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JiaLeeFirstEssay 20 - 06 Jun 2024 - Main.EbenMoglen
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Jerome Frank's "Music": Thinking About Law as an Aesthetic Domain | | | I think Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences might come from encountering art, new technologies, suffering, philosophizing, the alterity of something, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being creatures of habit. I think this is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This describes Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music," and that legal rules frustrate this work, is that the practice of law isn't just linguistic; it's aesthetic in this sense.
This class, unlike doctrinal classes, employs music in this sense as well. It disorganizes us, inviting us to examine whether we have agency over our practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. This class made me confront how I was quietly acquiescing to internal pressure in response to external pressures. | |
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I think all the effort paid off. This is an excellent essay, capturing as an essay ideally does the process, well- and creatively-rendered, of excellent thinking. You have both written about and experienced why simultaneously encountering both your powers and limitations is a profound and invaluable moment of growth.
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JiaLeeFirstEssay 19 - 05 Jun 2024 - Main.JiaLee
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Jerome Frank's "Music": Thinking About Law as an Aesthetic Domain | |
<
< | -- By JiaLee? | | | The Issue with Jerome Frank's Legal Possibilism | | | I think Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences might come from encountering art, new technologies, suffering, philosophizing, the alterity of something, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being creatures of habit. I think this is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This describes Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music," and that legal rules frustrate this work, is that the practice of law isn't just linguistic; it's aesthetic in this sense. | |
<
< | This class, unlike doctrinal classes, employs music in this sense as well. It disorganizes us, inviting us to examine whether we have agency over our practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. This class made me confront how I was quietly acquiescing, being someone who does not like to rock the boat, to internal pressure to meet external pressures. | >
> | This class, unlike doctrinal classes, employs music in this sense as well. It disorganizes us, inviting us to examine whether we have agency over our practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. This class made me confront how I was quietly acquiescing to internal pressure in response to external pressures. |
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JiaLeeFirstEssay 18 - 05 Jun 2024 - Main.JiaLee
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Jerome Frank's "Music": Thinking About Law as an Aesthetic Domain | | | The Issue with Jerome Frank's Legal Possibilism | |
<
< | Jerome Frank believed that the conscious and unconscious elements of the self—including the neuroses driving our desire for legal certainty—were elusive even to the person experiencing them. He believed we needed tools functioning in a gestalt-like manner to capture the idiosyncratic, gestalt-like experiences of the legal decisionmaker all at once. Doubtful that such tools could be discursive rather than belong to the domain of reference, Frank thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, thereby discountenancing judges’ imagination and insight. Instead, Frank championed “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | >
> | Jerome Frank believed that the unconscious elements of the self—including the neuroses driving our desire for legal certainty—were elusive even to the person experiencing them. He believed we needed tools functioning in a gestalt-like manner to capture the idiosyncratic experiences of the legal decisionmaker all at once. Doubtful that such tools could be discursive rather than belong to the domain of reference, Frank thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, thereby discountenancing judges’ imagination and insight. Instead, Frank championed “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | | | | |
<
< | I argue that Frank's "music" is muffled by his focus on capturing the decision-maker's gestalt. Applying Alva Noë's ideas, I consider a different model of judicial deliberation whereby the legal decision-maker's ethos, cognitive processes, and external factors are "entangled." This approach, I believe, clarifies and affirms Frank's intuition of law being an aesthetic practice in a certain sense—a practice we also undertake in this class. | >
> | I consider how Frank's "music" is muffled by his focus on capturing the decision-maker's gestalt. I propose a different model of judicial deliberation whereby the legal decision-maker's ethos, cognitive processes, and external factors are "entangled." This approach clarifies and affirms Frank's intuition of law being an aesthetic practice in a certain sense—a practice we also undertake in this class. | | |
The Entanglement Model of Judicial Deliberation | |
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< | Frank posits that what appears to be a rational decision by a judge is a "hunch" influenced by her reactions to the facts at hand. In reconstructing the facts of an event, the judge is subject to the fallibilities of the human mind. On Alva Noë view, the judge's first-order habitual reactions and second-order cognitive processes influence each other; they are, to use his term, "entangled." What we know, what we don't know, and what we know we don't know (referencing Lawyerland) affects our habitual organization, or how we react to facts on a habitual level. Things in the world affect our habits, which in turn affect our judgments. However, we should also consider how we configure our own mental capacities, and how external forces structure them—and finally, how this configuration modulates how things in the world influence our ethos. Facts are perceived and imbued with subjective qualities, such as degrees of salience and familiarity, in the way our mental organization allows. That is, we perceive facts differently depending on how we tune into the world. I could encounter the same fact twice but conceptualize it differently upon the second encounter. Its meaning could differ, or it could engender different emotive states in me because my mental organization—how I conceptualize and judge things—changed to bring the fact into focus in a new way. While it is important to examine how our ethos affects our judgments, we should also consider how our mental configuration determines how external factors affect our ethos. This is what mindreading exercises in class are for; we discern how aspects of someone's life shape how they conceptualize things, and how this determines the idiosyncratic ways in which things in the world—be it circumstances, facts, or other people—are brought into focus for them. | >
> | Frank posits that what appears to be a rational decision by a judge is a "hunch" influenced by her reactions to the facts at hand. In reconstructing the facts of an event, the judge is subject to the fallibilities of the human mind. On Alva Noë view, the judge's first-order habitual reactions and second-order cognitive processes influence each other; they are "entangled." What we know, what we don't know, and what we know we don't know (referencing Lawyerland) affects our habitual organization, or how we react to facts on a habitual level. Things in the world affect our habits, which then affect our judgments. However, we should also consider how we configure our own mental capacities, and how external forces structure them—and finally, how this configuration modulates how things in the world influence our ethos. Facts are perceived and imbued with subjective qualities, such as degrees of salience and familiarity, in the way our mental organization allows. We perceive facts differently depending on how we tune into the world. I could encounter the same fact twice but conceptualize it differently upon the second encounter. Its meaning could differ, or it could engender different emotive states because my mental organization—how I conceptualize things—changed to bring the fact into focus in a new way. While it is important to examine how our ethos affects our judgments, we should also consider how our mental configuration determines how external factors affect our ethos. This is what mindreading exercises involve; we discern how aspects of someone's life shape how they conceptualize things, and how this determines the idiosyncratic ways in which things in the world—be it circumstances, facts, or other people—are brought into focus for them. | | | The Upshot of the Entanglement Model and a Caveat | |
<
< | The upshot is that although the judicial decision-making process may not be entirely rational, we have some agency over it because we can study and alter our second-order mental organization, and therefore our pre-reflective reactions to some extent. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." | >
> | The upshot is that although the judicial decision-making process may not be entirely rational, we have some agency over it because we can study and alter our second-order mental organization, and therefore our pre-reflective reactions, to some extent. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." | | | Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland thus proposes that Frank's "music" is not only directed at the question, "How much can we know about ourselves?" but also at "How much, if at all, can we resist how we find ourselves organized?"
Law as an Aesthetic Practice | |
<
< | I think Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences might come from encountering art, relationships, new technologies, suffering, philosophizing, the alterity of something, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being creatures of habit. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This describes Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music," and that legal rules frustrate this work, is that the practice of law isn't just linguistic; it's aesthetic in this sense. | >
> | I think Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences might come from encountering art, new technologies, suffering, philosophizing, the alterity of something, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being creatures of habit. I think this is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This describes Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music," and that legal rules frustrate this work, is that the practice of law isn't just linguistic; it's aesthetic in this sense. | | | | |
<
< | This class, unlike doctrinal classes, employs music in this sense as well. It disorganizes us, inviting us to examine whether we have agency over our practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | | | \ No newline at end of file | |
>
> | This class, unlike doctrinal classes, employs music in this sense as well. It disorganizes us, inviting us to examine whether we have agency over our practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. This class made me confront how I was quietly acquiescing, being someone who does not like to rock the boat, to internal pressure to meet external pressures. |
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JiaLeeFirstEssay 17 - 03 Jun 2024 - Main.JiaLee
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Jerome Frank's "Music": Thinking About Law as an Aesthetic Domain | | | The upshot is that although the judicial decision-making process may not be entirely rational, we have some agency over it because we can study and alter our second-order mental organization, and therefore our pre-reflective reactions to some extent. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." | |
<
< | Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland thus proposes that Frank's "music" is less about "How much can we know about ourselves?" and more about "How much, if at all, can we resist how we find ourselves organized?" | >
> | Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland thus proposes that Frank's "music" is not only directed at the question, "How much can we know about ourselves?" but also at "How much, if at all, can we resist how we find ourselves organized?" | | | Law as an Aesthetic Practice | |
<
< | I think Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences might come from encountering art, relationships, the use of technology, suffering, philosophizing, the alterity of something, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being creatures of habit. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This describes Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music," and that legal rules frustrate this work, is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | >
> | I think Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences might come from encountering art, relationships, new technologies, suffering, philosophizing, the alterity of something, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being creatures of habit. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This describes Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music," and that legal rules frustrate this work, is that the practice of law isn't just linguistic; it's aesthetic in this sense. | | | | |
<
< | This class, unlike doctrinal classes, employs music in this sense as well. It disorganizes us, inviting us to examine whether we have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | | | \ No newline at end of file | |
>
> | This class, unlike doctrinal classes, employs music in this sense as well. It disorganizes us, inviting us to examine whether we have agency over our practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | | | \ No newline at end of file |
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JiaLeeFirstEssay 16 - 03 Jun 2024 - Main.JiaLee
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Jerome Frank's "Music": Thinking About Law as an Aesthetic Domain | | | I think Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences might come from encountering art, relationships, the use of technology, suffering, philosophizing, the alterity of something, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being creatures of habit. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This describes Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music," and that legal rules frustrate this work, is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense.
This class, unlike doctrinal classes, employs music in this sense as well. It disorganizes us, inviting us to examine whether we have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | |
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(First Draft) Where Jerome Frank and Confucius Meet on Music
Jerome Frank was considered an intellectual irritant by the formalist mainstream because he rejected the idea of definite solutions to legal interpretation and, even more radically from the point of view of his contemporaries, drew similarities between musical and legal interpretation in works such as Words and Music. In this essay, I explore how Frank’s ideas on music and legal interpretation parallels, or at least comports with, the role of music in Confucius’s thought.
In Law and the Modern Mind, Frank argues that the predominant challenge facing judges and other legal professionals is emotional rather than intellectual and that they should strive for self-awareness to recognize the subjective or psychological influences on their judgments rather than cling to the illusion of objective legal principles. Adopting a Freudian perspective, he likened the desire to find certainty in law to a child’s desire for an omnipotent father figure, seeking feelings of protection and repose by ignoring the ambiguities and contingencies of our existence when, in reality, law is always deficient—not inherently, but in its application to human reality which does not comport with a rules-based application. Thus, Frank deliberately avoided prescribing specific outcomes for the conflicts within the legal system, insisting that to do so would repeat the classical legal thought mistake of seeking definitive answers. Instead, he proposed music as a solution, where legal interpretation, if I understand correctly, becomes a creative practice; for instance, judges, like musicians, must be creative in interpreting the law instead of relying solely on legal tradition or social philosophy, which he viewed as inherently fragmented and incoherent. They should accept the inherent conflicts within the legal system and creatively conciliate these elements to justly resolve the specific conflicts at hand.
Before relating these to Confucius’s thoughts, some rudimentary background information on Confucius's views is needed. Confucius’s most well-known quote stresses the importance and necessity of music to his progression along the ‘Way’: starting at fifteen, Confucius set his heart on learning, and at the age of thirty, established his base and became able to take a firm stand. At forty, he freed himself from doubt and established trust, at fifty, he knew heaven’s mandate, and finally, at the age of sixty, his ear became attuned. (Analects 2:4). This progression is not an intellectual or rational endeavor; rather, it is a practice in self-cultivation. Self-cultivation is a key term of art in Confucian ethics, and I will not relate it to any of Frank’s ideas. However, its relevance to Frank’s idea that self-awareness is key to legal interpretation is that it requires, crucially, the skill of listening. For Confucius, this skill is developed, among other things, through musical education that cultivates the emotions in a manner that refines xin, or the ‘heart-mind’, without cognitively ‘conceiving’ and without transgressing li or ritual propriety.
