Thinking Like a Lawyer
The ability to reason is critical to the development of our full potential and protection of our social liberties.
The growth of importance of lawyers and the law over the last few centuries has a deeper meaning. A fundamental shift in history has taken place and thinking has become the primary human function. The roles in society where independent thinking are valued, such as science and the law, have grown tremendously because of this inner shift in emphasis. Of course Man has always been a thinker. The function has always been there, and there have always been a few people who sought individual understanding. But only recently has society tolerated the fulfillment of this basic human need, much less given it special significance and value. Prior to the Renaissance blind faith in the church and unthinking obedience and loyalty to the state, the king, were demanded of everyone. Then came the Magna Carta and the beginning of legal constraints on the otherwise absolute dictatorial powers of royalty. The profession of the law was re-born in England after long absence since the days of the Roman Empire and the likes of Cicero and Marcus Aurelius.
Three hundred years ago lawyers and scientists were very few in number, but even by Shakespeare's time their significance to society was starting to be recognized. The law and its servants were starting to have power as society moved from a feudal system of dictatorship to an urban system of law. As the famous remark by the plotter of treachery in Shakespeare's King Henry VI shows - The first thing we must do is kill all the lawyers! - the surest way to chaos and tyranny even then was to remove the guardians of independent thinking. Today lawyers are still the butt of many good lines, but the rule of law has brought down the kings, lawyers are all too plentiful and prosperous, and the rule of law in some countries is strong. Moreover, scientists in white coats have largely replaced the clergy in terms of respect and awe shown by the common modern man.
Until the last few hundred years, individual independent thinking - thinking like a lawyer - was discouraged. Individual thought was considered futile, counter-productive, even evil insofar as the big questions were concerned. Socrates was put to death for his rational challenge to the religious dogma of the day, the worship of the gods of Zeus, Athena, et al. The Pope had the scientist/philosopher Giordano Bruno jailed for eight years in inquisition prisons. Then Bruno was burned alive at the stake in 1600 when he refused to recant his radical writings as to the Earth revolving around the Sun in a larger Universe. Thousands of others, so-called witches and wizards, were tortured and killed in the middle ages for their free-thinking magic. For most of recorded history independent thinking was extremely dangerous. That is why the First Amendment of the United States Constitution - guaranteeing free thinking and free speech - was such a revolutionary law when enacted, and why it was, and still is, so important to us all.
In the pre-law days, independent thinking was controlled by a select religious elite in society, such as priests or elders. They created the particular religious dogma of the day, and so controlled the thoughts and beliefs of everyone else. A person was expected to accept and have blind faith in the religion, dogma, creed or belief into which they were born, be it the Bible, Torah, Koran, Bahadva Gita, Zeus, I Ching, Marxism, or whatever. As a result, although knowledge was transmitted, personal understanding of the basic issues was missing in most cultures for all but an elite few. Only recently, with the advent of science and the law, is individual thinking tolerated, sometimes even encouraged.
Still, even today the intellectual freedoms guaranteed by the First Amendment are unheard of in most countries of the world. Although independent thinking is sometimes tolerated, and in some societies even protected by law, at this relatively early stage of Man's evolution, independent thinking, justice and liberty are rare and difficult. As Felix Frankfurter said on his retirement in 1962 after twenty three years as a Justice on the Supreme Court of the United States:
Fragile as reason is and limited as law is as the expression of the institutionalized medium of reason, that's all we have standing between us and the tyranny of mere will and the cruelty of unbridled, unprincipled, undisciplined feeling.
The ability to reason is critical to the development of our full potential and protection of our social liberties. Thinking is an innate human capacity, but it has to be trained, purified, developed, and strengthened to function properly. Ask anyone who has survived law school - famous for its Socratic method and relentless grilling of students by sadomasochistic law Professors - learning to think for yourself can be a real ordeal. As the mythical Professor Kingsfield says in The Paper Chase to first year law students: You come here with your skull full of mush and our job is to make you think like a lawyer.
