Hats, Rabbits, and Jurists’ Magic (Or Jurists’ Bright and Dark Magic)

I am grateful to Prof. Christine Corcos for inspiring to write an essay for her forthcoming second volume of Law and Magic which will be published by Carolina Academic Press. Here is a preview of the essay:

Abstract

This essay explores two senses of “magic” as they apply to the practice of law: magic as “the art of producing illusions by sleight of hand” and magic as “an extraordinary power or influence seemingly from a supernatural source.” 

Magic in the initial or “sleight of hand” sense overlaps with jurists’ emphasizing certain traits of a classification while hiding other nonconforming traits. For example, if the Great Blackstone classifies the Little Prince’s drawing of a boa eating an elephant as a drawing of a hat, the Great Blackstone must draw attention away from other contrary evidence such as the Little Prince’s asserted intent. Similarly, if he would classify Wittgenstein’s duck-rabbit as a rabbit, the Great Blackstone must also draw attention away from contrary evidence. (Thus, the use of “Hats” and “Rabbits” in this essay’s title.) 

Magic in the second or “supernatural” overlaps with jurists’ creation, modification, and rejection of categories and concepts (including conceptual metaphors). Categories and concepts (including conceptual metaphors) are creatures of language and not nature. Thus, jurists’ creation, modification, and rejection of categories and concepts (including categories and concepts about nature itself) are beyond nature and thus powerfully overlap with magic in the second, “supernatural” sense.  

To the extent jurists perform magic in either or both senses, such magic can be divided into either bright or dark magic. Jurists’ “bright magic” illuminates in ways that better and better organize experience (including moral experience). Lacking such light, jurists’ “dark magic” does the opposite. For example, stressing the role of commitment to and partnership with a loved one as essential to marriage while downplaying past opposite sex requirements would be bright magic to the extent such emphasis advances moral and social progress. Stressing past opposite sex requirements while ignoring core roles of love, commitment, and partnership would be dark magic to the extent inconsistent with advancing moral and social progress. Good jurists’ “magic” thus organizes experience (including moral experience) in better and better ways. Good jurist magicians are therefore good pragmatists: their bright magic organizes experience (including moral experience) in better and better ways. 

In examining such juristic magic, this essay also explores among other topics: (i) magic in legal imagination and in legal framing (foreground, background, and otherwise); (ii) magical insights for jurists from the art of translation and other humanities including the dark magic of using wrong or questionable translations of ancient texts such as the Bible when making tradition or other arguments (such as using wrong or questionable translations of "arsenokoitai" or "malakoi" or incomplete contexts for "para physin" when exploring same-sex rights and privileges) ; (iii) the dark magic of legal formalism; and (iv) dangers of juristic and political dark magic to democracy and rule of law.

Therapeutics of Powerful Verse in Powerful Translation

The therapeutic powers of poetry can be unparalleled. To cross languages, such powerful verse requires translation of no less merit.

Translators who achieve this feat should be lauded on their own accord. For example, those suffering from extreme anxiety or from painful inability to live in the moment might well experience a life-changing epiphany in these magnificent lines by Stuart Atkins translating Care's claims in Goethe's Faust:

Care: Once I make a man my own, 
nothing in this world can help him; 
everlasting darkness falls, 

suns no longer rise or set--
though no outward sense has failed, 
all is darkness in his heart, 
and however great his treasures, 
there's no joy in their possession. 
Good and bad luck both depress him, 
he is starving though there's plenty; 
source of joy or spot of trouble, 
it's postponed until the morrow--
caring only for the future, 

he gets nothing done at all . . . .

Whether he should go or come
is something he cannot decide; 
in the middle of a street 

his stride will break, he'll grope his way; 
more and more he is bogged down, 
everything seems more distorted; 
to himself, to all, a burden, 
when he breathes he feels he's choking, 
neither stifled nor yet living, 
tom between despair and hoping. 
All is one unceasing round 
of things not done, of odious duties . . . .

Akins deserves his owns spotlight alongside that of Goethe. To underscore the genius of Atkins here, compare this "classic" translation by Bayard Taylor:

Whom I once possess, shall never 
Find the world worth his endeavor: 
Endless gloom around him folding, 
Rise nor set of sun beholding, 
Perfect in external senses,
Inwardly his darkness dense is;
And he knows not how to measure 
True possession of his treasure.
Luck and Ill become caprices; 
Still he starves in all increases; 
Be it happiness or sorrow,
He postpones it till the morrow; 
To the Future only cleaveth: 
Nothing, therefore, he achieveth. . . .

Compared to Atkins' work, how many lives might these lines change? 

Translators carry a heavy burden. I am grateful to those who carry it well. I am dismayed by the rubble of those who fail. 

