional understandings of authority, and there is a very real need to clarify just what authority is before we can ask questions about who has it or test its legitimacy. In an era of transnational claimants (and possible possessors) of authority, it is especially critical, though more difficult, to be clear about what sort of thing authority is. Transnational claims to authority force us to confront questions such as: are private credit rating agencies authorities? Do private transnational bodies regulating forestry or labour standards have authority and if so, of what sort? What sort of power do hybrid publicprivate bodies have? Or more broadly, what is the difference, if any, between transnational law and transnational regulation? These questions in turn force us to address any ambiguity or variance in the concept of authority in a way that a more homogenous set of claimants such as states or even public international legal institutions do not. Analytic precision matters here because it affects the content and boundaries of the normative questions that follow. Is the authority wielded by international or transnational institutions or norms the same (in kind) as the authority wielded by states? If so, is authority in all contexts justified by the same reasons? Can/should/must we have shared criteria of legitimate authority to enable those authorities to be assessed comparatively? Answers to all of these questions have been offered with either ex...

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