Wednesday, February 13, 2019

What Role Does Binary Thinking Have In Modern Law?

Happy New Year to everyone.  Beginning last year and well into this new year, I have been pondering why, if we live in an increasingly transparent, social, and interdependent world, do I feel like we are evermore polarized, uncivil, and frustrated with the world around us. It is truly a multifactorial problem.

One perspective has me looking at binary thinking. Binary thinking is a way of organizing thoughts and seeing the world as either/or, one thing or its supposed polar opposite.  Binary thinking assumes something is either true or false, right or wrong, good or evil, democrat or republican, liberal or conservative, secular or religious... Binary thinking can feel simple and comfortable, it does not require much thought or need for analysis. It is easier to adopt group think or binary thinking than to delve into the details.

The danger of binary thinking is that binaries are often false dichotomies, and it is extremely limiting, forcing people, behaviors, or thoughts into limited extreme positions without looking at the middle or the gray area. So, if one is a republican and a democrat offers a solution, the only binary choices are as republican versus democrat response. Since identify as republican in this scenario, one then slips into the binary.  In my opinion, it is the gray areas that offer more potential, more richness and subtlety at revealing workable solutions and may even hold the truth. It would seem that binary thinking and truth-seeking should have a long-term relationship, but it now seems as though to protect one’s group, tribe, or affinity group, one needs to shut out not only the “other side” but the middle ground as well.  Identification with a group position is now more important than a middle ground solution.  Fealty to ideology is now more persuasive than a nonperfect but workable solution.

Binary thinking does not and should not work for lawyers.  Examples follow.

As most of you know, I started the practice of law as a public defender in Denver.  The criminal law binary paradigm is guilt or innocence.  Then, as now, that binary is not reality.  More than 90% of criminal cases are plea bargained somewhere between guilt and innocence.  In the federal regulatory world enforced by the SEC, FDA, and other agencies, those companies accused of wrongdoing pay a huge fine but never admit doing wrong or guilt and yet are not declared innocent.  In drafting contracts, hardly is there ever a transaction where there is not some escape clause or mitigation of damages clause, i.e,. a middle ground between performance and breach.  Lawyers must dwell in that middle ground between the binaries if they are to truly serve their clients.

What really got me interested in the topic of binary thinking is what I see as the continued assault on the rule of law. Examples amongst our elected politicians, corporate executives, and boards of directors is that they consistently find ways around compliance to the strict letter of the law, let alone the spirit of the law, and spin around in that gray area.  More pointedly, our judicial system (the last bastion of defense for the rule of law) seems immersed in a thicket of contradictions.  The White House and Senate seem to be obsessed with appointing “conservative” judges who espouse a philosophy of Originalism or Contextualism.   Originalists argue that courts should say what the law is and not what it should be, suggesting that the related doctrines of originalism and contextualism offer greater certainty to preserve the rule of law than competing principles such as interpreting the Constitution as an evolving document.  Originalism is a form of binary thinking that says that if it is not in the Constitution, it is wrong or unconstitutional.   Contextualism seems to be a theory which allows the introduction of politics into judicial reasoning, by perhaps looking into the political discussions adopting the law as recorded in the statutory history.

Remember, the constitution is not written is stone, it has been amended 27 times and the Supreme Court has been interpreting the Constitution since its inception to make comprehensible or meaningful rulings related to the Constitution, an evolving society and, at times, to conform to the prevailing political winds.  There are those that also suggest that agents of change in American la, should be legislators not judges, again the binary of the legislature versus the courts. Given what is happening in our legislatures, both federal and state, are you confident that our elected officials act as agents for change to fulfill the preamble of the Constitution, which provides: “…to insure the domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity...”?

What are your thoughts?