WHAT IS THINKING ?
In one of the few books ever written about legal thinking, Logic For Lawyers: A Guide to Clear Legal Thinking (1989), Judge Ruggero J. Aldisert explains that the basic purpose of his book is to get you thinking about thinking. Just what is thinking? Recognition of our ignorance of the exact nature of the mental process is an important first step in learning how to think. Without this preliminary realization it is very difficult to escape from the various forms of pseudo-thinking we have inherited from the past, the mental processes, or "mush", that commonly masquerade for thinking, but are not. Pseudo-thinking includes undisciplined mental processes such as haphazard associations, and blind repetition of the thoughts of others.
Thinking is not here used in its most general, yet incorrect, sense of everything which goes on in one's head. Thinking is not just talking to oneself. Thinking is the particular mental event within our stream of consciousness and verbal chatter wherein a connection is made, an insight is gained into an order behind phenomena, a relationship. Judge Aldisert defines legal thinking as pondering a given set of facts so as to perceive their connection. This realization of a connectedness or unity is what is meant by a "thought". The thought can be in words, symbols, or numbers, and can also be in geometric patterns, images, tones, colors, movements or kinesthetic processes. The act of making these associations is thinking.
The fragmentation of consciousness noted earlier makes real thinking all the more difficult. It is very hard to make connections when you are looking at disjointed snapshots instead of a movie. Many of the possible associations will escape you, pass you by.
In essence thinking relates one or more things with one or more other things. The word "things" is here used in its most general sense as an all-inclusive noun, including not only material objects, but also ideas, people, or "anything". As a lawyer would say, it is all part of the case. The word, "relate", is used in the sense of connect or compare: to put one thing into a relationship with another. Real thinking is the function of relating, comparing and contrasting through number, geometry, language, images, tones, colors and physical symbols to gain understanding and knowledge. As Judge Aldisert so aptly puts it, legal reasoning depends upon the power of seeing logical connections in the cases, of recognizing similarities and dissimilarities.
Thinking is one of four basic functions of Man's consciousness in Time. This is a basic law of consciousness which will be discussed later in greater detail. The other functions are sensing, feeling and willing. Briefly, "sensing" is the basic intake of data and perceptions, pure unprocessed information; the facts of the case. "Feeling" is the positive or negative response, the likes and dislikes, desires, drives, emotions and dreams; the equities of the case. "Willing" is action, choice, control, deciding yes or no, movement; the decision of the case. When thinking properly - like an ideal lawyer - your thinking is independent, grounded in the evidence (sensing) and the equities (feeling), and leading to just decisions (willing).
Thinking requires data of some sort from the sensing function to process. It has to have something to think about, even if it is an abstract pattern or number. The data processed comes from one, or more, of the three spatial realms of Man's consciousness: Body, Soul and Spirit. Again, the laws of the three realms of consciousness will be discussed in detail later, but in short, the realms follow the classic tripartite division. Body is the realm of the material world, of property. Soul is the realm of energy and life, including psyche and personality. Spirit is the realm of ideas, qualities, cognition and mentation. Thinking puts "things" from one or more of the realms into relationships with each other. For instance, in the abstract qualitative realm of spirit, thinking puts ideas into relationships. In the energetic soul realm it relates people and beings, and in the realm of the body, it makes connections between material things.
Most people do not realize the full potential of thinking. They falsely limit it to abstract connections made with words and number - the spiritual connectors. But important thinking can also occur with connectors in the soul and body realm. For instance, Einstein admitted that his most important thought was visual and kinesthetic. He visualized an image of a photon traveling at the speed of light. This imagery thinking then led to his mathematical breakthroughs of light bending and the equivalence of matter and energy. In other words, his soul and body thoughts preceded and made possible his spirit thought, the famous E=MC².
