The Judicial Craft
Brett G. Scharffs
Brigham Young University - J. Reuben Clark Law School
May 15, 2001
Stanford/Yale Jr. Faculty Forum Paper No. 01-16
This article explores in depth the similarities between the law and other craft traditions such as carpentry, pottery and quilting. It's thesis is that law, and in particular adjudication, combine elements of what Aristotle described as practical wisdom, or phronesis, and craft, or techne.
Craft knowledge is learned practically through experience and demonstrated through practice, and is contrasted with other concepts, including art, science, mass production, craftiness and hobby. Crafts are characterized by four simultaneous identities. First, crafts are made by hand, one at a time, and require not only talent and skill, but experience and what Karl Llewellyn called "situation sense." Second, crafts are medium specific, and are always identified with a material and the technologies invented to manipulate that material. Third, crafts are characterized by the use and usefulness of craft objects. Fourth, crafts are defined by their past. The article also considers how one becomes a craftsperson, focusing upon the role of rules and theory, the dialectic of certainty and uncertainty, tough love and exploitation in apprenticeship, and the necessity of failure and disillusionment.
The author concludes that although the craft ideal is "old fashioned, even quaint and mildly embarrassing," it nevertheless provides a paradigm for understanding lawyerly work that holds the promise of both enabling lawyers to be better at their jobs, and of finding greater meaning and fulfillment in their professional lives.
Number of Pages in PDF File: 102working papers series
Date posted: August 25, 2001
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