Meditating Lawyers

In her fascinating “Educating Lawyers To Meditate?” article published in Spring 2011 by the UMKC Law Review, Rhonda V. Magee offers an incisive critique of the legal profession and an encouraging report on efforts to transform it. Her analysis applies throughout society and is strikingly relevant to progressive political activism.

Magee wants her profession to live up to its stated ideals. According to the American Bar Association, "A professional lawyer is an expert in law pursuing a learned art in service to clients and in the spirit of public service; and engaging in these pursuits as part of a common calling to promote justice and public good.” In line with this spirit, Magee wants lawyers to “increase our awareness of the complex humanity at the center of the work of lawyering and to maximize our capacity to engage practical wisdom in the course of our service as lawyers, leaders, and human beings.”

The Carnegie Foundation shares her concern. In 2007 the foundation published “Educating Lawyers: Preparation for the Profession of Law.” In that report, William M. Sullivan and his co-authors argue:

Law is a tradition of social practice that includes particular habits of mind, as well as a distinctive ethical engagement with the world….. The moral development of professionals requires a holistic approach to the educational experience that can grasp its formative effects as a whole…. How can we best combine the elements of legal professionalism – knowledge, skill and moral discernment – into the capacity for judgment guided by a sense of professional responsibility?

Given the profession’s unique interest in justice, a significant degree of social responsibility is implied. The Carnegie report therefore calls for the “moral development of practitioners” and strengthening “moral character” through “ethical-social apprenticeship.”

In 1993, Yale Law School Dean Anthony Kronman coined the phrase "lawyer-statesman" to capture the ideal professional identity of the early common-law era, which emphasized "the value of prudence or practical wisdom.” According to Magee, Kronman focused on the profession’s recent “failure to adequately form lawyers with a sense of themselves as civically-committed members of a socially-critical profession, who gained self-respect, and the respect of others, by their capacity to discern wisdom in the face of life’s perennial conflicts.” He defined "practical wisdom" as "a subtle and discriminating sense of how the (often conflicting) generalities of legal doctrine should be applied in concrete disputes." Therefore, prudence, "a trait of character and not just a cognitive skill," is key.

Kronman argued that “the scientific law reform movement” undermined the concern with practical wisdom that is focused on particular situations. Instead, this movement (which is reflected in modernization throughout society) has prioritized “theoretical understanding,” “knowledge in the abstract,” “quantification over qualification,” and “intellectual competence,” while neglecting nurturing growth in “temperament or character.” These dehumanizing trends are also seen in the leftist Critical Legal Studies movement (as well as the progressive movement in general).

Ironically, an alternative to this modernization can be found in the ancient Greek philosophy that gave birth to the dualism that afflicts the modern world. As Pierre Hadot sums it up, for Socrates (who would sometimes become totally absorbed in meditation, withdraw from society, stand motionless, and/or reflect for an entire day) knowledge was “not just knowing, but knowing-what-ought-to-be-preferred, and hence, knowing how to live.” In this spirit, Magee affirms “educating the whole person [to] fulfill a pre-existing sense of moral commitments.” This learning that is rooted in “values-based knowledge” arises not only from Socratic dialog as “American legal education has made famous, but also from inner reflection.”

Socrates appears to have believed that only through rigorous and repeated self-examination might one live a life of meaning: “An unexamined life is not livable for man.” As Hadot summarizes, the capacity for morally grounded living depends upon ongoing self-examination:

There is, moreover, every indication that such wisdom is never acquired once and for all. It is not only others that Socrates never stops testing, but also himself. The purity of moral intent must be constantly renewed and reestablished. Self-transformation is never definitive, but demands perpetual reconquest.

…Importantly, self-examination of this sort…was not conceived as being for the benefit of the so-called “individual” alone. Indeed, the development of moral people…was aimed at better preparing such people for civic engagement and service to the common good…. Contemplative practices are essential to the well-educated human being…. 

…The ancients saw even the study of texts…as contemplative practice…. [As Brian Stock put it:] “Reading and writing are a means to an end, the making of a better person.”

Fortunately, Magee and her associates in the contemplative-practices-in-law movement are making headway in their efforts to reclaim law’s wholesome roots, especially by encouraging law students, lawyers, and judges to practice mindfulness meditation. This form of meditation helps practitioners develop what Dan Siegel calls “mindsight,” or “our ability to look within and perceive the mind, to reflect on our experience.” 

Magee states, “Contemplative practices [may] naturally lead to increased ethical consciousness,” because meditators not only accept whatever is present, they also notice what is beneficial and what is not. A basic grounding in humility, love, a sense of interconnectedness, and reverence for life underlies contemplative meditation.  In this way, we minimize egoism and calm our emotions, which enables us to make wiser decisions, handle our fear, and exercise the courage that we need to honor virtue consistently.

