The Issue with Jerome Frank's Legal Possibilism

-- By JiaLee?

[Work in Progress]

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.

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.

Reworking the Issue

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. Not only do things in the world affect our habits, which affect our mental judgments. We also need to study how the ways we configure our mental capacities or have it structured by external forces modulate how things in the world affect us habitually. Facts are apprehended, and gain certain subjective qualities (e.g., a degree of salience, familiarity) in the ways our mental constitution allows, i.e., how we tune into the world. I could pick up a fact and 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. So, 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.”

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.

Lawyerland gets realistic about how much we can or are willing to reorient ourselves. I think the heavy lifting of Frank's "music" isn't "How much can we know about ourselves?" but rather "How much, if at all, can we resist how we find ourselves organized?" I find this much more challenging, personally and professionally. Since ancient times, people have thought about how music and the other arts could be used for moral suasion. 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.

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 inhibiting insight and imagination, to some extent, to the numerous everyday language rules left outside the courtroom.

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[Not incorporated:]

What does Frank's "music" consist of, and how does the process of reorienting ourselves using "music" facilitate our understanding of ourselves and others?

[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,

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.

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:

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.

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.

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