Law & Society Blog

It is well understood today that the legal enterprise is marked by indeterminacy. This indeterminacy exists in several respects. No lawgiver in history has managed to create rules that were comprehensive: there is a limit to how helpful abstract language is in answering unforeseen questions. Conversely, courts have never managed to completely satisfy their audiences that decisions are dictated by law and precedent. Quite apart from activism, anyone who sets out to decide a dispute by faithfully applying rules quickly encounters uncertainty.

Uncertainty in the law exists not only in the rules or precedents, but also in the facts. Facts, after all, are made, not found, and our values influence our perceptions. As a practical matter, lawyers spend more time constructing facts than construing law, and there is no simple, agreed-upon method for determining what actually happened.

What does our inability to finally know the fact and to know the law mean for the legal enterprise? It has been suggested, of course, that the right course is to abandon law altogether, or to turn to the social sciences. Or that all lawyers do is to use, or abuse, power. But while it is always possible to view social interactions in terms of power, neither this nor other defeatist views of law capture the experience of lawyers and judges: That there is a fair amount of determinacy or agreement, that there are decisions only cranks disagree with, and that the answers in many cases, while not beyond doubt, are reasonably clear. So there is no reason to believe that, since we can’t have determinacy or certainty in the law, we can’t have law at all.

Rather, I would suggest that law is a creative process. Lawyers and judges do not only apply what they find beyond themselves, but in constructing the facts of a case, in discovering and applying the rule from statute or precedent, they are engaging in a creative process. Even more clearly, establishing the connection between the rules and the facts is a creative act.

What follows is not that law is a free-for-all, or arbitrary, or wholly unpredictable. But a different sort of methodology applies. If we don’t liken law to science (as we did in the 19th century and into the 20th), but rather to art as the paradigm of creative enterprises, aesthetic principles apply. We can still distinguish good law form bad, defensible decisions from indefensible ones, but we apply different criteria than a scientist would. What makes sense in the law must follow the aesthetic rules of law.

Some of these aesthetic rules are fairly obvious, such as the principle of symmetry or balance. We only accept a decision as just if it attempts to construct a symmetrical outcome between the conflicting interests, first by naming and considering them all, and then by balancing them. Similarly, the aesthetic principles of law require that an argument be structured: facts are distinguished from the law, reasons from text are not reasons from context. A good legal argument, therefore, is a good because it sounds like a good legal argument. This is not entirely empty, since the aesthetics of law require explicit reference to recognized topoi: text, history, precedent, purpose, consistency, and so forth.

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