Translators also illustrate a further passion of mine: exploring the power of framing. If one doubts such power, one need only compare the frames of Atkins and Taylor here.

Those wishing to buy a copy of Atkins' translation can find it here or here.

Addition to Strings of Thought 5-19-2018

Hermeneutics

                               To Gadamer

Though eye must squint, eye must explore the bird

Who plays at the horizon of the word,

Whose far tints flash, far notes lag as it hops 

Beyond and back from where the language stops.

For the entire "Strings of Thought" as it currently stands, see here.

Addition to "Strings of Thought" (1/21/18)

Speaker Meaning

1/21/18 “Original” speaker meaning includes the unexplored.  Imagine I buy a netted device I categorize as “my hammock” before I unbox and see it.  On the next day, I unbox “my hammock,” count its strings, and note their makeup and weave. On the third day, I tie “my hammock” between two trees.  I broadly gauge its new shape when tied into the world. On the fourth day, I refine “my hammock’s” new shape:  it contradictorily resembles both a canoe and a crescent moon. On the fifth day, I wonder whether “my hammock” now qualifies as a bed and tentatively conclude that it does. On the sixth day, I lie down in “my hammock” and see interesting new views from its vantage point. On the seventh day, I rest with no hammock thoughts in my head.  The “original” meaning of “my hammock” thus casts a wide and variable net not captured from day one. Instead, day by day through day six, I have obtained fuller and fuller understandings of “my hammock” including how it intersects with (and provides vantage points to) the world to which it is tied.  Thus, any “original concept” signified by “my hammock” is larger than any “original conception” (or first-day conception) of something boxed and unseen, is larger than any second-day conception adding counted strings, their makeup, and their weave, is larger than any third-day conception of the hammock as tied, and so on.  Furthermore, for those seeking speaker meaning, any “original concept” and any preceding daily conceptions don’t sleep the seventh day.

The entire post of "Strings of Thought" can be found here.

Strings of Thoughts

Recognizing I’ll never have time to put in finished prose or verse all the things I’d like to explore, I’m starting some strings of thoughts unfinished as of the dates entered below.  I’d enjoy hearing others’ responses to any of the strings.

The Inherent Inseparability of Doctrine & Skills

A quick screen shot of my brief bit in Linda Edwards' fantastic new book The Doctrine Skills Divide: Legal Education's Self-Inflicted Wound.  I think the title speaks for itself, and the book should be required reading for everyone interested in reforming legal education today.

President Trump & Word Association

As a lover of words, I am of course interested in the following Quinnipiac poll which asked responders "What is the first word that comes to mind when you think of Donald Trump?"  The list provides endless fodder for analysis of speaker meaning.  The top two answers were "idiot" and "incompetent."  Did the speakers mean some subtle difference between those terms?  What about any meant difference between those two terms and such other terms as "unqualified," "ignorant," "stupid," and "clown"?  The third most frequent response is "liar."  Was "liar" meant in a different sense from "dishonest" or "con-man" which pop up later in the list?  Is "leader" (fourth on the list) a complement or is it a factual statement such as "president"  (sixth on the list)?  What about "trying"?  Does that mean the man is attempting to succeed (my guess but it's only a guess) or that he is "causing strain, hardship, or distress" (American Heritage College Dictionary 4th ed.)?  I also wonder how Originalists like Neil Gorsuch would interpret and parse each word in this list.  Reasonable contemporaneous readers can of course draw wildly different conclusions about the meanings of these words.

A Sonnet on the Jerusalem Cross

For me, the Jerusalem Cross is endlessly inspiring:  Christ before Paul; the Kingdom that’s within; the wisdom of the Buddha; William Blake and all he tried to do, say, draw, and paint; the semiotics of the endless signified and signifier; the freedom and choice in how we frame; the crosses we bare and bear; the number 5 that I somehow took as “my” number when I was a child.  Such crosses cross beyond mere prose:

               The Jerusalem Cross

Her references are kingdoms built within,

Are centers of what is, are plots of peace,

Are emanations of Blake’s Albions,
Are heavenly vistas of Jerusalems,

Are fresh imaginations testing worlds,

Are fourfold noble truths, are eight crossed paths

That frame a centered cross that wisdom bares

To study all the crosses that it bears.

Her signifiers are two crossing lines,

Four smaller pairs, too, eight paths framing round

Just four right angles centering sixteen more

That also form at most a single square--

Or four or five depending on the count.†

                          *****


†(The cross's lines are personal as well
  In ways they interweave both "H" and "L,"
  In ways they cover Everyone with "E"
  Should some find some initials tough to see.)

