Many readers of The Conscious Lawyer are essentially reformers at heart. Could it be that there is reliable guidance on how legal and political systems can be reformed to foster connections rather than divisions between people? Are there proven pathways that can be followed to make these systems more humane and, in the end, simply more effective?
Recently retired Minnesota judge, and long-time Executive Committee member of The Project for Integrating Spirituality, Law, and Politics (PISLAP), Bruce Peterson turns in this article to the science of behavioral evolution to provide the answers to these questions he has arrived at through 20 years watching human nature unfold in the courtroom, teaching a law school course on Lawyers as Peacemakers, and informally and formally studying evolution.
Judge Peterson brings into focus four basic human instincts for caring and cooperation with deep evolutionary roots—kinship, reciprocity, group loyalty, and empathy. He shows how current legal and political systems often ignore these fundamental human tendencies to their detriment, and how reforms can be more effective if they consciously rely on what humans do naturally.
My journey to the study of evolution came through the court room, where I spent 20 years on the bench watching human nature unfold. Court cases are full of greed, aggression, petty jealousies and resentments, moralization gaps, and self-delusion. But I heard stories of heroism also, and I also saw that just below the surface of the most petty conflicts was sometimes a common humanity that never got a chance to breathe.
And so I started looking for what it was that called forth the best side of human nature. I learned early on, for example, that if I offered an agitated person in court the simplest oral gift (for example, “ You are doing a good job of presenting a complicated matter clearly.”) the person immediately calmed down and participated more respectfully. Naturally I gravitated to our treatment courts, where I saw how amazing recoveries of chronic recidivists regularly occurred when an entire team focused love and support on a person for months.
We know that all people have the capacity for evil as well as good, and it was tantalizing to think that it might be possible to understand the specific conditions and circumstances that bring out the good. For me, the natural place to look for this hope was in anthropology, the study of human societies, and particularly in the sub-specialty of behavioral evolution. Through informal reading and then formal course work, my study of anthropology has paid off. I have become convinced that all people possess a fundamental capacity for cooperation, caring, and altruism that the right circumstances will awaken. I believe these ideas can be a very powerful force for making the world a better place, and I want to share what I have learned.
The lessons of behavioral evolution are especially relevant to this issue of this magazine, featuring the Project for Integrating Spirituality Law and Politics, where I am a long-time member of the Executive Committee. The mission of PISLAP is to facilitate meaningful, spiritually oriented, reforms in the legal and political systems that control this human society. But do we actually know how to do it?
To widen my own study of behavioral evolution, I developed a course at the University of Minnesota Law School, called “Lawyers as Peacemakers.” There we look for the specific evolutionary instincts that lead people naturally to go out of their way to cooperate. We keep coming back to four altruistic tendencies, all with deep evolutionary roots. I believe that we PISLAP reformers will have the best opportunity to create the more loving world we envision by recognizing and relying on these four sources of caring and compassion.
Before exploring these peacemaking instincts, allow me to digress into the scientific background for a moment to justify the confidence I have in them.
Evolution by Natural Selection
Evolution by natural selection, of course, is the paradigm-shifting theory propounded by Charles Darwin 150 years ago that species change gradually and are all descended from a common ancestor.
“Survival of the fittest” is not a helpful summary of Darwin’s theory. It implies some external standard of fitness, like physical fitness or a “superior race”, whereas evolutionary fitness is merely what reproduces best. The stock phrase also implies some sort of cutthroat competition to determine survivors, whereas what matters is not survival but reproductive success. So the phrase boils down to the tautology, “Prevalence of what reproduces best.”
Darwin’s preferred phrase was “descent with modification” and this captures the process better—it is an intergenerational journey toward better and better adaptation to an ever-changing environment. The human lineage is a prime example—as the climate cooled and dried 15 million years ago and the vast rainforests full of fruit and rich foliage shrank, most of the dozens of species of forest apes went extinct. Our species survived by a series of adaptations to the harsher woodlands and savannahs—upright walking, the cognitive capacity to develop tools and methods for finding and processing scarcer food resources, pair bonding and division of labor, and, above all, cumulative culture.
The theory was obviously controversial, and not just because of its heretical nature. Darwin couldn’t solve basic problems, especially how traits are inherited and a seeming contradiction: parental traits obviously blend in children, but blending diminishes the variation in traits which gives natural selection the menu it selects from.