Although there is no evidence that Frank considered the role of music in self-cultivation in the Confucian sense, its role in his anti-formalist characterization of legal thought, which requires the interpreter to self-reflect for creative solutions to legal problems, I think, is Confucian in spirit. Confucius attributed special significance to auditory perception because it accessed subtleties that the other senses could not, and even challenged, for instance, certain beliefs based on vision. Musical listening goes beyond mere intellectual appreciation of complexity in ideas and techniques in music; it refines the emotional and cognitive sensitivity of the listener’s heart-mind. Self-cultivation, rather than an analytic exercise, is largely the refinement of this listening skill, which develops the emotional and intellectual sensitivities and decorum that the junzi (loosely, ‘supreme gentleman’ or an exemplar of moral virtue – which most never attain) embodies.
There is a story of Confucius learning the qin (an instrument) about what we learn from listening, beyond imitating or learning to appreciate the aesthetics of the music (although this is important too). After mastering the tune, technique, and interpretation of a piece on the qin, Confucius remarks that he understood the xing * of the piece’s creator.
Although Frank probably did not envision musical training as a direct or literal component of legal interpretation, viewing it metaphorically (though some might advocate for its literal application), his ideas seem to approximate Confucius’s thoughts on the _junzi_’s attentive heart-mind. That is, beyond mastering techniques and musicality in interpretation through awareness of one’s psychology/identity/emotions, we should also recognize that we are audience members who must not forget that another person’s legal interpretation carries her psychology. In this vein, I argue that Frank’s ideas (perhaps loosely) comport with Confucius’s in two respects. First, the “Way” in Confucius’s thought has nothing to do with logic or looking for definitive answers. Frank urges us instead to recognize that legal interpretation involves self-awareness of one’s psychology and emotions. This might also explain why Frank deliberately avoided prescribing specific outcomes for the inherent conflicts within the legal system, just as Confucius gave his pupils slippery responses whenever they tried to probe him for more definite answers and rules. Second, interpretation is about listening, or as Confucius says, having an attentive heart-mind to understand the human nature of the creator in the piece (by analogy, the interpreter of the law). In the interpretation of law then, words represent while music presents.
*Disclaimer: I could not locate a source to confirm that Confucius was talking about xing in this context, and I do not apply lengthy Confucian scholarship on xing (a very rudimentary understanding of it would be “what is inherent to human beings”). Confucian philosophy has numerous terms of art that each have extensive historical meanings that may not accurately map onto Frank’s work. Such rigorous application would exceed the scope of this essay.
I think this is a lovely idea. The draft does very well the central task of a first draft: it gets the idea on the page.
I think there are three major routes to improvement available. The first lies in tighter structuring. You have too many digressions, parentheses, disclaimers. Closer attention to sequence would allow the reader to hear more immediately what you are doing, to maintain the flow of comprehension. This is the discipline of melody.
The idea of musical learning as a necessary part of the development of self recurs rather often in the thinking of the human race, and the relationship of musical to interpretive understanding equally so. From Pythagorus to the medieval definition of the liberal arts, from Tribonian's treatise on universal harmonics and his reshaping of the Roman law, these ideas have resonated in many fascinating ways. Your chord is based on a single interval, two tones, and you are right to concentrate on them. But there are many others that a word or two can call upon. This is the discipline of harmony.
The third route to improvement, it seems to me, is to bring us all together in listening. This draft says nothing whatever about you, but your education is the real subject. In this law school, now, where your ears are, you have one class that uses music and some others that absolutely and resolutely don't. It might be good to reflect on their intellectual and sonic differences. That is the discipline of performance.
Well begun. I look forward to reading the next draft.
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. | | | \ No newline at end of file |
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JiaLeeFirstEssay 15 - 03 Jun 2024 - Main.JiaLee
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Jerome Frank's "Music": Thinking About Law as an Aesthetic Domain | | | This class, unlike doctrinal classes, employs music in this sense as well. It disorganizes us, inviting us to examine whether we have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | |
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Some additional thoughts that are not part of the essay:
[1] I disagree with Frank's notion that legal rules inhibit imagination and insight. In the courtroom, we trade many of our less systematized, more individualized ordinary rules of language for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). Imagination and insight in the courtroom get their start from rules, like how the rules of a boardgame create the conditions necessary to play. Rules can also intensify imagination and insight, like how the Dogme 95 movement intensifies the director's creativity by placing restrictions on filmmaking. The rules of legal proceedings cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the everyday language rules left outside the courtroom.
[2] Doctrinal classes also do not employ music in the Frankian sense because facts on exams are a given. Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. That said, I think there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | | |
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JiaLeeFirstEssay 14 - 01 Jun 2024 - Main.JiaLee
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Jerome Frank's "Music": Thinking About Law as an Aesthetic Domain | | | The Issue with Jerome Frank's Legal Possibilism | |
<
< | Jerome Frank believed that the partially conscious and unconscious elements of the self—including the neuroses driving our desire for legal certainty—remain elusive even to the person experiencing them. He believed we needed expressive tools that function in a gestalt-like manner to capture these idiosyncratic, gestalt-like experiences of the legal decisionmaker all at once. Doubtful that such tools could be discursive rather than belong to the domain of reference, Frank thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, thereby discountenancing judges’ imagination and insight. Instead, Frank championed “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | >
> | Jerome Frank believed that the conscious and unconscious elements of the self—including the neuroses driving our desire for legal certainty—were elusive even to the person experiencing them. He believed we needed tools functioning in a gestalt-like manner to capture the idiosyncratic, gestalt-like experiences of the legal decisionmaker all at once. Doubtful that such tools could be discursive rather than belong to the domain of reference, Frank thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, thereby discountenancing judges’ imagination and insight. Instead, Frank championed “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | | | | |
<
< | I argue that Frank's search for creative tools for understanding legal deliberation is constrained by his focus on capturing the decision-maker's gestalt. Applying Alva Noë's ideas, I consider a different model of judicial deliberation whereby the legal decision-maker's ethos, cognitive processes, and external factors are "entangled." This approach, I believe, clarifies and affirms Frank's intuition of law being an aesthetic practice in a certain sense—a practice we also undertake in this class. | >
> | I argue that Frank's "music" is muffled by his focus on capturing the decision-maker's gestalt. Applying Alva Noë's ideas, I consider a different model of judicial deliberation whereby the legal decision-maker's ethos, cognitive processes, and external factors are "entangled." This approach, I believe, clarifies and affirms Frank's intuition of law being an aesthetic practice in a certain sense—a practice we also undertake in this class. | | |
The Entanglement Model of Judicial Deliberation | |
<
< | Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts at hand. In reconstructing the facts of an event, the judge is subject to the fallibilities of the human mind. Alva Noë would likely argue that the judge's first-order habitual reactions and second-order cognitive processes influence each other; they are, to use his term, "entangled." What we know, what we don't know, and what we know we don't know (referencing Lawyerland) affects our habitual organization, or how we react to facts on a habitual level. It is true that things in the world affect our habits, which in turn affect our judgments. However, we should also consider how we configure our own mental capacities, and how external forces structure them—and finally, how this configuration modulates how things in the world influence our ethos. Facts are perceived and imbued with subjective qualities, such as degrees of salience and familiarity, in the way our mental organization allows; that is, we perceive facts differently depending on how we tune into the world. I could encounter the same fact twice but conceptualize it differently upon the second encounter. Its meaning could be different or it could engender different emotive states in me because something about my mental capacities—how I conceptualize and judge things—changed to bring the fact into focus in a new way. While it is important to examine how our ethos affects our judgments (though it is probably impossible to capture the gestalt of one's ethos), we should also consider how our mental configuration determines how external factors affect our ethos. This is what I think we are doing with mindreading exercises in class; we discern how aspects of someone's life shape how they conceptualize things, and how this determines the idiosyncratic ways in which things in the world—be it circumstances, facts, or other people—are brought into focus for them. | >
> | Frank posits that what appears to be a rational decision by a judge is a "hunch" influenced by her reactions to the facts at hand. In reconstructing the facts of an event, the judge is subject to the fallibilities of the human mind. On Alva Noë view, the judge's first-order habitual reactions and second-order cognitive processes influence each other; they are, to use his term, "entangled." What we know, what we don't know, and what we know we don't know (referencing Lawyerland) affects our habitual organization, or how we react to facts on a habitual level. Things in the world affect our habits, which in turn affect our judgments. However, we should also consider how we configure our own mental capacities, and how external forces structure them—and finally, how this configuration modulates how things in the world influence our ethos. Facts are perceived and imbued with subjective qualities, such as degrees of salience and familiarity, in the way our mental organization allows. That is, we perceive facts differently depending on how we tune into the world. I could encounter the same fact twice but conceptualize it differently upon the second encounter. Its meaning could differ, or it could engender different emotive states in me because my mental organization—how I conceptualize and judge things—changed to bring the fact into focus in a new way. While it is important to examine how our ethos affects our judgments, we should also consider how our mental configuration determines how external factors affect our ethos. This is what mindreading exercises in class are for; we discern how aspects of someone's life shape how they conceptualize things, and how this determines the idiosyncratic ways in which things in the world—be it circumstances, facts, or other people—are brought into focus for them. | | | The Upshot of the Entanglement Model and a Caveat
The upshot is that although the judicial decision-making process may not be entirely rational, we have some agency over it because we can study and alter our second-order mental organization, and therefore our pre-reflective reactions to some extent. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." | |
<
< | Lawyerland offers a caveat to this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland thus proposes that the heavy lifting of Frank's "music" is less about "How much can we know about ourselves?" and more about "How much, if at all, can we resist how we find ourselves organized?" | >
> | Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland thus proposes that Frank's "music" is less about "How much can we know about ourselves?" and more about "How much, if at all, can we resist how we find ourselves organized?" | | | Law as an Aesthetic Practice | |
<
< | I think Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences might come from encountering art, traveling, relationships, the use of technology, suffering, philosophizing, the alterity of something, taking a class, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being who we are. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This describes Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | >
> | I think Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences might come from encountering art, relationships, the use of technology, suffering, philosophizing, the alterity of something, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being creatures of habit. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This describes Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music," and that legal rules frustrate this work, is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | | | | |
<
< | This class, unlike doctrinal classes, employs music in this sense as well. It tries to disorganize us, inviting us to examine whether we have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | >
> | This class, unlike doctrinal classes, employs music in this sense as well. It disorganizes us, inviting us to examine whether we have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | | |
Some additional thoughts that are not part of the essay:
| |
<
< | [1] I disagree with Frank's notion that legal rules inhibit imagination and insight. We trade many of our everyday rules of language that are less systematized and more individualized for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). While imperfect, these rules help control pre-reflective states that could be detrimental to the fact-finding process. Moreover, imagination and insight in the courtroom get their start from rules, like how the Dogme 95 movement enables or intensifies the director's creativity by placing restrictions on filmmaking. The rules of a boardgame create the conditions necessary to play. Similarly, the rules of legal proceedings cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the everyday language rules left outside the courtroom. | >
> | [1] I disagree with Frank's notion that legal rules inhibit imagination and insight. In the courtroom, we trade many of our less systematized, more individualized ordinary rules of language for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). Imagination and insight in the courtroom get their start from rules, like how the rules of a boardgame create the conditions necessary to play. Rules can also intensify imagination and insight, like how the Dogme 95 movement intensifies the director's creativity by placing restrictions on filmmaking. The rules of legal proceedings cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the everyday language rules left outside the courtroom. | | | [2] Doctrinal classes also do not employ music in the Frankian sense because facts on exams are a given. Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. That said, I think there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ |
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JiaLeeFirstEssay 13 - 01 Jun 2024 - Main.JiaLee
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< | Disorganization to Self-Revelation, to | >
> | Jerome Frank's "Music": Thinking About Law as an Aesthetic Domain | | |
-- By JiaLee?
