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36 J. Legal Educ. 518 (1986)
Freedom and Constraint in Adjudication: A Critical Phenomenology

handle is hein.journals/jled36 and id is 528 raw text is: Freedom and Constraint in Adjudica- tion: A Critical Phenomenology Duncan Kennedy This paper attempts to describe the process of legal reasoning as I imagine I might do it if I were a judge assigned a case that initially seemed to present a conflict between the law and how-I-want-to-come-out. Such a descrip- tion, if at all true to experience, may be helpful in assessing the various claims about and images of law that figure in jurisprudential, political, and social theoretical discussion. It may also be helpful in assessing what law teachers teach future lawyers about the nature of the materials they will use in their profession. But I will have little to say about these implications, aside from a polemical afterword.' I am not sure what difference it makes to the phenomenology of adjudica- tion whether I begin with this situation rather than another. The whole experience of law may be sufficiently the same thing through and through so that wherever you start, you end up with approximately the same picture. Or it may be that there is no experience of legality that's constant without regard to role and initial posture of the case. What I am convinced of is the need to start with some particularization. I don't find myself at all convinced when people start out claiming they can tell us about judging without some grounding in a specific imagined situation. The judge is a federal district court judge in Boston. I am from Boston. I'm more a ruling class elite type than a local politician or notable type, which is why I choose the federal forum. But what's most important is that the judge Duncan Kennedy is Professor of Law, Harvard Law School. A shorter version of this article will appear as a chapter in Alan Hutchinson & Patrick Monahan, The Rule of Law: Ideal of Ideology (Toronto, 1986). 1. Note on sources: I think of this exercise as an extension of the legal realist project, as exemplified in Felix Cohen, The Ethical Basis of Legal Criticism, 41 Yale L.J. 201 (1931), Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (1960), and Edward H. Levi, An Introduction to Legal Reasoning (1949). The description of legal materials as presenting a field open to manipulation owes much to Wolfgang Kohler, Gestalt Psychology: An Introduction to New Concepts in Modem Psychology (New York, 1947)., Kurt Lewin, The Conceptual Representation and the Measurement of Psychological Forces, 1 Contributions to Psychological Theory, 4 (1938), and Jean Piaget, Play, Dreams, and Imitation in Childhood, trans. C. Gattegno and F. Hodgson (New York, 1962). My emphasis on work derives from Karl Marx, Economic and Philosophical Manuscripts of 1844-1845, in Early Works, trans. Benton (New York, 1975). The overall conception and philosophical premises derive loosely from JeanPaul Sartre, Being and Nothingness, trans. Hazel Barnes (New York, 1956) and Jean-Paul Sartre, Critique of Dialectical Reason, trans. Alan Sheridan-Smith (London, 1976). 0 1986 by the Association of American Law Schools. Cite as 36 J. Legal Educ. 518 (1986).

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