Magazine article Tikkun

Spirituality and Law

Magazine article Tikkun

Spirituality and Law

Article excerpt

Peter Gabel is a professor of law and director of the Institute for Spirituality and Politics at New College of California. He is also the Associate Editor of TIKKUN.

Whenever we in the Tikkun Community talk about "a New Bottom Line" of love and caring, ethical and ecological sensitivity, and awe and wonder at the grandeur of creation, someone laughingly says, "yeah, try that with lawyers." Yet that is exactly what is being done in the ground-breaking work by Peter Gabel in the Project for Integrating Spirituality, Law, and Politics of the Tikkun Community. In what follows we present first a revised version of Gabel's keynote speech at the August 2002 retreat in which a group of lawyers from around the country who are building this alternative politics came together. Next we present a dialogue between Peter Gabel and Gary Friedman in which they explore the strengths and limits of "mediation" as a strategy for introducing a more explicit ethical focus into legal practice. We hope that people who are not lawyers will use this entire section as inspiration to begin this kind of critique and alternative-community building within their own professions. Let us know, because we'd like to be of assistance.

Every first-year law student in the United States reads the case of Mills v. Wyman. In brief, the facts of the case are these: in 1825, Levi Wyman, the twenty-five-year-old son of the man who became the defendant in the case, fell ill aboard a ship and was cared for by the Millses, a Hartford family with no prior relationship to Levi. After considerable time and expense and care bestowed by the Mills family, Levi died. The father promised to pay the Millses for their care and expenses but later broke his promise. Thus, Mills v. Wyman.

Our response to this young man's death might be to observe both its tragic nature and the generous impulse of the Mills' family. The law uses this case, however, to teach law students to set aside any meaningful connection they might want to make to Wyman or the Mills family and to think instead only about individualism, materialism, and self-interest. The law applied in this case is based on what in the field of contracts is called the "consideration doctrine," and the result can be summarized in the phrase, "You don't have to keep your promise unless it is made in exchange for payment."

Under this doctrine, for the promise to be enforceable a bargained-for benefit to the person making the promise is required. Since Mr. Wyman received his benefit (the care of his son) before he promised to pay for it, his promise is unenforceable, based on the notion that "past consideration is no consideration," as generally applied by courts interpreting the law in this country. Nor could the Millses argue that Mr. Wyman had been unjustly enriched (i.e., received services without paying for them). Since Levi was over the age of majority, the Millses, in assisting this person the law recognized to be an adult, had not performed an act leading to the imposition of a legal duty on the father, and therefore the father had not been unjustly enriched by services provided to his son.

In fact, everything about the case within traditional doctrine encourages the Millses not to care for the child; indeed, the inapplicability of the unjust enrichment concept because Levi was "too old" to remain someone for whom his father had a duty to care covertly conveys the message that upon reaching the age of majority a child is abruptly excommunicated from the world of family love and graduates into the world of strangers.

The use of the Mills v. Wyman case in the first-year law school curriculum demonstrates that the nature of the student learning process in law school involves an unconscious indoctrination of students into a set of values that define community members as strangers existing at "arm's length" who are not bound to each other if their respective self-interests--understood only in the material sense--are not served. …

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