Lawyer Mind, Judge Mind

Several recent discussions on a variety of unrelated topics with different people have gotten me thinking about two different attitudes towards dialectical processes. They are generalized versions of the professional attitudes  required of lawyers and judges, so I’ll refer to them as lawyer mind and judge mind. 

In the specialized context of the law, the dialectical process is structurally constrained and the required attitudes are  codified and legally mandated to a certain extent.  Lawyers must act as though they were operating from a lawyer-mindset, even if internally they are operating with a judge-mind. And vice-versa. Outside of the law, the distinction acquires more philosophical overtones.

I want to start with the law, but get to a broader philosophical, psychological and political distinction that applies to all of us in all contexts.

The Two Minds in Law

The lawyer mind allows you  to make up the best possible defense or prosecution strategy with the available evidence. Within limits, even if the defense lawyer is convinced his client is guilty, s/he is duty-bound to make the best possible case and is not required to share evidence that incriminates the defendant or weakens the case.  I asked several questions about this sort of thing on Quora and got some very interesting answers from lawyers. If you are a lawyer or judge and have opinions on these basic questions, you may want to add them as answers to the questions rather than as comments here.

The legal system is designed so that lawyers are under an ethical and legal obligation to try and win, rather than get at the “truth” in any sense. So a defense lawyer with a flimsy case, who is convinced of his client’s guilt, but who wins anyway because the prosecution is incompetent, is doing his job. S/he should not pull his/her punches.

What’s more, there is a philosophy behind the attitude. It is not letter over spirit. It is letter in service of the spirit. If things are working well, the lawyer should not suffer agonies to see justice not being served in the specific case, but find solace in the fact of the dialectic being vital and evolving as it should.

The lawyer, by pulling out all stops for a legal win, regardless of the merits of the case, is philosophically trusting the search for “truth” to the dialectic itself, and where the dialectic fails in a particular instance, s/he (I expect) views it as necessary inefficiency in the interests of the longer-term evolution of the legal system. It’s the difference between “not in my job description” small-mindedness and “trusting the system” awareness of one’s own role and its limitations.

The judge’s nominal role is to act as a steward of the dialectic itself and make sure it is as fair as can be at any given time, without attempting to push its limits outside of certain codified mechanisms. The judge is charged with explicitly driving towards the “truth” in the particular case, and also improving the system’s potential — it’s dialectical vitality — so that it discovers the truth better in the future (hence the importance of writing judgments with an eye on the evolution of case law, which is supposed to be a run a few steps ahead of legislation as a vanguard, and discover new areas that require legislative attention).

When Does This Work?

Now, if you think about it, this scheme of things works well when the system is actually getting wiser and smarter over time. If the system is getting dumber and more subverted over time, it becomes harder and harder for either the lawyer or the judge to morally justify their participation in and perpetuation of the system (assuming they care about such things).

A challenge for a judge might be, for instance, an increasing influence of money in the system, with public defenders getting worse over time, and rich people being able to buy better and better lawyers over time. If this is happening, the whole dialectic is falling apart, and trust in the system erodes. Dialectical vitality drains away and the only way to operate within the system is to become good at gaming it without any thought to larger issues. This is the purely predatory vulture attitude. If a legal system is full of vulture-lawyers and vulture-judges, it is a carcass.

A moral challenge for a lawyer might be, for instance, deciding whether or not to use race to his/her advantage in the jury selection process, effectively using legal processes to get racial discrimination working in his client’s favor. Should the lawyer use such tactics, morally speaking? It depends on whether the dialectic is slowly evolving towards managing race more thoughtfully or whether it is making racial polarization and discrimination worse.

This constant presence of the process itself in peripheral vision means that both lawyers and judges must have attitudes towards both the specific case and about the legal system in general. So an activist judge, for instance, might be judge-minded with respect to the case, but lawyer-minded with respect to the dialectic (i.e., being visibly partisan in their philosophy about if and how the system should evolve, and either being energetic or conservative in setting new precedents). You could call such a person a judge-lawyer.

