### 21 responses

1. Vikram Hegde
March 29, 2012

I’d be a lawyer-lawyer who’s actually a lawyer. I don’t practice law at the moment as I’ve been trying to become a part of the administration of India. I agree with you about the lawyer having the upper hand in a democracy. My question is regarding a setup where a bureaucrat assists a elected minister. Here the bureaucrat makes some suggestion after processing the issue with a judge mind (ideally) however the minister who carries some sort of mandate is supposed to function as a lawyer. The situation from a courtroom where a lawyer presents a case to a judge who decides is reversed here where the judge presents to a lawyer. You’ve already identified the closed nature of the judge mind. In a scenario like this, is the bureaucrat a lawyer or a judge?

Now the politician could either be a Jawaharlal Nehru (lawyer-judge as a Prime minister, a lawyer-lawyer in the courts before he became PM) or an Indira Gandhi (a lawyer-lawyer as a Prime Minister). I bill them thus based on the respect they had for the checks and balances. I think it is safe to say that the nature of the prime minster colors the nature of the legislature and the legislature too would fit these descriptions during their respective regimes. As you have mentioned, it is undesirable for a judge to be at the ultimate boundary of a social system. Could we say that it is also dangerous to have a lawyer lawyer at this ultimate boundary?

How about voters in a democracy? Are they by default lawyers? or can an individual voter also be a judge? While the general expectation from voters is that they are lawyers, I think there are voters who are judges. I raise this point only to raise the larger question of whether collectives can be categorized as lawyers or judges and further whether this collective can have a character different from that of it’s constituents. Imagine a constituency which is full of voters who are individually judges with closed minds. The collective and especially their elected representative (if he/she is doing his/her job right) is a lawyer.

2. Maus
March 29, 2012

Without undermining your meta-narrative, which I find stimulating and, at least with respect to myself, somewhat accurate (I am a lawyer with a lawyer-mind mindset); you oversimplify certain aspects of the lawyers’ roles in the adversarial process of criminal justice. Prosecutors are more truth-oriented than you surmise, particularly because they are ethically bound to disclose exculpatory evidence to the defendant whilst the defense attorney has no corresponding duty to disclose inculpatory evidence to the People (and indeed has an ethical duty to refrain from violating his or her client’s confidentiality in this respect). While the trial process is more likely to produce “truthiness” rather than truth, lawyers are ethically bound not to introduce evidence that they actually know to be (as opposed to suspect to be) false. You can omit certain truths but you cannot practice active deception. Also, case law forbids racial discrimination in jury selection. If more than one prospective juror of a particular race is excluded, it is fairly typical for one side to demand a hearing on the underlying rationale. In that situation, the lawyer who has excluded the person must give a racially neutral justification or the judge will either reseat the excluded person or eliminate the whole panel and begin jury selection anew. If an appellate court determines after the fact that racial discrimination tainted the jury selection process, the defendant will be granted a new trial. Finally, the influence of money on the success of criminal defense is not really focused so much on the quality of the lawyer (public defender versus retained attorney) representing the defendant, but the investigative resources that can be brought to bear to develop exculpatory evidence or hire very expensive expert witnesses. More money typically means more evidence of higher persuasive value. Public defenders’ investigative budgets are notoriously underfunded and overstrained.

• Venkat
March 29, 2012

I had that prosecution/defense asymmetry pointed out in one of the Quora answers, so that’s the reason I was careful to use the defense lawyer as the archetype. But yeah, the asymmetry weakens the argument somewhat.

Things like racism in jury selection…. I tend to the cynical view that it just goes underground and good lawyers probably learn how to play the race card without it being provable that they are doing so. But if I am overly cynical, that’s probably a bad example of a moral conundrum for a lawyer. I can’t think of a good alternative example though.

Illuminating point on the role of investigative budgets.

3. MFH
March 30, 2012

It seems that you presuppose that judge-mind is a peer to lawyer-mind rather than (generally) a more advanced accomplishment (i.e. a higher hierarchical state). I’d counter that a well-developed judge-mind necessarily must progress through lawyer-mind as part of its development.

