Chapter One of Lawyers as Peacemakers, Practicing Holistic, Problem-Solving Law

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Published by the American Bar Association in April, 2010, Lawyers as Peacemakers was named an ABA Flagship Book and is a best-seller. It is excerpted here with permission of the author and publisher.

The book is available at the American Bar Association site at www.abanet.org/abastore.

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Chapter One

A FUNDAMENTAL SHIFT OF MIND AND INTEGRATION OF HEART INTO LAW

The interdependency of humankind, the relevance of relationship, the sacredness of creation is ancient, ancient wisdom. —Rebecca Adamson

When I was practicing law back in the 1990s and looking for alternatives to litigation, my office mate, Bob Martin, told me about the International Alliance of Holistic Lawyers (IAHL). For a couple of years, I ignored the organization and reinvented the wheel of holistic law on my own.

By 1999, I’d created a cutting-edge holistic law practice in Graham, North Carolina. Called the Divorce and Family Law Center, the practice included two lawyers, a mediator-counselor, two social work interns, two paralegals,and several law student interns focused on creating holistic, out-of-court settlements.

After many interactions, the North Carolina Bar and I had worked out a plan that fit within ethical guidelines, allowing an interdisciplinary approach to divorce. I had the first law website in North Carolina. I had consulted with a feng shui consultant about my office design and we sometimes cleansed the office by burning sage. I took high-level personal development seminars, some of which were only offered in San Francisco. I thought I was way out there, out of the box, on the cutting edge, so when I got the invitation to the IAHL conference, I decided it was a good time to go. I imagined being the star of the show. As a further attraction, the conference was held in Hawk’s Cay in the Florida Keys in November! For weeks, my desk held the photograph of the island, surrounded with blue water, as a beacon.

I think I spent most of the conference in shock, from the first time we all stood in a circle and held hands on Thursday night to the consensus board meeting on Sunday afternoon. I’d never experienced anything like it. Compared with these seasoned holistic lawyers, I was mainstream, maybe even conservative. One couple combined yoga and law to help their clients resolve conflict. There were lawyers who were channeling and doing energy work and talking about spiritual and emotional issues that were foreign to me. I remember telling Jill Dahlquist that she scared me. My world had exploded with possibility, and there were so many new ideas. I didn’t know what to think, and I wasn’t sure what to do with it all. I was tempted to climb back into my comfortable box.

Somehow, through the shock, I was able to hear the presentations about the peacemaking approaches. Susan Daicoff, an associate professor of law at Florida Coastal School of Law, presented her research on lawyer distress, lawyer personality traits, and the emergence of a trend she’d come across. She found that some lawyers were breaking out of the mold and creating new ways of practicing law. She noticed that these lawyers expressed higher satisfaction and fulfillment with the practice of law. Daicoff referred to the shift as “comprehensive law.”

What we are doing in our legal system is not working. Clients are unhappy with their lawyers, with the system, and with the outcomes of the process. Lawyers are extraordinarily unhappy or even impaired. Nonlegal dispute resolution mechanisms in society have failed and society is depending on litigative processes to resolve conflict. As a result, society in general is suffering from the effects of law’s overly adversarial, other-blaming, position taking, and hostile approach to conflict resolution. Perhaps in response to these developments, a number of alternative approaches to law practice are emerging to replace the old, outmoded monolithic system. All of these approaches attempt to optimize the well-being of the people involved in each legal matter and acknowledge the importance of concerns beyond simply strict legal rights. This more “comprehensive” form of legal practice is illustrated by ten converging “vectors” — Professor Susan Daicoff

Professor Daicoff compares the evolution in law to medicine’s recent embrace of parts of alternative medicine and integrative medicine. The change began with early mediation and alternative dispute resolution programs that have now been integrated into traditional legal practices.