A lawyer who writes legal thrillers on the side, with a dispassionate, apolitical eye on process evolution, might be called a lawyer-judge. A lawyer with political ambitions might be a lawyer-lawyer. I can’t think of a good archetype label for judge-judge, but I can imagine the type: an apolitical judge who is fair in individual cases and doesn’t try too hard to set precedents, but does so when necessary.

The x-(x’)-X-(X’) Template

Because of the existence of an evolving dialectic framing things, you really you have four possible types of legal professionals: lawyer-lawyers, judge-judges, lawyer-judges and judge-lawyers, where the first attitude is the (legally mandated and formal-role based) attitude towards a specific case, and the second is the (unregulated) political attitude towards the dialectic.

When the system is getting better all the time, all four roles are justifiable. But when it is gradually worsening beyond the point of no return, none of them is.  When things head permanently south, a mismatch between held and demonstrated beliefs is a case of bad faith. Since all hope for reform is lost the only rational responses are to abandon the system or be corrupt within it.

To get at the varieties of bad faith possible in a collapsing dialectic, you need to distinguish between held and demonstrated beliefs at both case and dialectic levels to identify the specific pattern.

So you might have constructs like lawyer-(judge)-lawyer-(lawyer).  This allows you to slice and dice various moral positions in a very fine-grained way. For example, I think a legalist in the sense that the term has been used in history, is somebody who adopts a lawyer-like role in a specific case within a dialectic that’s decaying and losing vitality, while knowing full well that it is decaying. Legalists help perpetuate a dying dialectic. You could represent this as lawyer-(judge)-judge-(lawyer).  I’ll let you parse that.

This is getting too meta even for me, so I’ll leave it to people who are better at abstractions to make sense of the possibilities here. I’ll just leave it at the abstract template expression I’ve made up: x-(x’)-X-(X’).

The special case of the law illuminates a broader divide in any sort of dialectical process. Some are full of judge-mind types. Others are full of lawyer-mind types.

The net behavior of a dialectic depends not just on the type of people within it, but on its boundary conditions: at the highest level of appeal, do judge-minds rule or lawyer-minds?

Within the judiciary, even though there are more lawyer minds, the boundary conditions are at the Supreme Court, where judge minds rule. So the dialectic overall is judge-minded due to the nature of its highest appeal process.

In other dialectics, things are different because the boundary conditions are different.

Governance Dialectics

The watershed intellectual difference that separates conservative (more lawyer-like) and liberal discourses (more judge-like) around a particular contentious subject is framed by the boundary conditions of the governance dialectic itself.

Politics exists within the dialectic that in principle subsumes all others: the governance dialectic. “In principle” because if the governance dialectic loses vitality, the subsumed dialectics can devour their parents.

You could argue that in a democracy where the legislative branch has the ability, in principle, to amend the constitution arbitrarily, the overall governance dialectic is one where the lawyer mind is the ultimate source of authority, since the top body is a bunch of formally lawyer-mind types. There are no judge-mind types with any real power, especially in parliamentary democracies. Nominally judicial roles like the Speaker are mostly procedural rather than substantive.

The theory of an independent judiciary does not in practice give judge-mind people equal authority. The check-and-balance powers of the judiciary are based on seeking to make the law more internally consistent rather than improving its intentions or governing values. Of course, if the legislative arm is slow in keeping up with the landscape being carved out by case law, the judiciary gains more de facto power. That’s a subsumed dialectic devouring its parent.

So in a democracy, lawyer-minds are structurally advantaged, since the most powerful institution is set up for lawyer minds. Bipartisanship (judge minds operating in a legislature) takes a special effort to go beyond the structural default through an act of imagination.

Among the other institutions in a free-market democracy, theoretically the judiciary, executive and free press are nominally judge-minded at their boundaries, while the market is lawyer-minded (more on that in a bit). So there is structural lawyer-mind bias in the top-level institutions (the legislature and the market) and a structural judge-mind bias in the secondary institutions (the judiciary, the press and the executive branch).