By “contemplative practice,” Magee refers to regular behavior that assists people “in being more deeply present and capable of choosing their responses to stimuli…[by] developing self-knowledge, as well as awareness of the psychological or emotional states of others in our midst.” As Siegel puts it, being mindful is “paying attention to the present moment without being swept up by judgments…. People move towards well-being by training the mind to focus on moment-to-moment experience….” Mindfulness meditation has been widely adopted and its benefits have been established by scientific studies.

One risk, however, is the use of contemplative practices to facilitate unethical behavior and/or the strengthening of Western hyper-individualism. Such efforts help practitioners focus merely on “personal self-management” in a way that undermines

the power to catalyze practitioners toward the more aspirational objectives of the movement – such as promoting more ethical and moral conduct, more compassionate and empathic judgment, social justice and transforming the world in support of the more altruistic tendencies within human nature.

In her article, Magee concludes that contemplative practices “tend to lead to spiritual and moral growth – if not inevitably, then more often than not.” Nevertheless, she supports efforts to  ground contemplative practice within an ethical context “while at the same time affirming freedom of choice in religion and human autonomy.” Along this line, she reports that Arthur Zajonc

argues persuasively that contemplative practices should be introduced only after obtaining commitment to grounding them in a universalist ethical framework based minimally on two pillars: 1) humbly setting aside self-interest and acknowledging the value of the other in our midst; and 2) a sense of reverence for the high task of which we are endeavoring: to live more consciously and deeply.

Though the Golden Rule, to love others as we love ourselves, may be a preferred alternative to “setting aside self-interest,” an ethical framing of this sort does leave “every person free to connect that grounding with a religious or spiritual tradition, or not, according to the dictates of one’s own conscience.” In this way, ethical contemplative practice affirms autonomy and demonstrates a way for “the continued integration of contemplative practices into the central institutions of our nation’s infrastructure.”

In Spring 2010 the University of San Francisco School of Law, where Magee teaches, supported her offering a course on “Contemplative Lawyering.” Magee reports:

In each of these classes, we combined sitting meditation with lawyering-in-context role-play exercises, in which students were called upon to handle a hypothetical challenge in light of the contemplative perspective. Afterwards, we discussed their experiences with the meditations and role-play exercises…. We closed each class with a final meditation and poem…. Anecdotal evidence indicates that we succeeded in helping our students begin to grow into more emotionally aware, civic-minded, ethically-engaged lawyers.

The contemplative-practice-in-law movement may have begun in 1989 when Jon Kabat-Zinn offered a program on meditation to judges. But Magee considers “the seminal year” to be 2002 when the Harvard Negotiation Law Review hosted a forum and published a major report on the movement by Leonard L. Riskin, who has taught courses on meditation at Yale and Columbia law schools and held well-attended five-day retreats between 1998 and 2002. Since then groups of meditating lawyers have formed throughout the country, nearly a dozen law schools are offering for-credit courses, continuing education courses are being offered, and associated groups have formed within bar associations. 

In 2007 the California Law Review became the first “top-ten” school to publish an article on contemplative lawyering. Magee reports:

The authors see “mindful lawyering” as “not preoccupied with winning or losing; but it is also not necessarily about smoothing our conflict and avoiding suffering.” Instead mindfulness in the practice of law “provides a framework for thinking about how individual action is tied to group process, how group process connects to institutionalized relations of power, and thus how transformational change at the interpersonal level is linked to transformational change at the regional, national, and global levels."

In 2010 the Nevada Law Journal published another major collection of articles on the issue.

The Center for Contemplative Mind in Society, for whom Magee currently serves as Board Chair, has advanced much of the movement’s work with its Law Program. For more than ten years, the Center has sponsored annual retreats, occasional gatherings with invited participants, and the first national conference on meditation and law in October 2010.

To “continue the process of bringing these practices from margin to center,” Magee believes law professors need to “increase opportunities to develop the skill of metacognition or reflection to law students in all classes (without the need of mentioning mindfulness or meditation)….”

More deeply, a paradigm shift is needed away from the reliance on learning “based on revelation, external observation and reasoning, to one which includes internal observation” as a way of “knowing the world, and for knowing how to do well by and with others in it.” This shift “would open the door wider for responses to injustices and patterns of justice,” such as replacing “adversarial with restorative justice methods.”

Toward the end of the article, Magee takes her argument to the next logical step and suggests that

legal education must take place within smaller settings or “base communities,” wherein the knowledge, skills, and values that lead to the sound practice of law may be conveyed though deep engagement with real people and real issues—clients and lawyers in the locality struggling with real world problems….

In her article Magee affirms the need to nurture open-ended self-development grounded in universal ethical principles with methods that reinforce self-determination. This approach does not narrow its focus on developing certain skills, such as developing courage or “leadership development,” as do other projects. Rather, it asks each individual to define her or his own goals concerning how to become a better person as well as support others in their own personal development efforts.

Moreover, her article does not limit itself to a single issue, like law or education. Rather, it proposes, it seems to me, the comprehensive and fundamental, or holistic, transformation of our entire society, including all of our major institutions, our culture, and ourselves as individuals.

A network of community-based, multi-issue lifelong learning centers based on these principles would be an exciting development. I stand ready to help with any such effort.