Many other examples of imagery thinking can be given from the history of science. Perhaps the most famous example is the eureka experience of the German scientist, Friedreich Kekule, in 1865. He had been thinking long and hard of the then biggest problem in chemistry, the structure of the benzene molecule. The answer finally came to him while he was almost dozing on a horse-drawn tram. He had a kind of a dream where he thought of an image of dancing atoms in various arrangements. Then he saw the image of a snake eating its tail in a slowly revolving chain of atoms. He instantly realized the solution to the problem was a hexagonal ring of carbon atoms, where the head and tail of the ring were attached like the snake in his dream image. All organic chemistry is now based on this breakthrough.
The history of thought teaches us that thinking need not be just left-brained and linear, depending only on analysis, logic, words and number. Thinking can also be right-brained and analogical, relying on images, tones, colors and other pre-verbal or trans-verbal connections and constellations. The law also uses both kinds of thinking. Most legal arguments are based upon the use of prior cases where the facts and law were similar to the case in contention, but not identical. The lawyer then argues for the application of the rule of law used in the prior similar case based upon its analogy to the case at hand. It is reasoning by example from case to case. As Judge Aldisert puts it:
The process involves the doctrine of precedent in which a proposition descriptive of the first case is made into a rule of law and applied to a similar situation... . . Although the applicability of a rule of law to a given case does depend on the degree of analogy that can be drawn, the "dynamic quality" of law is affected by more than the presence of novel facts in new cases. Often, more than one rule suggests itself as precedent; more than one principle arguably applies. Here, value judgments play a major part in the development of the common law.
In this way the law grows and is flexible. It is based on precedent, but is not locked in by it. The "logic of the law" uses both the past and the present, both analogy and inductive-deductive logic, law and equity, the left and right brains. The logic of personal growth must do the same.
PURE THOUGHT v. IMAGINATION AND PARROTING
While it is easy to have a general, theoretical understanding of thinking and how it differs from the other basic functions, it is much more difficult to implement the theory and really think like a lawyer. A twofold process of purification and education is involved. Thinking must be separated from the other functions and disciplined by logic, evidence and precedent. To think without purpose or discipline - that is, to simply put one thing in relation to another in a haphazard fashion, without reference to the evidence, logic or the law - is not real thinking. It is uneducated, useless, or worse. It does not lead to understanding and knowledge. For example, thinking of an elephant with a giraffe's neck is amusing, but is not in accord with the known facts of reality. According to all known evidence it is an incorrect thought, a fallacy. It makes no sense because there is no such animal. On the other hand, to combine the giraffe and elephant with the concept of mammals does correspond with reality, and this thought could be useful. It is logical, supported by the evidence and follows precedent. Following precedent means to fit in with, or be in accord with, accepted and established laws.
Thinking must be trained, but it must also be purified, liberated from the other basic human functions with which it is usually tied. For undisciplined "raw" thinking is not really thinking at all. It is a hybrid combination of thinking with one or more of the other three functions. The threshold challenge in learning to think like a lawyer is to purify thinking, to disentangle it from your emotions, perceptions and actions. The functions are stunted by being tied with each other. The four functions must all be differentiated and separated in order to work properly. It is ironic, but true, that integration of consciousness begins with segregation of its four basic functions.
Typically what passes for thought all mixed up with the other functions is just a random association, a hodgepodge of the truth. Typically "thinking" is over-influenced by feelings and imagination, what one likes or wants. Feeling-thinking is just rationalization of what you want. Feelings are also important to human development, but only in their unadulterated form, when not masquerading as thinking. Every courtroom lawyer knows that passion only clouds thinking. A dispassionate, objective analysis is much more likely to be accurate.
Thinking should never serve feeling as a tool to justify desires, a rationalization. In order to think properly you have to separate your thoughts from your feelings and desires. This does not mean ignoring feelings, or depreciating them. It means to distance them somewhat from your thinking. It means objectivity.