Traditional Imperial China was the opposite. The legal system ultimately derived its authority from a judge-mind figure, the Emperor. The lawyers were second-class citizens.

Other Dialectics

The notion of “free press” is currently being radically transformed due to the fundamental tension between journalism and blogging.

Journalism, at least nominally, is driven by a judge-mind dialectic. Journalists nominally aspire to a fair-and-balanced (without the Fox News scare quotes) role in society.

Blogging is driven by a lawyer-mind dialectic. Bloggers trust that the “truth will out” in some larger sense, and feel under no moral obligation to present or even see all sides of an issue. If the opposed side has no credible people, well, tough luck. The truth will just take a little longer to out. This gradual transformation of dialectical boundary conditions has been particularly clear in the various run-ins between Michael Arrington and newspapers like the Washington Post. This too is a case of a subsumed dialectic devouring its parent, since the government basically has no idea what its role in the new media world should be.

Science is another important dialectic. I won’t attempt to analyze it though, since it exists in a feedback loop with the rest of the universe, and is too complicated to treat here. Religion used to be dialectical in nature, but isn’t any more. But science is unimportant socially because it is very fragile, and in a world that is socially messy, it is easily killed. It never rules primarily because it takes a certain minimum amount of talent to participate in the scientific dialectic, which makes it similar to a minority dialectic.

Religion used to be a real dialectic. Now it is mostly theater in service of political dialectics.

Capitalism is another dialectic with the capacity to devour governance, just like the judiciary. But it is lawyer-like, not judge-like. The idea of a “fiduciary duty” to maximize shareholder wealth in the US is a lawyer-like duty towards society. The trend towards “social” businesses (B-corporations in the US) is an attempt to invent companies with more judge-like duties towards society. For the former to work, the market has to be closer to truly competitive, and getting better all the time. The invisible hand must be guided by an invisible and emergent judicial mind.

In an environment where pure competition has been greatly subverted, it is hard to justify this “fiduciary duty.” The rise of B-corporation philosophy, indicates a failure in the governance dialectic, since emergent judge-mind attitudes that should exist at the legislative level are being devolved to the corporate level.

In the US, the legislature has abdicated the spirit, if not the letter, of its responsibilities. Fiduciary duty may be a terrible idea, but the better solution would be to shift to a different, but still lawyer-mind model. This is because the market has a far lower capacity to manifest an emergent judge-mind. Since it is the governance dialectic that controls the nature and future of money, the principal coordination mechanism for the market, the market is ultimately subservient in principle, just like the judiciary.

Since the top-level emergent judge-mind requires a culture of bipartisan legislative imagination to exist, a legislative branch that cannot define imaginative visions on occasion enables a takeover by the structurally advantaged lawyer minds that comprise it, which leads to polarization and a power vacuum, which in turn leads to the devouring by nominally subsumed dialectics.

This is not an accident. By its very nature, you cannot structurally advantage judge-minds at the ultimate boundary of a social system. If you do, you are essentially legitimizing a sort of divine authority. The top level has to be lawyer-minds arguing by default, with an occasional lawyer gaining enough trust across the board to temporarily play judge.

Societies fail when their governance processes fail to demonstrate enough imagination for sufficiently long periods. We are living through such a period in the US today, as well as in many other parts of the world. Governance processes across the world have lost their vitality and there is a lot of devouring by dialectics it is supposed to subsume.

In the past during periods of such failure, violent adjustments have occurred. War is after all, the social dialectic of last resort.  Both world wars and the US Civil War represented such adjustments. In each case, the governance dialectic was revitalized, but at enormous cost in the short term.

Empathy and Passion

When you approach all reality with an intrinsic lawyer mind, you fundamentally believe that no matter how powerful your perspective-shifting abilities, you cannot adopt all relevant points of view. Not even all human points of view. With a judge-mind by contrast, your starting assumption is that you will eventually be able to appreciate all points of view in play. It is a somewhat arrogantly visionary perspective in that sense, and requires exhibition of a sufficient imagination to justify itself.

