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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. Echoing Plato seventy years later, Xunzi thought the emotions would adapt themselves, by imitation, to edifying musical features. | >
> | -- By JiaLee? | | | | |
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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.’ | >
> | [Work in Progress] | | | | |
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< | 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 | | | | |
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“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.”
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> | 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. | | | | |
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< | “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. | | | | |
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< | 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 | | | | |
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< | 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. | | | | |
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< | 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.” | | | | |
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> | 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. | | | | |
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> | What does Frank's "music" consist of, and how does the process of reorienting ourselves using "music" facilitate our understanding of ourselves and others? | | | | |
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< | (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, | | | | |
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< | -- By JiaLee? - 22 Feb 2024 | | | | |
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[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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