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Law in Contemporary Society
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Jerome Frank's "Music": Thinking About Law as an Aesthetic Domain-- By JiaLee?The Issue with Jerome Frank's Legal PossibilismJerome 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 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 DeliberationFrank 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 CaveatThe 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?"Law as an Aesthetic PracticeI 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 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. 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. 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.’ (First Draft) Where Jerome Frank and Confucius Meet on MusicJerome 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:
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