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Where Jerome Frank and Confucius Meet on Music
-- By JiaLee - 22 Feb 2024
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.
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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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