“The gift is to the giver, and comes back most to him — it cannot fail” –Walt Whitman.
In a recent speech in Laramie Wyoming, Supreme Court Justice Sandra Day O’Connor noted that job dissatisfaction among lawyers was widespread, profound, and growing. She added that attorneys are more than three times as likely to suffer from depression as non-lawyers, and more apt to become dependent on drugs, have health problems, get divorced or contemplate suicide. Part of the problem, O’Connor believe, is the development of a “win at all costs” mentality. While Justice O’Connor’s observation is not new, it is worth trying to ascertain what may lie beneath this remark.
I believe she is asking us to examine what the nature of our professional services are as lawyers. It is my premise that for a lawyer to be satisfied with his/her work, there must be something in the work the lawyer does which is in the nature of a gift. Legal services exist in two economies, a market economy and, what I would like to call, a gift economy. At first glance it seems that only one of these is essential, that is, a market economy; but the ultimate reality to preserving the profession may be the reverse. Law as a commodity can survive within the market, but where there is no gift in the legal services rendered then there may be not be the good mental health that promotes professionalism. Part of the dissatisfaction with the profession Justice O’Connor cites, comes from lawyers seeking to participate in a gift economy, but finding themselves confined to a market where law is practiced only as a commodity.
There are several distinct ideas about the nature of gift that lie behind the proposition I am suggesting. Common to each of them is the notion that a gift is a thing that bears some human quality that makes it more than a commodity. It includes the idea that a gift is something that is not simply acquired by an act of will. It is something which is bestowed by virtue of talent and by virtue of human relationship. Mozart composing on the harpsichord at the age of four had a gift. The great jurists of our American legal tradition like Marshall and Frankfurter had gifts.
We know that the practice of law is just not simply a matter of logic. We rightly speak of a lawyer’s intuition or inspiration as a gift. As a creative lawyer works, some portion of his creation is bestowed upon him – from his or her education, experience and understanding, an idea comes into his or her head, a new way to address a problem, a new way to argue a legal theory. Most lawyers who are creative in their practice feel intuitively that some of what they’re able to give their clients is a gift that comes through them. The intuition of this gift may not be as clear in the practice of law as it is in the field of art, where D. H. Lawrence says, “Not I, not I, but the wind that blows through me made this work.” Still, there is something of the gift of inspiration that we feel as lawyers in the practice of our profession. The challenge for us as lawyers living in the economy of the market and the economy of the gift, is not to neglect the gift economy in both its inner and outer aspects.
The inner aspect is that of creative inspiration that allows us to thrive in the practice of law and the outer aspect is the sense of a gift given to our clients, to those for whom we provide services. Perhaps this is seen nowhere more forcefully than in the area of pro bono services. Justice O’Connor said, “Insuring that there is equal justice under the law and not just for the wealthy but also for the poor and the disadvantaged is the sustenance that brings meaning and joy to a lawyer’s professional life.” As Justice O’Connor notes, being able to contribute legal services to the neediest in our society is essential to keeping a strong foundation for our legal system. But just as important for us to be happy thriving members of the profession, is to see in the services that we deliver, that part of what we are giving our paying clients is a gift. We pay a fee at the door of a museum or the entranceway to the concert hall, but when we are touched by a work of art or a piece of music, a gift comes to us that has nothing to do with the price paid. Similarly, for the client who’s financial, emotional and other difficulties have gotten him or her into the lawyer’s office, it is the gift that is given by the lawyer in delivering his or her services that makes the human difference to the client who is paying the lawyer’s fee, and I would suggest to the lawyer also.
One of the things that many lawyers become aware of as they begin to value the gift in the services that they deliver, is that a gift begets other gifts. The spirit of a gift is something that goes with the gift and separates it from being a commodity. Unlike the sale of a commodity, the giving of a gift tends to establish a relationship between the parties involved. It is then through the positive nature of such relationships that clients get nurtured as well as having their legal problems solved, and the lawyer in turn is nurtured by the relationship that he has allowed himself to put some of his creative being into.