The IAHL included everything Daicoff talked about under the umbrella of holistic law, encompassing the notion of law as a healing profession. Some have adopted terms like “therapeutic jurisprudence,” “preventive law,” “restorative justice,” “law and healing,” “collaborative law,” “creative problem-solving,” “transformational law,” and “procedural justice” as specific expressions of comprehensive law. “Integrative law” has also been suggested as an umbrella term.

In fact, there is a good-natured ongoing debate among the leaders about what to call the collection of approaches, models, theories, and practice developments that I call “the movement.” My collaborative colleague, Chris Craig, talks about resolving a divorce as being like trying to put socks on an octopus. Characterizing this movement feels like that. Like the octopus, it is in constant motion. Creativity and adaptability are cornerstones of why the movement exists. Each leg of the movement operates independently. However, unlike an octopus, the movement has an unlimited number of expressions and many interrelationships, not just eight.

For example, restorative justice is generally utilized in the criminal context, but Ken Jaray in Colorado has created a form of restorative mediation for personal injury cases, bringing issues like apology and forgiveness to torts. Therapeutic jurisprudence has spawned many different problem-solving courts. Collaborative law was invented by Stu Webb, a holistic lawyer.

Some of the approaches spring from philosophical or theoretical considerations of the role of the lawyer in society. Therapeutic jurisprudence is like a lens through which we can examine the therapeutic or non-therapeutic impact of any action in the legal profession. Holistic law can describe one vector or philosophy of practice, or a collection of some or all of the philosophies. In this book, I’ve had to make some decisions about how to organize the material. Some of you will suggest that I could have organized it in different ways. I agree.

Like obscenity, most of us in the movement recognize it when we see it. Each of us talks about it in different terms, with different viewpoints and terminology. We generally agree whether something is aligned with the movement or not, and we distinguish common characteristics representing retreat from what are increasingly being considered the negative aspects of the adversarial process that have become the darlings of the media and sensationalized talk shows. Famous trials like those of O.J. Simpson, Michael Jackson, Amanda Knox, and most celebrity divorces, plus television show hosts like Maury Povich, Jerry Springer, and myriad other media role models of conflict exacerbation do not represent the highest good of society or humankind.

The new approaches add more cooperative, comprehensive, humanistic, healing, and even spiritual aspects to the traditional forms of law practice being taught and utilized in the profession. They are focused on optimizing well-being for all the involved parties by expressly seeking to eliminate brutal and contentious adversarial approaches to advocacy and problem solving, as well as endeavoring to avoid legal problems altogether. Rather than defining problems only as legal concerns — strict legal rights and obligations demarcated by the boundaries of published statutes and judicial opinions — these more comprehensive approaches include humanistic values such as overall well-being, relationships, feelings, needs, resources, meaning, values, and psychological goals; an idea that is often described by the term “rights plus.”

“These visionary approaches tend to spring from ‘the heart stuff,’ qualities like collaboration, healing, restoration, peace-building, and human connection,” says Stella Rabat, a Kirkland, Wash., attorney who facilitates retreats on law as a healing profession – qualities the legal profession has always considered soft or suspect. It’s not that the “head stuff” must disappear; on the contrary, analytical skills and legal knowledge are crucial. But “there has to be more recognition of the human, relational aspects,” she says. “It’s not either/or. It’s both/and.”—As quoted by Barbara Stahura

There is more to this movement than just doing all the right things or creating labels and ways of talking about what we do. We often talk about a paradigm shift.

THE PARADIGM SHIFT

A “paradigm” is a worldview, a set of beliefs about what is real and true. A paradigm shift involves a shift in the framework of our beliefs, of how we view the world. This shift isn’t about just doing something differently; it is a shift in the entire context for what we do. Our worldview shapes what we see and what is important to us. Paradigm shifts often occur suddenly because of a discovery or new theory, like the change in perspective that occurred when mankind realized that world is not flat after all. It often starts with a reexamination of what we previously believed and knew to be true.

