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> | A Brief Exploration of Courageous Lawyering
-- By EmmaShumway - 06 Apr 2021
An Introduction
Despite the enduring societal value placed in courage, it is difficult to pinpoint an exact definition for this elusive trait. Is courage something that humans can make a conscious decision to work towards attaining? Is it a reflexive shift in personality state over which we have no control? Is it possible to measure our capacity for courage without being thrust into a life-or-death situation? Is it possible to live everyday life as a deliberately courageous person? Our generation is facing a number of unfathomable challenges that require courageous leaders, and lawyers have the knowledge and stature to be such leaders. So how can we become courageous lawyers?
Defining Courage
The Webster dictionary defines courage as the “mental or moral strength to venture, persevere, and withstand danger, fear, or difficulty.” This definition leaves room for the confusion that has surfaced in an etherpad discussion-- we must be careful not to conflate courage with bravery or confidence. While they are overlapping concepts, the philosophical distinction can be found in Aristotle’s take on courage: “the courageous man withstands and fears those things which it is necessary [to fear and withstand] and on account of the right reason, and how and when it is necessary [to fear or withstand] them, and likewise in the case of being bold.” This description illuminates a unique component of courage; not only must it involve overcoming a fear, but it must be the right fear, addressed at the right time, using the right means to do so. While a lawyer may overcome a fear of tainting his reputation when representing an undeserving client, it is unlikely that Aristotle would describe this behavior as courageous. Had John Brown sacrificed his life in favor of slavery, rather than in protest of it, Thoreau would not have painted him as the emblem of courage. However, attaching courage to a moral cause is under-inclusive to a fault, as it erases those who face daily struggles like chronic illness and grief. A glimpse into the psychology of courage helps reconcile this inconsistency.
Psychology of Courage
Courage is the subject of extensive psychological research and psychologists have yet to reach consensus on the precise definition. According to this clinical psychology dissertation and a few other studies (my sources were admittedly limited due to pay-walls), psychologists have identified different categories of courage: psychological, moral, physical, and vital. Those who struggle with chronic physical or mental health conditions exhibit psychological courage; people who choose to be optimistic in the face of adversity embody vital courage; individuals who act in moments of physical danger demonstrate physical courage; and those who stand up for good at risk to their personal well-being exhibit moral courage.
Sources of Courage
While as Winston Churchill put it, “Fear is a reaction. Courage is a decision,” there are undeniable neurological and physical links to courage. The fight-or-flight response is an amygdala-induced automatic release of stress hormones in response to danger that leads to the familiar physical symptoms of adrenaline, such as rapid heartbeat and trembling. As a result, there is debate over the autonomy involved in physical courage. The decision to “fight” rather than flee is not typically conscious. Moreover, the pure fight-or-flight response appears to be limited to situations involving physical danger. As lawyers, we will rarely be faced with circumstances that require physical courage and will likely be met with personal hardships that require both psychological and vital courage throughout our lives. However, the courage that is the most relevant to lawyering as a profession is moral courage. This category is almost certainly a choice rather than a reflex, although we may not know how we will measure up until we find ourselves in a situation that is in itself out of our control. A quick google search reveals the widely held belief that faith in god is the source of moral courage. Although an unappealing concept to many, it is undeniable that there is a pattern of religious belief in the most selfless, courageous leaders like MLK. However, I contend that faith need not be confined to religion. We can derive courage from having faith in people, a cause worth fighting for, or simply ourselves.
Lawyering with Moral Courage
When asked to describe his legal philosophy, Thurgood Marshall said, "You do what you think is right and let the law catch up.” RBG, on the other hand, said that “real change, enduring change, happens one step at a time.” William Kunstler’s monologue depicted in the Trial of the Chicago 7 carried the drama of a fictional Hollywood script, but the words were historically accurate: “If I have to lose my license to practice law and if I have to go to jail, I can’t think of a better cause to go to jail for and to lose my license for than to tell your Honor that you are doing a disservice to the law in saying we can’t have Ralph Abernathy on the stand.” These lawyers all have something in common; they exhibit Aristotle’s definition of courage. Their careers were marked by demonstrations of courage when it was the right time and for the right reason and when there was great personal risk. Whether that be Kunstler’s license, or at times, the risk of physical retaliation to both Marshall and Ginsburg rising to positions of such prestige without being white men, these lawyers took risks because they knew there was something greater at stake. The contrast between Marshall’s progressive legal philosophy and Ginsburg’s more incremental outlook indicates the variety of forms that courageous lawyering can take. As long as the key elements are present: risk or fear, the right reason, strategic timing, and faith in the mission of your work, moral courage can be found. The key to courageous lawyering is thus determining the right reason, and that is a personal decision for another essay. |