With a lawyer-mind for instance, if you are white, you don’t presume to understand the black point of view. With a judge-mind, you assume you can. Your emotions can also be lawyer-like (polarized passion) or judge-like (dispassionate).

If you are aware of, and unconflicted about, your role in a given dialectic, you don’t try to either suppress or amplify your emotions. You try to be mindful about how they influence your intellectual processes and control that influence if you think it is counter-productive. Up to a point, passion improves a lawyer mind and lack of passion improves a judge mind. Too much passion, and a lawyer-mind becomes emotionally compromised. Too little passion and a judge mind becomes apathetic. Both pathologies lead to procedural mistakes.

Passion cannot be conjured up out of nothing, nor can it be created or destroyed independently of intellectual reactions. So if you need more or less passion for your role, you have to either change your role via a true intellectual shift, or borrow or lend passion. This requires empathy.

Depending on whether the passion is on your side or the opposite side, empathy can make you more lawyer-minded or more judge-minded. Empathy for a friend makes you more lawyer-like. Empathy for a rival makes you more judge-like. This is how dialectics get more or less polarized. A dialectic with vitality can swing across this range more easily. One that lacks vitality gets locked into a preferred state.

So there is a sort of law of conservation of passion in a given situation, with passions of different polarities canceling out via cross-divide empathy, or reinforcing via same-side empathy.

There is a certain irreversability and asymmetry though. Judge-minds being fundamentally dispassionate cannot absorb passion and become lawyer-like as easily as lawyer-minds can absorb opposed passions and become more judge-like. This means judge-minds are more stable than lawyer-minds. To lower polarization, all the minds in a dialectic must mix more and let passions slosh and cancel out somewhat via empathy. This means breaking down boundaries and creating more human-to-human contact. To preserve or increase polarization on the other hand, artificial barriers must be created and maintained. Or you need a situation where material dialectics, like war and natural calamities, happen to be highly active.

This is fundamentally why the labels conservative and progressive mean what they do in politics.  This is also why conservatives are typically better organized institutionally. They have walls to maintain to prevent contamination of their lawyer minds.

And finally, this is also why the governance dialectic is structurally set up to advantage lawyer-minds at the highest levels: they need the structure more. It is up to judge-minds to transcend existing structures and imagine more structure into existence.

Knowing Your Place

With a lawyer mind in improving times, you conclude that your job is merely to do your absolute best with the perspectives you can access directly or via empathy, and trust larger processes to head in sane directions.

The lawyer mind is therefore an open system view that is more robust to unknown-unknowns. It trusts things it does not actually comprehend. It is intellectually conservative in that it knowingly limits itself. The judge mind is a closed system view that is less robust to unknown unknowns. It is intellectual ambitious in that it presumes to adopt a see-all/know-all stance. It does not trust what it cannot comprehend and is limited by what it can imagine.

Paradoxically, what makes a judge-mind closed is its capacity for imagination, while a lawyer-mind is open by virtue of its lack of imagination.  The ability to adopt many conflicting perspectives dispassionately fuels imaginative synthesis, but this synthesis then imprisons the judge mind. The reverse paradox holds for lawyer minds.

These paradoxes suggest that each type of mind contains the seed of the other, yin-yang style. I’ll leave you to figure out how. The fundamental delusion of a frozen judge-mind is the belief that this yin-yang state can exist in one mind all the time. The fundamental delusion of a frozen lawyer-mind is the belief that it never can.

In the Myers-Briggs system, where J(udging) and P(erceiving) represent what I’ve been calling the lawyer and judge mindsets respectively. Ironic that the labels are somewhat reversed.

Psychologically, I am a P (a fairly strong INTP), but intellectually, over the years I’ve become increasingly lawyer-minded rather than judge-minded. Perhaps it is the effect of blogging.  Perhaps it is a growing sense of the limits of my own abilities.

In terms of more artistic archetypes, the fox and hedgehog reflect lawyer and judge minds.