Originally a scientific term coined in 1962 by Thomas Kuhn, a paradigm shift refers to a shift in thinking such as the shift from Newtonian physics to Einstein’s theory of relativity. If (like me), you didn’t actually take physics and have always been a little fuzzy about it, there are other examples. The invention of the printing press was a paradigm shift in information technology. The introduction of the Internet was another.

A paradigm shift is often difficult to explain to someone who hasn’t experienced one. This is not a judgment about whether people who have experienced a paradigm shift are better than those who have not. Before I was a parent, many people tried to explain what it would be like. No one could have prepared me for the moment when I first held Bryan in my arms. While the hormones of childbirth might have had some impact on how I felt, they didn’t explain the enduring and profound shifts that continue 32 years later. I didn’t just have a new person living in my house – everything changed that day. My concerns were different. I was not the same person. The world was not the same world. I wasn’t wrong before I was a parent; I was just in a different paradigm.

Marketers caution against using the term “paradigm shift” because it has been overused. The paradigm shifts of new laundry detergents don’t quite communicate the power the term was intended to convey. My editor cringed and begged me to use another term, but it is the term that is used in the movement. We even considered making up a new term or using a common word in a different way. I researched the term and the ideas for days, hoping to find a better way to talk about the change of consciousness that must occur in a paradigm shift. I found some interesting attempts and will share many of them here, but in the end I returned to “paradigm shift” because it is the most fully descriptive term of the message I want to convey.

We lawyers really like to be able to quantify and explain things in concrete, scientific, rational terms. Many of us are wary of anything that is out of the ordinary. In teaching us to think like lawyers, law school discouraged our thinking about anything that was emotional, mystical, or spiritual. It wasn’t relevant. In this movement, in life, those qualities matter a lot and are extremely relevant. In reality, the law has gone through many paradigm shifts. The representative nature of jousting created a new reality for people who were used to tribal warfare. Common law created new expectations of consistency. I believe we are at the doorstep of yet another such advancement in the practice of law, a new paradigm.

Society made a big advancement by requiring symbolic battle rather than actual battle, by introducing a system of litigation where the sides presented their claims before a member of the elite, who decided the winner. Law school assumes this is the environment for the practice of law, where lawyers either do battle to resolve problems or assist their clients in pursuing their interests in a way that prevents battles from occurring. But always the underlying assumptions are that litigation might happen, so the best thing is to try to foresee any possible future troubles, keep your information and often your intentions confidential, and if you do get drawn into battle you do whatever it takes to win. Business people incorporated to protect themselves from liability. Now we have this huge, unwieldy and inhumane system where he who has the most money has the most influence, profits are everything, and millions of people go without vital necessities even in the midst of plenty. Millions more spend their lives in prison. Lawyers and judges are the linchpins to this system. The fundamental assumption is that we are separate and apart and potentially in conflict with each other, that there is not enough to go around, and that the strong (and smart) person must be well defended. If someone commits a crime, the proper reaction is to convict, then separate, punish, and deprive that person for some period of time. At some point thoughtful people will look at this and start to question,first the outcomes, which seem so obviously unsatisfactory, then the underpinnings and assumptions that keep them in place. In particular, lawyers find themselves jaded and dissatisfied with what they do with their time and their energy.

This is the vital question! I think this is the one central difference between the old and new paradigms; whether humanity is a whole, integrated organism and each person is entitled to being treated with love and compassion, or whether each person is separate and entitled to pursue his or her own egoistic interests to the detriment of others or without regard for the effect on others. Feminine vs. masculine worldview. It’s more than just making lawyers happier and better adjusted; it’s changing the relationship between citizens and jurisprudence.

Seems to me that the vectors, as you call them, have to do with application of the new thinking to different areas of the law. Restorative justice has to do with correcting structural issues in the criminal justice and penal systems. Therapeutic jurisprudence and problem solving courts deal with new approaches to the structure and role of the judicial system. Mediation, collaborative law, and holistic law are not structural changes but are alternative problem solving/problem avoidance techniques that are applicable to almost every area of legal practice. Modifications to legal education address issues of preparing incoming practitioners for a new universal legal model.