The Issue with Jerome Frank's Legal Possibilism | |
<
< | Jerome Frank believed that the partially conscious and unconscious elements shaping the self—including the neuroses driving our desire for legal certainty—resist being made explicit even to the person experiencing them. He believed we require expressive tools that function in a gestalt-like manner to capture these idiosyncratic gestalt-like experiences of the legal decisionmaker all at once. Doubtful that such tools could be discursive rather than belong to the domain of reference, Frank thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, thereby discountenancing judges’ imagination and insight. Instead, Frank championed “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | >
> | Jerome Frank believed that the partially conscious and unconscious elements of the self—including the neuroses driving our desire for legal certainty—remain elusive even to the person experiencing them. He believed we needed expressive tools that function in a gestalt-like manner to capture these idiosyncratic, gestalt-like experiences of the legal decisionmaker all at once. Doubtful that such tools could be discursive rather than belong to the domain of reference, Frank thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, thereby discountenancing judges’ imagination and insight. Instead, Frank championed “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | | | | |
<
< | I argue that Frank's search for creative modes of understanding legal deliberation is constrained by his focus on tools that are capable of capturing the decision-maker's gestalt. Drawing from Alva Noë's ideas, I consider a different model of judicial deliberation whereby the legal decision-maker's ethos, cognitive processes, and external factors are "entangled." This approach, I believe, clarifies and affirms Frank's intuitions of law being an aesthetic practice in a certain sense—a practice we also undertake in this class. | >
> | I argue that Frank's search for creative tools for understanding legal deliberation is constrained by his focus on capturing the decision-maker's gestalt. Applying Alva Noë's ideas, I consider a different model of judicial deliberation whereby the legal decision-maker's ethos, cognitive processes, and external factors are "entangled." This approach, I believe, clarifies and affirms Frank's intuition of law being an aesthetic practice in a certain sense—a practice we also undertake in this class. | | |
The Entanglement Model of Judicial Deliberation | |
<
< | Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts at hand. In reconstructing the facts of an event, the judge is subject to the fallibilities of the human mind. Alva Noë would likely argue that the judge's first-order habitual reactions and second-order cognitive processes influence each other; they are, to use his term, "entangled." What we know, what we don't know, and what we know we don't know (referencing Lawyerland) affects our habitual organization, or how we react to facts on a habitual level. It is true that things in the world affect our habits, which in turn affect our judgments. However, we should also consider how we configure our own mental capacities, and how external forces structure them—and finally, how this configuration modulates how things in the world influence our ethos. As Nietzsche said, “We have learned to love all the things we now love.” Facts are perceived and imbued with subjective qualities, such as degrees of salience and familiarity, in the way our mental organization allows; that is, we perceive facts differently depending on how we tune into the world. I could encounter the same fact twice but conceptualize it differently upon the second encounter. Its meaning could be different or it could engender different emotive states in me because something about my mental capacities—how I conceptualize and judge things—changed to bring the fact into focus in a new way. While it is important to examine how our ethos affects our judgments (though it is probably impossible to capture the gestalt of one's ethos), we should also consider how our mental configuration determines how external factors affect our ethos. This is what I think we are doing with mindreading exercises in class; we discern how aspects of someone's life shape how they conceptualize things, and how this determines the idiosyncratic ways in which things in the world—be it circumstances, facts, or other people—are brought into focus for them. | >
> | Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts at hand. In reconstructing the facts of an event, the judge is subject to the fallibilities of the human mind. Alva Noë would likely argue that the judge's first-order habitual reactions and second-order cognitive processes influence each other; they are, to use his term, "entangled." What we know, what we don't know, and what we know we don't know (referencing Lawyerland) affects our habitual organization, or how we react to facts on a habitual level. It is true that things in the world affect our habits, which in turn affect our judgments. However, we should also consider how we configure our own mental capacities, and how external forces structure them—and finally, how this configuration modulates how things in the world influence our ethos. Facts are perceived and imbued with subjective qualities, such as degrees of salience and familiarity, in the way our mental organization allows; that is, we perceive facts differently depending on how we tune into the world. I could encounter the same fact twice but conceptualize it differently upon the second encounter. Its meaning could be different or it could engender different emotive states in me because something about my mental capacities—how I conceptualize and judge things—changed to bring the fact into focus in a new way. While it is important to examine how our ethos affects our judgments (though it is probably impossible to capture the gestalt of one's ethos), we should also consider how our mental configuration determines how external factors affect our ethos. This is what I think we are doing with mindreading exercises in class; we discern how aspects of someone's life shape how they conceptualize things, and how this determines the idiosyncratic ways in which things in the world—be it circumstances, facts, or other people—are brought into focus for them. | | | The Upshot of the Entanglement Model and a Caveat
The upshot is that although the judicial decision-making process may not be entirely rational, we have some agency over it because we can study and alter our second-order mental organization, and therefore our pre-reflective reactions to some extent. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." | |
<
< | Lawyerland offers a caveat to this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland proposes that the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" | >
> | Lawyerland offers a caveat to this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland thus proposes that the heavy lifting of Frank's "music" is less about "How much can we know about ourselves?" and more about "How much, if at all, can we resist how we find ourselves organized?" | | | Law as an Aesthetic Practice | |
<
< | I believe Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences could come from encountering art, traveling, relationships, technology, suffering, philosophizing, the alterity of something, music, a class, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being who we are. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This is essentially Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | >
> | I think Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences might come from encountering art, traveling, relationships, the use of technology, suffering, philosophizing, the alterity of something, taking a class, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being who we are. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This describes Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | | | | |
<
< | This class, unlike doctrinal classes, employs music in this sense. It aims to disorganize us, inviting us to examine whether we have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | >
> | This class, unlike doctrinal classes, employs music in this sense as well. It tries to disorganize us, inviting us to examine whether we have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | | |
Some additional thoughts that are not part of the essay:
| |
<
< | [1] I disagree with Frank's notion that legal rules inhibit imagination and insight. There are rules in legal proceedings that cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. We trade many of our everyday rules of language that are less systematized and more individualized for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). While imperfect, these rules help control pre-reflective states that could be detrimental to the fact-finding process. Moreover, imagination and insight in the courtroom get their start from rules, like how the Dogme 95 movement enables or intensifies the director's creativity by placing restrictions on filmmaking. If a boardgame were a ruleless free-for-all, there would be no opportunity to play; the rules of the game create the domain necessary for creativity. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the numerous everyday language rules left outside the courtroom. | >
> | [1] I disagree with Frank's notion that legal rules inhibit imagination and insight. We trade many of our everyday rules of language that are less systematized and more individualized for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). While imperfect, these rules help control pre-reflective states that could be detrimental to the fact-finding process. Moreover, imagination and insight in the courtroom get their start from rules, like how the Dogme 95 movement enables or intensifies the director's creativity by placing restrictions on filmmaking. The rules of a boardgame create the conditions necessary to play. Similarly, the rules of legal proceedings cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the everyday language rules left outside the courtroom. | | | | |
<
< | [2] Doctrinal classes also do not employ music in the Frankian sense because facts on exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. That said, I think there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | >
> | [2] Doctrinal classes also do not employ music in the Frankian sense because facts on exams are a given. Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. That said, I think there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | | |
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JiaLeeFirstEssay 12 - 01 Jun 2024 - Main.JiaLee
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< | [Disorientation | >
> | Disorganization to Self-Revelation, to | | | -- By JiaLee? | | | Jerome Frank believed that the partially conscious and unconscious elements shaping the self—including the neuroses driving our desire for legal certainty—resist being made explicit even to the person experiencing them. He believed we require expressive tools that function in a gestalt-like manner to capture these idiosyncratic gestalt-like experiences of the legal decisionmaker all at once. Doubtful that such tools could be discursive rather than belong to the domain of reference, Frank thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, thereby discountenancing judges’ imagination and insight. Instead, Frank championed “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | |
<
< | I argue that Frank's search for creative modes of understanding legal decision-making is constrained by his focus on tools capable of capturing the decision-maker's gestalt. Drawing from Alva Noë's ideas, I consider a different model of judicial deliberation whereby the legal decision-maker's ethos, cognitive processes, and external factors are "entangled." This approach, I believe, clarifies and affirms Frank's intuitions of law being an aesthetic practice in a certain sense. | >
> | I argue that Frank's search for creative modes of understanding legal deliberation is constrained by his focus on tools that are capable of capturing the decision-maker's gestalt. Drawing from Alva Noë's ideas, I consider a different model of judicial deliberation whereby the legal decision-maker's ethos, cognitive processes, and external factors are "entangled." This approach, I believe, clarifies and affirms Frank's intuitions of law being an aesthetic practice in a certain sense—a practice we also undertake in this class. | | |
The Entanglement Model of Judicial Deliberation | | | The Upshot of the Entanglement Model and a Caveat | |
<
< | The upshot is that although the judicial decision-making process may not be entirely rational, we have some agency over it because we can study and alter our second-order mental organization, and therefore our pre-reflective reactions to some extent. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat to this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland proposes that the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" | >
> | The upshot is that although the judicial decision-making process may not be entirely rational, we have some agency over it because we can study and alter our second-order mental organization, and therefore our pre-reflective reactions to some extent. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized."
