Invitation to all: If you enjoy the post you are about to read, please join us for the Nurturance Lawyering Trilogy, May 12, 17, and 24, a series of short workshops and discussions, where we can explore this topic further, and provide California lawyers with continuing education specialty credits for legal ethics, bias, and competence issues. You are welcome to attend one or all parts of this trilogy, facilitated by me, Janelle Orsi, peppered with cartoons, and enriched by the discussion with you, the attendees.
- Nurturance Lawyering Part 1: How to bring connection and healing to our work in challenging times (Competency issues CLE credit!)
- Nurturance Lawyering Part 2: Legal ethics in an interdependent world (Ethics CLE credit!)
- Nurturance Lawyering Part 3: The legal profession is a white supremacist institution. What can we do about it? (Elimination of Bias CLE credit!)
From Dominance Lawyering to Nurturance Lawyering
by Janelle Orsi
The legal profession offers the world a unique and valuable lens into human suffering and oppression. If you want to study a disease, you’d probably conduct your research in a place where there’s an outbreak. Similarly, if you want to study the roots of depression, anxiety, substance abuse, and suicide, the legal profession is a place where you’ll find 2-4 times the rate of such afflictions. If you want to study the dynamics of racism, white supremacy, misogyny, and inequality, you’ll also find all of those magnified in the legal profession. Inquiring into this has brought me to understand several things I’ll share here, illuminating why I believe the legal profession is about to change radically.
For years, I wondered: When did things go so wrong with the profession? That question led me back in time, further and further. Finally, as I’ll describe below, I grasped that the root of the problem is inseparable from the profession. The profession emerged to support coerced and violent theft of communal land and wealth; there is no separating the profession from the violence at its roots.
For me, that was simultaneously an “oh shit” moment, and a moment of great relief. At Sustainable Economies Law Center, we’ve explored and practiced many ways to make legal work more just and humane, all the while wondering why these strategies haven’t yet taken hold of the profession and spread. We’ve supported people to become lawyers without going to law school. We modeled and encouraged others to form non-hierarchical legal practices. We designed our legal advice clinics (aka “cafes”) to be as down-to-earth and accessible as possible, and the American Bar Association even gave us an award for our innovation in expanding access to legal services. Several allies have done inspiring work to forge new pathways. See Raj Jayadev’s work on participatory defense. Or Namati’s work supporting community paralegals around the globe. And see many more highlighted by J. Kim Wright in the anthology, Lawyers as Changemakers.
So many inspiring ways to do legal work! But why haven’t they spread? My moment of relief came when I realized transformative legal work cannot and will not spread through the profession, if the root of so many problems is the profession itself. Many transformative approaches are aimed at putting law into the hands of the people and integrating law more naturally with our daily lives. Meanwhile, the profession’s primary function is to take law away from the people and make it the work of professionals. I feel like I’m stating something obvious that somehow hasn’t always been obvious to me. And I feel like it’s high time we question why we’ve taken this arrangement for granted.
Storytime! When did we first “need” a legal profession?
Picture a vast expanse of land on which communities have lived for centuries, sometimes staying put, sometimes moving nomadically. Everything they need comes from that land, and they gently tend the landscape to ensure there will be enough, year after year. There are customs and light agreements that keep everything in relative balance, in addition to customary practices for sorting out tensions or disputes.
Imagine a family has been lightly tending a patch of semi-wild plants that annually bear fruit that the family eats. Everyone in the area is generally aware of this, so they steer clear of the patch. It’s not a formal law, but a custom, an informal agreement upheld by everyone’s desire for good relationships. Then, deviating from normal patterns, a neighbor harvests and eats some of the fruit. Tensions and concerns arise, so people gather and try to find understanding, renew or change agreements, and work to restore good relationships. While possibly tense and challenging, no lawyers or courts are needed. Further, the outcome isn’t a “winner” or “loser.” It’s simply a resolution of the issue among anyone impacted.
