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Practical
Moral Philosophy for Lawyers
The Lawyer as Artist
 Readings: "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)
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"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)]
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"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)]
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"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)]
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(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
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