My following argument is loosely argued from a Spiral Dynamics perspective: A judge-mind can downshift as necessary to lawyer-mind, but a lawyer-mind cannot upshift to a judge-mind unless the latter’s journey through lawyer-mind is nearing completion.

In many ways, the entire legal system can be modeled as yellow (integrative) enlisting blues (authoritarian order) and greens (collective order) to run a system that functions under heavy red (power, fuck you) and orange (in it for the \$) participation.

When you say that “Religion used to be a real dialectic. Now it is mostly theater in service of political dialectics”, you’re correct. But you’re correct from where you (and I) sit. For the people most primarily enmeshed in such things, there never was and never will be such a distinction!

In much the same vein, your assertion that “[…] science is unimportant [and] … [i]t never rules […] because it takes a certain minimum amount of talent to participate […]” is, in my opinion, flawed. Perhaps science is socially unimportant because it fails to communicate on wavelengths uncomfortable to it– wavelengths familiar to people that need mythic-level reassurance like “Jesus died so that your homo-erotic thoughts are forgiven”.

In closing, I suppose I could draw an analogy to the “fail fast” tech fad. What better way to fail fast than to give the people with the most financial incentive to cause your system to fail (defense lawyers and defendents) maximum leeway and moral justification to bring it about. A societal “hack this… if you can” ??

4. Andy F
March 30, 2012

Venkat,
Sounds like you’re presupposing an adversarial legal system vs an inquisitional one in your setup of the lawyer and judge roles?

5. zanon
March 30, 2012

“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.”

Ummm… divine right of kings? Is the past 600+ years of European history to be forgotten to cavalierly?

6. Red
March 31, 2012

Aren’t you, in your commentary, making judgements about whether or not a system is “getting better” or “getting worse”… Aren’t they just … ‘changing’?

So by doing so – you are a ‘lawyer… ?

• MFH
March 31, 2012

I think you’re missing the point.

A person having an opinion about a system that they’ve dedicated their lives to (lawyers/judges), or a member of the general public having an opinion about a cornerstone of democratic society does not brand them a lawyer.

• Red
April 1, 2012

Well. It was a leading question actually….
What I meant: aren’t you falling into your own definitions by making a judgement of the state of a system? And wouldn’t doing so predispose you to assuming your own perceptions are correct?

(ignoring the roles at this point, it just seemed that the existence, definitions and balances of the roles pivots on the judgement of state of the system.)

• MFH
April 4, 2012

To judge a system, you must judge a system, right? To perceive such a judgement as correct, you must believe in your perceptions, right?

Let me ask you something: what’s the difference between Venkat’s nuanced and multi-perspective judgements / perceptions vs “lol fukin lawyers r scum fuk u ‘n ur gang membar fuk u all get death penelry”?

Simply put, a multi-level, multi-perspective, empathetic judgment of a system is simply better than one lacking in any of these qualities. To claim otherwise is to reduce very high empathetic / judgemental / perceptive achievements onto the same playing field as “lol ur a fag”. That benefits no one.

There are many avenues of attack on Venkat’s core arguments, and I attempted such with my 3/30/12 comment above, but I believe that this particular argument is a dead-end (although hopefully a dead-end that spawns more pointed arguments from you that I can argue with in the future).

7. Tom
March 31, 2012

I like the framework–so let me give it a try…

Judge mind is the precondition for ensuring that lawyer mind striving leads to improvement for the whole. The exception is in phases of failing governance, where judgement makes no attempt at living synthesis in the moment, but resurects syntheses past as a priori truths. In this case, the experimental vitality of the current dialectic is subsumed by an inferior synthetic position, reducing the lawyerly testing of persectives to a war of irreconcileable positions which no one can win.

Without a creative playing field provided by an imaginative judiciary committed to preserving the spirit of the law, law is reduced to plays on the meaning of its letter, and judgement becomes a game of power.

