Saturday, October 3, 2009
Posted by Jeff Lipshaw
There's a theory in cognitive science (Mark Turner's, primarily, but I have to continue reading to know how he and Gilles Fauconnier collaborate)* that what makes us uniquely human is the ability to take ideas from two influencing spaces and create new distinct meanings. My dogs, for example, clearly see meaning in my putting on my boots and jacket at 6:00 a.m. (that "means" we are going for a walk), but, as far as I know, they aren't able to create metaphors from that influencing space into, say, poetry, or symbolism, or invention. I, on the other hand, impart so much metaphorical meaning into a bunch of young men beating the crap out of themselves 800 miles from here this afternoon (Hail to the Victors!) that I will either be elated or depressed come about four o'clock.
I want to juxtapose thoughts about justice from two widely separated spaces. The first set of thoughts comes from the Carnegie Report, the recent study of legal education. (I'm working here with the sixteen page summary, not the whole book.)
At a deep, largely uncritical level, the students come to understand the law as a formal and rational system, however much its doctrines and rules may diverge from the common sense understandings of the lay person. . . .
The task of connecting these conclusions with the rich complexity of actual situations that involve full-dimensional people, let alone the job of thinking through the social consequences or ethical aspects of the conclusions, remains outside the case-dialogue method. Issues such as the social needs or matters of justice involved in cases do get attention in some case-dialogue classrooms, but these issues are almost always treated as addenda. Being told repeatedly that such matters fall, as they do, outside the precise and orderly “legal landscape,” students often conclude that they are secondary to what really counts for success in law school—and in legal practice. In their all-consuming first year, students are told to set aside their desire for justice. They are warned not to let their moral concerns or compassion for the people in the cases they discuss cloud their legal analyses.
This warning does help students escape the grip of misconceptions about how the law works as they hone their analytic skills. But when the misconceptions are not addressed directly, students have no way of learning when and how their moral concerns may be relevant to their work as lawyers and when these concerns could throw them off track. students often find this confusing and disillusioning. The fact that moral concerns are reintroduced only haphazardly conveys a cynical impression of the law that is rarely intended.
Note the issue of integration raised here. It's not just a question of practice skills; it's a question of being able to step back from a particular rational and analytical way of thinking. There are two other issues that poke out (for me) from this. First, the report, I suspect not coincidentally, cites "the desire for justice" as one of the things set aside while learning this particularly rational and analytical way of thinking. Second, what does "justice" or the desire for it mean? It's easy to think of justice in the sense of criminal justice, or juvenile justice, or other images of idealistic lawyers spearheading litigation in vindication of rights, but what does justice mean, if anything, in the quotidian lives of most of the business or patent or ERISA or government contracts lawyers we will be training?
Go below the fold (if you can stand it) for the second influencing space.
So let's talk about justice. I've started reading Amartya Sen's new book The Idea of Justice. For those of you who don't know, Sen is a Nobel Prize winner in economics. He is Indian, was the Master of Trinity College at Cambridge, and is presently a professor of economics and philosophy at Harvard. I've thumbed through and am a little ways into it, so don't hold me to this, but the thesis, primarily, is that we are making a mistake when we spend so much time trying to articulate idealized pictures (theories) of institutional justice (e.g. Rawls), instead of recognizing that justice is aspirational. We can begin remedying injustices without having first pictured the perfect society. What particularly caught my attention was the methodology for getting to practical results (i.e., action), particularly when juxtaposed with two things: (1) justice seems to have a lot to do with law; and (2) the comments from the Carnegie Report about how lawyers are trained. Here's a short excerpt on methodology from Sen's preface (a nice little essay unto itself) (x):
It is argued here that there can exist several reasons of justice, each of which survives critical scrutiny, but yields divergent conclusions. Reasonable arguments in competing directions can emanate from people with diverse experiences and traditions, but they can also come from within a given society, or for that matter, even from the very same person.
There is a need for reasoned argument, with oneself and others, in dealing with conflicting claims, rather than for what can be called 'disengaged toleration', with the comfort of such a lazy resolution as 'you are right in your community and I am right in mine'. Reasoning and impartial scrutiny are essential. However, even the most vigorous of critical examination can still leave conflicting and competing arguments that are not eliminated by impartial scrutiny.
And reasoned argument can have its source in many places - Sen suggests Indian sources such as the Gautama Buddha or the Lokayata school from the sixth century B.C.E.
I will offer up an analogy: wisdom is to reasoned argument as justice is to law. Law and reasoned argument are themselves subject to wide ranging disputes about what they are, but they are undoubtedly of this practical world. Justice and wisdom, on the other hand, are aspirations. It's possible that only metaphysics can give us good conceptions or definitions of either. But, as Sen argues, it's not idealized theories (or metaphysics) we are seeking. He quotes Christine Korsgaard's Kantian insight: "Bringing reason to the world becomes the enterprise of morality rather than metaphysics, and the work as well as the hope of humanity." (xvii). More importantly, just as reasoned argument is a thinking and communicative process to an end - among other things, what we hope are just laws - wisdom is the aspirational characterization of a thinking and communication process leading to an aspirational end - justice.
And now I return to the law school curriculum and the Carnegie Report. As most people know, I come at this from the perspective of having been a litigator, a corporate lawyer, and a business executive for many years. I admire those crusaders for justice in the form of rights, but I've spent most of my professional life in the quotidian pursuits I mentioned above: getting deals done, helping CEOs make difficult decisions, resolving dispute, preferably by compromise and not litigation, counseling business people on making profits but staying within the rules, and, more than anything, doing exactly what the Carnegie Report mentioned: intermediating between the doctrine and rules of the legal system, and not only common sense understandings of lay people, but their business goals and aspirations. What's more, in my work, every expert, every discipline, had a view on either the ultimate issue, or how various permutations of the ultimate result could affect his or her particular disciplinary responsibility. If we do X, the tax people are thrilled, but the environmental people are worried. If we do Y, we will be giving up a valuable real estate asset, but if we don't give it up, we won't get Z, which we need to make the business work going forward. Yes, we can stand on our contract rights, and litigate until the cows come home, but the opposing party is a customer, and we are likely to win the battle and lose the war. Yes, I understand the logic of the tax scheme you have proposed, but let's step back and do a sanity check. I don't know whether there is any justice in any of that, but I am firmly convinced that great lawyers in that milieu bring something more than keen analytical skills to the table. They bring some kind of wisdom that transcends disciplinary boundaries, both within the law and without.
To me, then, the work-a-day need in the curriculum isn't just a retaking of the sense of justice from the beating it took during the first year inculcation in rational analysis. It's also restoring the notion of wisdom as an aspiration that sits above smarts or cleverness (the stuff of mere rational analysis). More bluntly, I have said many times that every time I thought I was being amazingly smart or clever (and, trust me, I can be) in a business or legal situation, it invariably came around to bite me in the ass. The question then is how we integrate not just doctrine and skills into the law school curriculum, but justice and wisdom. For teachers and scholars, into which particular discipline do either of those subjects fall? Or must we be inter-disciplinary?
* If you are interested in the intersection of this view of cognitive science and the law, the seminal work at present is Steven Winter's A Clearing in the Forest.