The Law's Melody

This article, based on a talk given at Villanova in honor of Joe Vining, starts with the following problem: “Regarding ‘law,’ as Joe Vining teaches us, there is nothing we can point to and say: ‘That is it.’ Those things we might be tempted to think of as law are only evidence of it and not the thing itself. For someone like Joe, who resists the theoretical and insists that truthful thought starts in trusting perceptual beliefs, ‘in the empirical’ as he often describes it, this is a problem. And yet, Joe has, through his work, shown us ‘law,’ and, true to his understanding of it, he has displayed it in a manner that, in Schelling=s words, seeks to ‘. . . enlarge our thought so that it shall be in proportion to the phenomenon’. “But how can this be? What possible ontology could account for the law he displays? And by what epistemology could we know it? I want to offer to you today one way of understanding law as Joe has displayed it for us by drawing upon an analogy to music. For it is easier for us to trust the perceptual beliefs we have about music than it is those we may have about law. Our perceptions of music, I believe, offer us the shortest, least arduous, and most natural route into matters of ontology and epistemology.”And here is how parts of the article were described in a magazine article: “One thing I found, through using this analogy to music to understand law is that a person who has not pre-analytically felt the forces of music, felt its motion, felt the tensions, the resolutions, the ongoing explorations of meaning, along with the creation of a sense of direction in which these continue forever, has not understood music. And, a person -- a judge or a lawyer -- who has not pre-analytically felt the tension, the movement, and the resolution, along with the creation of a sense of direction in which these seem to continue forever, has not understood the law.“Now, of course, all of this sounds esoteric, but I would insist that it is not and insist further that such questions about the law are at the heart of the life of the judge, the lawyer, and the law student. These questions are at the heart of how we read cases, speak on behalf of clients, write opinions, and, in fact, they provide the measurements by which we know when we are doing these things well. “In times well past, a life within the law would have been a life of unquestioned meaning for the law had its own honored enchantment. Service to the law was service to something that could be understood as, in some fashion, in touch with a divine that arose from within our lives when they were truthfully imagined. Such an understanding seems well beyond us now, but I believe that an attempt to return to the few understanding of the law's enchantment left to us -- its excess, if you will; the way in which the law, like music, always seems to be more than it is and to point beyond itself and to insist upon its own continuing is essential to any understanding of the law that does not reduce it to petty force and reduce us to violent difference.“What I argued in the paper, following Joe Vining, was for an understanding of a non-conceptual mode of knowing the law and a different dimension of the law's being and time that our common understanding of experience obscures from us or even denies and yet, as music reveals to us, can still be there within our ordinary perceptions.”