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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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< | Where Jerome Frank and Confucius Meet on Music | >
> | 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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