From Hired Guns To Healers The Emerging Movement to Renew Legal Culture
June 28, 2004
Today, few people outside the legal profession have any notion that a serious movement is afoot to end the widespread materialism, vindictiveness and cold self-interest of legal practice. The assumption among the general public is that lawyers are ruthless sharks and they love it that way. But a recent study shows that sixty five per cent of practicing lawyers are deeply unhappy with the state of their profession. A sneaking suspicion is starting to emerge that lawyers may be human after all and they have had enough of the seedy and reptilian ethics so widespread in current American jurisprudence.
It's not clear when the turning point was reached. Perhaps a nadir occurred when O.J. Simpson's trial revealed to the world that big money and fancy lawyers can buy almost anyone freedom today. Or perhaps it was the grotesque and hypocritical politicization of the law around the presidential impeachment farce. Or maybe it was simply one final distasteful display of Judge Judy's distinctly non-judicial rudeness and intemperance. We may never know, as we could all offer our own examples of when the dismal state of law today was revealed in all its pathos and shame. But what we do know is that lawyers in increasing numbers are demanding changes in the way the law is both taught and practiced. And they are serious.
At a California retreat of the Project on Integrating Spirituality, Law and Politics, thirty lawyers and law professors met to discuss the new, holistic impulses now emerging in the legal field. To an observing non-lawyer, wondering when it all started to go wrong, the first big surprise was the unanimity with which virtually everyone present felt little short of horror and rage when they recalled the damage inflicted on their psyches and values by law school. Contrary to televised fantasies like The Paper Chase, which celebrated the elegant, unerring socratic logic of the law professor, legal education was almost universally recalled as a horrible institution and an alienating experience. In the words of one participant, "We were told in law school that they would spend three years taking our souls away from us, and that we would spend the rest of our lives trying to get them back." Others spoke of having their compassion buried, of the loss of imagination, and of the corrupting influence of a legal doctrine that completely separates heart from head. Law teachers commented ruefully on how within six months of arrival, countless young people devoted to the highest ideals of justice become hardened, emotionally brutalized and convinced that only the mean spirited adversarial practice of law will ever work in modern America.
Peter Gabel, director of the Project, a member of New College of California's law faculty and a leading advocate of legal renewal, describes law schools as filled with the "disconnected analytics" of a previous revolution. Students are required to endure endless case analysis according to Eighteenth and Nineteenth Century doctrines, conceived when individualism and materialism were groundbreaking concepts. Today, he argues, this dated perspective needs to be balanced by the awakening of moral empathy. Students need to be asked the simple question: "How is your work going to create a more loving and caring society?" Our spiritually deadened law schools desperately need a validation of the students' heart and wisdom if we are to move beyond a legal culture characterized by brutality and rudeness in "a democracy of strangers who are protecting themselves from each other."
Clearly, the transformation of legal education is a crucial agenda item for the near future. But what signs could retreat participants offer of a functioning alternative to the "Nail 'em, jail 'em; Try 'em, fry 'em" ethos that has led the United States to lock up over two million of its citizens and produced an orgy of prison building during the last twenty years? David Lerman, a prosecutor in Milwaukee whose work is funded by the Wisconsin State Legislature, happily described his refreshing experience with Restorative Justice, a new approach to crime and punishment that is gaining ground from Iowa to Texas. In contrast to the heartless practice of mandatory sentencing that eradicates any role for the humanity of judges, Restorative Justice brings victims and offenders together with the local community in sentencing circles or councils. In this context, the focus becomes the need to repair the damage to both victim and community caused by a crime. Offenders, if they choose to participate, must plead guilty and admit wrongdoing. The sentence then aims to leave the offender with greater competencies to face life's challenges in the future. In this way, the emphasis shifts from the usual focus on retribution to the healing value of truth, responsibility, apology and forgiveness.
Forgiveness? When did we last hear a word like that from a prosecutor's mouth? Perhaps it is the start of what Howard Vogel, professor of constitutional law at Hamline University, called the "re-enchantment of the law" in which spiritual qualities come to balance the materialistic thinking so widespread today. It may sound too idealistic for a society filled with conflict and disagreement, but recall the remarkable success of the South African Truth and Reconciliation Commission that has drawn on the Zulu idea of Ubuntu - the notion that my humanity is inherently connected to your humanity - to restore wholeness to a divided society filled with the potential for explosive violence.
Contrary to popular belief, it is increasingly clear that many lawyers have within them the impulse to be helpful, to listen, and to understand - to develop skills in conflict resolution, not just to play the role of attack dogs eyeing their opponent's jugular in vicious, adversarial encounters. Hence the continuing shift in legal practice toward mediation. At the retreat we learned that simply stepping into an unintimidating mediation room rather than a court room can change the whole atmosphere of a case. Mediators develop skills of attunement to psychological and emotional subtleties and can even choose to begin a session with a short prayer if the parties wish. However, Gary Friedman, co-director of the Center for Mediation and Law, offered a word of caution for the holistically inclined. He told the story of attempting to mediate between two Zen roshis. At the outset, he innocently inquired if they would like to begin with a few moments of meditation only to be greeted with perplexed looks and a simultaneous cry, "Why would we want to do that?"
But few lawyers at the retreat worked with such exalted personages. Most had regular folks as clients and some, like Doug Ammar, work with the poverty stricken down South at the Georgia Justice Project. "This is work that enables me to embrace my full humanity," he remarked as he spoke of a law firm in which lawyers feel a spiritual responsibility for their clients. In Georgia, if you eliminate drunk driving charges, 93% of those arrested are poor, and the state has long been locked in an unbroken cycle of poverty and crime. When convicted clients get out of jail, the GJP offers them a job in its landscaping business and invites them to community dinners to give them the means to change their lives. "A lot of clients say that GJP is their first family" Ammar commented, as the joy and satisfaction in this work radiated through his cheerful, humorous face.
Initiatives like this seem to point the way to a warmer, more humane view of legal practice and offer hope for those of us listening attentively for the bell that tolls the death knell of a heartless and disturbing era. At the Project on Integrating Spirituality, Law and Politics, the question that recurred frequently was nothing less than, "How can we make the practice of law sacred?" In recent times, it has seemed barely possible to put the words "law" and "sacred" into the same sentence. Yet former US attorney Cheryl Connor now teaches a course at Suffolk University on the integration of contemplative practice with law. As a student at Harvard Law School, she felt forced to bury her heart beneath the smog of materialistic legal doctrine. Now a Tibetan Buddhist, her work is guided by the principle of causing no unnecessary harm to others, and she leads a growing number of retreats for students, judges, and lawyers on how to uncover their inherent compassion and wisdom.
Our current legal system permits neither lawyers nor clients their true dignity, and no modern society can expect to function well in the long run without a healthy legal climate. Fortunately, the signs of new and vigorous life are unmistakable among the clear sighted individuals pioneering the nascent elements of a new legal culture. In Peter Gabel's words, we require "Lawyers who are whole, loving human beings," as much for their own well-being as for that of the system as a whole. Certainly, this non-lawyer left the California retreat convinced that a viable legal future lies with the holistic innovators of today (see below) and their dedication to training healers, not hired guns. We've had enough of the OK Corral. It's time again for hope in the revitalized courts of America.
Internet resources for legal renewal:
Project on Integrating Spirituality, Law and Politics
Contact: (415) 437-3496 or firstname.lastname@example.org
(Washington State Bar News, February 2004, with articles by Paul Lehto and Kim Wright)