The fundamental problems weren’t resolved for 70 years. First was the rediscovery in 1900 of what Gregor Mendel had learned a generation earlier about how the characteristics of peas were inherited, which became the science of molecular genetics. And then starting in the 1930’s, the research by three brilliant population geneticists, Ronald Fisher, J.B.S. Haldane, and Sewall Wright, formed what is called “the modern synthesis”. One example: it turns out that many traits are the product of multiple genes; height is affected as many as 100. So evolution can take place by the gradually changing frequency of different genes without any quantum leaps. Think of the row of cherries lining up in a slot machine to produce a jackpot. Moreover, it became apparent that variation in genes is always much greater than variation in physical traits because some genes can hide—be “recessive”.
Then in 1975, Harvard biologist E.O. Wilson published, Sociobiology: The New Synthesis. The book generated more controversy, but it foreshadowed the widespread recognition that evolution by natural selection is as powerful a tool for understanding behavioral traits as it is physical traits. Since then, the science of behavioral evolution has offered solutions to difficult puzzles as diverse as the prevalence of war, the striking behavioral differences between men and women, and why the “population bomb” never went off.
Should there be any doubt about the explanatory power of the modern science of behavioral evolution, just think about why babies learn to talk effortlessly, even in multiple languages, but have to be painstakingly taught how to read. An awareness of behavioral evolution puts us on the lookout for other things we do so easily that we take them for granted and leads us to question why so many things we want to do seem to exceed our grasp.
Four Instincts for Peacemaking
Kinship. We love our families. The most obvious source an of instinct to help others is genetic relationship or, in the case of mates, a common genetic interest in offspring. My parents, my children, and my siblings all have a 50% chance of carrying any gene that I have, so a genetic inclination I may have to help them is likely to perpetuate that same gene. The same principal applies with less intensity with more distant relatives. Most ancestral human bands were united by kinship ties and kept close track of lineages.
We can’t magically make a troublesome adversary into a relative, of course, but kinship is successfully employed in keeping the peace all the time. The most ambitious example was Queen Victoria marrying off eight of her children to the monarchs of Europe. A more common example is the use of the language and image of the family to promote social bonds: the “International Brotherhood of Teamster,” the “fathers,” “sisters,” and “brothers” of the Catholic Church, fraternity and sorority “brothers” and “sisters,” the “human family”, and so on. Another approach: since humans historically did not always know who their relatives were, the kinship instinct can be triggered by proxies, like spending a lot of time together in family-like settings. This makes parental-type relationships like mentoring particularly powerful. It is no coincidence that one of America’s proven programs for disadvantaged young people is called “Big Brothers/Big Sisters.”
Group Loyalty. We care about the members of our tribe. Our species evolved in small bands on the African savannah. Group membership meant survival. And so humans evolved powerful instincts for loyalty and cohesion with fellow band members. The bad news is that in-group loyalty coevolved with out-group hostility. When anthropologists were still finding isolated tribes in places like New Guinea in the middle of the last century, they repeatedly found people who referred to the neighboring tribes with in non-human terms, such as “dogs”.
The instinct for group loyalty is so strong that researchers can trigger favorable treatment within groups formed totally at random, even by flipping a coin. But this ready bonding creates an opportunity to define a broader group, one with “superordinate goals.” In 1954, back before institutional review boards, researchers took two separate groups of 11 and 12 year-old boys to an isolated Boy Scout camp in Oklahoma. The boys bonded (calling themselves “Eagles” and “Rattlers”), and then they were allowed to stumble upon signs of the other group. Soon the competition—raids, thefts, and so on–became so intense that violence seemed imminent. But the researchers defused the hostility by devising some problems with the food and water supply that the boys had to work together to solve. They wound up riding home on the same bus and buying each other snacks.
Reciprocal Altruism. We almost can’t help being nice if people are nice to us. That seems self-evident, but there is a reason—our deep instinct for reciprocity. Computer game theory has been extensively used to demonstrate that the best strategy in many kinds of repeated interactions with someone is “tit-for-tat”: make an initial cooperative approach, and then respond in kind to whatever the other person does. This strategy is generally much more successful than “nice” or “bully” strategies. In fact, it is so successful that the eminent evolutionary biologist Robert Trivers and others have pointed out that “tit-for-tat” closely mirrors our human social emotions. We are often predisposed to assist another person if we can, and we are grateful if our help is reciprocated. But if we are double-crossed, we get outraged, and if we double-cross someone else we feel guilty. Evolution has endowed us with the optimal strategy!
