by Barry Goldman
I started this series of articles by claiming the adoption of the rule of law was the second biggest mistake in the history of the human race. I modeled my claim on Jared Diamond’s assertion that the biggest mistake in human history was the adoption of agriculture. I said the move from face-to-face resolution of disputes by people who knew each other to a bureaucratic system of written rules administered by strangers did not advance the cause of justice. I explained some of the most serious defects of the legal system here, here, here, and here. Essentially, the system of written laws distracts us from our real disputes and prevents us from proposing particularized, nuanced resolutions; the rich and powerful control the process; and the system pays for itself by extracting value from the disputants. Then I promised I would propose an alternative.
The alternative is that we resolve our disputes the way our ancient ancestors did, by talking to each other. This is not just historical romanticism. The idea that talking to each other is a good way to solve problems has support in modern psychology. Consider, for example, “the illusion of explanatory depth.” Here’s a question: On a scale of 1 to 7, how well do you understand how a zipper works?
Most people say they know how a zipper works. You pull the tab up, the little teeth fit together, and the zipper closes. You pull the tab down, the little teeth separate, and the zipper opens. Right. But that describes what a zipper is. Everybody knows what a zipper is. The question is whether you know how it works. Please describe in as much detail as you can all the steps involved in a zipper’s operation.
Finished?
Okay, now try the first question again. On a scale of 1 to 7, how well do you understand how a zipper works?
What you have just demonstrated is the illusion of explanatory depth. It isn’t just you, and it isn’t just zippers. We all believe we understand much more than we do. There are books on the subject. One of the most accessible is The Knowledge Illusion by Steven Sloman and Philip Fernbach.
According to Sloman and Fernbach, in addition to our vast overestimation of how well we understand mechanical objects like toilets and ballpoint pens, we are terrible judges of how well we understand public policy questions. Single-payer healthcare is a good example. If you ask people how they feel about single-payer healthcare, they will have an answer. Some strongly support it, others strongly oppose it. Ask them to put a number on their position from 1 to 7. If you ask them to give reasons for their position, they will easily supply them. We are very good at providing reasons for our beliefs. But if you ask people to explain exactly how single-payer healthcare works and what will follow if it is implemented, you will not get much beyond vague generalities and arm-waving.
Then, if you ask the first question again, the number moves. When you ask people how they feel about single-payer healthcare after they’ve been through the exercise of trying and failing to explain how it works, their number softens. Their position moderates.
Now here’s a story:
In California in 2008 there was a proposition on the ballot to amend the state constitution to define marriage as between one man and one woman. Proposition 8 would ban same sex marriage in California. And it passed.
Folks from the Los Angeles LGBT Center were stunned, and they decided to try to find out why it happened. They said:
Let’s go try and talk to the people who are voting against us. Let’s go into the neighborhoods where we lost heavily and knock on people’s doors and find out (a) if we can have a conversation with the people who voted against us; (b) if we can talk to each other honestly; and (c) if that’s possible, if there’s anything we can do to change those minds.
The quote is from The Persuaders: At the Front Lines of the Fight for Hearts, Minds, and Democracy by Anand Giridharadas.
The technique that emerged from tens of thousands of those conversations is called deep canvassing. The director of the LGBT Center and the inventor of deep canvassing is Dave Fleischer. He says this about his invention:
Well, it’s funny, in a way it’s not new at all. We did not invent the concept that one human being can talk with another human being. So in a way, there’s nothing original here at all, and yet it is very original, because it is so much against the grain of the dominant political culture.
Deep canvassing has proven its effectiveness on the ground in real campaigns and in repeated and rigorous review by social scientists. A 2018 study by Kalla and Broockman published in American Political Science Review, for example, showed deep canvassing to be 102 times more effective than the average presidential persuasion program.
The conclusion is becoming more and more clear. Facts and arguments, data, evidence, and expert opinions just cause people to dig deeper into their previous positions. But talking to people one human being to another, non-judgmentally, asking them open-ended questions, and listening to what they say changes minds.
The same is true of the resolution of disputes. If you sit people down in a room together with the door closed and the phones turned off, you can settle lawsuits. It’s not quite as simple as that, and it doesn’t always work, but it’s a lot simpler than litigation, and it works far more often than you might think.
Some techniques have evolved. “Mirroring” is one. In a dispute between Jones and Smith, Jones will, naturally, explain his side of the story, and Smith will explain hers. Mirroring is the process in which Jones is asked to explain Smith’s version of events and Smith is asked to explain Jones’s. The key to the technique is that Jones must keep trying to explain Smith’s version until Smith is satisfied he’s got it right. And Smith must explain Jones’s version until Jones is satisfied she’s got it right.
This requires the disputants to stop repeating themselves and pay attention to each other. And it allows the disputants to hear their own positions articulated accurately by the other side. Once this has happened, it is no longer possible to believe that the people on the other side just don’t understand. They do understand. They’ve demonstrated to your satisfaction that they understand. They just do not agree. For some people this opens the mind, sometimes for the first time, to the idea that it is possible to understand their position and not agree with it.
Another technique, derived from Native American tradition, is the talking circle. The idea is to get the people affected by a dispute to sit in a circle and talk about it until they settle on a way forward. Often, the order of speaking is determined by the use of a talking piece. As the talking piece passes from hand to hand around the circle it confers the right to speak. The process continues until no one has anything more they want to say. By that point, a consensus will often have emerged pointing the way forward.
Systems based on the rule of law are concerned with the past. Who broke what rule? Who did what to whom? What determinations have we made, what rewards or punishments have we imposed in similar situations in the past? The kind of procedure I am advocating here is concerned with the future. Whatever may have happened in the past – and we may never agree on precisely what that was – how are we going to proceed?
The second important distinction between dispute resolution mechanisms based on the rule of law and those based on human beings talking to each other is that agreements reached under the procedures I am advocating are reached by the parties themselves, not imposed from outside. No one knows more about the dispute than the parties themselves. No one is in a better position to determine what would be a just resolution. To the extent possible, the parties themselves ought to be entrusted with the resolution of their disputes.
There are problems with this view. There is an argument that, if disputes are resolved privately with no public forum and no public record, the rich and powerful will be able to suppress public awareness and control public policy. But at the retail level where most of us live and work and have our disputes, there is no serious public policy issue at stake. Our goal is and ought to be resolving our disputes at the lowest possible level, with the least expenditure of time and effort, and with the closest approximation to justice. Lawyers, courts, judges, statutes, precedents, and the enormous edifice of the rule of law are not the right tools for the job.
The approach I am proposing resonates with other ideas in other domains. I’m thinking, for example, of Michael Pollan’s advice to “eat food” and not to eat “anything your great grandmother wouldn’t recognize as food.” Modern agribusiness produces food-like objects with indefinite shelf life, but it does so at an enormous cost in pollution, obesity, and animal cruelty. We can’t all grow our own food, but we can be aware of the problems with the agribusiness model and try to eat more mindfully. Similarly, we can be conscious of the problems with the legal system and make an effort to return to the dispute resolution methods of our ancestors. We can try to sit down face-to-face and talk to each other.