Lawyerland offers a caveat to this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland proposes that the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" | | | Law as an Aesthetic Practice
I believe Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences could come from encountering art, traveling, relationships, technology, suffering, philosophizing, the alterity of something, music, a class, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being who we are. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This is essentially Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | |
<
< | This class, unlike doctrinal classes, employs music in this sense. It aims to disorganize us, inviting us to examine whether we actually have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | >
> | This class, unlike doctrinal classes, employs music in this sense. It aims to disorganize us, inviting us to examine whether we have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | | |
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JiaLeeFirstEssay 11 - 01 Jun 2024 - Main.JiaLee
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< | The Issue with Jerome Frank's Legal Possibilism | >
> | [Disorientation | | | -- By JiaLee? | |
<
< | [Work in Progress] | >
> | The Issue with Jerome Frank's Legal Possibilism | | | | |
<
< | Jerome Frank believed that the partially conscious and unconscious motives, emotions, impulses, and purposes constituting the self—including the neuroses underlying our desire for legal certainty—resist being made explicit even to the person experiencing them. He assumed we needed expressive tools that functioned in a gestalt-like fashion that could apprehend these idiosyncratic gestalt-like experiences in the legal decisionmaker all at once. He was skeptical that such tools could be discursive rather than belong to the domain of reference, so he thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, discountenancing judges’ imagination and insight. Instead, Frank advocated for “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | >
> | Jerome Frank believed that the partially conscious and unconscious elements shaping the self—including the neuroses driving our desire for legal certainty—resist being made explicit even to the person experiencing them. He believed we require expressive tools that function in a gestalt-like manner to capture these idiosyncratic gestalt-like experiences of the legal decisionmaker all at once. Doubtful that such tools could be discursive rather than belong to the domain of reference, Frank thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, thereby discountenancing judges’ imagination and insight. Instead, Frank championed “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | | | | |
<
< | I argue that Frank's search for creative modes of understanding is curtailed by limiting them to those that could somehow capture the legal interpreter's gestalt, so we should rethink this idea. | >
> | I argue that Frank's search for creative modes of understanding legal decision-making is constrained by his focus on tools capable of capturing the decision-maker's gestalt. Drawing from Alva Noë's ideas, I consider a different model of judicial deliberation whereby the legal decision-maker's ethos, cognitive processes, and external factors are "entangled." This approach, I believe, clarifies and affirms Frank's intuitions of law being an aesthetic practice in a certain sense. | | |
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>
> | The Entanglement Model of Judicial Deliberation | | | | |
<
< | I consider a somewhat different model of judicial deliberation than Frank's. Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts presented. The judge is subject to the fallibilities of the human mind while reconstructing the facts of an event. Alva Noë might say that the judge's first-order habitual reactions and second-order thoughts/cognitive processes influence each other; they are "entangled". What we know, what we don't know, and what we know we don't know (referencing Lawyerland) determine our habitual organization, or how we react to facts on a first-order level. Not only do things in the world affect our habits, which affect our mental judgments. We also need to study how the ways we configure our mental capacities or have it structured by external forces modulate how things in the world affect us habitually. Facts are apprehended, and gain certain subjective qualities (e.g., a degree of salience, familiarity) in the ways our mental constitution allows, i.e., how we tune into the world. I could pick up a fact and encounter the same point again later but the point now feels different and/or I conceptualize it differently because something about my mental capacities, how I conceptualize and judge things, changed to alter the way the fact showed up for me. So, rather than try to capture the gestalt, we should study how this bidirectional interaction continuously unfolds, which is what I understand the mindreading we do in class to be: discerning how aspects of someone's life shape how they conceptualize, which affects how something in the world—circumstances, facts, another person—shows up for them (the first-order effects). As Nietzsche said, “We have learned to love all the things we now love.” | >
> | Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts at hand. In reconstructing the facts of an event, the judge is subject to the fallibilities of the human mind. Alva Noë would likely argue that the judge's first-order habitual reactions and second-order cognitive processes influence each other; they are, to use his term, "entangled." What we know, what we don't know, and what we know we don't know (referencing Lawyerland) affects our habitual organization, or how we react to facts on a habitual level. It is true that things in the world affect our habits, which in turn affect our judgments. However, we should also consider how we configure our own mental capacities, and how external forces structure them—and finally, how this configuration modulates how things in the world influence our ethos. As Nietzsche said, “We have learned to love all the things we now love.” Facts are perceived and imbued with subjective qualities, such as degrees of salience and familiarity, in the way our mental organization allows; that is, we perceive facts differently depending on how we tune into the world. I could encounter the same fact twice but conceptualize it differently upon the second encounter. Its meaning could be different or it could engender different emotive states in me because something about my mental capacities—how I conceptualize and judge things—changed to bring the fact into focus in a new way. While it is important to examine how our ethos affects our judgments (though it is probably impossible to capture the gestalt of one's ethos), we should also consider how our mental configuration determines how external factors affect our ethos. This is what I think we are doing with mindreading exercises in class; we discern how aspects of someone's life shape how they conceptualize things, and how this determines the idiosyncratic ways in which things in the world—be it circumstances, facts, or other people—are brought into focus for them. | | | | |
<
< | The upshot is that although the judicial decisionmaking process may not be entirely rational, we have some agency over it because we can study and change our second-order structure, and therefore our pre-reflective reactions. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). Confucius sums this up: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and the world and still lack agency. Lawyerland says that the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" | >
> | The Upshot of the Entanglement Model and a Caveat | | | | |
<
< | Noë defines aesthetics as the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, at which point one can reflect to have some agency over one's ethos. Frank's intuition in saying that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | >
> | The upshot is that although the judicial decision-making process may not be entirely rational, we have some agency over it because we can study and alter our second-order mental organization, and therefore our pre-reflective reactions to some extent. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat to this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the existence of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know, such as willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it. Confucius sums it up this way: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and their world and still lack agency. Lawyerland proposes that the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" | | | | |
<
< | This class, unlike doctrinal classes, uses music in this sense as well. | >
> | Law as an Aesthetic Practice
I believe Frank's "music" denotes any experience that disorganizes us—inviting us to reflectively resist our habitual organization. These experiences could come from encountering art, traveling, relationships, technology, suffering, philosophizing, the alterity of something, music, a class, and so on. A disorganizing experience bids us to see something hidden in plain sight, or to catch ourselves in the act of being who we are. I think that is how a judge reviews and modifies her ethos; her work, therefore, is not confined to the courtroom. This is essentially Noë's definition of aesthetics—the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, which one can reflect upon to gain some agency over one's ethos. Frank's intuition in declaring that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense.
This class, unlike doctrinal classes, employs music in this sense. It aims to disorganize us, inviting us to examine whether we actually have agency over our plans for practice, or whether we are quietly acquiescing, or comfortably adapting, to how we find ourselves organized. | | |
| | | [2] Doctrinal classes also do not employ music in the Frankian sense because facts on exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. That said, I think there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | |
<
< | [3] What does Frank's "music" consist of? It could be any experience that disorganizes us—inviting us to reflectively resist our habitual organization, and this is idiosyncratic. It could be travel, friendship (Brienne and Jamie), love (Elizabeth and Mr. Darcy), technology, suffering, philosophy, expectations, the alterity of something, music, a class, and so on. A disorganizing experience bids us to see something hidden in plain sight—to catch ourselves in the act of being who we are. I think that's how a judge reviews and modifies her ethos; her work isn't confined to the courtroom. | | |
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JiaLeeFirstEssay 10 - 31 May 2024 - Main.JiaLee
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The Issue with Jerome Frank's Legal Possibilism | | | The upshot is that although the judicial decisionmaking process may not be entirely rational, we have some agency over it because we can study and change our second-order structure, and therefore our pre-reflective reactions. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). Confucius sums this up: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and the world and still lack agency. Lawyerland says that the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" | |
<
< | Noë defines aesthetics as the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, at which point one can reflect and have some agency over one's ethos. Frank's intuition in saying that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | >
> | Noë defines aesthetics as the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, at which point one can reflect to have some agency over one's ethos. Frank's intuition in saying that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | | | This class, unlike doctrinal classes, uses music in this sense as well. | | | [2] Doctrinal classes also do not employ music in the Frankian sense because facts on exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. That said, I think there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | |
>
> | [3] What does Frank's "music" consist of? It could be any experience that disorganizes us—inviting us to reflectively resist our habitual organization, and this is idiosyncratic. It could be travel, friendship (Brienne and Jamie), love (Elizabeth and Mr. Darcy), technology, suffering, philosophy, expectations, the alterity of something, music, a class, and so on. A disorganizing experience bids us to see something hidden in plain sight—to catch ourselves in the act of being who we are. I think that's how a judge reviews and modifies her ethos; her work isn't confined to the courtroom. | | |
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JiaLeeFirstEssay 9 - 31 May 2024 - Main.JiaLee
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The Issue with Jerome Frank's Legal Possibilism | | | I argue that Frank's search for creative modes of understanding is curtailed by limiting them to those that could somehow capture the legal interpreter's gestalt, so we should rethink this idea. | |
<
< | Reworking the Issue | >
> |
| | | I consider a somewhat different model of judicial deliberation than Frank's. Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts presented. The judge is subject to the fallibilities of the human mind while reconstructing the facts of an event. Alva Noë might say that the judge's first-order habitual reactions and second-order thoughts/cognitive processes influence each other; they are "entangled". What we know, what we don't know, and what we know we don't know (referencing Lawyerland) determine our habitual organization, or how we react to facts on a first-order level. Not only do things in the world affect our habits, which affect our mental judgments. We also need to study how the ways we configure our mental capacities or have it structured by external forces modulate how things in the world affect us habitually. Facts are apprehended, and gain certain subjective qualities (e.g., a degree of salience, familiarity) in the ways our mental constitution allows, i.e., how we tune into the world. I could pick up a fact and encounter the same point again later but the point now feels different and/or I conceptualize it differently because something about my mental capacities, how I conceptualize and judge things, changed to alter the way the fact showed up for me. So, rather than try to capture the gestalt, we should study how this bidirectional interaction continuously unfolds, which is what I understand the mindreading we do in class to be: discerning how aspects of someone's life shape how they conceptualize, which affects how something in the world—circumstances, facts, another person—shows up for them (the first-order effects). As Nietzsche said, “We have learned to love all the things we now love.” | |
<
< | The upshot is that although the judicial decisionmaking process may not be entirely rational, we have some agency over it because we can study and change our second-order structure, and therefore our pre-reflective reactions. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). Confucius sums this up: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). However, the caveat is that Lawyerland's percipient characters quietly acquiesce (me), or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and the world and still lack agency.
Lawyerland gets realistic about how much we can or are willing to reorient ourselves. I think the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" I find this much more challenging, personally and professionally. Since ancient times, people have thought about how music and the other arts could be used for moral suasion. Xunzi advocated music/ yue as a solution for becoming aware of our habitual valuations through which we navigate the contingencies and ambiguities of our existence. Rather than impart moral rules, Xunzi also employs music, though literally, to make the proper perceptual adjustments in the self by activating the heart-mind’s mimetic propensity. Echoing Plato seventy years on, Xunzi thought the emotions would adapt themselves, by imitation, to edifying musical features. | >
> | The upshot is that although the judicial decisionmaking process may not be entirely rational, we have some agency over it because we can study and change our second-order structure, and therefore our pre-reflective reactions. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). Confucius sums this up: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). The caveat is that Lawyerland's percipient characters quietly acquiesce, or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and the world and still lack agency. Lawyerland says that the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" | | | | |
>
> | Noë defines aesthetics as the work of moving from not seeing to seeing or from seeing to seeing differently by coming up against one's own limitations and habits to make something come into focus, at which point one can reflect and have some agency over one's ethos. Frank's intuition in saying that justice should be administered "as an art" with "music" and that legal rules frustrate this work is that the practice of law isn't just linguistic; it's aesthetic in Noë's sense. | | | | |
>
> | This class, unlike doctrinal classes, uses music in this sense as well. | | | | |
<
< | There are rules in legal proceedings that do not frustrate judges' imagination and insight; rather these rules cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. We trade many of our everyday rules of language that are less systematized and more individualized for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). While imperfect, these rules help control pre-reflective states that could be detrimental to the fact-finding process. Moreover, imagination and insight in the courtroom get their start from rules, like how the Dogme 95 movement enables or intensifies the director's creativity by placing restrictions on filmmaking. If a boardgame were a ruleless free-for-all, there would be no opportunity to play; the rules of the game create the domain necessary for creativity. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the numerous everyday language rules left outside the courtroom. | | |
| |
<
< | [Not incorporated:]
What does Frank's "music" consist of, and how does the process of reorienting ourselves using "music" facilitate our understanding of ourselves and others?
[The bidirectional model also implies that trying to understand another person's inner states necessitates close examination of ourselves along with making necessary adjustments in ourselves to see, or see differently, things hidden in plain sight. Understanding others is a self-reflective process. In class, we talked about people being 3D objects that we must reorient ourselves around to observe from different angles.]
Frank insightfully brought law into the aesthetic domain by making it a study of human beings, | | | | |
<
< | This unlocks creative resources (Frank's "music") that could be used to understand judicial decisionmaking. For instance, rhetoric dissects the manipulation of people's cognitive and affective states using words. Giambattista Vico believed that . | >
> | Some additional thoughts that are not part of the essay:
| | | | |
<
< | On Alva Noë’s enactive approach of perception, which theorizes that perception or “achieving presence” is action—something we do or “enact,” not merely cognize—we can reorient ourselves around the judge to observe her by piecemeal. | >
> | [1] I disagree with Frank's notion that legal rules inhibit imagination and insight. There are rules in legal proceedings that cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. We trade many of our everyday rules of language that are less systematized and more individualized for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). While imperfect, these rules help control pre-reflective states that could be detrimental to the fact-finding process. Moreover, imagination and insight in the courtroom get their start from rules, like how the Dogme 95 movement enables or intensifies the director's creativity by placing restrictions on filmmaking. If a boardgame were a ruleless free-for-all, there would be no opportunity to play; the rules of the game create the domain necessary for creativity. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the numerous everyday language rules left outside the courtroom. | | | | |
<
< | Doctrinal classes do not employ music in the Frankian sense because facts in exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. One could argue, however, that there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’
We also start and end class listening to music, coming together in listening. For a while, I wondered how the mindreading we do in this class (or heart-mindreading for Xunzi) would be feasible if we couldn’t know with certainty whether our reading was correct. I make sense of it now on the premise that we harmonize. Xunzi writes:
“Music observes a single standard in order to fix its harmony…and it combines their playing in order to achieve a beautiful pattern. It is sufficient to lead people in a single, unified way, and is sufficient to bring order to the myriad changes within them.”