Those who are ready to forge something new have started by questioning the existential environment surrounding the legal system. What if we aren’t all separate and at odds with each other? What if the corrections system, with its focus on retribution, is ultimately dehumanizing and damaging to all of us? Maybe litigated divorces are bad for both kids and parents. Maybe pot smokers don’t belong in prison. Maybe sending a wrongdoer to prison doesn’t make the victim whole and doesn’t stop crime. Maybe litigators are excited and energized by the process of doing battle yet still question whether their efforts are meaningful in the larger human picture. Maybe we will always have problems and disputes and accidents and crimes but there is a better way to address these problems than suiting up in armor and hacking away at each other, symbolically or otherwise. But how do we get from here to there? And what is “there” when we get there? Do we try to modify the existing structure or dismantle it entirely? What new training is needed for lawyers and judges? How will the expectations of legal clientele need to change? How will the money part work? What new structures and institutions need to be constructed? —E-mail from Sheila Boyce to author •

THE ADVERSARIAL PARADIGM

In law school, we were exposed to the adversarial paradigm in overt and subtle ways. The competition started when we applied and vied for a seat in the class, continued with the fight for grades and rank, and extended into law practice. We’re trained in the skills of litigation, in drawing fine distinctions that focus on the differences between people. We debate positions rather than engage in dialogue focused on understanding each other. Urban legends tell of law students using razor blades to cut critical pages out of research books. We hide the ball. We watch our backs. The political discourse and nightly news are adversarial and focused on sound bites and positions. The view is of a world where individuals protect their rights, territory, property, and selves from other individuals. In this paradigm, we are separate and our needs and values are at odds with each other.

THE OTHER PARADIGM

 think the paradigm shift comes in two parts: external and internal. The external shift is the process of learning about a new way to approach dispute resolution (collaborative law, mediation; in general, a non-adversarial and interest-based approach), training in those ways and practices, committing to make them a part of our toolbox as conflict resolution advocates or facilitators, becoming engaged in that community of like-minded practitioners and applying these processes and practices to actual cases. But the second part of the shift is the more profound part that follows these prerequisite steps above, and that is when we have internalized these processes and approaches so that they become natural and aligned with who we are philosophically and in our souls and how we approach our roles as solvers of problems and peacemakers. When this internal paradigm shifts happens within us, it becomes increasingly difficult to go back to the old, adversarial litigation-type models. Approaching disputes first from the non-adversarial, interest-based door then also becomes easier and flows much more naturally from within us. We find ourselves speaking, acting, and working with a much deeper conviction, passion, and grasp of what it is we are doing. Not only is the approach now different, but we are also different. To transform the way disputes are resolved, we have to first be transformed ourselves. —Michael Zeytoonian

There are other words that I can use to describe the new paradigm: “partnership,” “systems,” “oneness,” “unity consciousness,” and “teamwork” are all characteristic of the paradigm, but none of these words captures everything I’m talking about. Even after ten years in this movement, I’m not sure how to label this paradigm. That is why I often just call it “the movement.” Perhaps it is because labels are about separation and individuality. This paradigm is about connection and community. It recognizes that we are all part of a system, that our well-being is interconnected. Labels are fixed; the movement is dynamic, organic, flexible. It acknowledges our humanity but calls for the best in each of us.

