The Culture of Law (17):  Culture and Meaning

Iain McGilchrist has guided our consideration of brain-based culture. Let’s hear from him one last time:

“Despite the brittle optimism constantly proclaimed by advertising, and not infrequently by government spokesmen, the defining mood of the modern era is one of disappointment. That is not just my opinion; it’s as near a fact as such things can be. People are measurably less happy today than they were fifty years ago, when we first started measuring, despite staggering improvements in material well-being. There is much to feel proud of, of course, advances in conquering disease being just one example, and we live longer — but prompting the question, for what?” From The Divided Brain And The Search For Meaning

“For what?” is a question about meaning. According to McGilchrist, how we answer depends which side of the brain prevails. If the left side, we will focus on being reasonable and rational, on working out utilitarian solutions. If the right, we’ll broaden the discussion to the pursuit of meaning, which has much to do with our own happiness.

Of course, we could avoid the cultural debate altogether, and let cultural evolution take care of it, meanwhile continuing to embrace without examination the cultural norms that make law culture “recognizable as such to both members and non-members” — including behaviors they label alternately as “admirable” and “distasteful.

We could be sedated into thoughtlessness and soullessness by the “staggering improvements in material well-being” our professional offers us in our show me the money moments. Or we could take a contrarian monetary outlook, and embrace the don’t show me the money alternative.

We could argue and debate, and feel righteous about the positions we take, even though what we’re actually doing is defending our neuro-cultural status quo for the sake of our own neurological peace of mind.  Or we could argue “on the other hand” and advocate hacking (in either its outlaw or gentrified character) the law into something more suited to our preferred cultural imperative.

In other words, we could act like lawyers, working one side of the table, then the other. Nothing wrong with lawyers acting like lawyers, especially in matters of the law. But on the topic of law culture, we might want to broaden our inquiry, and entertain the “for what?” question from the fullness of what it means for us to be human, lawyers or not. To make that choice is to end detachment and instead engage ourselves with the meta-issues of our profession. As McGilchrist declares in his wrap up:

“Meaning emerges from engagement with the world
not from abstract contemplation of it.”

The stakes of engagement are higher, and the effort required of us more demanding, than the stakes and effort of detachment. Ultimately what’s at issue is not merely the future context in which law will be practiced by those in the profession — including the entrepreneurial newcomers — or how the profession will be regarded by the public it serves, but the happiness of us all.

We will find meaning in the law for ourselves by creating it through the neuro-cultural collective agreements we wish the other members of the culture to reciprocate. And once those agreements have found their places in our neural pathways, they will go on shaping our culture and us with it, creating meaning in our lives which we will demonstrate through our behavior as lawyers until we become “recognizable  as such to both members and non-members” in our newly re-created profession.

Cultural evolution can’t and won’t give us our future of choice. We can only give that to ourselves by deliberate, focused action which may at times clash with the traditions of our cultural genetic coding.

Engaging with shaping the culture of law will lead us into the search for meaning… if we dare.

Those who dare will make brave choices and commitments, and they and those closest to them will invariably suffer as we and our law culture are neurologically re-shaped. All the while, we will continue to  try cases, negotiate and close transactions, and do all the other things our profession requires all day (and all night) long, but ultimately, we won’t do better for ourselves or others than to create meaning in our law culture, beginning with the meaning we create inside our own skins and skulls.

Those who dare will shape law culture for themselves, their colleagues, and ultimately the world that needs the law to be a living, dynamic, in-spirited agency of human happiness.

Not a bad notion to keep in mind as the holidays are upon us.

The Culture of Law (5): Culture by Agreement

We’ve seen that culture is a matter of individual brain patterning. But how is culture transmitted from one brain to another, so that all brains in a culture have the same wiring?

It begins with a shared experience of cultural formation, which we’ve looked at. After that, culture is reinforced by agreement. Agreement about what? A state of mind.

The following is from an article by Philip G. Chase, former Senior Research Scientist and Consulting Scholar at the University of Pennsylvania, in a collection of scholarly articles entitled Evolution of Mind, Brain, and Culture.

“Because mental states cannot be transferred physically, they must be transferred by being re-created in the mind of the receiving individual.

“[W]hat is transmitted is some state of mind that produces behavior.

“[The transmitted state of mind includes] a myriad of… beliefs, values, desires, definitions, attitudes, and emotional states such as fear, regret, or pride.”

Law students entering law practice observe lawyers thinking and behaving in ways that characterize law culture — that make it recognizable as such to both members and non-members. Through observation and imitation, they become habituated into cultural norms of thinking and acting, forging implicit agreements about law culture which are reinforced through ongoing experience. In time, they become recognizable as lawyers even when they’re not lawyering. It’s a mindset:  “once a lawyer, always a lawyer.”

The same is true of other professional cultures. Think of accountants, engineers, physicians. Meet one, and you can just tell.

John R. Searle, Professor of Philosophy, University of California, Berkeley, has made a career of deconstructing  about these cultural agreements, beginning with his landmark book The Construction of Social Reality, where he framed his inquiry this way:

“This book is about a problem that has puzzled me for a long time:  there are portions of the real world, objective facts in the world that are only facts by human agreement. In a sense there are things that exist only because we believe them to exist. I am thinking about things like money, property, governments, and marriage.

“If everybody thinks that this sort of thing is money, and they use it as money and treat it as money, then it is money. If nobody ever thinks this sort of thing is money, then it is not money. And what goes for money goes for elections, private property, wars, voting, promises, marriages, buying and selling, political offices, and so on.”

“How can there be an objective world of money, property, marriage, governments, elections, football games, cocktail parties and law courts in a world that consists entirely of physical particles in fields of force, and in which some of these particles are organized into systems that are conscious biological beasts, such as ourselves?”

Professional culture is not monolithic. In every profession, the cats resist herding. Members of the culture practice some cultural agreements more than others, according to personal preference. We’re not all in the same place on the cultural bell curve. Yet there is undeniably an identifiable mindset that characterizes the culture, and a general consensus about what that mindset is, even if you believe yourself to be an exception. (I have asked workshop participants about this for years, and the list of what characterizes law culture is always the same. You can write it up for yourself, right now, if you like.)

The seeds of cultural change lie in the tension between the general consensus and individual self-perception. More on that coming up.

For a taste of what I mean by cultural norms that make law culture “recognizable as such to both members and non-members,” check out these recent blog posts on “admirable” and “distasteful” lawyer mindsets and behaviors.