Practical Moral Philosophy for Lawyers

The Lawyer as Artist

  Reading Assignment: "The Styles of Mr. Justice Cardozo," in Louis Auchincloss, Life, Law and Letters: Essays and Sketches 47-58 (Boston: Houghton Mifflin Company, 1979); Archibald MacLeish, Riders on the Earth 82-88 (Boston: Houghton Mifflin, 1978); Excerpts from R. H. Winnick (ed.), Letters of Archibald MacLeish 1907 to 1982 (Boston: Houghton Mifflin, 1983)

 

"If it is true that there is an irreducible element of art in professional practice, it is also true that gifted engineers, teachers, scientists, architects, and managers sometimes display artistry in their day-to-day practice. If the art is not invariant, known, and teachable, it appears nonetheless, at least for some individuals, to be learnable."

[Donald A. Schön, The Reflective Practitioner: How Professionals Think in Action 18 (New York: Basic Books, 1983)]

 

"The process of composing a life is very much like the process of creating a work of art. While it is arguably pretentious to think of yourself as 'a work of art'--the phrase carries connotations of ceremonial display, the framing and museuming of the precious self--it remains true that much about creating art applies equally well to cultivating a self: the demand for uniqueness combined with the requirement of using stock pieces for at least part of the construction; the vertiginous freedom of expression once one has been released from the demand for photographic literalism; the anxiety of influence induced by those who have gone before, shown the way, but cannot be followed footprint for footprint for fear of falling into mere copying."

[James Ogilvy, Living Without Goals: Finding the Freedom to Live a Creative and Innovative Life 177 (New York: Currency Doubleday, 1995)]

 

 "The sense of the lawyer's life as one of art suggests a spirit in which we might turn to literature, namely to find an array of texts that can help us see our own situation as artists more fully by comparison with others. The hope would be that we could discover opportunity for art in our life where now we see routine and at the same time develop a sense of what the possibilities for success might be. Comparison with other texts and discourses might expose the characteristics of legal discourse and yield a juster sense both of its limits and of its peculiar resources for meaningful talk and action. In this sense the comparison with literature, which at first may seem outre, could be seen as highly practical, for the aim of the comparison would be to improve our own capacities of mind and language in ways that can affect all that we do.

But the meaning of the humanities can go beyond even that, and in many different directions. Reading texts composed by other minds in other worlds can help us see more clearly (what is otherwise nearly invisible) the force and meaning of the habits of mind and language in which we shall in all likelihood remain unconscious unless led to perceive or imagine other worlds. We can thus learn to read humanistic texts with an eye to understanding: the language and culture in which they are composed; the art by which actors in he worlds defined by these languages (and the authors of texts written in them) struggle to come to terms with them; and the kind of ethical and political relations that speakers within the world of the text, and the author of the text in his writing of it, create with their respective interlocutors. In all three respects we can hope to find in them a ground for the criticism of our own world, of our own texts, and of our own relations with others."

[James Boyd White, What Can a Lawyer Learn from Literature? (Book Review), 102 Harv. L. Rev. 2014, 2022 (1989)]

 

(1) Karl Llewellyn, one of the grand figures of American jurisprudence, made claims about the lawyer as artist of the sort we have set out to examine here.

So it comes about that right craftsmen of the law can discover that they have "been talking prose all their lives"--which means . . . that they have been doing legal poetry. They have been artists, they are artists, art is of the essence of their daily work.

* * * *

[O]ne comes to the soberest, the allegedly dullest portion of the whole institution of the law, and finds both Beauty and a theory of it. Is it not fair to conclude, then, there can be no part of our institution of law which may not yield fresh light, if one knocks at it asking, there also, after Beauty? [Karl Llewellyn, Jurisprudence: Realism in Theory and Practice 173, 196 (1962)]

By what route might one come to see in the study and practice of law, that it one wants to be an artist?

(2) Consider Jack Martin's argument that the lawyer is an artist:

The only true thing, the only thing that has the slightest change of surviving its creator, the only way for man to find immortality, and that is what he is really seeking, is through his art. The years kill everything; old friendships are forgotten and very seldom do we find a love that will survive the first November snow. We all die. That is the one thing we do know. We live and work and love and try to create, we are always trying to create, and if, in this creating, we should happen upon art, even in its raw, crude form, we are never quite the same again. We have touched something very powerful and true. Other things may fail us; nothing is ever what it seems, except to the young, and the young have no interest in art. But once we have successfully approached art--very few ever master it, and still fewer live to see the recognition of their work as art--we have been true to ourselves. We have created something of lasting value, something that the rains of spring cannot erode.