It would be helpful if we began with a systems view of the world, which is holistic and much more dynamic than the Newtonian perspective we often begin with. Complex organisms (the divorcing parties and their children, not to mention extended families), constantly moving and changing, are a part of and actors in an incredibly complex ecosystem (not just in the environmental movement sense). —George Collis, CFP, CDFA, from an e-mail on the Collaborative Law Listserv

The New Paradigm Illustrated

Integrity is the key to understanding legal practice. Law’s empire is defined by attitude, not territory or power or process.—Ronald D. Dworkin

The differences in the paradigms are best illustrated rather than explained. Here are two stories of victim-offender dialogue:

In 1993, 47-year old Elaine Myers was on her way home from a late night class, a 57-mile drive down the Washington coast. Elaine was a much-loved wife, sister, aunt, and friend who hosted a local radio show on gardening and was a potter. On that dark road, Susie Cooper was on her way home from a night of partying when she crossed the center line. Twenty-five-year-old Susie was drunk. Elaine was killed instantly. Susie was critically injured. When she woke to learn that she had killed Elaine, she said she wanted to die; but she did not. Angry and grief-stricken, David, Elaine’s husband of 27 years, said he wanted to cut Susie into little pieces. Elaine’s sister, Betty, a hospice doctor, said she’ d never cried so much. Betty’s ten-year-old daughter, Aileen, had a close relationship with her aunt, and she went with the family to view the mangled wreck of the two cars. Aileen saw toys in Susie’s car and asked if Susie was somebody’s mom. The thought of Susie’s children touched Elaine’s father, 80-year-old Peter Serrell.

A few weeks earlier, Peter had heard a talk about restorative justice and victim-offender dialogue at his church. He contacted the speaker and asked if he could help him meet the woman who killed his daughter. The speaker, Marty Price, a lawyer turned mediator, arranged to meet with Peter. Over the course of nine months, Marty worked intimately with Peter to heal his grief, to arrange for Susie to meet with him, and to help the patriarch deal with the anger and grief of the rest of the family. Eventually, the family members each recognized that Peter was getting value from the preparations for mediation and that each might gain some closure and value from meeting with Susie. David had been afraid that he could not control his anger and would attack Susie, but eventually even he became interested in the healing prospects of meeting with her. It helped everyone that Susie was remorseful and wanted to make amends for her actions. She pled guilty to vehicular homicide to save the family from the stress of a trial, and admitted that she was an alcoholic.

The family arranged to meet with Susie in a hotel conference room. David had been concerned that Susie would be outnumbered and made sure that she found a trusted friend to support her in the process. (This was Marty’s cue that David was ready for the meeting.) Each family member told Susie about Elaine and their loss. Peter told her that he had asked for the meeting to help him feel, through the pain of losing his daughter, as though he could do something positive. He told her that something positive would be a chance for Susie to rebuild herself and become a true mother to her children. Elaine’s mother talked about her own pain and how the loss of Elaine had affected her husband so deeply that she felt she’ d lost them both. Each family member shared their anger and pain. Susie apologized. Everyone cried and cried. At the end of the tearful process, Susie had agreed to get her high school equivalency diploma, to stop drinking, to attend Alcoholics Anonymous (AA), and to make up for the loss by being a better person and parent. At sentencing, Betty read a statement. “There is no way she can provide a wife for David or a sister for me. The only restitution she can make is a lifelong commitment to a daily effort toward making the world a better place in exchange for her having survived the crash. She is not required to complete the job of repairing the world, but she must not be excused from starting and continually working at the job. Reform means that she must create a new form of herself – to emerge as a sober person, a thoughtful and considerate person, a contributor. If she can do all of these, I can forgive.” Marty later wrote, “The victims and offender each became allies in the healing of the other.” While Susie was in prison, the family visited her and wrote letters. They supported Susie in achieving her goals. Miraculously, so intimate was their bond of healing, the Serrells virtually adopted Susie Cooper. For years, they appeared together on panels for victim-offender mediation and were interviewed by the media. They were even featured on an ABC 20/20 program. Before Peter died in 2009, he said that that work with Susie Cooper ranked with his children as his most treasured legacy.

