Saturday, April 24, 2010
Today's New York Times reports (Barry Bearak, "S. African Jews Relent on Bar Mitzvah," April 24, 2010) that Justice Richard Goldstone will be able to attend his grandson's bar mitzvah after all. Justice Goldstone, an extraordinary figure who opposed apartheid as a judge in the old South Africa, helped shape the country's new constitutional jurisprudence as a member of post-apartheid South Africa's Constitutional Court, and also served as the first prosecutor for the international criminal tribunals for the former Yugoslavia and Rwanda, is most recently the author of a report for the UN Human Rights Committee on Israel's military action in the Gaza. The Times comments that while the report criticizes both sides in the conflict, its sharpest criticism is directed at Israel's actions, and Israel responded to it with outrage and so have many Jews. Fine -- Justice Goldstone is no stranger to controversy and can certainly defend himself.
But in a dreary development, some South African Jews apparently let it be known that they would mount a demonstration at (or in?) the bar mitzvah of Justice Goldstone's grandson in Johannesburg. The Times now reports that "the South African Jewish Board of Deputies, which represents most of the country's synagogues, issued a statement that outlined something like a quid pro quo: a promise of no protests on the bar mitzvah boy's big day, in exchange for a meeting between the judge and the leaders of the South African Zionist Federation and other Jewish organizations."
I'm glad that Justice Goldstone will be able to attend his grandson's bar mitzvah. The boy is entitled to have his grandfather there, and for that matter Justice Goldstone is entitled to be with his grandson. Perhaps there is, in principle, no absolute immunity from having political conflict invade personal life; we are not entitled to behave monstrously at work and then go home and enjoy domestic tranquillity. (Hence demonstrators sometimes march to their targets' homes, here in the United States.) But if there is no absolute immunity, there surely is some measure of immunity: life is, in general, hard enough without losing the comfort of home.
One might say that in politics, as in the law of war, there should be a requirement of proportionality: what can be accomplished by a demonstration should be weighed against what will be lost. Here it's particularly hard to see what can be accomplished: Justice Goldstone's report is public, and Jewish outrage against it can be expressed in many venues -- what was to be gained by adding his grandson's bar mitzvah to the list?
But whatever one might say about the intersection of the personal and the political in general, this particular instance raises another feature. Justice Goldstone helped South Africa to free itself from apartheid, and that was a profound service to his country, including all its citizens. Those South Africans who contemplated demonstrating at his grandson's bar mitzvah evidently felt so much anger on Israel's behalf that they felt no need to temper their response in gratitude for what Justice Goldstone had done for them. That's very sad.
But Kronman also finds a great deal to admire in what he calls "prudential realism," whose "heart ... lay in a certain conception of prudence or practical wisdom." (209) This approach to the law, which Kronman finds articulated by Karl Llewellyn in his later work, refuted the contention of other realists that there was no meaningful constraint on the process of legal decisionmaking by arguing "that judges are constrained not only by doctrinal rules but also, and more importantly, by specific traditions of work and by the habits of thought and perception that an immersion in these traditions typically produces." (213)
Kronman describes Llewellyn's views in some detail. Here is one striking passage (quoted by Kronman from Llewellyn's The Common Law Tradition: Deciding Appeals 119 (1960)) in which Llewellyn describes how judges approach the decision of a case:
[A]s he meets the facts of a fresh case, or, once the facts are semiclear, as he approaches an authority for guidance toward decision, he is engaged in human questing for a diagnosis and an organization of the problem, and in lawyer questing for a legal way to see and to pose the issue, and for a legal line along which to puzzle. The conclusion is indeed not yet given, but the quest and urge for a satisfying picture, and for a satisfying answer: they are given. The mind therefore sorts, arranges, turns, rearranges the facts in one tryout after another, in search for some firm shape that fits, that poses and sharpens a problem, perhaps even suggests a solution. The mind thus almost of itself spots and highlights in an authority the available facet which feels as if it may give a lead.
