Tikkun Magazine, March/April 2008

BOOKS

Lawyer as Healer 

MAKING WAVES AND RIDING THE CURRENTS: ACTIVISM AND THE PRACTICE OF WISDOM by Charles Halpern, Berrett-Koehler, 2008

Review by Nanette Schorr

UNHAPPINESS WITH THE U.S. legal system as a vehicle for righting wrongs has caused many lawyers to abandon a profession they experience as overly shackled to the conventions of an adversarial zero-sum arena, largely driven by motives of profit and self-interest. These lawyers, whose values and instincts respond most powerfully to a progressive conception of the law, experience a yearning to participate in a justice system that recognizes competing interests and claims, yet fosters dialogue and the repair of relationships.

Responding to this hopeful vision, and believing in the capacity of the law to evolve in a fresh direction, some lawyers have dedicated themselves to building movements for cultural renewal of the law. They use models such as therapeutic jurisprudence, meditation and the law, humanizing legal education, transformative mediation, collaborative law, restorative justice, and lay advocacy. Participants in other initiatives, such as the Project for Integrating Spirituality, Law, and Politics, support these efforts, but also seek to link the transformation of legal culture to a broader social movement that challenges the basic values and priorities underpinning our economic and social life and institutions. For those of us with this perspective, renewal of the legal culture should be located in the context of this larger project.

Charles Halpern's Making Waves and Riding the Currents speaks to these streams of engagement within the legal culture. This nuanced personal memoir focuses on the interplay between work in the world ("Making Waves") and inner work ("Riding Currents"). Halpern asks: Can we use inner work to assist us in being more powerful agents of change? Is there a connection between meditation, attunement to nature, and activities devoted to creating a more sustainable, just, and compassionate society? Using humor, storytelling, and personal example, Halpern argues that practices which deepen inner life can infuse the work of social transformation with a culture of wisdom that carries the potential to have a profound impact on society.

After a significant summer experience working in northern Louisiana with participants in the Civil Rights movement, Halpern spent his early professional years working at the law firm of Arnold & Porter. Over time, he came to feel that the values most validated in that context did not reflect who he was and wanted to be. However, his engagement there gave him the opportunity to take on pro bono work, which had an important impact on his vision of his future commitments.

Halpern's experience of a life of meaning in the law began with his handling the case of a mentally ill man, Charles Rouse, who had been convicted of a misdemeanor, and spent four years in an institution without receiving adequate treatment. When trying the case for Rouse's freedom, Halpern did more than experience his own power in the courtroom and the potential for using the law to expand the recognition of human rights. He also understood the courtroom from Rouse's perspective, as an arena where parties manipulated the truth for their own purposes. He later helped to create the Selective Service Law Reporter, which played an important role in supporting Vietnam draft resisters. Halpern ultimately left the firm to work full time creating CLASP, The Center for Law and Social Policy, the country's first public interest law firm, which is now about to celebrate its fortieth anniversary.

Halpern recounts how he and his colleagues at CLASP used their elite connections to create an anti-establishment institution. They obtained a temporary injunction against the construction of the Arctic pipeline, enforced the rights of the mentally ill to treatment and care, and empowered shareholders to hold corporations accountable for their actions towards consumers and the environment. He was also instrumental in shaping the culture of CLASP as a law firm that reflected powerful changes occurring in American culture. These changes included the emergence of women in key leadership roles and the breakdown of hierarchical relations in favor of more free-flowing and egalitarian organization. He also introduced contemplative practices, such as yoga and retreats in nature, as ways of shaping the consciousness and mission of the organization. As this culture unfolded at CLASP, he began to see ways in which practicing law by intellectual acumen, objectivity, and professional distance could be powerfully enriched by a higher level of attunement to self and Other. And he also began to feel that public interest lawyers could embrace models of advocacy beyond highly adversarial and polarizing litigation.

After spending years in key public interest law positions, Halpern accepted an offer to create a public interest law school as part of the City University of New York (CUNY) system. As the founding Dean of the CUNY Law School, Halpern confronted a gritty physical plant, political pressures which challenged his sense of ethics, chronic underfunding, and deep rifts between students and faculty. Nonetheless, he recounts, out of this maelstrom of pressures, a public interest law school was born. Touchstone principles in the design of CUNY's pedagogy included: moving the focus of legal education from the primacy of doctrine to the impact of law on the human beings affected by the case, recognizing the emotional component of lawyering, and cultivating in aspiring lawyers the ability to nurture appropriate compromise. Halpern's goal at CUNY was not limited to educating future lawyers in a particular way; he also aspired to create a non-traditional learning community "where people could mix openly across deep and normally impermeable barriers."