Moreover, discernment unfolds through the resonance added to words, not just conceptual content on Vico's view. So we need tools to understand, not the cognitive and emotive gestalt of a decision, but how these states are achieved in response to wit, style, and irony. Music unveils not just the perceptual states underlying a decision, but also how we got there.
But epistemic fragility shouldn't discourage us. We engage humans as aesthetic problems—where "all its elements are there, before you, open to view, and yet you don’t understand how they fit together, and yet you can’t really see how things hang together.” Humans are dynamic 3D artworks that we cannot stabilize and perceive all at once, but that just means we need to do things—reorient ourselves—to get a better look at how they are composed. In studying the “knowing-how,” not just the “knowing-what, i.e., the myriad ways in which people are shaped (mindreading) we continue an ancient tradition of engaging each other and the law within the aesthetic domain. | >
> | [2] Doctrinal classes also do not employ music in the Frankian sense because facts on exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. That said, I think there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | | | | |
>
> |
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(First Draft) Where Jerome Frank and Confucius Meet on Music |
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JiaLeeFirstEssay 8 - 31 May 2024 - Main.JiaLee
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| META TOPICPARENT | name="FirstEssay" |
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The Issue with Jerome Frank's Legal Possibilism | | | The upshot is that although the judicial decisionmaking process may not be entirely rational, we have some agency over it because we can study and change our second-order structure, and therefore our pre-reflective reactions. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). Confucius sums this up: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). However, the caveat is that Lawyerland's percipient characters quietly acquiesce (me), or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and the world and still lack agency. | |
<
< | What does Frank's "music" consist of, and how does the process of reorienting ourselves using "music" facilitate our understanding of ourselves and others? | >
> | Lawyerland gets realistic about how much we can or are willing to reorient ourselves. I think the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" I find this much more challenging, personally and professionally. Since ancient times, people have thought about how music and the other arts could be used for moral suasion. Xunzi advocated music/ yue as a solution for becoming aware of our habitual valuations through which we navigate the contingencies and ambiguities of our existence. Rather than impart moral rules, Xunzi also employs music, though literally, to make the proper perceptual adjustments in the self by activating the heart-mind’s mimetic propensity. Echoing Plato seventy years on, Xunzi thought the emotions would adapt themselves, by imitation, to edifying musical features. | | | | |
<
< | [The bidirectional model also implies that trying to understand another person's inner states necessitates close examination of ourselves along with making necessary adjustments in ourselves to see, or see differently, things hidden in plain sight. Understanding others is a self-reflective process. In class, we talked about people being 3D objects that we must reorient ourselves around to observe from different angles.] | | | | |
<
< | Frank insightfully brought law into the aesthetic domain by making it a study of human beings, | | | There are rules in legal proceedings that do not frustrate judges' imagination and insight; rather these rules cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. We trade many of our everyday rules of language that are less systematized and more individualized for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). While imperfect, these rules help control pre-reflective states that could be detrimental to the fact-finding process. Moreover, imagination and insight in the courtroom get their start from rules, like how the Dogme 95 movement enables or intensifies the director's creativity by placing restrictions on filmmaking. If a boardgame were a ruleless free-for-all, there would be no opportunity to play; the rules of the game create the domain necessary for creativity. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the numerous everyday language rules left outside the courtroom.
[Not incorporated:] | |
>
> | What does Frank's "music" consist of, and how does the process of reorienting ourselves using "music" facilitate our understanding of ourselves and others?
[The bidirectional model also implies that trying to understand another person's inner states necessitates close examination of ourselves along with making necessary adjustments in ourselves to see, or see differently, things hidden in plain sight. Understanding others is a self-reflective process. In class, we talked about people being 3D objects that we must reorient ourselves around to observe from different angles.]
Frank insightfully brought law into the aesthetic domain by making it a study of human beings, | | | This unlocks creative resources (Frank's "music") that could be used to understand judicial decisionmaking. For instance, rhetoric dissects the manipulation of people's cognitive and affective states using words. Giambattista Vico believed that .
On Alva Noë’s enactive approach of perception, which theorizes that perception or “achieving presence” is action—something we do or “enact,” not merely cognize—we can reorient ourselves around the judge to observe her by piecemeal. | |
<
< | Xunzi advocated music/ yue as a solution for becoming aware of our habitual valuations through which we navigate the contingencies and ambiguities of our existence. Rather than impart moral rules, Xunzi also employs music, though literally, to make the proper perceptual adjustments in the self by activating the heart-mind’s mimetic propensity. Echoing Plato seventy years on, Xunzi thought the emotions would adapt themselves, by imitation, to edifying musical features. | | | Doctrinal classes do not employ music in the Frankian sense because facts in exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. One could argue, however, that there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’
We also start and end class listening to music, coming together in listening. For a while, I wondered how the mindreading we do in this class (or heart-mindreading for Xunzi) would be feasible if we couldn’t know with certainty whether our reading was correct. I make sense of it now on the premise that we harmonize. Xunzi writes: |
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JiaLeeFirstEssay 7 - 31 May 2024 - Main.JiaLee
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< | [Title] | >
> | The Issue with Jerome Frank's Legal Possibilism | | | -- By JiaLee?
[Work in Progress] | |
<
< | The Issue with Jerome Frank's Legal Possibilism | | | Jerome Frank believed that the partially conscious and unconscious motives, emotions, impulses, and purposes constituting the self—including the neuroses underlying our desire for legal certainty—resist being made explicit even to the person experiencing them. He assumed we needed expressive tools that functioned in a gestalt-like fashion that could apprehend these idiosyncratic gestalt-like experiences in the legal decisionmaker all at once. He was skeptical that such tools could be discursive rather than belong to the domain of reference, so he thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, discountenancing judges’ imagination and insight. Instead, Frank advocated for “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making.
I argue that Frank's search for creative modes of understanding is curtailed by limiting them to those that could somehow capture the legal interpreter's gestalt, so we should rethink this idea.
Reworking the Issue | |
<
< | First, I argue that there are rules in legal proceedings that do not frustrate judges' imagination and insight; rather these rules cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. We trade many of our everyday rules of language that are less systematized and more individualized for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). While imperfect, these rules help control pre-reflective states that could be detrimental to the fact-finding process. Moreover, imagination and insight in the courtroom get their start from rules, like how the Dogme 95 movement enables or intensifies the director's creativity by placing restrictions on filmmaking. If a boardgame were a ruleless free-for-all, there would be no opportunity to play; the rules of the game create the domain necessary for creativity. Thus, using courtroom language games, we relegate Frank’s concerns about rules, to some extent, to the numerous everyday language rules left outside the courtroom.
Second, I consider a somewhat different model of judicial deliberation than Frank's. Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts presented. The judge is subject to the fallibilities of the human mind while reconstructing the facts of an event. Alva Noë might say that the judge's first-order habitual reactions and second-order thoughts/cognitive processes influence each other; they are "entangled". What we know, what we don't know, and what we know we don't know (referencing Lawyerland) determine our habitual organization, or how we react to facts on a first-order level. Facts are apprehended, and gain certain subjective qualities (e.g., a degree of salience, familiarity) in the ways our mental constitution allows. I could even pick up one point and then encounter the same point again later but the point now feels different and/or I conceptualize it differently because something about my mental capacities, how I conceptualize and judge things, changed to alter the way the fact showed up for me. Rather than try to capture the gestalt, we should study how this bidirectional interaction continuously unfolds, which is what I understand the mindreading we do in class to be: discerning how aspects of someone's life shape how they conceptualize, which affects how something in the world—circumstances, facts, another person—shows up for them (the first-order effects). As Nietzsche said, “We have learned to love all the things we now love.” | >
> | I consider a somewhat different model of judicial deliberation than Frank's. Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts presented. The judge is subject to the fallibilities of the human mind while reconstructing the facts of an event. Alva Noë might say that the judge's first-order habitual reactions and second-order thoughts/cognitive processes influence each other; they are "entangled". What we know, what we don't know, and what we know we don't know (referencing Lawyerland) determine our habitual organization, or how we react to facts on a first-order level. Not only do things in the world affect our habits, which affect our mental judgments. We also need to study how the ways we configure our mental capacities or have it structured by external forces modulate how things in the world affect us habitually. Facts are apprehended, and gain certain subjective qualities (e.g., a degree of salience, familiarity) in the ways our mental constitution allows, i.e., how we tune into the world. I could pick up a fact and encounter the same point again later but the point now feels different and/or I conceptualize it differently because something about my mental capacities, how I conceptualize and judge things, changed to alter the way the fact showed up for me. So, rather than try to capture the gestalt, we should study how this bidirectional interaction continuously unfolds, which is what I understand the mindreading we do in class to be: discerning how aspects of someone's life shape how they conceptualize, which affects how something in the world—circumstances, facts, another person—shows up for them (the first-order effects). As Nietzsche said, “We have learned to love all the things we now love.” | | | The upshot is that although the judicial decisionmaking process may not be entirely rational, we have some agency over it because we can study and change our second-order structure, and therefore our pre-reflective reactions. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). Confucius sums this up: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). However, the caveat is that Lawyerland's percipient characters quietly acquiesce (me), or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and the world and still lack agency. | | | Frank insightfully brought law into the aesthetic domain by making it a study of human beings, | |
<
< | | >
> | There are rules in legal proceedings that do not frustrate judges' imagination and insight; rather these rules cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. We trade many of our everyday rules of language that are less systematized and more individualized for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). While imperfect, these rules help control pre-reflective states that could be detrimental to the fact-finding process. Moreover, imagination and insight in the courtroom get their start from rules, like how the Dogme 95 movement enables or intensifies the director's creativity by placing restrictions on filmmaking. If a boardgame were a ruleless free-for-all, there would be no opportunity to play; the rules of the game create the domain necessary for creativity. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the numerous everyday language rules left outside the courtroom. | | |
[Not incorporated:] |
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JiaLeeFirstEssay 6 - 31 May 2024 - Main.JiaLee
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< | Understanding Jerome Frank’s Legal Possibilism and Xunzi’s Philosophy of Music
Jerome Frank believed that the partially conscious and unconscious motives, emotions, impulses, and purposes constituting the self—including the neuroses underlying our desire for legal certainty—resist being made explicit even to the person experiencing them. He assumed we needed expressive tools that functioned in a gestalt-like fashion, which he thought would enable us to apprehend the idiosyncratic gestalt-like experiences of judges all at once. He was skeptical that such tools could be discursive rather than belong to the domain of reference. Thus, he thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, discountenancing judges’ imagination and insight. Instead, Frank advocated for “administering justice as an art” using “music”—a placeholder term for things like creativity and intellectual modesty, to examine how our ethos (habits and way of being) stands in the way of understanding legal decision-making. | >
> | [Title] | | | | |
<
< | Similarly, the Confucian scholar Xunzi thought of music/ yue as a solution for becoming aware of the habitual valuations through which we navigate the contingencies and ambiguities of our existence. Rather than impart moral rules, Xunzi also employs music, though literally, to make the proper perceptual adjustments in the self by activating the heart-mind’s mimetic propensity. Echoing Plato seventy years later, Xunzi thought the emotions would adapt themselves, by imitation, to edifying musical features. | >
> | -- By JiaLee? | | | | |
<
< | Reworking Jerome Frank’s Gestalt Idea
Doctrinal classes do not employ music in the Frankian sense because facts in exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. One could argue, however, that there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | >
> | [Work in Progress] | | | | |
<
< | In this class, however, we employ music and other heuristics to better understand human beings. These also allow us to rework Frank’s assumption that we need a gestalt-functioning tool to capture judges’ fleeting experiences all at once. For example, we discussed examining human beings as 3D objects that reorient us so that we could see from different angles. We also start and end class listening to music, coming together in listening. For a while, I wondered how the mindreading we do in this class (or heart-mindreading for Xunzi) would be feasible if we couldn’t know with certainty whether our reading was correct. I make sense of it now on the premise that we harmonize. Xunzi writes: | >
> | The Issue with Jerome Frank's Legal Possibilism | | | | |
<
< |
“Music observes a single standard in order to fix its harmony…and it combines their playing in order to achieve a beautiful pattern. It is sufficient to lead people in a single, unified way, and is sufficient to bring order to the myriad changes within them.”