At first the artist practices his respective trade for the purpose of making money. Later in life the good ones realize they are fighting a losing battle, and begin to seek immortality. No one wants to die. It is hard to leave friends of youth. It is still harder to bring yourself to the realization that art is the only important thing, the only thing of truly lasting value.

Can the lawyer consider himself an artist? Why not? He is trained to write, not in an emotional, fictional manner, but as skilled craftsman. He is trained to analyze, to observe, to see things objectively and without emotion. Emotion spoils many artists. They get all involved in what they are doing and no one really benefits, least of all the artist. No piece of legal work exists that could not have been done better. No lawyer has ever reached the summit of his talents. It is just that some are satisfied with less than others and, in their satisfaction, become grooved to a way of life, which is oftentimes a very good life, profitable and satisfying, but nevertheless is, and they would be the first to admit it, somewhat mediocre. Blessed with the skills of the writer and the thought processes of the philosopher, the lawyer is an unique position to contribute to the art of his day. If he does so depends upon whether or not the flaming ambition of his youth is extinguished by the draught of middle age. The lawyer's degree of art is determined and bounded by his degree of intensity, by his early training in seeing things as they really are and not just the parts, by his being able to observe impartially, by his personal truthfulness. The lawyer can and should consider himself an artist. [Jack Martin, The Lawyer as Artist, 1 (1) Loyola Law Times 8 (1960)]

(i) In what sense are you, in becoming a lawyer, in search of immortality?

(ii) Do you agree with Jack Martin's contention that lawyers go about their work "always trying to create"? But are we not all engaged in creating, and if so, then the only difference between the artist and the hack must be whether one is conscious of what he or she is doing and able to critically evaluate the quality of his/her creations. (Note: Joseph Bensman and Robert Lilienfeld contend that "a major ingredient in art is to be . . . highly conscious of one's technique. . . ." [Joseph Bensman and Robert Lilienfeld, Craft and Consciousness: Occupational Technique and the Development of World Images 19 (New York: John Wiley & Sons, 1973)]. How does one go about "creating" and "making" a life in law that deserves to be viewed as artistry?

(iii) Martin makes a rather bold claim: "Blessed with the skills of the writer and the thought processes of the philosopher, the lawyer is an unique position to contribute to the art of his day." Do you agree with this proposition, that lawyers combine elements of the writer and philosopher, in a way that allows us to think of ourselves as artists?

(iv) Martin ends his commentary with the claim that: "The lawyer's degree of art is determined and bounded by his degree of intensity, by his early training in seeing things as they really are and not just the parts, by his being able to observe impartially, by his personal truthfulness. The lawyer can and should consider himself an artist." In what sense is our way of seeing things as a lawyer a matter of artistry?

(3) James Boyd White argues that "the activities which make up the professional life of the lawyer and judge constitute an enterprise of the imagination, an enterprise whose central performance is the claim of meaning against the odds: the translation of the imagination into reality by the power of language. Its art is accordingly a literary one, most obviously perhaps in the demand that one master the forces and limits of what we have called the legal language system--speaking, as it does, in a set of official voices, reducing people to institutional identities, insisting on the repetition of inherited patterns of thought and speech (most frustratingly in its use of the rule) and reposing an impossible confidence in its fictional pretenses. The art of the lawyer is perhaps first of all the literary art that controls this language. To say as much, and to ask how that language can be controlled--what the lawyer can do with it--is to say that the lawyer is at heart a writer, one who lives by the power of his imagination." [James Boyd White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression 758 (Boston, Little, Brown and Company, 1973)]

(i) White, like James Martin, points to the lawyer as writer, and the imagination required in the proper "control" of language (when we put language to use in a legal forum) as the essential art of the lawyer. If White (and Martin) are right about the lawyer/writer, how do you explain the anti-artistic approach so commonly found in the teaching of legal writing?

(ii) What experiences have you had with legal writing that suggest that it might be an art form?

Notes

1. Further Reading: "The Imagination of the Lawyer" and "Is the Judge Really a Poet?" in James Boyd White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression 761-806 (Boston, Little, Brown and Company, 1973).

2. On the poet in the most unusual of settings, corporate America, see David Whyte, The Heart Aroused: Poetry and the Preservation of the Soul in Corporate America (New York: Currency Doubleday, 1994)

3. "The task of the artist is like the task of living, both in having no goal or end outside itself and in having no guarantee of success. Further, life and art both call for a balance of freedom and discipline. Both life and art take place in real time. Both build on what has gone before. Both demand an ability to bend the momentum of tradition toward the unprecedented. Both require creativity." [James Ogilvy, Living Without Goals: Finding the Freedom to Live a Creative and Innovative Life 178 (New York: Currency Doubleday, 1995)]

 

  Course Readings     Home Page