Judges, Carpenters, and Computers: A Craft-Based Perspective on Judicial Decision-Making
- Reuben Andrews
- Jun 22, 2021
- 13 min read
Updated: Jun 27
Is a judge more like an artist or a scientist? This seems to be a trick question, and yet extreme versions of both perspectives have, at one time or another, been advocated. For instance, James Boyd White, often regarded as the founder of the ‘Law and Literature’ movement, considered lawyers to be artists, and the solving of complex legal problems to be akin to high art.[1] Conversely, Christopher Columbus Langdell, once Dean of Harvard Law School, believed that ‘law is a science, and that all the available materials of that science are contained in printed books’,[2] such that timeless and unchangeable legal principles could be inductively reasoned from the corpus of case law, thereafter providing definitive answers to any legal dispute.
Neither of these viewpoints has garnered widespread support. Nevertheless, the question is of more than purely academic interest: in light of the increasing presence of computation within the professional landscape of law it has a practical application.[3] If judicial decision-making is purely, or even predominantly, a science then it is highly susceptible to automation; on the other hand, if judicial decision-making is closer to an art-form, then it fails to be seen how artificial intelligence can effectively replicate it.
Instead, this article explores the alternative viewpoint that a judge is more appropriately regarded as a craftsperson, with legal judgments being craft-objects rather than ‘high art’ or scientific expositions. The first half of this article defends this view, whilst the second half applies it to the contemporary issue of AI (artificial intelligence) judges.
I. How is a judge like a carpenter?
In perhaps the most sustained comparison of law and craft,[4] Brett G Scharffs identifies four ways in which the law overlaps with distinctive aspects of craftsmanship.[5] First, the products of craft are not mass-produced, but are instead ‘hand-crafted’ to particular briefs—similarly, legal judgments and advocacy are tailored towards specific cases.[6] Second, craft is medium-specific: just as carpenters are those who work with wood, legal practitioners are those who work with rhetoric and law.[7] Third, craft-objects have use-value which supersedes their aesthetic value; although legal judgments may be persuasive, and even artful in their concision and style,[8] their ultimate value is in resolving legal disputes by applying the relevant law to given fact scenarios.[9] Fourth, craft, as a practice, is defined by its strong relationship with tradition (as opposed to pursuing novelty), a characteristic that can be observed in common law jurisdictions, where the legal principle of stare decisis (‘to stand by things decided’) compels courts to abide by legal precedent.[10]
Collectively, these factors undermine the view that law is an art-form. Art is not medium-specific, as it can be sculptural, dramatic, visual, literary, and so on; in contrast, only a legal judgment or statute can be considered law. Similarly, art is not function-focussed as, although certain works of art may perform certain functions (such as social commentary or entertainment), there is no specific or predetermined function which art, as a diverse human activity, must fulfil. Finally, whilst there are certainly artistic traditionalists, art is not solely a backwards-facing phenomenon, since, unlike law, it has no preconceived ties to liberal values like certainty and regularity, and so can permit (and celebrate) iconoclasm and radical experimentation.[11] As such, even though law-making can be seen as a creative act, the nature of its creativity is often counterposed to that of art-making: ‘Law tells. Art shows. Law rationalizes. Art feels. Law renders definitude. Art explores infinity’.[12]