Contrast that with the following:

A few years ago, Dr. Phil put out the word that he was looking to be educated in victim-offender dialogue. Several trainers offered to advise him, but as far as I know, no one actually did. A few weeks later, we saw the show. In many ways, what they did looked like a victim-offender dialogue. A man who had killed his wife was brought face-to-face with their daughter, many years later. The daughter had been a small child when the murder occurred; she was now grown to young adulthood. Dr. Phil was there to “ facilitate” their conversation. The daughter had apparently been on a previous show and expressed interest in talking with her father. Dr. Phil found the father, recently released from prison, living in a flop house and abusing drugs. He convinced the father to enter a rehab program, promising he could see his daughter. At the time of the show, the man had been clean for less than two months, and his sobriety was still on shaky ground. Dr. Phil’s idea of facilitating the conversation involved loudly attacking and shaming the father/offender and exacerbating the anger and devastation of the daughter. At one point, the man fled the stage and Dr. Phil and his cameras followed him backstage. In spite of all this, the father was unyielding in his commitment to telling his daughter how sorry he was, how much he loved her. The daughter clearly wanted to reconnect with her father and to understand what had happened all those years before.

In the restorative justice paradigm, it was a disastrous confrontation. Although it appeared that the techniques of restorative justice were being applied to this situation, how the people producing the show were being about the whole thing was not consistent with restorative justice.

NEW PARADIGM: NEW CHALLENGES, SKILLS, AND OPPORTUNITIES

The shifting of paradigms isn’t a prescription for resolving all problems, and it isn’t about singing “Kumbaya” and everything being sweetness and light. Although sometimes the old problems do become irrelevant as we redefine our worldviews, new issues arise in the new paradigm. Transitions between paradigms can be awkward and even uncomfortable. When the printing press was invented, new ways of distributing books had to be created. Scribes were no longer needed for copying documents by hand. We can only imagine that they must have been concerned about their transitional unemployment. I’m sure many people did not consider the printing press to be progress.

Legal education, like the law in general, is slow to change. Although it is now commonly accepted that negotiation skills and conflict resolution skills are important skills for lawyers, they are still not required classes. In the adversarial culture of law school, there is confusion about how to classify courses that teach students how to listen to their clients and give them advice. For the most part, these subjects are taught under the umbrella of alternative dispute resolution (ADR).

I am sure that no area of the law would self-describe as stagnant, and that every area of the law is dynamic in at least some ways. Within environmental law, though, I am confident that climate change and carbon emissions play a significant role in a modern curriculum – but few faculty who have been teaching in the field for very long would have come into the academy with this as their academic focus. Similarly, in the ADR world, most scholars to date have entered as specialists in arbitration, mediation, or negotiation. Twenty years from now (well within the tenures of faculty being hired today), the real action in ADR could very well be dispute systems design, new governance, collaborative law, or cooperative law. —Michael Moffit

CONTEXT FOR THE LEGAL PARADIGM SHIFT

The adversarialism in the legal profession has occurred in the context of an individualistic society. It is the same adversarialism that brought us Jerry Springer, Maury Povich, and reality television.

Stories of how the legal system is broken have stirred professionals, including many lawyers, to pursue alternative modes of dispute resolution. The villain is an “adversarial” system that dehumanizes both the people and the professionals caught up in the web of the legal process. The traditional lawyer is cast as the epitome of a mean-spirited, competitive, warrior-type, who practices without mercy. This popular and simplistic view conveniently avoids observing how the legal system merely reflects the views of the larger culture regarding conflict. Nonetheless, many lawyers describe themselves as “recovering attorneys,” as if practicing law had been a crime. —Robert Benjamin, “The ‘Truthiness’ Virus Has Infected the Conflict Management Field,” Mediate.com

The shift in the law also isn’t occurring in a vacuum. Society is experiencing a paradigm shift that is much bigger than the law – the 2009 Nobel Prize in Economics went to an expert in cooperation, and the Nobel Peace Prize went to a lawyer-president who talks about diplomacy, dialogue, and peacemaking. There are many explanations of the shift with many theories attempting to provide models of it: spiral dynamics, cultural creatives, integral consciousness, spiritual transformation, etc.