Readers, however, leave Halpern's detailed account of creating the CUNY Law School with unanswered questions. We learn much about Halpern's personal struggles at CUNY, but not as much about the content of the ideas and practices he was proposing. One wishes for more specifics about what was taught in this school that was not taught in other law schools, and how he envisioned the CUNY values of "forgiveness, generosity and community" leading to an alternative way of practicing law once graduates were out in the world of lawyering. One also wonders what spiritual wisdom Halpern would seek to infuse into a law school he might create now, and what such an institution would look like.

Halpern's emerging sense of participating in a culture of wisdom proceeds in a parallel but separate trajectory from his discussion of engagement with legal culture. He speaks of key mentors who taught him a different way of listening and understanding, and skills he learned which enhanced his willingness to take chances. He takes us with him in his encounters with solitude, the wilderness in winter, yoga, and meditation, painting an evocative picture of the refreshing and enlivening effect of personal retreat. He invites us into his process of spiritual development, learning of personal and professional experiences which fostered his ability to handle misfortune, feel more integrally connected to his own identity, and deepen his experience of community. The vision of individual and social expansion he articulates is of meditation, wisdom, and a commitment to social transformation that would "flow together [as] a vigorous advocacy that avoids demonizing people who disagree."

But there is an important issue in which Halpern does not engage that relates to the connection between his inner work and the law. The existing legal culture has evolved to reflect a conception of the human condition that stands in contrast to the values and aspirations Halpern puts forward. Present-day American legal culture tends to validate personal aggrandizement at the expense of the social good, and reflects a highly individualistic conception of the world. In this conception, human beings are fundamentally wary of and isolated from one another, and pursue their separate interests in an environment where each primarily looks out for him or herself, because there is no one else to look out for them. This conception of human motivation and behavior is facilitated by our laws of property, contracts, and torts, which lack a structural acknowledgment of our essential interconnectedness as human beings. This adversarial system all too often ratifies this experience, as it fails to incorporate the virtues of forgiveness or affirmation that Halpern identifies as integral to a culture of wisdom.

Certainly, one can agree with Halpern that the spiritual practices he advocates can help to elevate the consciousness of the legal practitioner and can be one step in a process of change. But a strategy of fundamental change must also include critiquing the embedded individualism of the existing legal order in all its aspects. The lawyer-client relationship should be re-examined and deepened, and new modes of social healing that challenge the mistrustful and overly hostile assumptions underpinning the adversarial system should be integrated into legal practice. It is not just the consciousness of the individual lawyer that needs elevation, but also the cultural meaning of justice itself, as it is embodied in the myriad forms of legal thought and processes that currently dominate the surrounding culture. As Martin Luther King Jr. said so eloquently, "Justice at its best is love correcting everything that stands against love."

As an attorney who aspires to be a strong and effective representative for my low-income clients, and as an advocate for renewal of the law in a context of social justice, the struggles Halpern faced, and his strategies for addressing them, have great relevance and meaning for me. And yet, they also imply larger questions, which move beyond the rubric of individual growth and capacity, and which are not addressed in the book. Can lawyers play a significant role in helping to create a more interconnected social fabric? When processes such as restorative justice or transformative models of mediation are used to address conflict and repair relationships, do they tend to move towards impacting the larger culture, or being subsumed by it? Can the law embody a commitment to justice, and to recognition of the dignity of every human being?

The kind of wisdom-enriched thinking and behavior Halpern describes is an anchor for transforming the legal culture in ways that support a more compassionate form of legal practice. As lawyers learn new forms of activism which shift social dynamics by fostering dialogue and engagement, the "practice of wisdom" will be seen as ever more integral to law students' training. Charles Halpern's memoir is a valuable contribution to thinking about how law schools and other legal institutions can move the practice of law from the status quo to the progressive waves and currents we can only imagine will emerge. We await his further thinking on next steps towards achieving broader transformation in the legal culture and the larger society.

Nanette Schorr is a supervising attorney in a free legal services office in New York City, and an advocate for renewal and healing in the law and the legal culture.

Schorr, Nanette. 2008. Lawyer as healer. Tikkun 23(2):7778.