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> | 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. | |
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< | 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 | |
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< | 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. | |
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< | 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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