Several years ago, when I first heard Peter Gabel’s critique of the conception of separate, competing individuals at the core of the American legal system, and how that view fails to account for the deep need we all have for mutual recognition, I immediately took to it. It has influenced my work, and I often share it with legal audiences. And I have joined Gabel on the Executive Committee of the Project for Integrating Spirituality, Law, and Politics to help spread this wisdom.
Transforming the Courts
Gabel identifies restorative justice, the holistic Georgia Justice Project, and the upcoming clinic at Mercer Law School as hopeful examples of law practice that honor our need for mutual recognition. From the other side of the bench, I can add to this list some very promising developments within the court system. My partner judge here in Hennepin County, Minnesota, and I each manage several problem-solving courts—drug court, DWI court, mental health court, veteran’s court, and specialized calendars for homeless people and women charged with prostitution. We get to know these participants very well—a rare experience for judges—and the research is clear that the respectful, supportive relationship between the participant and the judge is one of the principal reasons for the success of the 2,800 problem courts across the country. One frequent observation we hear at drug court graduations is, “You saw something in me I did not see in myself.”
Courts are also honoring the importance of mutual recognition by training judges in the field known as “procedural fairness.” People in a court proceeding have the same needs as people in any social setting, especially a public one: to be appreciated, recognized as distinctive and important, and affirmed for who they are. Therefore, judges need to listen carefully, treat parties with respect, make unbiased decisions, and explain outcomes clearly. In short, they need to care about the people affected. And research is showing that the way people are treated in court is at least as important to them as the outcome of the proceeding. Moving beyond a long tradition of focusing on making the right decision, judges now know it is just as important to recognize the humanity of the parties in the courtroom.
Courts are taking important steps to address the challenge of fostering mutual recognition and fully “seeing” the large numbers of diverse parties in our courtrooms. In our district, we regularly listen to presentations from members of diverse communities—such as Native Americans; Somali, Hmong, and Hispanic immigrants; and subcultures like African American young men and people from generational poverty—about how the upbringing and attitudes of members of their communities affect how they act in court. Sophisticated tools like the Intercultural Development Inventory and implicit-association tests used to discover unconscious bias have been provided to us, to help us better understand our orientation toward cultural difference and commonality.
All of our probation officers here are trained in the technique called “motivational interviewing.” Avoiding the typical lecturing and instructing inherent in most authority–subject relationships, motivational interviewing is truly the kind of “I and Thou” relationship Gabel seeks. In a recent training I attended, motivational interviewing was described as a process for “eliciting and exploring the person’s own reasons for change within an atmosphere of acceptance and compassion.” Is that how you thought of probation?
It is a little harder to imagine specific changes in the substantive law, as opposed to these kinds of procedural reforms, that would promote Gabel’s vision. But one approach comes to mind. Gabel laments that our legal doctrine typically imposes on its supposedly competitive, disconnected individuals minimal duties toward others. The exception is when someone is entrusted with money or property, which gives rise to a “fiduciary duty” to act solely in another party’s interests. For a vulnerable person to vest confidence, reliance, and trust in another whose aid and protection is needed, and for the law to affirm that responsibility is, it seems to me, precisely the kind of “justice” Gabel hopes for. As the law evolves away from separation and individual rights, concepts like fiduciary duty may assume a wider scope.
From Social Psychology to Spirituality
What can explain the arising of marvelous developments like restorative justice and problem-solving courts? I think the answer comes from a deep spirituality rather than the social psychology of mutual recognition. To be sure, people have a set of fundamental needs, and I would include mutual recognition on a short list along with autonomy, purpose, physical well-being, and fun. But throughout history, spiritual masters have recognized a fact of existence more fundamental than our psychological needs: we are all actually connected as reflections of the one universal consciousness.
For the past fifteen years, my wife and I have studied the writings of Paramahansa Yogananda, an Indian yogi who taught and preached in this country in the first half of the last century. He put it this way:
There is one Link, one Life eternal, which unites everything in the universe—animate and inanimate—one wave of Life flowing through everything.
This fundamental spiritual truth can be traced back through time. Chief Luther Standing Bear, a Sioux chief in the late 1800s, said it like this:
From Wakan Tanka, the Great Spirit, there came a great unifying life force that flowed in and through all things—the flowers of the plains, blowing winds, rocks, trees, birds, animals—and was the same force that had been breathed into the first man. Thus all things were kindred, and were brought together by the same Great Mystery.
Kabir, a Sufi poet who wrote in the 15th century, used these words:
In your veins, and in mine, there is only one blood, the same life that animates us all! Since one unique mother earth begat us all, where did we learn to divide ourselves?
This sentiment can be found in the Bible, but it is even better expressed in some of the recently discovered gospels that didn’t make it into the official canon. This is from the Gospel of Thomas (recognize that when Jesus says “I” and “me,” he is referring not to his flesh and blood but to the Christ consciousness):
It is I who am the light which is above them all, It is I who am the all. From me did the all come forth, and unto me did the all extend. Split a piece of wood and I am there. Lift up the stone, and you will find me there.
And from the Buddha:
He who experiences the unity of life sees his own Self in all beings, and all beings in his own Self, and looks on everything with an impartial eye.
Modern science is increasingly confirming this age-old spiritual understanding of human connection. In her book The Bond, Lynne McTaggart summarizes the latest research in physics, biology, neuroscience, and sociology. She puts her conclusion this way:
The latest evidence from many disciplines—from neuroscience and biology to quantum physics—suggests that nature’s most basic drive is not competition, as classic evolutionary theory maintains, but wholeness. I’d seen a good deal of new research demonstrating that all living things, including human beings, have been hard-wired to seek connection above virtually every other impulse—even at personal cost. Nevertheless, our current paradigm, as provided by traditional science, maintains a view of the universe as a place of scarcity populated by separate things that must turn against each other in order to survive.