I am the first to acknowledge that in attempting to address these questions we are exploring the frontiers of human knowledge, and that whatever is said here is only a beginning. But this is the story of my personal journey in search of the answers to those questions, and of my inner transformation along the way. I invite you to take that journey with me. Along the way, you will meet some of the people who are leading the renaissance now occurring in many disciplines, philosophy, physics, neurobiology, leadership theory, and organizational learning. These people are breaking the boundaries between disparate disciplines and transforming them at their further reaches – where for me they all converge, leading to a deeper understanding of how human beings, both individually and collectively, might develop the capacity to see what wants to emerge in this world and thus have the opportunity to shape the future instead of simply responding to the forces at large. —Joe Jaworski, Introduction to Synchronicity,the Inner Path to Leadership

A PARADIGM OF CONSCIOUSNESS, RELATIONSHIPS, AND CONNECTION

Though I enjoyed many aspects of my work, I found it too constraining after my consciousness was raised. I felt that I was suffocating, so it seemed fortuitous that an early retirement offer was made just when I was trying to figure out a way to move. —Patricia Clayton, lawyer who now also leads workshops on spirituality, from an e-mail to the author

Patricia’s words echo something I’ve heard from many others. For some, the shift in practice did not feel like a choice they made but one that was thrust upon them when they could no longer do things the old way. And for these people, the paradigm shift is not an intellectual conversation. It is experiential. It is a knowing that changes everything. This shift occurs at a very personal level but is larger than one person.

At first I thought that this energy was just the next step on my own journey. But it soon made known to me that it was not personal, but belonged to a whole new beginning. With power and speed it swept away years of spiritual conditioning, and brought with it a quality of fun and pure joy that I knew I had always been waiting for. Mercilessly, laughingly, it began to change my life, my way of thinking, my way of relating. This energy is alive, demanding change and needing to be lived in the midst of life. And it has a quality of oneness that brings with it a stamp of divine presence. —Llewellyn Vaughan-Lee

On the last day, in the final minute of the last interview, Father Thomas Keating summarized the journey: “The spiritual journey is the realization– not just the information but the real interior conviction – that there is a higher power or God. Or, to make it as easy as possible for everybody: there is an Other; second step: to try to become the Other; and finally the realization that there is no Other. You and the Other are One, always have been,always will be.” —From One: The Movie, produced by Michigan lawyer Ward Powers

LOVE COMING OUT OF THE CLOSETA few years ago, I would never have dared to use the word “love” in a publication for lawyers. In dozens of conversations over the years, leaders in this movement have spoken it in hushed tones. What we’re doing here, they say, is bringing love to law. We’re acknowledging the underlying connection of all.

Peter Gabel is a graduate of Harvard Law School, has a PhD in psychology from Wright Institute and is associate editor of Tikkun Magazine, a former law school dean, a founder of the Critical Legal Studies movement, the co-founder of the Politics of Meaning, and co-director of the Project for Integrating Spirituality, Law, and Politics (PISLAP). In his article, “Critical Legal Studies as a Spiritual Practice,” [36 Pepp. L. Rev. 515 (2009)], he says:

. . .there was always a spiritual impulse behind the work and the politics of CLS [Critical Legal Studies]. But it is absolutely the case that CLS – or at least what came to be known as the dominant strain within CLS – refused to embrace this transcendent spiritual impulse, to stand behind it, or to speak about it. We really were motivated by love, but it was a love that dared not speak its name. And in my opinion, that is because our movement was infected with the same fear of the other that underlay the injustices that we criticized in the wider society. We were motivated by a powerful moral transcendent impulse that was an expression of what this conference is calling a Higher Law, but we would not say so, or to be honest, some of us would not say so. On this point, there was a division inside CLS, and in my opinion the wrong side carried the day – but today is another day.