But later, some fancy-looking guys show up and declare that the fruit patch and much of the land around it is now, thenceforward, exclusively theirs. They produce a document with fancy-writing and symbols and explain that under the rules made by a powerful Ruler, land that is not already “owned” was up for grabs by fancy men. Thereafter anyone else on the land is trespassing. The community might initially resist, only to learn that the fancy men have weapons and are prone to capturing and enslaving people.
As more land is taken and borders are continually drawn, a body of rules emerge to govern who can do what and where. When someone is accused of breaching a property right, a formal ritual — imbued with an air of fairness — is established to apply the rules and determine who is “right” and who is “wrong.” Each time the rules are applied to a unique situation, the rules become a little more complex, to add nuance to the question of what is right and wrong within a very broad range of activities that can happen on land. At some point, the rules become too complex for anyone to remember and apply. Experts are needed!
Soon, these law experts become central to the ritual of determining right and wrong through adversarial argument. Stakes are sometimes high, so the law experts must continually hone their knowledge and tactics. Parties ultimately consent to the outcome of this ritual battle, whether it feels right in their guts or not, mainly because violence or imprisonment are lingering threats as tools of enforcement, or because the persuasive power of the cult-like system and the mystique surrounding it have convinced them that the system is for their own good and has been designed to achieve “fairness and balance.”
The story I told above is loosely inspired by a history of Roman law and property as told by Fritjof Capra & Ugo Mattei in The Ecology of Law, a book I highly recommend. The story has played itself out in the world many times since. Christopher Columbus first landed in the Americas accompanied by a notary, so he could steal land using the fancy paper method, thereby “legitimizing” and diminishing the moral concerns of using violence to enforce such official documents.
In other words, the need for these legal professionals emerged to sustain the coerced or violent theft of communal land and wealth. The land thieves promoted adherence to a system of made-up rules that became ever more complex, requiring experts. Disputes were resolved by a battle of such experts, ultimately determining that someone is right and someone is wrong. Gradually, it diminished the loving and diverse web of relationships and customs among those living on the land. Formal law and lawyers come to replace custom, care, and community relationships in shaping our lives. It’s a deeply sad loss of rich human interaction, lives and culture.
Sometimes people have rebelled against formal law, only to embrace it later as a tool of domination. For example, in some early American colonies, lawyers were initially banned! Many colonists were trying to escape the feudal, hierarchical structures that lawyers helped create back in Europe. Eventually, those same colonists wanted lawyers as a tool to legitimize wealth accumulation through trade, slavery, and Western expansion. Just as the institution of policing evolved out of early slave patrols and vigilantes protecting private “property,” the legal profession emerged as a complementary strategy to carry out similar harms. Lawyers cloaked harmful activity in an air of legitimacy using fancy words that everyday people couldn’t understand and didn’t have the means to challenge. Failure to comply became the crime, enforced by policing.
What is “dominance lawyering?”
This is a trick question. As I now understand the origin of lawyers, “dominance lawyering” is a redundant phrase, kind of like “new innovation” or “unexpected surprise.” As in the story above, lawyers and the profession were created to serve as a tool of domination. In fact, weapons may be a better word than tools, because lawyers justify and perpetuate systems of theft and violence.
Ouch. It hurts me to say all this, because I AM a lawyer. I joined the cult of formal law in 2004, having fallen for the stories about lawyers and a legal system upholding justice and fairness. I don’t fault myself or any other lawyer for being guided in this direction, because it is love and care that initially guide us there. Depending on our upbringing, we may have been deeply steeped in the culture of formal law, and had little exposure to suppressed forms of customary law. It is the gifts of reading about, getting to know, and working alongside Indigenous peoples that has prompted me to question so deeply my lawyer role.
Still, if lawyers are weapons, am I a weapon? Oddly, it has been liberating to me to recognize that I indeed cause harm in my work, to others and to myself. The act of practicing law makes me complicit in upholding the legal profession as part of a system of domination. What’s liberating is that I can stop striving to achieve the status and perfection of a “good lawyer” who will be free from reproach. There’s no arriving at “guilty” or “not guilty,” “wrong” or “right.” To varying degrees, we all cause harm as we move through this world, particularly as we move within the dominant culture. I can’t suddenly stop working with the law, and I can’t suddenly stop causing harm. But far from letting me off the hook, these realizations put me on a permanent path of learning, adapting, repairing harm, and seeking transformation.
