Legal Questions and Creativity

-- By PatrickCronin - 28 Feb 2009

This essay clears ground for a concrete understanding of creative lawyering. Approaching the lawyer as a kind of artist, I first argue that lawyers work with questions. Then I argue that posing new and solvable legal questions requires two abilities: 1) facility in moving between the concrete world of facts and the abstract realm of concepts; and 2) the ability to survive in between the common roles that people play in society. This second skill in turn requires a lawyer to balance his life inside and outside of conventional roles.

The function of transcendental nonsense

Lawyers solve conflicts by mediating between parties. They translate actual human conflicts into legal questions. The main problem that faces a legal system is legitimacy. How does the court make the parties accept their solution to the legal problem as the solution to the actual problem?

Cohen explores one method. The law translates a real problem that can be solved, even if only by force: “Congress wants to regulate a steel company but the steel company doesn’t want to be regulated”, into a transcendental problem that cannot be solved with reference to the empirical or ethical world but only by metaphysical speculation: “Is the corporation in interstate commerce”. This method creates legitimacy through magic. A priestly class of lawyers and judges, who have attained their exalted status through a ritual trial by fire (law school, bar exams, long hours), enter the scene and solve these unsolvable metaphysical problems. In short, transcendental nonsense creates legitimacy by obfuscating the real problem and then putting on a show. The translation of actual conflicts into universal and metaphysical terms is an attempt to create a universal language that both parties can understand – a discourse of pure reason in which problems that are intractable in the lower realms magically become solvable. Its universality is supposed to bridge the differences between the parties. The resulting language is universal, but only because it is nonsense. It is similar to Monty Python in that it has universal appeal because it’s so absurd.

Transcendental nonsense may work, but not in any elevated sense. It works by obfuscation and smoke and mirrors. Its problem it’s capacity to do justice goes out the window along with the ethical and empirical dimensions of the conflicts it translates. So if we want to work towards justice as lawyers, we need to figure out how to solve conflicts without resorting to exalted nonsense. We need to bridge the gap between parties without losing track of the real ethical question to be decided.

Posing and solving actual legal questions requires creativity

If the hope of a universal perspective that mediates between conflicting parties was in vain, then perhaps a kind of perspectivism will be useful. Leff’s analysis of the dramatization of roles is a helpful here. Conflicting parties are playing roles in dramas that clash. An employer is just being a good businessman. An employee is just trying to support his family. The lawyer has to function in between these two dramas in order to solve the problem. In other words, he needs to be able to pass. But he also needs to be able to create new perspectives in order to deal with the clash of the parties’ dramas. He needs to be something of an artist.

The ability to create new perspectives requires faith that the status quo doesn’t exhaust reality. For example, Willie Stark is successful in All the King’s Men because he is convinced that he can dig up some dirt on anyone as long as he looks hard enough: “Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud.” The power to create comes from a distrust of the status quo’s projection of itself as necessary, natural and eternal. In order to create, we need to reacquaint ourselves with the dirtiness of reality. There’s also a place here for Holmes’ insight that we need more theory, if theory is understood as simply “going to the bottom of the subject.” From a practical perspective, legal creativity requires that we get our hands dirty with facts and that we understand theory well enough that we can use it to carve out a new perspective. This perspective must have its own logical necessity, and it must point towards a just result that doesn’t obscure the actual ethical problem.

Creativity is difficult to sustain

The idea that justice requires lawyers to be creative each time is disquieting. We don’t like the idea that justice doesn’t have a drama and a logical inevitability of its own. We like roles and we like drama because we want to be part of something larger than ourselves. Justice should come from on high. There should be people above us who know what is just. This is why it is difficult for lawyers to be constantly outside of the drama, to be moving onstage and offstage like conmen. The space between two conflicting dramas can be dangerous because the clash calls the logical necessity of both dramas into question and opens up a space of contingency. And people don’t like contingency.

So how does a lawyer who wants to create justice by posing actual legal questions survive? We can’t live without some dramatic conception of ourselves. Arnold, Holmes, and Leff agree on this fundamental fact of human nature: the tendency to create stories, to think logically, and to adopt the creeds of institutions is inevitable. So we can’t survive entirely between perspectives. We have to come up for air from time to time. We need some drama of our own. But the storyline of the lawyer fighting for justice wont make justice happen all by itself. So we need both to have enough money and time to construct a storyline of our own, and we need to keep in touch with the creative space in between dramas. Balance is essential.

• I thought this was a very interesting essay, which neither fully convinced nor completely lost me, until I got to the conclusion and found that the payoff was a platitude. I think your conceptual structure has got to produce more than "balance is essential," if it's going to repay the investment.