But that is not enough, you must also separate your thinking from willing and sensing. Your reasoning must be independent. Thinking can be warped by emotions, it can also be stunted by propaganda and ideologies. Thinking can get all mixed up with a person's will, or worse, with the will of another. A person has no possibility of thinking for themself if they have already been told what to think by others. This kind of thought control can be direct, as in religious cults and totalitarian dictatorships, or indirect, as in advertising and a lot of what passes for "education". Either way such thinking is not independent, it is controlled by others.
In my experience when most people think they are thinking, they are actually just parroting the words and thoughts of others. Such "thinking" is entangled and messed up by sensing and willing. Again, this is our inheritance from a repressive past and from a narrow, ill-conceived education. The tape recorder-like repetition of ideas, typical of rote memorization or indoctrination, represents the dominance of willing and sensing over thinking.
Sensing and memory are important capacities in their own right, but they are no substitute for thinking. Each function must stand on its own ground. To remember the thought of another, and repeat it to yourself, is not the same thing as thinking, and is no substitute for understanding. It is thinking standing on sensing and willing - memory posing as thinking. This is the kind of blind quotation of black letter law common to a hack lawyer unworthy of the profession.
Although thinking frequently happens in dialogue with others, it is an individual realization. You must think something through for yourself. You must have the "ah ha" experience. You either understand or you don't. You may be able to mouth the correct answer to the question, but if you don't know what it means, you haven't got it right. Close questioning of students who memorize well, but don't really understand, is how many a law professor gets their kicks. If you truly understand, having thought through the case yourself, you can survive the tough questions, think through the implications on your feet. Any parrot can be taught to say a sentence, like "to be or not to be", but does the parrot understand the thought? Repetition of a thought - a relationship which another person has grasped - is completely different from grasping that insight yourself. One "sees" what is meant, the other does not.
When we first begin observing our self we find that our feeling, sensing and willing functions naturally interfere with and distort our thinking. Until our thinking is differentiated and liberated from the dominance of one or more of our other functions, thinking leads only to pain, illusion and mental enslavement. Conditioned thinking imposed upon us from birth, and feeling-dominated thoughts, the rationalizations of desires, become a prison of thoughts. They lock us into a cage of false beliefs and ideas. This prevents us from seeing and feeling things as they really are. It keeps us from objective apprehension of reality uncolored by erroneous preconceptions. We can not see beyond our prison walls.
The solution is not to give up and abandon thinking, the contention for instance of some who follow Zen. We have an innate compulsion to put things into relationships so as to grasp meaning. We cannot keep from doing this, even if we try, as the Zen students quickly discover. Nor should we want to. Thinking comprises one fourth of our total potential. When purified and trained, thinking is the joyful key to realization of the other parts of our self. The solution to the problem of thinking is to fix thinking, not abandon it.
Until fixed, muddled thinking reinforces the trance, obstructs the realization of full potential. It tricks us, prevents us from finding our true identity and purpose in life. If we cannot think straight to discover our unique human nature, we can never act in accord with it to realize our full potential. So we must learn to think, and think well. We must transform our thinking from a muddled hindrance, to an effective tool.
Another person's thoughts cannot lead us there. They will only lead us to their solution, to their unique nature. We will still not know who we are. Just so does the Zen adept say that if you see a Buddha on the road, kill him. We must figure out who we are for our self, objectively and independently. Not even the Buddha can do it for us. We must think clearly, free from the other functions in order to solve the great mystery of true identity. Then as our own lawyer we can safely travel the road to enlightenment.
EVIDENCE, PRECEDENT AND LAWYERLY THINKING
Close observation of yourself and others will show that what is typically regarded as thinking is actually imagination (feel-think) or parroting (sense/will-think), or some other entanglement. It's important to realize this negative entanglement, and understand the need to purify thinking by its segregation from the other functions. But purification is not enough, thinking must also be trained and disciplined.
We may have a real thought, one not tainted by sensing, feeling or willing, but still not be disciplined with it. We fail to take the time to scrutinize the thought. Undisciplined thinking usually does not lead to any meaningful answers to the big questions. We need to test our thoughts, to see if they are supported by the evidence and the precedent.