| >
> | Jerome Frank believed that the partially conscious and unconscious motives, emotions, impulses, and purposes constituting the self—including the neuroses underlying our desire for legal certainty—resist being made explicit even to the person experiencing them. He assumed we needed expressive tools that functioned in a gestalt-like fashion that could apprehend these idiosyncratic gestalt-like experiences in the legal decisionmaker all at once. He was skeptical that such tools could be discursive rather than belong to the domain of reference, so he thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, discountenancing judges’ imagination and insight. Instead, Frank advocated for “administering justice as an art” using “music”—a placeholder term for creative modes of examining how our ethos (everything at the level of habit) stands in the way of understanding legal decision-making. | | | | |
<
< | “Harmonizing rules” refer to rules used in legal proceedings that do not frustrate our ability to understand contingent states. This is not merely semantics. While imperfect, rules in litigation help control people's pre-reflective states that could be detrimental to the fact-finding process. For instance, we trade many of our everyday rules of language that are less systematized and more individualized, for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules) that make fact-finding less arbitrary, setting the judge up to reach a less arbitrary decision. Rules are also used to render a judge’s decision-making process more objective and thus less opaque. By using courtroom language games, we relegate Frank’s concerns about rules, to some extent, to everyday language rules largely left outside the courtroom. | >
> | I argue that Frank's search for creative modes of understanding is curtailed by limiting them to those that could somehow capture the legal interpreter's gestalt, so we should rethink this idea. | | | | |
<
< | Frank's call for creative modes of understanding is defeated by his limiting those modes to those that could capture the legal interpreter's gestalt. We can rethink this using Alva Noë’s enactive approach, which states that perception or “achieving presence” is action—something we do or “enact,” not merely cognize—we can reorient ourselves around the judge to perceive her inner states by piecemeal. That is, we don't need to know the gestalt or bundle of obscured experiences that made a decision, if there even is one. Moreover, discernment unfolds through the resonance added to words, not just conceptual content on Vico's view. So we need tools to understand, not the cognitive and emotive gestalt of a decision, but how these states are achieved in response to wit, style, and irony. Music unveils not just the perceptual states underlying a decision, but also how we got there. In this vein, Lawyerland, should count as a Frankian “musical” resource for legal professionals for both its insight and rhetoric. | >
> | Reworking the Issue | | | | |
<
< | Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). While Lawyerland seems cynical about these epistemic states, I think Frank would still consider them to be worth pursuing. At least Confucius probably did: “Shall I teach you what it means to know something? When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). | >
> | First, I argue that there are rules in legal proceedings that do not frustrate judges' imagination and insight; rather these rules cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. We trade many of our everyday rules of language that are less systematized and more individualized for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). While imperfect, these rules help control pre-reflective states that could be detrimental to the fact-finding process. Moreover, imagination and insight in the courtroom get their start from rules, like how the Dogme 95 movement enables or intensifies the director's creativity by placing restrictions on filmmaking. If a boardgame were a ruleless free-for-all, there would be no opportunity to play; the rules of the game create the domain necessary for creativity. Thus, using courtroom language games, we relegate Frank’s concerns about rules, to some extent, to the numerous everyday language rules left outside the courtroom. | | | | |
<
< | But epistemic fragility shouldn't discourage us. We engage humans as aesthetic problems—where "all its elements are there, before you, open to view, and yet you don’t understand how they fit together, and yet you can’t really see how things hang together.” Humans are dynamic 3D artworks that we cannot stabilize and perceive all at once, but that just means we need to do things—reorient ourselves—to get a better look at how they are composed. In studying the “knowing-how,” not just the “knowing-what, i.e., the myriad ways in which people are shaped (mindreading) we are continuing an ancient tradition of engaging each other and the law within the aesthetic domain. | >
> | Second, I consider a somewhat different model of judicial deliberation than Frank's. Frank posits that what seems to be a rational decision by a judge is actually a "hunch" influenced by her reactions to the facts presented. The judge is subject to the fallibilities of the human mind while reconstructing the facts of an event. Alva Noë might say that the judge's first-order habitual reactions and second-order thoughts/cognitive processes influence each other; they are "entangled". What we know, what we don't know, and what we know we don't know (referencing Lawyerland) determine our habitual organization, or how we react to facts on a first-order level. Facts are apprehended, and gain certain subjective qualities (e.g., a degree of salience, familiarity) in the ways our mental constitution allows. I could even pick up one point and then encounter the same point again later but the point now feels different and/or I conceptualize it differently because something about my mental capacities, how I conceptualize and judge things, changed to alter the way the fact showed up for me. Rather than try to capture the gestalt, we should study how this bidirectional interaction continuously unfolds, which is what I understand the mindreading we do in class to be: discerning how aspects of someone's life shape how they conceptualize, which affects how something in the world—circumstances, facts, another person—shows up for them (the first-order effects). As Nietzsche said, “We have learned to love all the things we now love.” | | | | |
>
> | The upshot is that although the judicial decisionmaking process may not be entirely rational, we have some agency over it because we can study and change our second-order structure, and therefore our pre-reflective reactions. Noë says that to understand our nature, we must study "the transformation of the ways that we are organized by reflective resistance to the ways that we find ourselves organized." Lawyerland offers a caveat for this project. Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). Confucius sums this up: "When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). However, the caveat is that Lawyerland's percipient characters quietly acquiesce (me), or comfortably adapt, to how they find themselves organized. They have come across the outer bounds of knowing themselves and the world and still lack agency. | | | | |
>
> | What does Frank's "music" consist of, and how does the process of reorienting ourselves using "music" facilitate our understanding of ourselves and others? | | | | |
<
< | (First Draft) Where Jerome Frank and Confucius Meet on Music | >
> | [The bidirectional model also implies that trying to understand another person's inner states necessitates close examination of ourselves along with making necessary adjustments in ourselves to see, or see differently, things hidden in plain sight. Understanding others is a self-reflective process. In class, we talked about people being 3D objects that we must reorient ourselves around to observe from different angles.]
Frank insightfully brought law into the aesthetic domain by making it a study of human beings, | | | | |
<
< | -- By JiaLee? - 22 Feb 2024 | | | | |
>
> |
[Not incorporated:]
This unlocks creative resources (Frank's "music") that could be used to understand judicial decisionmaking. For instance, rhetoric dissects the manipulation of people's cognitive and affective states using words. Giambattista Vico believed that .
On Alva Noë’s enactive approach of perception, which theorizes that perception or “achieving presence” is action—something we do or “enact,” not merely cognize—we can reorient ourselves around the judge to observe her by piecemeal.
Xunzi advocated music/ yue as a solution for becoming aware of our habitual valuations through which we navigate the contingencies and ambiguities of our existence. Rather than impart moral rules, Xunzi also employs music, though literally, to make the proper perceptual adjustments in the self by activating the heart-mind’s mimetic propensity. Echoing Plato seventy years on, Xunzi thought the emotions would adapt themselves, by imitation, to edifying musical features.
Doctrinal classes do not employ music in the Frankian sense because facts in exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. One could argue, however, that there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | | | | |
>
> | We also start and end class listening to music, coming together in listening. For a while, I wondered how the mindreading we do in this class (or heart-mindreading for Xunzi) would be feasible if we couldn’t know with certainty whether our reading was correct. I make sense of it now on the premise that we harmonize. Xunzi writes:
“Music observes a single standard in order to fix its harmony…and it combines their playing in order to achieve a beautiful pattern. It is sufficient to lead people in a single, unified way, and is sufficient to bring order to the myriad changes within them.”
Moreover, discernment unfolds through the resonance added to words, not just conceptual content on Vico's view. So we need tools to understand, not the cognitive and emotive gestalt of a decision, but how these states are achieved in response to wit, style, and irony. Music unveils not just the perceptual states underlying a decision, but also how we got there.
But epistemic fragility shouldn't discourage us. We engage humans as aesthetic problems—where "all its elements are there, before you, open to view, and yet you don’t understand how they fit together, and yet you can’t really see how things hang together.” Humans are dynamic 3D artworks that we cannot stabilize and perceive all at once, but that just means we need to do things—reorient ourselves—to get a better look at how they are composed. In studying the “knowing-how,” not just the “knowing-what, i.e., the myriad ways in which people are shaped (mindreading) we continue an ancient tradition of engaging each other and the law within the aesthetic domain.
(First Draft) Where Jerome Frank and Confucius Meet on Music | | | Jerome Frank was considered an intellectual irritant by the formalist mainstream because he rejected the idea of definite solutions to legal interpretation and, even more radically from the point of view of his contemporaries, drew similarities between musical and legal interpretation in works such as Words and Music. In this essay, I explore how Frank’s ideas on music and legal interpretation parallels, or at least comports with, the role of music in Confucius’s thought. |
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JiaLeeFirstEssay 5 - 30 May 2024 - Main.JiaLee
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Understanding Jerome Frank’s Legal Possibilism and Xunzi’s Philosophy of Music
Jerome Frank believed that the partially conscious and unconscious motives, emotions, impulses, and purposes constituting the self—including the neuroses underlying our desire for legal certainty—resist being made explicit even to the person experiencing them. He assumed we needed expressive tools that functioned in a gestalt-like fashion, which he thought would enable us to apprehend the idiosyncratic gestalt-like experiences of judges all at once. He was skeptical that such tools could be discursive rather than belong to the domain of reference. Thus, he thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, discountenancing judges’ imagination and insight. Instead, Frank advocated for “administering justice as an art” using “music”—a placeholder term for things like creativity and intellectual modesty, to examine how our ethos (habits and way of being) stands in the way of understanding legal decision-making. | |
<
< | Similarly, the Confucian scholar Xunzi thought of music/ yue as a solution for becoming aware of the habitual valuations through which we navigate the contingencies and ambiguities of our existence. Rather than impart moral rules, Xunzi also employs music, though literally, to make the proper perceptual adjustments in the self by activating the heart-mind’s mimetic propensity, whereby the emotions adapt themselves, by imitation, to edifying musical features. | >
> | Similarly, the Confucian scholar Xunzi thought of music/ yue as a solution for becoming aware of the habitual valuations through which we navigate the contingencies and ambiguities of our existence. Rather than impart moral rules, Xunzi also employs music, though literally, to make the proper perceptual adjustments in the self by activating the heart-mind’s mimetic propensity. Echoing Plato seventy years later, Xunzi thought the emotions would adapt themselves, by imitation, to edifying musical features. | | | Reworking Jerome Frank’s Gestalt Idea
Doctrinal classes do not employ music in the Frankian sense because facts in exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. One could argue, however, that there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’ | | | “Harmonizing rules” refer to rules used in legal proceedings that do not frustrate our ability to understand contingent states. This is not merely semantics. While imperfect, rules in litigation help control people's pre-reflective states that could be detrimental to the fact-finding process. For instance, we trade many of our everyday rules of language that are less systematized and more individualized, for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules) that make fact-finding less arbitrary, setting the judge up to reach a less arbitrary decision. Rules are also used to render a judge’s decision-making process more objective and thus less opaque. By using courtroom language games, we relegate Frank’s concerns about rules, to some extent, to everyday language rules largely left outside the courtroom. | |
<
< | Further, on Alva Noë’s enactive approach which states that perception or “achieving presence” is action—something we do or “enact,” not merely cognize—we can reorient ourselves around the judge to perceive her inner states by piecemeal. Thus, contrary to Frank, we do not need to cognitively perceive the judge’s gestalt to understand how she reaches a decision.