Now this description is almost uncannily like today's accounts of expertise. What experts appear to have, according to these accounts, is an "extensive, well-organized knowledge of the domain in which they work, knowledge to which they have extremely quick access.... [W]here novices must struggle to identify and understand the significance of an almost infinite range of unfamiliar considerations, experts approach each case with a deeply practiced understanding of both what they need to learn and what they need to do once they've learned it." (I'm quoting from my own inquiry into the impact of expertise on lawyers' work as interviewers and counselors, in Stephen Ellmann, Robert D. Dinerstein, Isabelle R. Gunning, Katherine R. Kruse & Ann C. Shalleck, Lawyers and Clients: Critical Issues in Interviewing and Counseling 351 (2009) -- a book I announced in blog posts some time back.)
If what expert lawyers and judges have is a deep, almost instant understanding of "what to do" -- as defined by the accumulated knowledge within the profession -- then the possibility arises that, after all, lawyers' practical wisdom is simply this ingrained knowledge. But this conclusion might mean that Kronman's effort to distinguish between mere knowledge and technique on the one hand, and the special character required for practical wisdom on the other, is mistaken. Knowledge and technique, on this account, equal practical wisdom.
Maybe not quite. To master the accumulated knowledge of a profession, any profession, requires some traits of character. The knowledge is extensive, so its mastery requires hard work and that in turn requires self-discipline. The knowledge is also at least somewhat jarring. Many law students don't initially feel that they know how to "think like a lawyer." Even those who find law's brand of logic congenial will almost certainly encounter rules and arguments that they dislike, but with which they must reckon in order to achieve an accurate understanding of the current state of the law. Engaging with, and assimilating, new styles of thought and unwelcome lines of argument probably involves a certain stance on the part of the future lawyer towards the discipline -- some sort of receptivity (whether eager or skeptical) rather than fundamental hostility. These are aspects of character, and it may well be -- as Kronman suggests -- that the process of legal education tends to bring out these traits in students. But the willingness to learn and adapt that I'm describing seems quite a distance from the sympathy and detachment that Kronman views as integral to practical wisdom and as a central product of legal education.
If I am right, I think that practical wisdom is less special than Kronman suggests it is. But that would be a happy conclusion, because it would suggest that achieving the excellence of judgment that lawyers need is more within the grasp of each one of us.
Saturday, April 10, 2010
Is it a fact that lawyers are conservative? Probably there is survey research information on this question, but I'm not burdened by knowing it. My own guess would be that professions such as medicine or engineering are more conservative than law. I'd also guess that if we controlled for income we would find lawyers rather more liberal than many of their socioeconomic peers.
But even if my speciulations are correct, they wouldn't refute Kronman's belief that conservatism is a feature of lawyers' professional character. Conservatism no doubt is shaped by many forces, personal and professional. Perhaps there are many professions whose practice and norms tend to foster conservatism. Perhaps, too, those who have entered the legal profession, even if they are more liberal than those in other professions, are also more conservative than they themselves would have been had they chosen other careers.
But it seems clear that time has already somewhat dated Kronman's account. He goes on to say that the use of the case method of education in law schools, with its focus on perceiving the logic of each litigant's claims and on adopting the disinterested perspective of the judge (see 113), "tends inevitably to promote a certain skepticism regarding the power of abstract ideas and to encourage a kind of pragmatic gradualism that constitutes the core of one familiar species of legal and political conservatism." (155) But that species of conservative is now considerably less familiar (see, e.g., Sarah Palin), and in fact the past twenty years have seen the rise of a specifically legal form of conservatism that seems far from skeptical about such abstract ideas as the scope of executive power (see the Federalist Society). The kind of actual conservatism that has grown up in the law seems out of kilter with the inherent conservatism that Kronman posited.
Again, these contemporary developments do not refute Kronman's thesis, for it might be said that the rise of "abstract" conservatism among lawyers is itself a symptom of the "lost" professional virtues with which Kronman's book is concerned. But I want to offer what I hope is a more fundamental reason why this picture is unpersuasive.
It seems to me that as a statement of the ideals of the American legal profession, Kronman's particular portrayal of the lawyer-statesman somewhat misses the mark. Kronman begins his book by saying that what has been lost in the American legal profession today is "the belief that the outstanding lawyer -- the one who serves as a model for the rest -- is not simply an accomplished technician but a person of prudence or practical wisdom as well." (2) For me, that has a ring of truth to it. So do the examples Kronman cites, such as Abraham Lincoln and Earl Warren.