In 1764, when Thomas Hutchinson wrote his history of the Massachusetts colony, he said, “An Indian gift is a proverbial expression signifying a present for which an equivalent return is expected.” The term has survived today in the pejorative sense of calling someone an Indian giver who is so uncivilized as to ask us to return a gift he has given. The true meaning of the original expression was that a gift from a Native American was a gift that was to be passed on or reciprocated in some way. It contained the idea that gifts were energy that were not to be horded, but were more than just commodities. Gifts were meant to increase in value as they were given over and over again. We have a similar idea at Christmas. You may keep your Christmas present of course, but the sense of it really being a gift is somewhat altered if you have not also given something back in return. This idea that a gift is something that moves, that it is more than just a commodity that may be stored, is needed to keep our profession from just being a commodity driven by the market economy.
In many myths and fairy tales, the idea of gifts is associated with fertility and abundance. Part of the reason for the traditional wedding feast, is the showering of abundance on the wedding guests as a way to initiate a cycle of plenty for the newly married couple. In other stories and folktales such as the Northern Pacific culture’s potlatch, the purpose of this gift-giving ceremony is to create harmony in a society. To be able to practice law with the idea that the services being rendered, while being in the market economy, are also a gift to create justice is a way to provide harmony in our society. Harmony is not provided when the services given are simply a commodity. There is a problem of finding the balance between a purely market economy and a gift economy. The domination of either one eventually brings forth its opposite. For where, on the one hand, there is no way to assert identity and an opportunity for private gain, we lose the benefit of the kind of freedom which brings innovation and individuality. But, on the other hand, where the market alone rules and where there is no piggybacking within a profession of the idea of a gift, then the traditional fruits to society of gift exchange are lost. Commerce then becomes associated with the fragmentation of community and the suppression of liveliness, fertility, and social feeling. If the legal profession does not contain within it the idea of a gift being part of the services provided, then there is a weakening of the vitality of the legal community itself and the abundance gifting creates and the social cohesion provided by it.
In addition to that part of giving gifts that builds community and connects individual members of the legal profession with its clients and the broader society, there is that aspect of a gift that brings forth the full power of the creative lawyer. In the ancient world, the task of setting free one’s gifts was a recognized labor. The Romans called a person’s tutelar spirit his genius. In Greece it was called one’s daemon. Socrates had a daemon that acted like his conscience, that would speak up to him when he was about to do something not in accord with his true nature. In order to cultivate one’s genius, it was necessary to provide gifts to it, often in the form of disciplines or sacrifices. We can translate these ancient terms into more modern psychological terms. Today we would describe the lawyer who is bent simply on exercising his own self-willed intellect and muscle as being narcissistic. This is the ego’s royal road to depression. On the other hand, we see good psychological health in the successful lawyer who appreciates those he has learned from and been mentored by. We can look at the meaning of the gift in terms of historical antiquity, or in terms of modern psychology or in traditional religious terms and come to the same conclusion.
Meister Eckhart, the 14th century Christian mystic is a good example of the commerce of the gift. For Eckhart, all things owe their being to God. God’s initial gift to man was life itself and for those who feel gratitude for this gift, they reciprocate by directing their lives back toward service to others in a manner that would please God. Eckhart says, “That man should receive God in himself is good, and by this reception he is a virgin. But that God should become fruitful in him is better; for the fruitfulness of gift is the only gratitude for the gift.” Eckhart is using his own particular medieval language. A virgin for Eckhart refers to someone who is detached, someone who no longer regards the things of his life just for themselves or for their usefulness. Thus when God finds the soul detached, he is able to enter it. When God pours himself into the soul then the fruit of this is the gift and the gratitude for the gift. In other words, we become alive when we give away what has been received and it is the labor of gratitude that accomplishes the transformation the gift promises. For Eckhart, whoever gratefully returns all that God has bestowed, will by that act of donation enter the Godhead. To put it in more secular terms, whoever gratefully practices law and gives the gift of their genius and creativity along with the commodity of his or her services, will by the act of giving of their services in this spirit, enter a sense of well-being with self and with his or her fellows and community. If this were occurring more often, there would not be the job dissatisfaction that Justice O’Connor has spoken about. There would not be the level of depression, nor the high rates of addiction. Ultimately it may be that what is missing in our profession is not something that we are not getting, but what we are not giving.
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