What is “nurturance lawyering?”
Another trick question. While “dominance lawyering” is a redundant phrase, “nurturance lawyering” is an oxymoron, kind of like “living dead,” since lawyers were created to support domination. For me, “nurturance lawyer” is not an identity. Rather, it’s like a contemplation, puzzle, or koan that I carry to reorient myself. I ask: How do I let love, care, and nurturance animate me, even as I move through this world under the complicated identity of “lawyer?”
I began using the word “nurturance” after reading Turn This World Inside Out: The Emergence of Nurturance Culture. Highly recommended! The book starts with a summary of attachment theory, and goes on to show how harm and violence have their root in our separation from each other. We have a basic need for secure attachment with humans and other beings. When we are born, our survival relies entirely on secure attachments to caregivers. Disconnection and separation are threats to our very existence in childhood and throughout life. Our actions and behaviors then become shaped by how we seek or avoid attachment to others. Nurturance is about reweaving our connections, healing our separation. Caring for each other and repairing harm are the free-flowing result of healed connections.
Lawyers may find all of this particularly hard to embrace, because we have been wounded by our own work and training. One study has shown that the rate of depression among law students is normal (about 8-9%) when they enter law school. By the time they leave, 40% of law students suffer from depression. Take a moment to let that information sink in. It’s shocking and alarming. And it also means that law school is a space ripe for discoveries about human illness and wellness. Something about law school creates a circumstantial cause of depression that could tell the world a lot about depression if we study it in the petri dish of law school.
I would love to see more lawyers and law students share their stories of how the law has personally hurt them. It’s rare for lawyers to tell these stories, because as I described above, lawyers are trained to be weapons well-honed for battle. Sharing our real stories would compromise our abilities to maintain the illusions of power, dominance, and superiority necessary for upholding the status and our devotion to the image of the profession.
So it’s a radical act for lawyers to reveal how becoming and being a lawyer has deeply hurt them. I was surprised to be diagnosed with depression in my second semester of law school. Depression is indescribable and it took a doctor to help me name it. I told the doctor: “There’s nothing especially wrong with me. I don’t feel sad. I just feel like I’m dissolving into the furniture, or I feel like an empty box.” I’ve since come to understand depression not as sadness, but as an overall diminishment of our innate aliveness.
Storytime: A spark of aliveness is extinguished for a law student
Picture an optimistic young person arriving at law school, about to read and discuss their first court opinion. I remember this vividly. Prior to our first Torts class, my class was instructed to read a 6-page court opinion on the subject of “strict liability.” I read the case sitting on the hallway floor outside the apartment of a friend who loaned me the textbook for the evening. I refused to buy the book because it would have cost me a day-and-a-half worth of take-home pay from the job I held prior to law school. I read the case, and I didn’t understand it. So I read it again. Then again. I didn’t have a smartphone or any way of looking up the phrase “strict liability.” And without an understanding of that key phrase, I was lost. I got scared. Was something wrong with me? Am I not smart enough for law school?
In class the next day, the professor called on a student and proceeded to engage with her in a back-and-forth argument, applying the law to the facts. It felt like a theatrical battle, where the clever person will be determined “right,” and the other will hang their head in shame. That day, I learned that every student is petrified of being the student who gets called on, for fear of the public display of shaming. Fear is always in the air in law school.
While fear was a prominent feeling for me on that first day, at some level I was also feeling some sadness and anger. As it turns out “strict liability” means that someone is assigned fault whether or not they were actually negligent or intended harm. In tort law, a monetary value is assigned to the harm caused, and the person determined to be at fault must pay that amount. Further, in courts, there are strict rules of evidence, indicating what information may or may not be included in the proceeding. Countless factors that may have influenced the problem and its resolution are suppressed. The fact that a community of caring individuals could have come together to help address the harm or restore the loss: objection, irrelevant! The fact that a defendant has experienced significant harms of injustice and oppression: irrelevant!
