:Zen and Art of Law School:
By Gregory Wonderwheel
[This was my column Ipse Dixit #2 in Empire Law School's newsletter In Brief.]
As a student of Buddhism (focusing on the Zen method) and now a student at law, I find many fascinating similarities. We student lawyers have been told our goal in law school is to learn "To Think Like a Lawyer." The equivalent goal in Zen is to think like a Buddha. A Buddha is an Awakened One. Awake to what? The Law, which in Buddhism is called the Dharma.
Dharma means the Law, the whole Law, and nothing but the Law. For example, being omnifarious, the Law includes all forms of the Law: common law, modern law, natural law, laws of physics, and divine law. The range of Dharma includes the whole of cause and effect. Of course, our law studies are more limited, "Cause and effect find their beginning and end in the limitless and unknowable. Therefore courts, in their finitude, do not attempt to deal with cause and effect in any absolute degree, but only in such a limited way as is practical and as is within the scope of ordinary human understanding." (Powell, J., in Atlantic Coast Line R. Co. v. Daniels (1911) 8 Ga.App. 775 [70 S.E. 203])
When not capitalized, dharmas mean the particular laws, duties, truths, facts, patterns, or things (res) which can be in action (actus) or within the mind (mens). A dharma is any identifiable fact or pattern which one can distinguish, any object (res) or subject (persona). In law school we study fact patterns to learn and apply the principles of the law, and in Buddhism we study fact patterns (dharmas) to learn and apply the Principal of the Law (Dharma).
Zen also uses the case method of teaching. The term koan literally means "public case," and koans are case reports about Zen Masters which have become certified for publication by teaching tradition. The student contemplates the fact patterns of the cases to fathom the thinking of the masters in their explication of the Law. Koans illuminate many areas of Law, including some which focus on such points as res ipsa loquitur. For example, Case 43 of the Mumonkan: Shuzan held out his short staff and said: "If you call this a short staff, you oppose reality. If you do not call it a short staff, you ignore the fact. Now what do you wish to call this?"
Traditionally, Buddha's first public instruction is called the first Turning of the Wheel of the Law. His central message was the Four Noble Truths: 1.) The fact patterns of suffering, injuries, and damage which all people sustain; 2) The actual and proximate causes of such suffering; 3) The available remedy for such suffering; and 4) The Eightfold Path to the available remedy.
It is a maxim of Buddhist jurisprudence (Cf., S. upaya, skill in the Law with the L. juris~ law and ~prudence skill): "We are what we think. With our thoughts we make the world." As with law school, learning correct thinking is the beginning of the Eightfold Path. The eight elements of the path are: Thinking, Intent, Speech, Conduct, Livelihood, Energy, Mindfulness, and Impartiality.
This Path is a teaching tool about the development of consciousness: our Thinking informs our Intent, which springs into Speech, becoming Conduct, etc. until one realizes Impartiality. All paths share this paradigm, whether we are learning to be butchers, travel agents, secretaries, or lawyers. To be lawyers, we must begin by learning to think like lawyers. And all paths "end" in the opening of Impartiality, which for the field of law is quite accurately symbolized by Blindfolded Justice holding the Balance of the Law in one hand and the two-edged Sword of the Law in the other.
Impartiality in the law is a difficult concept for us beginners to accept. It doesn't mean not to distinguish right from wrong, but to reason the distinction impartially. It doesn't mean not to judge, but to judge impartially. It means to advocate without bias. It is our thoughts of prejudice for or against a plaintiff's or defendant's cause or position which creates the world of mental confusion and inability to reason legally or lawfully.
If we are too close or attached to a point of view, then, like Davies' donkey, we fetter our ability to think on our feet in the legal highway, and our donkey-mind will likely be run over by opposing counsel's wagon. (Davies v. Mann (Exchequer 1842) 10 M & W. 547 [152 Eng.Rep. 588].) "The groans, ineffably and mournfully sad, of Davies' dying donkey, have resounded around the earth." (McLain, J. in Fuller v. Illinois Cent. R. Co., (1911) 100 Miss. 705, 717, 56 So. 783.) It is our ability to think like a lawyer that is the first step to securing a remedy for the ineffable sufferings of our clients.
Today's trivia question: Who said, "The first thing we do, let's kill all the lawyers"? Must have the name & occupation. Bonus points for where and to whom it was said. Clues- #1: Not the Zen Master who said, "If you meet the Buddha, kill the Buddha." #2: Not a playwright whose first name is William. #3: 6th, 2nd, IV, II. Winners get a copy of the Maxims of Jurisprudence as embodied in the California Civil Code.
The case of Davies v. Mann established the Last Clear Chance rule of contributory negligence. In Davies, the Plaintiff Davies “having fettered the fore feet of an ass belonging to him, turned it into a public highway, and at the time in question the ass was grazing on the off side of the road about eight yards wide, when the defendant’s wagon (sic), with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, ran against the ass, knocked it down, and the wheels passing over it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the wagon was some little distance behind the horses. The learned Judge told the jury, that though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages traveling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury found their verdict for the plaintiff, damages 40s.”
On appeal to the House of Lords, on the ground that the trial judge misdirected the jury, the defendant was denied. Lord Abinger stated, “the defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no diference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.” Baron Parke stated, “[A]lthough the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.”
The Last Clear Chance rule is usually stated as: - Last Clear Chance applies (P wins):
if P could in theory escape but is
inattentive, D must know of peril. “The groans,
ineffably and mournfully sad, of Davies’ dying donkey, have resounded around
the earth. The last lingering gaze from
the soft, mild eyes of this docile animal, like the last parting sunbeams of
the softest day in spring, has appealed to and touched the hearts of men. There has girdled the globe a band of
sympathy for Davies’ immortal ‘critter.’
Its ghost, like Banquo’s ghost, will not down at the behests of the
people who are charged with inflicting injuries, nor can its groanings be
silenced by the ranting and excoriations of carping critics. The law as enunciated in that case has come
if P could in theory escape but is inattentive, D must know of peril.
“The groans, ineffably and mournfully sad, of Davies’ dying donkey, have resounded around the earth. The last lingering gaze from the soft, mild eyes of this docile animal, like the last parting sunbeams of the softest day in spring, has appealed to and touched the hearts of men. There has girdled the globe a band of sympathy for Davies’ immortal ‘critter.’ Its ghost, like Banquo’s ghost, will not down at the behests of the people who are charged with inflicting injuries, nor can its groanings be silenced by the ranting and excoriations of carping critics. The law as enunciated in that case has come to stay.”