There seems to be an inherent inertia or resistance to this. We tend to accept any original thought as true the minute it comes to mind. In fact, just because a thought occurs to us, and we have the delightful "ah ha" experience of seeming profundity, does not mean the thought is really true, that it has any practical benefit. Thinking, particularly at first, is a hit or miss, trial and error process. Intuition can help, but it is no substitute for verification. An apparent insight can easily be false, that is, have no correspondence to the facts or structure behind the facts, even though it "feels so right".
We need to become critical thinkers. We need to scrutinize our thoughts by testing them against the known facts and laws. A trained and disciplined thinker is always skeptical at first, sometimes frustratingly so. They are careful to scrutinize their own thoughts, as well as the thoughts of others. They check to see if a thought is supported by the evidence and in accord with established precedent - the body of thought known by them from prior experience to be true. They prefer not to act on a thought until they have mulled it over for a while and checked it out. This is an essential part of "thinking like a lawyer."
Due to our culture and poor training, none of us starts off thinking that way. Instead, for most of us thinking is a reality-shielding device - a way to perpetuate the consensus trance. Our thinking is distorted by our other internal functions or controlled by external forces. We think what we want to think, or what outside influences cause us to think. We read the morning's editorial in the paper, or see the commercial on television. Consequently we instantly believe this and we want that. The false roles of the persona are thus maintained, and the actor is kept asleep in consensus trance.
For example, if a person wants very badly to go outside and do something needing sun, ride their new solar car for instance, they may ignore altogether the dark threatening clouds, and instead think hopefully that it will be sunny. Another person may not be blinded by their desires. They may not care if they go outside or not, yet they may still act irrationally. They may ignore obvious rain clouds because they have heard a weather report saying it was sunny. The first person's thoughts are controlled by their desires. The second person by the thoughts of others, by will. In both cases faulty reasoning - inability to make a connection between the dark clouds and impending rain - keeps them from an accurate apprehension of reality.
Clear optimal thinking can be achieved by training yourself to look for the hidden influences of the other functions in your thinking and by learning how to think critically. Critical thinking means to suspend judgment and not instantly adopt any thought as part of a firm belief until you have thoroughly tested it. Resist the temptation to jump to conclusions. First test a tentative thought, a hypothesis, by comparing it to the facts - the known evidence - and scrutinizing it with logic. See if the thought fits into the known Laws, the precedent. The legal precedent includes the natural patterns and structure which order and govern the world, the constitutional principles of Law which underlie both natural phenomena and the human psyche.
Hindering critical thinking are preconceived beliefs and ideas which you have adopted in the past that are not in accord with the evidence or precedent. You must escape from these fraudulent preconceptions by breaking with the past, "stopping your world," and starting afresh. You can then see for yourself whether each thought you have is in accord with the facts and the Laws of reality. You do this by taking nothing for granted. Question the belief system you grew up with. Become instead a skeptic and question everything. Act like a lawyer, not a believer.
You need to train yourself to be critical of your thoughts, and not accept as valid every combination which happens to pop into your head. Not every independent thought or connection you make will be true and correct. A thought which first appears to be significant, may later prove to be meaningless or false. It is therefore imperative to learn to suspend belief and to adopt the hypothetical attitude.
This skeptical attitude is not adopted for its own sake. Its only purpose is to allow you to test your hypothetical thoughts, beliefs and ideas against your own knowledge and experience. After you have completed a testing and verification process, and the thought holds up, then you should give it credence and act accordingly. Skepticism for its own sake can paralyze the will. Don't be afraid to accept a thought, to apprehend the truth and move on to act on it. But, even after you finally accept a thought, still try to hold on to the thought lightly. Beware of new evidence which may come to light to discredit your position. Be flexible and keep an open mind to new thinking. Our apprehension of the truth should always be open to refinement and improvement.