I mentioned earlier that I learned early on about the power of reciprocity in how I talked to people in court. I am not the only one. Savvy marketers know that if they want people to complete a survey and mail it in, they are better off putting a gift in the survey than promising compensation for people who turn it in. Our society is based on bargaining; often it is better to start by giving.
Empathy. We can sometimes feel what others feel. Probably due to the years of nurturing required for human children, and the pair-bonding that helped us survive on the savannahs, humans developed the capacity for empathy. Empathy is complicated. It consists of mirror neurons that internally replicate what someone else is going through, the cognitive capacity to appreciate that other people see things differently (called “theory of mind”), and a self-control mechanism to temporarily suspend our self-centeredness. The importance of empathy is evident in what happens when any of these components breaks down: psychopaths lack the ability to mirror what others are going through, those with autism apparently lack theory of mind, and narcissists can’t control their self-centeredness.
Like group loyalty, empathy has a dark side. We are more readily empathetic to people who seem like us, and have a harder time appreciating the experience of people who seem different. But this is also an opportunity—since evolution has generated similarities in all humans that are far greater than their variations, getting to know someone personally almost always generates empathy.
Integrating our Instincts for Peacemaking into Law and Politics
Space here does not permit me to duplicate a semester’s work of analyzing the kinds of circumstances that call forth these peacemaking tendencies in our nature. But let me sketch a few examples.
PISLAP often finds itself supportive of a series of legal reforms called “Integrative Law.” These are attractive alternatives to our current adversary legal system. That system inflames some of our less attractive evolutionary instincts. The criminal justice system is fueled by revenge. And just imagine the reciprocal reaction triggered by being “served” with a Summons and Complaint detailing your misdeeds.
By contrast, the reforms of the Integrative Law movement, probably unintentionally, incorporate our natural instincts for peace.
For example, conscious contracting turns traditional contracting on its evolutionary head. Instead of triggering out-group hostility through negative language and endless protections against the ways each party can take advantage of the other, conscious contracting stimulates the impulse toward group loyalty. The focus is on the parties understanding each other and aligning their visions of what they want to accomplish together. I tell my students that if they ever get into creating contracts for big construction projects, I want to see T-shirts for all the owners, architects, contractors, and subs that say, e.g., “The 2618 Fourth Street Team.”
Problem Solving (or Treatment) courts like Drug Courts are explicitly based on reciprocity. Attaining milestones is rewarded; program violations earn a tailored sanction. But more important is the whole atmosphere. Instead of encountering shaming and punishment, the participants are met right at the start with kindness and support. Their reciprocal response to this unexpected gift is so strong that it starts many participants on a road of recovery they have never been able to walk before. And many problem-solving courts go further and trigger kinship impulses through close mentors and sponsors.
Restorative justice combines empathy with group loyalty. Sitting in a circle signifies a unified group of equals with a common purpose and, of course, is how traditional societies made decisions for thousands of years. And the usual restorative justice process triggers empathy for the participants by eliciting their stories in a way that a courtroom never can.
And so it goes. Collaborative law employs team building and restoring the parties’ shared kinship impulses toward their children. Procedural fairness in courts emphasizes respect, and parties reciprocate with better compliance. I believe transformative mediation also works because of the reciprocity impulse—the whole goal is to foster empowerment in the participants, and as soon as someone is made to feel stronger they are more generous.
I hope the point is clear: our legal reforms should be built on mentoring, team building, unsolicited acts of generosity, and opportunities for people to get to know each other.
American politics is an evolutionary train-wreck. Most successful nation states can count on a certain core of group loyalty fostered by language, ethnicity, culture, religion, and history. Instead, this nation of immigrants, the descendants of slaves, and surviving enclaves of indigenous people is one of the most pluralistic societies in history. We are united only by shared values of freedom, equality of opportunity, and representative government.
Starting with only this evanescent basis for in-group loyalty, democracy itself then triggers intense out-group hostility. Political parties earn our loyalty by demonizing the opposition. Every election year the entire country is convulsed with tribal animosity. Rather than the intervening years providing a chance to identify shared goals, legislating then pits the two teams against each other in a winner-take-all process.
Tribalism has now put our politics in full-scale gridlock. Since managing a pandemic does not appear to provide enough of a superordinate goal to afford common ground, it is hard to imagine what would. But evolutionary science offers some guidance.
