People reason and solve problems in a variety of ways, but legal education generally values and develops only a few of these. Policy analyses and ethical standards are therefore impoverished, and students miss opportunities to develop the broader range of skills necessary for professional excellence and personal growth.
The most developed analyses of modes of reasoning have focused on moral reasoning. Lawrence Kohlberg’s foundational work on moral development describes the increasing complexity with which individuals reason about justice when responding independently to hypothetical dilemmas. Kohlberg defined moral reasoning with regard to justice, and he assessed it by analyzing individuals’ discussion of equality, fairness, and reciprocal rights. Though widely respected and cited, Kohlberg’s work has been criticized for its attention to only one mode of reasoning, for its use of decontextualized hypotheticals, and for its focus on moral thought, rather than moral action. Subsequent research indicates that when reasoning about moral dilemmas, individuals attend to human relations as well as to justice, that they think differently when they respond to hypotheticals than when they reflect on their experiences or act in the world, and that there are significant differences between independent and dialogic problem-solving.
Working from Piaget’s groundbreaking model of the development of logical-mathematical thinking in children and adolescents, Kohlberg’s theory of moral development describes a universal and hierarchical sequence of six stages of moral reasoning. These stages describe the development of individuals’ thinking about what is right and reasons for doing right. According to Kohlberg, moral development depends on logical development and on the development of social perspective-taking. As there is vertical development in each of these domains, there is horizontal development from the logical to the social to the moral. With each new stage of social-perspective, one develops a new understanding of what is right.
At the earliest stages of development, a child has a concrete individual social perspective. She considers her own interests and those of a few other individuals; she follows rules when they serve her interests. Following these preconventional stages of moral reasoning, the child develops a member-of-society social perspective and more conventional moral judgments. She subordinates individual interests to those of a relationship or group; she follows rules because to do so is good for everyone. A prior-to-society social perspective underlies principled moral judgment. Individuals who can take the perspective of “any rational moral individual” can commit themselves to the principles and values which underlie the rules and laws of a society.
To distinguish the unique domain of moral judgment from that of social perspective, Kohlberg refers to the work of moral philosophers who, he says, have identified four universal elements of any moral decision: normative order, or references to the rules and roles of the social order; utility consequences, or the good and bad effects on the welfare of others or the self; justice/fairness, or concerns about liberty, equality, reciprocity, and contract; and, ideal-self or concerns about being a good person. Of the four, Kohlberg argues, “A person’s sense of justice is what is most distinctively and fundamentally moral” (184).
Kohlberg assessed individuals’ moral development using one of three versions of an interview comprised of three hypothetical moral dilemmas. For example, in one interview respondents are asked to consider whether and why Heinz should or should not steal a drug to save his wife from a life-threatening illness. Individuals’ responses to questions about these dilemmas are compared to prototypical responses of individuals at particular stages of moral reasoning. Kohlberg noted that individuals at any of these levels might use words such as rights, morality, conscience etc. What is significant is how individuals use these words to describe their thinking. For example, a child reasoning at a preconventional level might say that is isn’t right to steal because it is against the law and someone might see you. At a conventional level, an individual might also argue that it isn’t right to steal because it is against the law and laws are necessary for society to function. An individual at a postconventional level might argue that stealing is against the law because it is immoral.
In many respects Kohlberg’s work describes the intellectual work of law school wherein students are expected to reason about decontextualized situations to determine the applicability of rules and laws in pursuit of justice. Though Kohlberg believed he had described the universal mode of moral reasoning, his empirical findings are problematic. Given his sequence of stages, American women and members of other cultures often appear to be less morally developed than white males from the U.S. Kohlberg’s theory, based on research with highly educated, middle-class white males, now appears to have described only one way of reasoning about moral problems.
Exploring the relationship between moral reasoning and moral action, Carol Gilligan asked college students and adult women to describe moral problems that they had experienced. In addition to a concern for justice, Gilligan heard them express a concern for connection and responsiveness which she called care. In subsequent studies, Gilligan and her colleagues found that most participants reasoned with regard to both justice and care; they also found that many of the participants whose dominant voice was justice were men and that most of the participants whose dominant voice was care were women.
From interviews in which participants described their experiences of moral dilemmas, Gilligan derived stages of the development of care parallel to those of the development of justice as described by Kohlberg. At the earliest stages of development, care refers to caring for the needs and desires of the self. Later such concern is judged selfish, and responsibility and goodness are defined in terms of caring for others. Finally, care is defined in terms of concern for others’ needs and perspectives as well as one’s own. In her early work, Gilligan argued that these stages reflected a process of maturation. She and others now believe that the development of the voice of care reflects the position of women in the social-political context. As children, girls are comfortable voicing what they know about others and relationships, but as adolescents, they become increasingly cognizant of social pressures to be “good” women—to have good thoughts and to be nice and kind to everyone. At that point, many seem to enter a relational impasse: fearing that their relationships cannot weather their honesty, the girls withdraw from their relationships to save them. Some women seem to remain at this impasse, unable to bring the most central aspects of themselves to their relationships (Brown, 1989; Brown & Gilligan, 1992; Rogers, 1993).
Gilligan’s work suggests that there are at least two modes of moral reasoning—justice and care. Either can be overlooked or attended to in the problems individuals describe and by the questions researchers raise or don’t raise. And, each has its liabilities: the detachment associated with mature justice reasoning may result in a lack of responsiveness to need, and the attention to need associated with mature care reasoning may result in a lack of attention to fairness. Given that individuals are capable of using both modes, one might redefine moral maturity with regard to both. Finally, Gilligan and Attanucci suggest, one might promote maturity through “the recognition that there is another way to look at a problem” (236).