It appears that Frank called for creative modes of understanding but then limited those modes to those that could capture the legal interpreter's gestalt. Why can’t creativity itself, or style and irony also be Frankian creative modes of knowing on theories recognizing that the resonance of words matters just as much as content in shaping perception? In this vein, Lawyerland, with its insight, wit, and creativity would count as a Frankian “musical” resource for legal professionals. | >
> | Frank's call for creative modes of understanding is defeated by his limiting those modes to those that could capture the legal interpreter's gestalt. We can rethink this using Alva Noë’s enactive approach, which states that perception or “achieving presence” is action—something we do or “enact,” not merely cognize—we can reorient ourselves around the judge to perceive her inner states by piecemeal. That is, we don't need to know the gestalt or bundle of obscured experiences that made a decision, if there even is one. Moreover, discernment unfolds through the resonance added to words, not just conceptual content on Vico's view. So we need tools to understand, not the cognitive and emotive gestalt of a decision, but how these states are achieved in response to wit, style, and irony. Music unveils not just the perceptual states underlying a decision, but also how we got there. In this vein, Lawyerland, should count as a Frankian “musical” resource for legal professionals for both its insight and rhetoric. | | | Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). While Lawyerland seems cynical about these epistemic states, I think Frank would still consider them to be worth pursuing. At least Confucius probably did: “Shall I teach you what it means to know something? When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17). | |
<
< | However, reflecting Frankian epistemic modesty, Noë questions even our categories for our perceptual stances—engaged/detached, thoughtless/deliberate, cognitive/bodily; he questions the “knowing-how,” not just the “knowing-what.” As we do in this class, he sees human beings as aesthetic problems: “a problem is aesthetic when all its elements are there, before you, open to view, and yet you don’t understand how they fit together, and yet you can’t really see how things hang together.” Unfazed by epistemic fragility, in this class, we learn to mindread, or creatively critiquing humans as 3D artworks—continuing an ancient tradition of bringing ourselves and the law into the aesthetic domain. | >
> | But epistemic fragility shouldn't discourage us. We engage humans as aesthetic problems—where "all its elements are there, before you, open to view, and yet you don’t understand how they fit together, and yet you can’t really see how things hang together.” Humans are dynamic 3D artworks that we cannot stabilize and perceive all at once, but that just means we need to do things—reorient ourselves—to get a better look at how they are composed. In studying the “knowing-how,” not just the “knowing-what, i.e., the myriad ways in which people are shaped (mindreading) we are continuing an ancient tradition of engaging each other and the law within the aesthetic domain. | | | |
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JiaLeeFirstEssay 4 - 30 May 2024 - Main.JiaLee
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> | Understanding Jerome Frank’s Legal Possibilism and Xunzi’s Philosophy of Music
Jerome Frank believed that the partially conscious and unconscious motives, emotions, impulses, and purposes constituting the self—including the neuroses underlying our desire for legal certainty—resist being made explicit even to the person experiencing them. He assumed we needed expressive tools that functioned in a gestalt-like fashion, which he thought would enable us to apprehend the idiosyncratic gestalt-like experiences of judges all at once. He was skeptical that such tools could be discursive rather than belong to the domain of reference. Thus, he thought that legal rules distorted and frustrated epistemically valuable “judicial hunches” about facts, discountenancing judges’ imagination and insight. Instead, Frank advocated for “administering justice as an art” using “music”—a placeholder term for things like creativity and intellectual modesty, to examine how our ethos (habits and way of being) stands in the way of understanding legal decision-making. | | | | |
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> | Similarly, the Confucian scholar Xunzi thought of music/ yue as a solution for becoming aware of the habitual valuations through which we navigate the contingencies and ambiguities of our existence. Rather than impart moral rules, Xunzi also employs music, though literally, to make the proper perceptual adjustments in the self by activating the heart-mind’s mimetic propensity, whereby the emotions adapt themselves, by imitation, to edifying musical features. | | | | |
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> | Reworking Jerome Frank’s Gestalt Idea
Doctrinal classes do not employ music in the Frankian sense because facts in exams are a given. On exams, we apply rules as an appellate court would, and Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. One could argue, however, that there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’
In this class, however, we employ music and other heuristics to better understand human beings. These also allow us to rework Frank’s assumption that we need a gestalt-functioning tool to capture judges’ fleeting experiences all at once. For example, we discussed examining human beings as 3D objects that reorient us so that we could see from different angles. We also start and end class listening to music, coming together in listening. For a while, I wondered how the mindreading we do in this class (or heart-mindreading for Xunzi) would be feasible if we couldn’t know with certainty whether our reading was correct. I make sense of it now on the premise that we harmonize. Xunzi writes:
“Music observes a single standard in order to fix its harmony…and it combines their playing in order to achieve a beautiful pattern. It is sufficient to lead people in a single, unified way, and is sufficient to bring order to the myriad changes within them.”
“Harmonizing rules” refer to rules used in legal proceedings that do not frustrate our ability to understand contingent states. This is not merely semantics. While imperfect, rules in litigation help control people's pre-reflective states that could be detrimental to the fact-finding process. For instance, we trade many of our everyday rules of language that are less systematized and more individualized, for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules) that make fact-finding less arbitrary, setting the judge up to reach a less arbitrary decision. Rules are also used to render a judge’s decision-making process more objective and thus less opaque. By using courtroom language games, we relegate Frank’s concerns about rules, to some extent, to everyday language rules largely left outside the courtroom.
Further, on Alva Noë’s enactive approach which states that perception or “achieving presence” is action—something we do or “enact,” not merely cognize—we can reorient ourselves around the judge to perceive her inner states by piecemeal. Thus, contrary to Frank, we do not need to cognitively perceive the judge’s gestalt to understand how she reaches a decision.
It appears that Frank called for creative modes of understanding but then limited those modes to those that could capture the legal interpreter's gestalt. Why can’t creativity itself, or style and irony also be Frankian creative modes of knowing on theories recognizing that the resonance of words matters just as much as content in shaping perception? In this vein, Lawyerland, with its insight, wit, and creativity would count as a Frankian “musical” resource for legal professionals.
Robin West calls Lawyerland “a meditation on lawyers’ knowledge: what lawyers know, first, from the evidence of their practice, and what they know, second, from the evidence of things not seen.” Each character discusses something that lawyers know, such as knowing the difference between lying and culpable lying when the availability of too much information necessitates lying. Each character also discerns evidence of things unseen, or of what lawyers don’t know (e.g., willful blindness, often to moral questions—occupying “the moral center of too many hurricanes,” as West puts it). While Lawyerland seems cynical about these epistemic states, I think Frank would still consider them to be worth pursuing. At least Confucius probably did: “Shall I teach you what it means to know something? When you know, to know you know. When you don’t know, to know you don’t know. That’s what knowing is” (Analects 2:17).
However, reflecting Frankian epistemic modesty, Noë questions even our categories for our perceptual stances—engaged/detached, thoughtless/deliberate, cognitive/bodily; he questions the “knowing-how,” not just the “knowing-what.” As we do in this class, he sees human beings as aesthetic problems: “a problem is aesthetic when all its elements are there, before you, open to view, and yet you don’t understand how they fit together, and yet you can’t really see how things hang together.” Unfazed by epistemic fragility, in this class, we learn to mindread, or creatively critiquing humans as 3D artworks—continuing an ancient tradition of bringing ourselves and the law into the aesthetic domain.
(First Draft) Where Jerome Frank and Confucius Meet on Music | | | -- By JiaLee? - 22 Feb 2024 |
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JiaLeeFirstEssay 3 - 24 Mar 2024 - Main.EbenMoglen
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I think this is a lovely idea. The draft does very well the central task of a first draft: it gets the idea on the page.
I think there are three major routes to improvement available. The first lies in tighter structuring. You have too many digressions, parentheses, disclaimers. Closer attention to sequence would allow the reader to hear more immediately what you are doing, to maintain the flow of comprehension. This is the discipline of melody.
The idea of musical learning as a necessary part of the development of self recurs rather often in the thinking of the human race, and the relationship of musical to interpretive understanding equally so. From Pythagorus to the medieval definition of the liberal arts, from Tribonian's treatise on universal harmonics and his reshaping of the Roman law, these ideas have resonated in many fascinating ways. Your chord is based on a single interval, two tones, and you are right to concentrate on them. But there are many others that a word or two can call upon. This is the discipline of harmony.
The third route to improvement, it seems to me, is to bring us all together in listening. This draft says nothing whatever about you, but your education is the real subject. In this law school, now, where your ears are, you have one class that uses music and some others that absolutely and resolutely don't. It might be good to reflect on their intellectual and sonic differences. That is the discipline of performance.
Well begun. I look forward to reading the next draft.
