Saturday, April 3, 2010

Kronman's "The Lost Lawyer" and the meaning of "practical wisdom"

Still thinking about the virtues of judging, I've moved on to Anthony Kronman's The Lost Lawyer: Failing Ideals of the Legal Profession (1993). Kronman writes with elegance and insight, but I am finding myself unpersuaded by his account of the distinctive virtue of lawyers, "practical wisdom." He sets out to identify what practical wisdom is by distinguishing between two kinds of disputes, or questions: those that are questions about means, and those that are questions about ends. (54-55). Kronman would certainly agree that the two can be intertwined, but my first concern is that his account of each seems incorrect.

In this post I'll focus on his description of questions of means. He writes that "the basic point remains that all such deliberation is in essence a kind of counting, and though this may be a more complex activity than is initially apparent, it is clear what its object is and what it means to do it well." (55) Now there are, undoubtedly, problems that can be described in these terms. If I want to invest money in a bond, and one offers a higher rate of return and a greater risk of default than the other, I can calculate which one actually offers the highest predicted return measured in dollars. Perhaps I can even determine, given my life concerns, which spread of possibilities is more valuable to me, not just as a matter of dollars but as a matter of impact on my life plans. A risk of loss may be of more concern to me than a potential of gain -- I may, in other words, be "risk averse." Even at this point I may have left the realm of "counting," and entered a less quantifiable domain, but let me put that aside. Many problems of means are indeed problems of calculation, though those calculations may be hard to make.

But questions of means frequently require quite a different kind of answer. Here the value of the outcomes is not a puzzle; what is a puzzle, and an acute one, is how to get to those outcomes. This is the question of strategy. With such and such a goal, how can I achieve it? The answer to this kind of question frequently involves predicting the impact of one's own efforts on the actions of others, and it's clear that very quickly the complexity of these predictions can exceed what any current "calculator," human or computer, can thoroughly compute. What's involved here is not a comparison of outcomes and desires, but a tracing of the paths from desire to outcome. Kronman, at least at this point in his argument, seems not to acknowledge the whole sphere of strategy as part of "means-focused" thinking.

If "practical wisdom" is the virtue we recognize in those who best solve problems, then one way to further characterize it is to say that practical wisdom is the virtue central to solving the kinds of problems we characteristically face. (There might be another virtue central to solving certain other kinds of problems, and those other problems might even be the most important ones, but practical wisdom would be what we need for solving our characteristic problems -- the practical run of problems, one might say.) If that's so, then it seems critical to consider whether in actual life the bulk of our problems are either problems of complex calculation of the value of particular outcomes, or problems of strategy. If these two kinds of "means" problems are the main ones we face, then the central element of a practically, or pragmatically, defined "practical wisdom" will be the ability to solve these. I am not sure whether these are the main kinds of problems we face, and I'm not sure how one could ever determine if they are or not, but I do feel confident that these kinds of problems make up a very substantial portion of the difficult situations we actually encounter in life.

But while Kronman values the ability to solve counting problems, the ability to make judgments about means is not the one Kronman focuses upon, for he appears to devote most of his effort to understanding the ability to solve problems of ends. I'll turn to this aspect of deliberation in my next post.

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