Norma Haan also took exception to Kohlberg’s claim to have identified the universal mode of moral reasoning and his attention to moral judgment. Haan contrasts Kohlberg’s theory of moral reasoning with her theory of moral interaction which is based on the belief that “interaction is the distinctive feature of everyday moral consciousness” (1991, 255). Thus, from the perspective of the theory of moral interaction, morality is seen, not as a judgmental competence, but as a social, emotional dialectic of practical reasoning among people. Its distinctive feature—and its ground—is the attempt people make to equalize their relationship during disputes and in their conclusions. (1985, 996-997)
Though Haan contrasts her work with that of Kohlberg, her emphasis on the goals of “equality” and “moral balance” is quite similar to Kohlberg’s justice reasoning. And, her acknowledgement of individuals’ desire to “avoid hurt” and relational “decay” is quite similar to Gilligan’s care reasoning. The more obvious distinction between Haan’s work and that of Gilligan and Kohlberg is her emphasis on the dialogic nature of moral problem-solving and her perspective on development. While Gilligan and Kohlberg interview individuals in isolation, Haan organizes groups of participants to discuss moral dilemmas and to participate in moral games.
Haan’s levels of moral activity refer to the quality with which individuals participate in dialogues which consider the perspectives of self and others and which achieve mutually satisfying solutions. Unlike Kohlberg and Gilligan’s stages, Haan’s levels describe situational functioning, not general cognitive capacity. Haan notes that research suggests that even very young children understand moral balance, despite the fact that their limited social power and experience make it difficult for them to participate in its achievement. In addition, much research shows that adolescents and adults respond to different moral situations with different degrees of concern for justice and for moral balance.
Individuals’ moral responses to particular situations seem to be affected by their habitual and situational responses to stress, by the group process, and by characteristics of the moral problem. In general Haan differentiates coping responses, which involve purpose, choice, flexibility, and realistic assessments of the situation, from defending responses, which are rigid, negating, and distorting and are based on unrealistic assessments of the situation and on the magical belief that the “anxiety can be relieved without directly addressing the problem” (1977, 34). In her research on moral behavior, Haan has consistently found that individuals who are able to cope rather than defend when dealing with stressful moral problems were able to demonstrate higher levels of moral action. In particular, individuals who remained open to possibilities, suppressed their emotions, or were empathic also tended to demonstrate high levels of moral action, while individuals who isolated facts and feelings, used abstractions to avoid their feelings, or displaced blame or bad feeling, also tended to demonstrate lower levels of moral action. Haan also found that members of groups which were “led” and thus more dialogic demonstrated higher levels of moral response than members of “dominated” groups which were less dialogic. Though there has been relatively little work on the relationship between moral problems and the quality of their resolution, Haan and her colleagues found that participants’ moral scores were highest when they were responding to situations which were most distant from their experience, situations in which they were responding vicariously.
Though Haan’s research suggests that moral response is not determined by moral capacity, it does suggest that moral response may be determined by the development of other morally neutral capacities:
It could be the case that the young only seem to increase in moral capacity, when actually their strategies of stress reduction and their problem solving may account for the improvement in concert with an increase in the scope of their social power and responsibility. (1991, 265)
Just as Gilligan’s work suggests that there are at least two modes of moral reasoning, Haan’s work suggests that there are at least two modes of moral problem-solving. Haan’s work also suggests that moral action is influenced not simply by one’s capacity for complex thought, but also by one’s capacity for coping with stress, for participating in dialogue, and for resolving conflict.
In total, the work of Kohlberg, Gilligan, and Haan speak to the importance of complex and multifaceted perspectives on reasoning, problem-solving, and conflict resolution. We believe that the relatively limited perspective reflected in the common practices of legal education alienates students and limits their development. Students, particularly women and students of color, may find an exclusive concern for justice, hypothetical situations, and individual problem-solving alienating and inhumane. In fact, women and students of color may be stereotype vulnerable in the practices most common and most valued by legal education. Our goal is to maximize student involvement and development by maximizing opportunities for the use and development of diverse modes of reasoning, problem-solving, and conflict resolution. We believe that students need opportunities to develop their capacities for attending to justice and care. Thus, they need opportunities to reflect on hypotheticals and on their own moral experiences with regard to the application of principles and the maintenance of relationship. Students also need opportunities to participate in dialogues in which they fully experienc[e] each others’ conflicting views... arbitrate between themselves and others as moral objects...restore and reach moral balances...[and] enact their agreements. (Haan, 1978, 301)
Through such experiences, students can be expected to develop their capacities for reasoning as well as their capacities to cope with stress and to resolve conflicts.
In addition, scholars in the fields of law and business have speculated that policy analyses and ethical standards within the two professions are impoverished because both emphasize rule-based reasoning and neglect relational reasoning (Bender, 1988; Davis, 1991; Finley, 1989; Frug, 1985; Gordon, 1987; Paine, 1991, 1994). These scholars argue that attention to both rules and relationships seems optimal in the pursuit of just policies and ethical practices. We agree. We believe that facility in multiple modes of reasoning, problem-solving, and conflict resolution is the optimum condition from which to develop policy and practice law.
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