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JiaLeeFirstEssay 2 - 22 Feb 2024 - Main.JiaLee
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< | Jerome Frank was considered an intellectual irritant by the formalist mainstream because he rejected the idea of definite solutions to legal interpretation and, even more radically from the point of view of his contemporaries, drawing similarities between musical and legal interpretation in works such as Words and Music. In this essay, I explore how Frank’s ideas on music and legal interpretation parallels, or at least comports with, the role of music in Confucius’s thought. | >
> | Jerome Frank was considered an intellectual irritant by the formalist mainstream because he rejected the idea of definite solutions to legal interpretation and, even more radically from the point of view of his contemporaries, drew similarities between musical and legal interpretation in works such as Words and Music. In this essay, I explore how Frank’s ideas on music and legal interpretation parallels, or at least comports with, the role of music in Confucius’s thought. | | | | |
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< | In Law and the Modern Mind, Frank argues that the predominant challenge facing judges and other legal professionals is emotional rather than intellectual and that they should strive for self-awareness to recognize the subjective or psychological influences on their judgments rather than cling to the illusion of objective legal principles. Adopting a Freudian perspective, he likened the desire to find certainty in law to a child’s desire for an omnipotent father figure, seeking feelings of protection and repose by ignoring the ambiguities and contingencies of our existence when, in reality, law is always deficient—not inherently, but in its application to human reality which does not comport with a rules-based application. Thus, Frank deliberately avoided prescribing specific outcomes for the conflicts within the legal system, insisting that to do so would repeat the classical legal thought mistake of seeking definitive answers. Instead, he proposed music as a solution, where legal interpretation, if I understand correctly, becomes a creative practice; for instance, judges, like musicians, must be creative in interpreting the law instead of relying solely on legal tradition or social philosophy, which he viewed as inherently fragmented and incoherent. They should accept the inherent conflicts within the legal system and creatively conciliate these elements to justly resolve the specific conflicts at hand. | >
> | In Law and the Modern Mind, Frank argues that the predominant challenge facing judges and other legal professionals is emotional rather than intellectual and that they should strive for self-awareness to recognize the subjective or psychological influences on their judgments rather than cling to the illusion of objective legal principles. Adopting a Freudian perspective, he likened the desire to find certainty in law to a child’s desire for an omnipotent father figure, seeking feelings of protection and repose by ignoring the ambiguities and contingencies of our existence when, in reality, law is always deficient—not inherently, but in its application to human reality which does not comport with a rules-based application. Thus, Frank deliberately avoided prescribing specific outcomes for the conflicts within the legal system, insisting that to do so would repeat the classical legal thought mistake of seeking definitive answers. Instead, he proposed music as a solution, where legal interpretation, if I understand correctly, becomes a creative practice; for instance, judges, like musicians, must be creative in interpreting the law instead of relying solely on legal tradition or social philosophy, which he viewed as inherently fragmented and incoherent. They should accept the inherent conflicts within the legal system and creatively conciliate these elements to justly resolve the specific conflicts at hand. | | | | |
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< | Before relating these to Confucius’s thoughts, some rudimentary background information on the latter is needed. Confucius’s most well-known quote stresses the importance and necessity of music to his progression along the ‘Way’: starting at fifteen, Confucius set his heart on learning, and at the age of thirty, established his base and became able to take a firm stand. At forty, he freed himself from doubt and established trust, at fifty, he knew heaven’s mandate, and finally, at the age of sixty, his ear became attuned. (Analects 2:4). This progression is not an intellectual or rational endeavor; rather, it is a practice in self-cultivation. Self-cultivation is a key term of art in Confucian ethics, and I will not relate it to any of Frank’s ideas. However, its relevance to Frank’s idea that self-awareness is key to legal interpretation is that it requires, crucially, the skill of listening. For Confucius, this skill is developed, among other things, through musical education that cultivates the emotions in a manner that refines xin, or the ‘heart-mind’, without cognitively ‘conceiving’ and without transgressing li or ritual propriety. | >
> | Before relating these to Confucius’s thoughts, some rudimentary background information on Confucius's views is needed. Confucius’s most well-known quote stresses the importance and necessity of music to his progression along the ‘Way’: starting at fifteen, Confucius set his heart on learning, and at the age of thirty, established his base and became able to take a firm stand. At forty, he freed himself from doubt and established trust, at fifty, he knew heaven’s mandate, and finally, at the age of sixty, his ear became attuned. (Analects 2:4). This progression is not an intellectual or rational endeavor; rather, it is a practice in self-cultivation. Self-cultivation is a key term of art in Confucian ethics, and I will not relate it to any of Frank’s ideas. However, its relevance to Frank’s idea that self-awareness is key to legal interpretation is that it requires, crucially, the skill of listening. For Confucius, this skill is developed, among other things, through musical education that cultivates the emotions in a manner that refines xin, or the ‘heart-mind’, without cognitively ‘conceiving’ and without transgressing li or ritual propriety. | | | | |
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< | Although there is no evidence that Frank considered the role of music in self-cultivation in the Confucian sense, its role in his anti-formalist characterization of legal thought, which requires the interpreter to self-reflect for creative solutions to legal problems, I think, is Confucian in spirit. Confucius attributed special significance to auditory perception because it accessed subtleties that the other senses could not, and even challenged, for instance, certain beliefs based on vision. Musical listening goes beyond mere intellectual appreciation of complexity in ideas and techniques in music; it refines the emotional and cognitive sensitivity of the listener’s heart-mind. Self-cultivation, rather than an analytic exercise, is largely the refinement of this listening skill, which develops the emotional and intellectual sensitivities and decorum that the junzi (loosely, ‘supreme gentleman’ or an exemplar of moral virtue – which most never attain) embodies. | >
> | Although there is no evidence that Frank considered the role of music in self-cultivation in the Confucian sense, its role in his anti-formalist characterization of legal thought, which requires the interpreter to self-reflect for creative solutions to legal problems, I think, is Confucian in spirit. Confucius attributed special significance to auditory perception because it accessed subtleties that the other senses could not, and even challenged, for instance, certain beliefs based on vision. Musical listening goes beyond mere intellectual appreciation of complexity in ideas and techniques in music; it refines the emotional and cognitive sensitivity of the listener’s heart-mind. Self-cultivation, rather than an analytic exercise, is largely the refinement of this listening skill, which develops the emotional and intellectual sensitivities and decorum that the junzi (loosely, ‘supreme gentleman’ or an exemplar of moral virtue – which most never attain) embodies. | | | | |
<
< | There is a story of Confucius learning the qin (an instrument) which was about what we learn from listening, beyond imitating or learning to appreciate the aesthetics of the music (although this is important too). After mastering the tune, technique, and interpretation of a piece on the qin, Confucius remarks that he understood the xing* of the piece’s creator. | >
> | There is a story of Confucius learning the qin (an instrument) about what we learn from listening, beyond imitating or learning to appreciate the aesthetics of the music (although this is important too). After mastering the tune, technique, and interpretation of a piece on the qin, Confucius remarks that he understood the xing * of the piece’s creator. | | | | |
<
< | Although Frank probably did not envision musical training as a direct or literal component of legal interpretation, viewing it metaphorically (though some might advocate for its literal application), his ideas seem to approximate Confucius’s thoughts on the junzi’s attentive heart-mind. That is, beyond mastering techniques and musicality in interpretation through awareness of one’s psychology/identity/emotions, we should also recognize that we are audience members who must not forget that another person’s legal interpretation carries her psychology. In this vein, I argue that Frank’s ideas (perhaps loosely) comport with Confucius’s in two respects. First, the “Way” in Confucius’s thought has nothing to do with logic or looking for definitive answers. Frank urges us instead to recognize that legal interpretation involves self-awareness of one’s psychology and emotions. This might also explain why Frank deliberately avoided prescribing specific outcomes for the inherent conflicts within the legal system, just as Confucius gave his pupils slippery responses whenever they tried to probe him for more definite answers and rules. Second, interpretation is about listening, or as Confucius says, having an attentive heart-mind to understand the human nature of the creator in the piece (by analogy, the interpreter of the law). Thus, in the interpretation of law, words represent while music presents. | >
> | Although Frank probably did not envision musical training as a direct or literal component of legal interpretation, viewing it metaphorically (though some might advocate for its literal application), his ideas seem to approximate Confucius’s thoughts on the _junzi_’s attentive heart-mind. That is, beyond mastering techniques and musicality in interpretation through awareness of one’s psychology/identity/emotions, we should also recognize that we are audience members who must not forget that another person’s legal interpretation carries her psychology. In this vein, I argue that Frank’s ideas (perhaps loosely) comport with Confucius’s in two respects. First, the “Way” in Confucius’s thought has nothing to do with logic or looking for definitive answers. Frank urges us instead to recognize that legal interpretation involves self-awareness of one’s psychology and emotions. This might also explain why Frank deliberately avoided prescribing specific outcomes for the inherent conflicts within the legal system, just as Confucius gave his pupils slippery responses whenever they tried to probe him for more definite answers and rules. Second, interpretation is about listening, or as Confucius says, having an attentive heart-mind to understand the human nature of the creator in the piece (by analogy, the interpreter of the law). In the interpretation of law then, words represent while music presents. | | | | |
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< | *Disclaimer: I could not locate a source to confirm that Confucius was talking about xing in this context, and I do not apply lengthy Confucian scholarship on xing (a very rudimentary understanding of it would be “what is inherent to human beings”). Confucian philosophy has numerous terms of art that each have extensive historical meanings that may not accurately map onto Frank’s work. Such rigorous application would exceed the scope of this essay. | >
> | *Disclaimer: I could not locate a source to confirm that Confucius was talking about xing in this context, and I do not apply lengthy Confucian scholarship on xing (a very rudimentary understanding of it would be “what is inherent to human beings”). Confucian philosophy has numerous terms of art that each have extensive historical meanings that may not accurately map onto Frank’s work. Such rigorous application would exceed the scope of this essay. | | | |
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JiaLeeFirstEssay 1 - 22 Feb 2024 - Main.JiaLee
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Where Jerome Frank and Confucius Meet on Music
-- By JiaLee? - 22 Feb 2024
Jerome Frank was considered an intellectual irritant by the formalist mainstream because he rejected the idea of definite solutions to legal interpretation and, even more radically from the point of view of his contemporaries, drawing similarities between musical and legal interpretation in works such as Words and Music. In this essay, I explore how Frank’s ideas on music and legal interpretation parallels, or at least comports with, the role of music in Confucius’s thought.
In Law and the Modern Mind, Frank argues that the predominant challenge facing judges and other legal professionals is emotional rather than intellectual and that they should strive for self-awareness to recognize the subjective or psychological influences on their judgments rather than cling to the illusion of objective legal principles. Adopting a Freudian perspective, he likened the desire to find certainty in law to a child’s desire for an omnipotent father figure, seeking feelings of protection and repose by ignoring the ambiguities and contingencies of our existence when, in reality, law is always deficient—not inherently, but in its application to human reality which does not comport with a rules-based application. Thus, Frank deliberately avoided prescribing specific outcomes for the conflicts within the legal system, insisting that to do so would repeat the classical legal thought mistake of seeking definitive answers. Instead, he proposed music as a solution, where legal interpretation, if I understand correctly, becomes a creative practice; for instance, judges, like musicians, must be creative in interpreting the law instead of relying solely on legal tradition or social philosophy, which he viewed as inherently fragmented and incoherent. They should accept the inherent conflicts within the legal system and creatively conciliate these elements to justly resolve the specific conflicts at hand.
Before relating these to Confucius’s thoughts, some rudimentary background information on the latter is needed. Confucius’s most well-known quote stresses the importance and necessity of music to his progression along the ‘Way’: starting at fifteen, Confucius set his heart on learning, and at the age of thirty, established his base and became able to take a firm stand. At forty, he freed himself from doubt and established trust, at fifty, he knew heaven’s mandate, and finally, at the age of sixty, his ear became attuned. (Analects 2:4). This progression is not an intellectual or rational endeavor; rather, it is a practice in self-cultivation. Self-cultivation is a key term of art in Confucian ethics, and I will not relate it to any of Frank’s ideas. However, its relevance to Frank’s idea that self-awareness is key to legal interpretation is that it requires, crucially, the skill of listening. For Confucius, this skill is developed, among other things, through musical education that cultivates the emotions in a manner that refines xin, or the ‘heart-mind’, without cognitively ‘conceiving’ and without transgressing li or ritual propriety.
Although there is no evidence that Frank considered the role of music in self-cultivation in the Confucian sense, its role in his anti-formalist characterization of legal thought, which requires the interpreter to self-reflect for creative solutions to legal problems, I think, is Confucian in spirit. Confucius attributed special significance to auditory perception because it accessed subtleties that the other senses could not, and even challenged, for instance, certain beliefs based on vision. Musical listening goes beyond mere intellectual appreciation of complexity in ideas and techniques in music; it refines the emotional and cognitive sensitivity of the listener’s heart-mind. Self-cultivation, rather than an analytic exercise, is largely the refinement of this listening skill, which develops the emotional and intellectual sensitivities and decorum that the junzi (loosely, ‘supreme gentleman’ or an exemplar of moral virtue – which most never attain) embodies.
There is a story of Confucius learning the qin (an instrument) which was about what we learn from listening, beyond imitating or learning to appreciate the aesthetics of the music (although this is important too). After mastering the tune, technique, and interpretation of a piece on the qin, Confucius remarks that he understood the xing* of the piece’s creator.
Although Frank probably did not envision musical training as a direct or literal component of legal interpretation, viewing it metaphorically (though some might advocate for its literal application), his ideas seem to approximate Confucius’s thoughts on the junzi’s attentive heart-mind. That is, beyond mastering techniques and musicality in interpretation through awareness of one’s psychology/identity/emotions, we should also recognize that we are audience members who must not forget that another person’s legal interpretation carries her psychology. In this vein, I argue that Frank’s ideas (perhaps loosely) comport with Confucius’s in two respects. First, the “Way” in Confucius’s thought has nothing to do with logic or looking for definitive answers. Frank urges us instead to recognize that legal interpretation involves self-awareness of one’s psychology and emotions. This might also explain why Frank deliberately avoided prescribing specific outcomes for the inherent conflicts within the legal system, just as Confucius gave his pupils slippery responses whenever they tried to probe him for more definite answers and rules. Second, interpretation is about listening, or as Confucius says, having an attentive heart-mind to understand the human nature of the creator in the piece (by analogy, the interpreter of the law). Thus, in the interpretation of law, words represent while music presents.
*Disclaimer: I could not locate a source to confirm that Confucius was talking about xing in this context, and I do not apply lengthy Confucian scholarship on xing (a very rudimentary understanding of it would be “what is inherent to human beings”). Confucian philosophy has numerous terms of art that each have extensive historical meanings that may not accurately map onto Frank’s work. Such rigorous application would exceed the scope of this essay.
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