In order to test a thought against facts you need to have objective information and knowledge about the world. Such knowledge can either be acquired directly through perception, or indirectly by learning from the experience of others. The more you know, the more reliable evidence you gather, the easier it becomes to test your thoughts. If you do not know much, you will not have much to reference your thoughts to. Also, if your information is inaccurate, your tests will be misleading. All legal reasoning is necessarily based on the evidence, the facts of the case. Full and open discovery of all of the relevant facts of a case are required before any fair trial. Most injustices in court decisions come from inadequate and contradictory evidence. As every lawyer knows bad facts make for bad law.
There is an inherent psychological resistance to the thought testing process which must be overcome: the tendency to hold onto and keep all presently-held conceptions. It is a kind of mental entropy which is resistant to all change. Once again the problem comes from the failure to differentiate the functions. This time the willing function is the culprit. Its interference with thinking creates a protective mechanism for any established thought. It closes the mind, blinds you to relevant evidence. Beliefs and concepts are thereby shielded and perpetuate themselves by resisting all information which would show them to be false. This interferes with and distorts your sensing function. You can become totally blind to sensations which are not in accord with your preconceptions. Clear evidence contradictory to your opinion will be ignored, swept under the carpet.
Fortunately the glosses on perception caused by erroneous preconceptions can also be attacked directly - through the senses. There are many mental and physical exercises available to cleanse your sensing and help you to see things afresh, objectively, as they really are. The problem can also be attacked by addressing the root of this phenomena, the static will tied to thinking and resistant to all change. There are many exercises and procedures directed to the will, purifying and focusing it, and making it flexible, receptive, spontaneous and open to change.
Other disciplines are directed to feelings, confronting the past and the subconscious with psychology and the like. One or more of these methodologies must be utilized on each of the functions to differentiate them. The four functions can not operate harmoniously and support each other until a certain distance is created between them. They must be purified, disentangled and spaced apart. Then the sensing, thinking, feeling and willing functions can each operate smoothly. They can coordinate and assist each other. The actor will then awake, the lawyer will think things through, and everything will start to fall into place.
Critical lawyer like thinking is possible outwardly, by comparison of a thought to facts, and inwardly, by comparison to the known laws. This kind of scrutiny is roughly equivalent to inductive and deductive reasoning. The external, inductive side of critical thinking requires development of the senses and discovery of reliable relevant evidence. This is accomplished through scientific research, communications, database retrieval, investigations and study, and on a personal level through observation, and various physical and consciousness exercises. There are hundreds of different databases, methodologies and tools available to help you obtain the necessary evidence and clarity of perception.
There is, however, only one way to master the inner deductive side of critical thinking. It requires knowledge of the substantive "Inner Laws" - the constitutional principles - and an understanding of how they all fit together into a coherent, holistic paradigm. The next few chapters will delineate these principles and show how they provide a unifying schemata. These constitutional laws structure and provide order and meaning to all phenomena. When you are familiar with these structural Laws - the fractal building blocks - is it possible to thoroughly test a thought to see if the combination is coherent, to see if the thought fits into the greater whole. If it does, then it follows precedent and is much more likely to be true. Moreover, if you mentally see where and how a thought logically fits into the overall fractal - the unifying schemata - then you will also know what other things should be looked into and considered in order to complete the thought.
A complete and systematic philosophy concerned with mastery of the Inner Laws through thinking has been developed by Arnold Keyserling, a Professor of Spiritual Philosophy at the Academy of Applied Art, Vienna, Austria. Forced out of law school in Germany for his opposition to the Nazis, he turned his mind instead to the study of the Laws of Wisdom. Although never a lawyer, Arnold Keyserling developed legal thinking in the psychological fields to great heights. His discovery of many of the constitutional principles and related case history are discussed in Chapter 5. Keyserling's philosophy uses the Laws of Wisdom for liberation through thinking. These same sentiments were well-expressed by the great American jurist, Benjamin Cardoza in his 1925 essay The Game of Law:
Our fates are in our own hands. We make and remake our own selves. We are the "captains of our souls". Nature pants with the desire to make us what we wish to be. The wish is the reality. What we think, that we are.