At this point, a society would seem to have two options. It can either seek recourse to an authoritarian judiciary, reducing judgement to truth and so escalating the conflict. Or it can invest in a new synthesis through an act of collective creativity an will.

There is a current attraction in many countries to truth-based law and order governance over emergence through rules and process. We now need judges more than lawyers to preserve democracy. The dialectic would then be one between two kinds of judges, good government democrats and truth-seeking fundamentalists, with lawyers watching to see which playing field they will become active on.

8. raycote
April 5, 2012

Poisoning the well of Dialectic Synthesis

or

now in exile

Political – vision – imagination – courage – leadership

9. Josh W
April 11, 2012

That’s interesting, so at first blush the judge mind is about seeking objectivity by stepping outside of your personal alliances and familiarities, similar to Rawls’ “veil of ignorance” that allows you to consider abstract justice, ethics in general etc.

Whereas the lawyer mind is about zooming into specific sets of those alliances with maximum strategic and tactical skill, advocating for a specific position.

But there’s more to it than that as you basically point out; the lawyer mind and judge minds implicitly recognise one another, and depend on each other symbiotically; so the lawyer relies on other people creating stability so that he cannot go too far in his advocacy, and the judge attempts to embody his ethics through other people’s fights of advocacy.

Weirdly, in the pure case, both are actually offloading the job of ethics to each other, in that the judge cannot advocate for justice directly as he sees it (that would be more like lawyer mind) but must instead stabilise the process so that the lawyers can indirectly reach it via advocating for different sides; he has to seek moral progress through stability, and the lawyers have to base their normal ethical status quo of “doing a good job” on the stability of the court system while enforcing it by pushing as hard as he can in a specific direction.

So they are not just alternate positions but symbiotic ones defined by their division of labour. Tidy!

Interestingly, it seems that if you try to half-twist those categories, you can get another pair to describe another big part of the british democratic system:

You have those people who seek continuity, stability, for the sake of their personal relationships and daily life, or for the sake of continuity, practicality and stability itself, and you have people who thoroughly advocate for justice, change and other ideals in an overly idealistic and impractical way, even though they may negatively effect them when the details are worked out.

This can come out in an aggressive way with revolutionaries vs vested interests and their security apparatus, but it has at times also been represented by the houses of parliament on the one hand and the house of lords, and civil service on the other:
Rather than holding to a constitution, people slowly push against a massive weight of traditions that embody the standard relationships and power differentials of the society, based on the manifestos and campaigns that got them into power. At the same time those with power work to point out flaws in specific pushes that particularly effect their own interests.

The civil servants, lobbyists and house of lords need the “democratic legitimacy” of the parliament to keep their positions, the revolutionaries need the parliament to get their changes accepted by the vested interests, so both has an interest in perpetuating the structure.

This division breaks down when the politicians start giving up on manifestos, and present themselves as managers, or tribal advocates, and so start to start to link their careers to being the advocate of a specific group rather than a specific program. Conversely, if the civil service or other parties get too on board with the program, or try to indirectly subvert it rather than explicitly slowing or adjusting it, they can lead to poorly thought out changes or sabotaged bills being pushed through.

To put this back into lawyer/judge terms, the system of democratic campaigns encourages people to turn their specific advocacy of a cause into a generic set of principles and ethics, still pushed by the same enthusiasm but made to appeal to everyone/be generic etc. Depersonalised advocacy via the formalism of political platforms. Whereas the other people tie personal relationships to generic practical stability concerns by appearing as independent experts or specialists, they can happily talk about how it influences their own business because they are speaking as “practical people”, “voices of reason” etc.

10. IW
April 24, 2012

You hit on two concepts (I’ve quoted them below) that I instantly recognized from other avenues that I assume you are aware of: 1) those often afflicted with “analysis paralysis” are usually of the judge-mind (and sometimes because they are playing the role of the judge-lawyer)and 2) your statement about adopting conflicting perspectives is in concert with a quote often found on MyersBriggs results credited to F. Scott Fitzgerald: “The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.”
————-
“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.”

11. Mel
June 11, 2012

I agree with IW.