 

"Nature Hath Framed Strange Fellows" William Shakespeare and Natural Law

A. Introduction

             

             Natural law theorists might turn to The History of Troilus and Cressida to start building their case.  They might begin with Ulysses’ lofty outline of the “natural” order:

The heavens themselves, the planets, and this center          

Observe degree, priority, and place,                            

Insisture, course, proportion, season, form,                    

Office, and custom, in all line of order,                       

And therefore is the glorious planet Sol                        

In noble eminence enthroned and sphered                         

Amidst the other; whose med'cinable eye                         

Corrects the influences of evil planets

And posts, like the commandment of a king . . . .[1]                      

Such theorists might then use Ulysses’ further stirring words to blend such “natural physical order” with a “natural order” in law and morality as well:

Take but degree away, untune that string,                      

And hark what discord follows. Each thing meets                

In mere oppugnancy.  The bounded waters                          

Should lift their bosoms higher than the shores              

And make a sop of all this solid globe;                         

Strength should be lord of imbecility,                          

And the rude son should strike his father dead;                 

Force should be right; or rather right and wrong,             

Between whose endless jar justice resides,                    

Should lose their names, and so should justice too.^[2]                             

As far as it goes, it is hard to imagine a more eloquent case for natural law than this.

Ekphrasis & Prose: Sonnet Translations of Poe & Hawthorne

I sometimes wonder whether a prose piece should have been verse from the outset.  Could the deep meaning have been more effectively captured and conveyed by poetic form than by prose?  I've wondered that, for example, in the case of Poe's "The Mask of the Red Death."  With no illusions that Poe's sonnet wouldn't have been much better, here's a concrete example of what I mean: 

Shadow After Poe 

We noticed there was pestilence about.

We played instead of passive victim an
Aggressive agent capable of plan
And execution.  In, we locked it out,

A simple action, really, which we sealed
With weighty velvet curtains drawn across
An iron door bolted tight.  “Our gain, Hell’s loss!”
We toasted with good bourbon and were steeled.

“God helps who helps himself,” we boasted till
We saw a shadow by a comrade still
And cold throughout the reverie.  It hid

As quick within the heavy draperies.  Did
Drink fool?  No.  Oh, no fancy has composed
Such vast lost voices in a single ghost.

I've also wondered the same about individual passages in longer works.  Here, for example, is a bit of Hawthorne's The House of The Seven Gables set to sonnet form:

Originalism and the Fall of Icarus

Well, here we go again. With Neil Gorsuch as the current Supreme Court nominee, once more we hear praises of “originalism” as a judicial interpretive philosophy. As Gorsuch puts it, judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” Since law generally looks forward to govern future and not past behavior, and since context drives meaning in much more complex ways than Gorsuch’s words suggest, I’m amazed that people take this backward-looking and overly-simplistic philosophy seriously. I’ve written at length about the problems with such an approach but now also wonder if an old painting might more quickly dispatch such error.

Wake Forest Law Review Publishes "Revisiting Langdell: Legal Education Reform & The Lawyer's Craft"

The Wake Forest Law Review has published its 2015 Legal Education Reform Symposium volume entitled Revisiting Langdell: Legal Education Reform & The Lawyer's Craft.  The volume can be purchased here and I hope it will make a positive difference in legal education reform. 

My introductory article in the volume highlights longstanding, substantial damage Christopher Columbus Langdell has inflicted on law schools and legal education. Much of this damage stems from three of Langdell’s wrong and counterintuitive notions: (1) law is a science of principles and doctrines known with certainty and primarily traced through case law; (2) studying redacted appellate cases is “much the shortest and best, if not the only way” of learning such law; and (3) despite Langdell’s own roughly fifteen years of practice experience, practice experience taints one’s ability to teach law. I briefly highlight problems with, and harms resulting from, each of these wrong notions. Among other things, I briefly explore: (A) contradictions, oversights, and wrong assumptions in Langdell’s views; (B) how the very meanings of “theory” and “practice” reject Langdell; (C) how the necessary role of experience in meaning itself rejects Langdell; (D) parallels between Langdell and unworkable Cartesian dualism; and (E) how the necessary role of framing in the law rejects Langdell. I also briefly survey some remedies suggested by reason, experience, common sense, and modern cognitive psychology. These include rejecting the redacted appellate case method as a primary mode of instruction, recognizing the necessary fusion of theory and practice, recognizing the need for practice experience in law professors, recognizing the embodied nature of meaning and the resulting role of practice and simulation in good legal education, embracing the humanities (including classical rhetoric) in legal education, abandoning meaningless distinctions such as distinctions between “doctrinal” and “non-doctrinal” courses, and abandoning “caste” systems demeaning those with law practice experience and elevating those who lack such necessary experience.  My introduction can be found here.