But here is what Kronman says the case method in law schools contributes to the development of the virtues of prudence or practical wisdom: "[W]hat the case method really robs [students] of is their faith in large ideas, and what it puts in place of this faith is a form of skepticism -- the tendency to look with suspicion on broad generalizations, to search for the qualifying exception to every abstraction, to insist on the importance of details. Students who become skeptics in this sense are likely, in time, to find complexity more congenial than simplicity, and though their skepticism may at first extend only to the usefulness of abstractions in the law, there will be a natural tendency for their doubts to grow into a generalized pragmatism that views with suspicion any political program inspired by their old faith in the power of ideas." (159)
To me, this description simply does not grasp the essence of Abraham Lincoln or Earl Warren. To be sure, Kronman is not saying that we should abandon trying to distinguish rights from wrongs, or acting on the distinction. He writes, for instance, that "[r]ecognizing the moral imperative for change, the lawyer who embraces this ideal [of the lawyer-stateman] will nevertheless prefer to move slowly and by small degrees." Again, this characterization seems to miss something crucial about Lincoln, who did not shrink from a Civil War, and Warren, whose landmark judgment in Brown v. Board of Education hypothesizes a nonexistent state of material equality between segregated white and black schools in order to say that, as a matter of sheer constitutional principle, segregation is inherently unequal and unconstitutional.
In a way what is most startling, however, is what the lawyer-statesman ideal, understood as intrinsically conservative, does not honor. John Adams and Thomas Jefferson, revolutionaries, must stand outside this ideal. I think that Kronman would say that the virtues required for revolutions are different from those required for a society that does not seek its own death and rebirth. There's force to that, but it overstates the difference between stability and change. Passionate leadership against injustice is an integral part of everyday life in the United States, and in a broad sense our stability consists in our capacity to make the values of these passionate reformers part of the ever-changing fabric of the country. And a major part of what lawyers pride themselves on is their passionate commitment to justice, even in opposition to entrenched and powerful authority.
In short, it seems to me that Kronman's valuation of the conservative lawyer-statesman misses part of what is admirable, and admired about lawyers -- their engagement in passionate calls for justice and change. My own feeling is that Lincoln embodied both in a single extraordinary heart. Perhaps few lawyers or people can accomplish such a synthesis as well as he did. But I would say that the ideal of the lawyer-statesman is not the harmonizer of others' passions, but the person who both feels passion and understands how to make his or her ideals real in a world where many others, inevitably and profoundly, see the world differently. Doing that takes prudence and practical judgment, and I think Kronman is right to identify these values and to focus on how to elicit them. But they are not all that lawyers need.
Sunday, April 4, 2010
I'm not sure that this category actually exists. It may well be that no universally accepted scale of value permits me to measure the relative benefits of, say, liberty versus security. But that doesn't mean that these values are incommensurable for me. I may conclude that for me liberty is more important than security, or that this particular form of security is more important than that particular aspect of liberty. In doing so I have made the incommensurable commensurable, at least for me.
Moreover, Kronman himself ultimately seems to say there is a criterion for making choices among incommensurable values. "The mark of a wise judgment in the personal sphere is its tendency to promote the condition of integrity." (97) But if that is so, then "promotion of integrity" is the scale on which otherwise incommensurable values can all be rated. Not only can incommensurable goods be rated on this scale, but they should be -- assuming that wisdom is what we seek.
But if the subjective experience of true incommensurability is rare, still it may exist; I may not be able to say that liberty is or is not more important than security to me, and so I may be hopelessly uncertain about how to choose between them. So how should I deliberate about them, either in an effort to find commensurability after all or in an effort to make the choice I must make despite not finding any scale of judgment to rely upon?