What I began to realize on that first day of law school is: Formal law suppresses the vast creative potential of people to solve problems and address harms together. Among friends, community organizers, family, and many other circumstances, I had experienced the caring, organic, and relational ways that people sort things out. Now I could see how all of that is suppressed in the legal system.
My gut and heart felt something was very wrong, but my intellect told me: “Janelle, this is law school. This is a respectable institution. The system is designed to advance justice. Just stick with it; it will eventually make sense.” <—— And there it is. I believe that’s when one of the first sparks of aliveness went out in me. It’s not that I felt scared, angry, or sad. Those are feelings I feel because I am alive. They are the sparks. The problem was that I suppressed those feelings. Then I suppressed them the next day, then again the next. Eventually, I felt neither the bad feelings nor the good. I felt like an empty box.
Dear reader, if you find yourself relating to or having feelings about any of this story or what I’ve written above, take some deep breaths, and also let yourself feel those feelings. Feeling those feelings is a radical act.
Letting nurturance animate us
Above, I shared the question I hold: How do I let love, care, and nurturance animate me, even as I move through this world under the complicated identity of “lawyer?” For all of the wounds inflicted by the legal profession, our saving grace is that we are human. Caring and repairing harm are what come naturally to us. Lessons from neuroscience, psychology, anthropology, and the experience of life itself tell us this: we are highly motivated to take care of each other, as we intuitively act for our own survival. This innate sense that our wellbeing is bound up with others — human and beyond — is what made our lives possible.
When nurturance is undisrupted and unsuppressed, so much creativity and aliveness is possible, and that’s just what we need in this world of deepening personal wounds and exploding global crises. When we join together with others animated by care, we attune to each other, move together, navigate challenges together, adapt, create. We can observe this everywhere: Life and ecosystems on this planet emerged and continue to thrive through self-organization. The cells in our bodies work together through self-organization. So, too, can a thriving society emerge if unsuppressed by the divisive weapons of formal law.
If care and repair are the free-flowing result of our sense of connection, then separation is the weapon that formal law uses to enable domination and cause harm. A misperception of ourselves as separate from others is our core wound, and the legal profession deepens it and pours salt on it. Law severs up human activity into shoulds and shouldn’ts, rights and duties, and bare minimums that stifle imagination. The rules disrupt our intuitive ways of deciding our actions for ourselves, in dialog with our families, communities, and ecosystems. Law thus separates people’s minds from their gut and heart intuitions. Law tells us that we are separate from each other, acting in self-interest and in competition, either right or wrong, a winner or loser. Law and legal documents normalize self-interested behavior by assuming we are trying to cheat each other, and writing rules and procedures to regulate it. The legal profession separates the people from the law and separates lawyers from the rest of society, uplifting lawyers to a privileged status. The harm of that separation becomes hard to see, as lawyers suppress their pain, and suppress the wisdom and moral compass that our emotions give to us.
The reason I believe the legal profession is about to change radically is that our animating nurturance can only be suppressed for so long, and I see evidence of it bursting forth. All around us, people are coming to new understandings of trauma, accessing diverse healing modalities, walking away from soul-killing work, and facing mounting global crises with the reminder that life is short and precious. In my own web of relationships, which includes many lawyers, I’ve been in countless conversations where all of this finds echoing resonance, far more so than even a few years ago.
A call to lawyers: For as long as we play our lawyer roles, our work must be to rekindle and nurture connections in our practice and in ourselves. We must reconnect with what feels both painful and joyful in our hearts and guts. We must find belonging by working with and alongside others to create more caring communities. We must support the flourishing of culture and customs that have been suppressed by current law. We must train ourselves to notice and take action when we see formal law disrupting and suppressing nurturance. That will often mean that, out of necessity, we must navigate and use the very same legal system to protect our lives and ecosystems from further disruption. How to simultaneously work within the law while supporting emerging nurturance cultures will be the subject of much more exploration and writing for me, and, I hope, for others.