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 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 "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 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 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, 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.