McTaggart lays out the growing evidence that people are hard-wired to be kind and generous. Experiments demonstrate that toddlers and animals will regularly share things with each other even with no hope of reciprocation. New technology for scanning the brain reveals that the same area of the brain is stimulated by rewards and contributions. Altruistic behavior does not happen in a vacuum; it turns out that people are in constant unconscious communication with each other through a flow of photons between them. Mirror neurons create in an observer the felt experience of the person being observed. Careful observations show that people unconsciously mimic each other and closely coordinate their physical and vocal activities. We all know that various kinds of conduct—yawning, laughing, yelling—are contagious, but so is happiness itself. McTaggart presents compelling evidence that a happy neighbor has more influence on your happiness than a happy friend. These unconscious connections continually influence our behavior, and are vital to our health and well-being. People who are lonely and isolated are much more likely to have a heart attack. The frequency of use of the words ‘I,’ ‘me,’ and ‘mine,’ is a stronger predictor of mortality from heart disease than blood pressure or cholesterol level.
In short, what we believe to be a need for mutual recognition just might be the divine looking for itself.
I have come to believe that one way to view the inexorable march of biological evolution is as the development of the neurological capacity necessary to recognize this universal inner presence more and more fully. And I don’t mean just in humans. Everyone who owns a dog knows that their capacity for loyalty and love may exceed our own. My college-student daughter said that when she was crying recently, her cat came and put his paw on her shoulder. The actual brain size of dolphins exceeded that of human precursors until just a couple million years ago. And watching their joyful companionship feels like a glimpse of the divine.
One of the best guides to this unfolding process in our species is Steven Pinker’s book The Better Angels of Our Nature, a monumental account of the forces that have caused violence to decline to a fraction of a percent of what it was in prehistoric times. In 800 pages and hundreds of graphs, Pinker methodically explains how society evolved through the stomach-wrenching barbarity of the Romans, the Inquisitors, the Conquistadors, the witch burners, etc., to the widespread condemnation of slavery, torture, superstitious killing, cruelty to animals, despotism and dueling in the seventeenth and eighteenth centuries, and to the growing recognition of civil rights, women’s rights, children’s rights, gay rights, and animal rights in the twentieth century and the beginning of the twenty-first.
The social evolution documented by Pinker is so complete and so consistent that it calls out for a mystical explanation. Pinker writes:
To writers who have noticed declines of violence, the sheer abundance of them, operating on so many scales of time and magnitude, has an aura of mystery. James Payne wrote of a temptation to allude to “a higher power at work,” of a process that seems “almost magical.” Robert Wright nearly succumbs to the temptation, wondering whether the decline of zero-sum competition is “evidence of divinity,” signs of a “divinely imparted meaning,” or a story with a “cosmic author.”
Pinker lays out the external explanations for this arrow of cultural evolution: the security provided by governments and police forces, the advantages of trade over war, the peaceable tendencies of democracies. But the most interesting explanations are deeper. Human nature has evolved. With better health and nutrition and the rise of social conventions and a future orientation, people have gained self-control. With widespread formal education, the capacity for abstract reasoning has increased so markedly that IQ tests have to be repeatedly recalibrated. It is abstract reasoning, of course, that provides the perspective necessary to realize that no person or group is any more entitled to life and happiness than anyone else. And Pinker points out that the emotion perhaps closest to what Gabel calls the need for mutual recognition, empathy, greatly expanded to regularly include strangers only in the late 18th century. A likely explanation is the growth of literacy and the reading of fiction, which allows the reader to appreciate someone else’s interior experience.
One of the most dramatic illustrations of the evolution of human nature is what Paul Hawken in his book Blessed Unrest calls “the largest social movement in all of human history”—between one and two million grassroots organizations are working toward ecological sustainability and social justice. The topics are two sides of the same dilemma because “the way we harm the earth affects all people and how we treat each other is reflected in how we treat the earth.” I consider it a spiritual movement because it is so fundamentally altruistic—millions of people working on behalf of strangers. Hawken attributes to it “religious, even mythic, origins…”
So we are in an evolutionary process right now that is propelling us to outgrow our liberal, rights-based, competitive legal structure, whether we want to or not. What can we do to shape the process?
Fostering the Future
The growing “Integrative Law” movement is promoting the transformation Gabel advocates, and has a couple of principal strands. Some legal reformers urge the kind of organizational and doctrinal reforms described above. At the same time, “contemplative law” is directed inward and emphasizes the importance of meditation and other mindfulness practices. Recognizing that we are participating in the evolutionary development of our very capacity to appreciate our oneness links these two strands. My own sixteen-year intense experience with meditation convinces me that it is a life-changing process that inexorably increases appreciation of our spiritual connection to one another, our ability to engage in mutual recognition. In other words, it could be called “intentional evolution.” It accelerates the processes Pinker, McTaggart, and Hawken are all documenting.
And it is everywhere. As of 2010, 10 million Americans were practicing some form of meditation. My wife is a psychologist, and I like to skim the many brochures for mental health-related continuing education seminars that come in our mail. “Mindfulness,” which I just consider to be the secular, non-threatening term for meditation, is now featured in everything from stress reduction to grief counseling to pain management.
As the consciousness of oneness fostered by meditation grows, we can count on seeing more organizational manifestations of spiritual evolution—more Georgia Justice Projects, more problem-solving courts, and big changes in legal education.