Kandinsky or Hart?

Pierre Schlag

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In 1927, Heisenberg introduced his uncertainty principle. By 1934, Wittgenstein was breaking with his early work. In 1923, Kandinsky was putting the finishing touches on Composition VIII:

And in 1958, H.L.A. Hart, the great jurisprudential thinker, was dividing up the world of law into cores and peripheries:

Arresting, isn’t it?

Admittedly, we could be a bit more graphically charitable to H.L.A. Hart.  Hence…

Figure 1: The Dispersed Core/Periphery Field:   To be fair to Hart, the core/periphery thing could look something like this:

Or maybe like this:

Figure 2:  With Policy or Principle Analysis:  If we actually took account of policies and principles, the field might look a bit like this:

Figure 3:  Reductivism (e.g., L&E)   If a law and economics thinker got hold of the dispersed field, then (for good and bad) it might look like this:

Figure 4: Reformalization:   If instead a legal formalist (say, a pro-rules guy like Justice Scalia) came upon a core/periphery dispersed field, then the dispersion of cases (see Figure 1 above) would be subsumed into a new category:

Figure 5:  The Nexus/Totality of Circumstances Move:   A deformalizer, a pro-standards person, by contrast, would disaggregate a category into a set of mobile elements thereby producing a kind of “nexus” or a “totality of circumstances” test.  The category becomes dynamic.  It moves (it distends and is distended) to include (or exclude) all manner of things.    Hence, in an appropriate case, the category above (Figure 4)  might take on a new shape–such as:

Figure 6:  The Hard Case #1–Condensation  Sooner or later the dispersed field condenses at various points and we encounter one variant of the proverbial hard case:

Things can get worse.  Much worse.

Figure 7:  The Hard Case #2–Impacted Precedents  

Figure 8:  The Hard Case # 3–The Pre- or Un-Formalized Field.  The exact opposite of impacted precedents is the pre- or un-formalized field (in which case it is difficult to even articulate what is going on).   This is a lot like what cyber-law looked like when legal academics realized that simply transposing ordinary bodies of law (contracts, torts, property, etc.) would not work.

[To be continued]

The idea for the above as well as some of the ideas for the images were drawn from Duncan Kennedy’s, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Leg. Ed. 518 (1986) and my article, The Aesthetics of American Law, 115 Harvard L. Rev. 1047 (2002).  The beginning part of  this essay comes from something I wrote in Issue 1 of  The Crit (critui.com).   That essay goes off in a different direction.

This is a preliminary effort–the thing is under construction.