Kronman answers that "part of what one is attempting to anticipate in imagination are the causal consequences of the various choices one might make." (69) So if I am considering, say, whether to "help my aging father fulfill his wish to die" (one of the examples of fundamental choices that Kronman mentions, at 65), then I would certainly want to know whether I could successfully assist him, and whether I would likely endure prosecution or imprisonment as a result. But, Kronman writes, "that is not all one hopes to learn by means of this imaginative exercise. One hopes also to gain some understanding of the alternatives in another sense, to learn something about the experience of actually committing oneself to them." (69) From this proposition, Kronman develops his argument for two critical virtues of deliberation, sympathy (to understand and feel the attraction of the various lives that might flow from my choice) and detachment (to be able to stand back and judge among those lives). Without "entertaining with a combination of compassion and detachment the values that define [these alternatives'] internal points of view," one cannot fully understand these choices, any more than a child can understand the internal experience of being drunk. (73)
The case Kronman makes for the value of such deliberation is persuasive, but only to a point. Valuable as such reflection may well be, it may not be what people who have good personal judgment actually undertake when they are making their decisions. Kronman doesn't seek to offer survey research or similar evidence of what good decisionmakers actually do. If we look instead, as I take it Kronman does, to our own sense of how we decide -- not an illegitimate source to rely upon, especially since survey research evidence may be hard to come by -- I suspect that Kronman's detached but sympathetic exploration of the values associated with the lives our choices will open up or preclude simply isn't a central focus of what most people think about when they are making many profound decisions, for at least three reasons.
First, many profound decisions are made in moments where detachment is unattainable. To take an extreme example, people facing the death penalty cannot make detached decisions about whether or not to plead guilty, yet they must choose. Many other choices, often involving much happier emotions and less acute circumstances, also seem intrinsically "attached" rather than detached.
Second, some profound decisions don't seem to turn primarily on future life-visions. Instead, they may turn more on present experience. "Do I want to change my life" is a question that certainly raises issues about what life I might have if I do or don't change this one; but it may turn most on whether I like the life I have right now. Or these choices may turn on issues of morality rather than prediction. Some choices certainly are about shaping one's future life; but others -- such as the example Kronman raised of assisting one's father in ending his life -- seem to have less to do with one's own future life than with the morality of helping someone else end his.
Third, and perhaps implicit in some of what I've said, I suspect that if we ask people (including ourselves) how they make decisions, we won't find, as a matter of fact, that the key element of the process is an effort to imagine their future lives with compassion and detachment. It seems to me, at any rate, that in clinical law teaching about client counseling, the bulk of what lawyers are urged to do with their clients is to help them accurately assemble a full list of the pluses and minuses of each available option. A part of that may be to ask, for example, how the client expects she would feel about a particular choice years later, but I don't think questions like that are usually seen as necessarily the most important ones.
Of course, the counseling lawyer's focus on the prosaic may just be a vehicle for assisting the client to make an ultimate, more profound judgment. Or the focus of both lawyer and client on the prosaic may be a sign that the decisionmaking lawyers and clients engage in (or at least that clinicians have urged lawyers and clients to engage in) is less profound than it ought to be. Or it might even be that the kind of decisionmaking most people engage in, with or without lawyers, is not as profound as it ought to be. Kronman is trying to describe what the virtue of deliberation entails, and he is by no means committed to saying that most people display this virtue very fully; in one of a number of remarks to this effect, he says of practical judgment by politicians: "But it is what every politician who hopes to be a statesman must aim at as his goal, and if its objected that far fewer succeed in this effort than fail, a good reply would be Spinoza's famous observation that 'all noble things are as difficult as they are rare.'" (106)
But I'm not persuaded by that response. Certainly it isn't valid to the extent that, as I've just suggested, some choices are intrinsically un-detached while others are reasonably viewed as involving primarily issues other than future life-visions. Beyond that, though, I find myself just unconvinced that the deliberative focus Kronman highlights is the primary tool for resolving profound life-choices. It seems to me that people in fact make decisions by quite a range of methods, and I think it is quite possible that other questions than the ones Kronman underlines will in fact, for many wise decisionmakers, provide a framing that is equally or more valuable.
To me, what this adds up to is that the case for the proposition that "practical wisdom" consists above all of a combination of detachment and compassion in the envisioning of alternative life-paths simply isn't proven. Why does this matter? Because if lawyers' distinctive virtue is practical judgment, then we need to know accurately what that virtue consists of, so that we can do our best to attain it and (if we're teachers, or mentors, or supervisors) to help others achieve it as well.
Saturday, April 3, 2010
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.