Empathy and team building still can be employed by building teams around specific goals that span parties. The Minnesota Legislature has a caucus that includes members of both parties who care about early childhood issues.
R.T.Rybak was a very successful mayor of my hometown, Minneapolis, Minnesota. I once heard him explain that he made a point of teaming with every one of the 13 city council members on at least one issue of mutual concern so there was never a total split between him and any bloc of council members.
One of the most successful initiatives to build bridges between “Reds” and “Blues” is the Braver Angels Project, which has conducted hundreds of evening and weekend workshops across the country. People come in as opposing members of a red or blue team, but a weekend together produces a new team with the shared goal of mutual understanding. Braver Angels is now expanding from working with interested citizens to bringing congressional staffs of representatives from opposite parties together.
Several commentators have started to notice that the creative initiatives in the U.S. seem to be happening at the local level. Of course-local issues tend to be practical and make it possible to build a team that cuts across ideological fault lines.
There is a role for reciprocity in politics also. My law school students role-played some of the controversies in the highly partisan Senate hearings about the nomination of Brett Kavanaugh to the United States Supreme Court. Even in this winner-take-all event, we had some success in at least developing better procedures when the partisan groups started to offer each other some of what the other side wanted, no strings attached.
Yes, even hardened adversaries might try some unsolicited acts of generosity.
In sum: spiritually oriented political activity needs to avoid the rigid ideological battle lines. American politics will bring out the best in people to the extent it can offer opportunities for administrators, legislators, and ordinary citizens to get to know each other, to form teams to address specific problems, and to generate positive cycles of reciprocity.
For me, evolution provides an ideal bridge between spirituality and law and politics. To be sure, evolution is a materialistic explanation of reality. Darwin would say, “Thank you very much, but no divine operator is required.”
But there is still this little mystery of creation, existence itself: call the creative force “God”, and either you believe God created nature or God is nature. (deism or pantheism). Modern physics confirms that something creative is going on: matter is just frozen energy, and both seem to involve consciousness.
So the theory of evolution leaves plenty of room for a divine presence. And for me an appreciation of evolution is spiritually enriching because it so clearly establishes the place of our species within nature—i.e., we are either God’s creation or a part of God itself– in a way that is humbling yet ennobling.
Evolution is humbling because it teaches us that humans and our cognitive capacities are no more special than any other species and their awesome abilities, be it the exquisitely accurate sonar of bats or the intricate communication within a grove of aspen trees. Our species is riding high right now, but our reign is far too short for congratulations. I can’t recall the evolutionary scientist who, when asked if there was likely to be other intelligent life in the universe, answered that there was certainly life out there somewhere—it has already evolved more than once on this planet and there are thousands of other planets to choose from. But the presence of other intelligent life is much less likely—that strategy has evolved only once among the millions of species on earth, and its long-term success is far from obvious.
I like a humbler humanity that knows its place among all the other life forms which were also created by or embody God.
But for me the ennobling is more significant than the humbling. Thinking about evolution requires distinguishing between ultimate and proximate means and ends. The ultimate goal that has shaped us may be successful and selfish reproduction. But the proximate means to accomplish that goal include the mental and emotional capacity to love deeply and write sonnets about it, to really care about others and sacrifice for them, to study evolution and marvel at it, to want to be a better person and to try to make the world a better place, to envision a God. These are real and honest components of our human nature. It didn’t have to work out that way. They are, if you will, gifts from God.
So, too, the four deep-seated instincts that enable us to live together in peace are especially fortunate gifts from God. Now that science has shown them to us, for the first time ever we have the chance to make our law and politics a showcase of what is best in people.
Bruce Peterson was a District Court Judge from 1999 to 2019 in Hennepin County, Minnesota, which includes Minneapolis and its suburbs. From 2006 to 2008 he was the presiding judge of Hennepin County Family Court. From 2008 to 2013 he initiated and presided over Co-Parent Court, offering supportive co-parenting services to low income, unmarried parents establishing paternity. From 2013 to 2016 he presided over the Hennepin County Drug Court and specialized calendars for people who are homeless and women charged with prostitution.
Judge Peterson was a special assistant in the Criminal Division of the Department of Justice, an Assistant United States Attorney for the District of Columbia, and a partner in the Minneapolis law firm of Popham, Haik, Schnobrich and Kaufman. He has written and spoken widely on issues of law and public policy. He was the 2013 recipient of the Hennepin County Bar Association Professionalism Award