The Geography of Legal Thought

Each year I spend the first few minutes of my Civ Pro class, as I expect so many other profs must do, showing my students the death cage match from Mad Max Beyond Thunderdome. The battle between the “man with no name” and the baby-faced giant, all to decide who really owns a vehicle, sets up a lively discussion about procedural justice and modes of dispute resolution.

The second day I turn away from no-holds-barred adversarial battles and towards topics that are less traditional for Civ Pro classes. For reasons that at first clearly perplex my students, we take our second day in Civ Pro to discuss a book called The Geography of Thought, written by a psychology professor named Richard Nisbett. The book collects the results of decades of research by Nisbett and others, in which experiments are run on the cognitive styles of different cultures. In particular, he contrasts the cognitive style of east Asians – such as my students – with the cognitive styles of Europeans and Americans, such as myself.

The first interesting thing about Nisbett’s results is that cognitive differences are notable in very early childhood. They are in no way genetic – Chinese Americans, for example, test as Americans after a generation or two – but they are sufficiently deeply rooted in cultures that they show up before philosophies or dogmas can be taught with any sophistication.

The next interesting thing is that we are pretty much unaware of how much these cognitive differences impact us. Because the differences go not just to how we organize reality, but to how we perceive it in the first place, it’s hard for us to know what we are missing.

One experiment Nisbett describes involves showing scenes of an aquatic setting. There’s a big fish in the front. Behind the fish are various water plants, and various small fish swimming about. When shown the scene and quizzed western students tend to focus on the big fish in front. They describe it in detail, but remember and seem to have perceived little about everything else. East Asians, on the other hand, remember the big fish but at much higher rates tend to perceive and richly describe the context of the tank – where the plants were, the location of the smaller fish, and so on. The cognitive difference, according to Nisbett, is that westerners tend to focus on objects, which in this case would be the big fish, while east Asians tend to focus on context and relationships, which in this case would be the interaction between all the items in the tank. Interestingly, according to Nisbett, these differences are reflected not only in the structure of language but in how language is learned – westerners tend to focus on and first learn nouns, while east Asians, consistent with being context oriented, focus on verbs.

The way Asians and westerners organize and categorize things also tends to be a bit different, Nisbett argues. Going back at least to Plato’s notion of forms, and probably before, westerners tend to put things in categories – the item we are sitting in is a chair, or a stool, or a box, and fits into that precise category. We tend, Wittgenstein aside, to think in terms of the necessary and sufficient elements to define categories.  Asians tend to be not so concerned with categorization, but much more concerned with the relationship of objects to their environment. Asians turn out to be equally capable of categorization, but less likely to choose it as a way to process what they see. 

Nisbett is not so unsophisticated as to suggest that culture is destiny. There are distributions in both western and Asian cultures, with holistic thinkers and categorical thinkers in both. It’s just that if you arrange the population on a scale from most categorical to most holistic, the bell curves for westerners and Asians will be somewhat off phase.

You might be wondering, along with my students, what this has to do with law school. Legal thought and legal language are western thought and western language on steroids – if westerners tend to put objects and experiences into categories, the name of the game in legal analysis is finding the correct category into which to place sometimes complex fact patterns. 

If legal thought is western thought on steroids, law school is legal thought on whatever cutting edge performance enhancers pro cyclists use. Students are given narratives, and driven rather mercilessly to derive from those narratives rules and categories. Scholars such as Elizabeth Mertz have observed that part of the law school process is to strip away context, at least as perceived by lay people, and replace it with the artificial linguistic constructs of legal discourse. In law school, human context that can matter to successful practice, not to mention life, gets stripped out in favor of categorizing facts as legally relevant or not, of judicial speech as holding or dicta, of people with concerns as plaintiffs or defendants. Students who fail to give back what law school demands tend to suffer when grades are awarded.

As I have watched my students come to terms with law school, I noticed that for some the leap was too great – not because they were not smart enough, or capable of relentlessly logical thought, but because it felt wrong. Coming from a culture that reinforced a contextual approach, some seemed more resistant than western students to the context-stripping aspects of legal discourse.

I spend a bit of time with Geography of Thought in order to explain to my students the rules of engagement of a western style law school within a broader cultural context. For many of them, it’s a new experience to be immersed in a western setting and held to western standards. Since we all tend to be unaware of our own embedded cognitive tendencies, I want to be sure they actively consider the shift in approach they are being asked to make. Beyond that, I suspect that once they graduate and start practice bridging cultural gaps will be part of the value they add, and having a familiarity with Nisbett's work might be helpful.

I think, though, that Nisbett’s insights could have some use for western legal scholars with no intentions to travel to Asia. Obviously enough, for schools that have east Asian students, the same dynamics that occur in my classes might occur in theirs. Beyond that, the cognitive differences Nisbett recognizes also have a gendered aspect – while the differences are less substantial than between east and west, differences have been measured between men and women, with women tending a bit more to the holistic organization of reality and men a bit more toward the context-free categorical. Last but not least, Nisbett’s insights remind us, as law becomes increasingly transnational, that translating between legal systems involves hidden complexities. For example, Nisbett’s insights send up a cautionary signal about the exportability of rule of law – if categorization independent of context fights against a culture’s cognitive tendencies, there may be a cultural naiveté to some of the efforts to export our category based rule of law without culturally sensitive adaptations. 

Comments

[Jeff Lipshaw]

Ray, your characterization of Western-style thought is spot-on, but we don't need to go to Asia to highlight the differences between lawyers and others in terms of cognitive tendencies. Nor is the pedagogical task either/or.

For the last week, and continuing for the next several, I will be pounding on my 1Ls (in contracts) precisely what Elizabeth Mertz describes: your job is to translate narratives into legal theories, themselves made up of a series of "if-then" propositions, where the presence in the narrative of the conditions requires, under the legal rule of inference, a particular legal consequence. So if the context of the dispute is whether there was, for example, a contract, and the question is whether there was a promise, you win the artificial linguistic game of litigation by persuading an adjudicator that there was present within the narrative (1) a manifestation (2) justifying another in believing (3) that a commitment was made.

On the other hand, I spent the first two classes in the upper level Entrepreneurship, Venture Capital, and the Law talking to the students about (and playing some cognitive games to show) that "thinking like a lawyer" in the manner I just described is likely to be a ship passing in the night with one's entrepreneur/founder client.

One solution to all this is to have the students get at least some instruction from teachers like you who have seen "law in action" (to take another phrase from Stewart Macaulay, Elizabeth Mertz, and others of that school of thought).

[crowm]

Side note for future uses of the scene: the actor that played the gladiator has Down syndrome.